Kathleen N. Barrett v. Thomas M. Chesney, MD

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

August 11, 2015 Session

KATHLEEN N. BARRETT, ET AL. v. THOMAS M. CHESNEY, MD

Appeal from the Circuit Court for Shelby County

No. CT00084913 Robert Samual Weiss, Judge

________________________________

No. W2014-01921-COA-R9-CV – Filed September 28, 2015

_________________________________

This interlocutory appeal arises from a health care liability action and concerns the question

of proper venue. Plaintiff filed her original lawsuit in Shelby County against the Appellants,

a pathology group located in Shelby County. Appellants answered the complaint and raised,

as an affirmative defense, the comparative negligence of Appellees, plaintiff‟s primary care

physician and his employer, who are residents of Sumner County. Plaintiff then moved,

under Tennessee Code Annotated Section 20-1-119, for leave to amend her complaint to add

the Sumner County residents to the lawsuit. Leave was granted, and plaintiff filed an

amended complaint under Tennessee Rule of Civil Procedure 15.01. Appellees answered the

complaint and averred that venue was improper in Shelby County under Tennessee Code

Annotated Section 20-4-101(b). Appellees asked for dismissal of the lawsuit; however,

rather than dismissing the lawsuit, the Shelby County court transferred the case to Sumner

County. Appellants appeal. We affirm and remand.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court is

Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,

P.J., W.S., and BRANDON O. GIBSON, J., joined.

Albert C. Harvey and Justin N. Joy, Memphis Tennessee, for the appellants, Trumbull

Laboratories, LLC, Thomas M. Chesney, and Pathology Group of the Midsouth, PC.

John F. Floyd, Nashville, Tennessee, for the appellant, Kathleen N. Barrett.

Marty R. Phillips and John O. Alexander, IV, Memphis, Tennessee, for the appellees,

Michael Kellogg, Portland Primary Care, LLC, Portland Primary Care, LLC d/b/a Tristar

Medical Group-Fairvue, and Portland Primary Care, LLC d/b/a Tristar Medical Group-

Fairvue Primary Care.

OPINION

I. Background

On or about April 12, 2011, Appellant Kathleen N. Barrett, who is a resident of

Sumner County, Tennessee, underwent a biopsy of a lesion on her right calf. Ms. Barrett‟s

primary care physician, Dr. Michael S. Kellogg, performed the biopsy. Dr. Kellogg sent the

biopsied specimen to American Esoteric Laboratories, Inc. Thereafter, American Esoteric

Laboratories transferred the specimen to Trumbull Laboratories, Inc., where it was analyzed

by Dr. Thomas M. Chesney, an employee of Pathology Group of the Midsouth, P.C. (together

with Dr. Chesney and Trumbull Laboratories, Inc., the “Pathology Group Appellants”). The

Pathology Group Appellants are located in Shelby County, Tennessee. Dr. Chesney prepared

a pathology report, wherein he diagnosed Ms. Barrett‟s specimen as non-cancerous. In light

of the pathology report, Ms. Barrett did not immediately seek further treatment for the lesion

on her calf.

On or about January 30, 2012, Ms. Barrett returned to Dr. Kellogg because the lesion

on her leg had changed in appearance. Dr. Kellogg took another biopsy, which he sent to

Quest Diagnostics. The reviewing physician at Quest Diagnostics concluded that the biopsy

was positive for malignant melanoma. Thereafter, Ms. Barrett commenced treatment at

Vanderbilt University Medical Center. Ms. Barrett‟s Vanderbilt doctors obtained the original

April 12, 2011 specimen. On review of the specimen, a Vanderbilt dermatopathologist

concluded that the original specimen was positive for malignant melanoma.

On February 26, 2013, Ms. Barrett (“Appellant”) filed a health care liability complaint

against the Pathology Group Appellants,1 and American Esoteric Laboratories, Inc.2 Because

the Pathology Group Appellants were located in Shelby County, Ms. Barrett filed her

complaint in the Shelby County Circuit Court. On April 5, 2013, the Pathology Group

Appellants filed a joint answer, denying the material allegations contained in the complaint.

In the answer, the Pathology Group Appellants also asserted, as an affirmative defense,

negligence on the part of Ms. Barrett for failure to “follow up or seek medical treatment, and

1

We note that the original complaint was filed by Ms. Barrett and her husband Rickey J.

Barrett. However, an order of dismissal as to Mr. Barrett was entered on September 30, 2013.

2

On July 23, 2013, the trial court entered an order of voluntary non-suit without prejudice as

to American Esoteric Laboratories, Inc.

2

fail[ure] to follow medical instructions.” On October 11, 2013, the trial court entered an

agreed order, wherein the Pathology Group Appellants were required to “identify all

individuals and/or entities they believe are comparatively at fault in this matter, and [to]

disclose the basis for such fault.” On November 26, 2013, the Pathology Group Appellants

filed a motion for leave to amend their answer. The trial court granted the motion, and, on or

about December 4, 2013, the Pathology Group Appellants filed their first amended answer.

Therein, the Pathology Group Appellants raised, as an affirmative defense, the comparative

negligence of Dr. Michael Kellogg, Portland Primary Care, LLC, Portland Primary Care,

LLC d/b/a Tristar Medical Group-Fairvue, and Portland Primary Care, LLC d/b/a Tristar

Medical Group-Fairvue Primary Care (together, “Appellees”). Specifically, the Pathology

Group Appellants alleged that Dr. Kellogg was negligent in “not communicating to [Ms.

Barrett] Dr. Chesney‟s April 2011 recommended course of treatment that the lesion on [her]

leg „should be completely excised.‟” In addition, the Pathology Group Appellants alleged

that Dr. Kellogg‟s treatment of Ms. Barrett failed to comply with the recognized standard of

acceptable professional care in that he allegedly failed to “offer. . . and/or carry out the

recommended course of treatment within a reasonable time, despite numerous office visits

after the April 2011 recommendation from Dr. Chesney.”

On January 6, 2014, “pursuant to Tennessee Code § 20-1-119 and Tennessee Rule of

Civil Procedure 15,”3 Ms. Barrett filed a motion for leave to amend her complaint. Therein,

she noted the Pathology Group Appellants‟ affirmative defense of comparative fault on the

part of Appellees and requested leave to amend her complaint to add Appellees as defendants

in the health care liability action. The trial court granted Ms. Barrett‟s motion by order of

January 14, 2014. On January 24, 2014, Ms. Barrett filed her “First Amended Complaint,”

3

Tennessee Code Annotated Section 20-1-119 provides, in pertinent part, that:

(a) In civil actions where comparative fault is or becomes an issue, if a defendant

named in an original complaint initiating a suit filed within the applicable statute of

limitations, or named in an amended complaint filed within the applicable statute of

limitations, alleges in an answer or amended answer to the original or amended

complaint that a person not a party to the suit caused or contributed to the injury or

damage for which the plaintiff seeks recovery, and if the plaintiff's cause or causes of

action against that person would be barred by any applicable statute of limitations but

for the operation of this section, the plaintiff may, within ninety (90) days of the

filing of the first answer or first amended answer alleging that person's fault, either:

(1) Amend the complaint to add the person as a defendant pursuant to Tenn. R. Civ.

P. 15 and cause process to be issued for that person. . . .

3

naming the Pathology Group Appellants and the Appellees as defendants. On February 26,

2014, Appellees filed an answer, wherein they averred that “[v]enue is not proper in Shelby

County.” Specifically, Appellees alleged that Ms. Barrett and Dr. Kellogg reside in Sumner

County and that the cause of action between them arose in Sumner County. Therefore,

relying on the Tennessee Venue Statute, Tennessee Code Annotated Section 20-4-101,

Appellees asserted that proper venue lay in Sumner County. On March 17, 2014, Appellees

moved for dismissal on the ground of improper venue. Ms. Barrett opposed the motion in

her response filed on April 30, 2014. Likewise, on May 22, 2014, the Pathology Group

Appellants filed a response in opposition to the Appellees‟ motion to dismiss.

The trial court heard Appellees‟ motion to dismiss for lack of proper venue on June

20, 2014. By order of June 30, 2014, the trial court held that, “[r]ather than dismissing the

case against [Appellees] for improper venue,” it had “discretion to transfer the matter to the

Sumner County Circuit Court under Tennessee Code Annotated § 16-1-116. . . .”

Accordingly, the court held that “[t]he Sumner County Circuit Court is the only court with

jurisdiction to hear this entire action” and ordered that the case would be transferred “in its

entirety as to all Defendants to the Sumner County Circuit Court.”

On September 22, 2014, the trial court granted Appellants‟ motion for permission to

seek interlocutory appeal under Tennessee Rule of Appellate Procedure 9. This Court

granted the interlocutory appeal by order of December 9, 2014.

II. Issues

We perceive the dispositive issue in this case as whether the amendment to a

complaint to add defendants that reside in the plaintiff‟s county of residence negates venue in

the Shelby County court under Tennessee Code Annotated Section 20-4-101(b).

III. Standard of Review

The sole issue on appeal is whether the Shelby County trial court erred in transferring

the case for improper venue. The determination of whether venue is proper is a question of

law, which we review de novo with no presumption of correctness. Lanius v. Nashville Elec.

Serv., 181 S.W.3d 661, 663 (Tenn. 2005).

IV. Analysis

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As an initial matter, we note that, in its June 30, 2014 order, the trial court appears to

use the terms “venue” and “jurisdiction” synonymously, i.e., the order states “[r]ather than

dismissing the case against [Appellees] for improper venue,” and also states that “[t]he

Sumner County Circuit Court is the only court with jurisdiction to hear this entire action.”

Subject-matter jurisdiction addresses a court‟s authority to adjudicate a dispute brought

before it. See Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000). It is

dependent on the nature of the controversy as well as the relief sought. Id. Venue, on the

other hand, does not affect the court‟s authority to rule on matters before it; rather, it relates

“to the appropriateness of the location of the action.” Meighan v. U.S. Sprint Commc’n Co.,

924 S.W.2d 632, 639 (Tenn. 1996). Here, we are concerned only with the question of proper

venue.

“Tennessee venue rules are largely statutory and are intended to provide the criteria

for determining where a lawsuit may or should be filed.” Mays v. Henderson, No. 01-A-

019103CV00115, 1992 WL 117058, *2 (Tenn. Ct. App. June 3, 1992) (citing Metropolitan

Dec. & Hous. Agency v. Brown Stove Works, Inc., 637 S.W.2d 876, 880 (Tenn. Ct. App.

1982)). These statutes provide a defendant a personal privilege to be sued in a particular

county or counties. Id. (citing Turpin v. Conner Bros. Excavating Co., 761 S.W.2d 296,

297 (Tenn. 1988); Corby v. Matthews, 541 S.W.2d 789, 791 (Tenn. 1976)). “However, when

the venue statutes permit an action to be filed in more than one place, it is the plaintiff, not

the defendant, who may choose where the suit will be filed.” Id. (citing Dealer Serv. Plan,

Inc. v. Chabarria, 543 S.W.2d 740, 742 (Tex. Civ. App. 1976); Florida Farms, Inc. v.

Barkett Computer Servs., Inc., 311 So.2d 730, 731 (Fla. Dist. Ct. App. 1975)).

It is undisputed that the instant case is transitory in nature. “Actions are either local or

transitory in nature, and the subject matter of the action determines its classification.”

Nickell, Inc. v. Psillas, et al., No. M2004-02975-COA-R3-CV, 2006 WL 1865018, *2, f n. 3

(Tenn. Ct. App. June 30, 2006) (citing State ex rel Logan v. Graper, 4 S.W.2d 955 (Tenn.

Ct. App. 1927); Burns v. Duncan, 133 S.2d 1000 (Tenn. Ct. App. 1939)). “Transitory

actions are those that could have arisen anywhere.” Id. (citing Curtis v. Garrison, 364

S.W.2d 933, 934 (Tenn. Ct. App. 1963)). In other words, “[a] transitory action is one for

which the injury occurred to a subject not having an immovable location.” Id. (citing Five

Star Express, Inc. v. Davis, 866 S.W.2d 944, 945 (Tenn. Ct. App. 1993)). Although, at

common law, a plaintiff could file a transitory action wherever the defendant could be found,

“[a]lmost two hundred years ago, the General Assembly modified the common law rule by

enacting statutes intended to localize transitory causes of action.” Mays, 1992 WL 117058,

*2 (citing White v. Garner, 241 S.W.2d 518, 519-20 (Tenn. 1951); Haynes v. Woods, 268

S.W. 632, 633 (Tenn. 1925)).

Tennessee Code Annotated Section 20-4-101 is Tennessee‟s primary localizing statute

for transitory actions. It provides, in relevant part:

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(a) In all civil actions of a transitory nature, unless venue is otherwise

expressly provided for, the action may be brought in the county where the

cause of action arose or in the county where the individual defendant resides.

(b) If, however, the plaintiff and defendant both reside in the same county in

this state, then the action shall be brought either in the county where the cause

of action arose or in the county of their residence.

As discussed in Mays:

Under Tenn. Code Ann. § 20-4-101, either the place where the cause of

action occurred or where the defendant resides dictates where the suit may be

filed. Residence, as a venue influencing criterion, refers not to a defendant‟s

residence when the cause of action occurs but rather to the defendant's

residence when the plaintiff files suit. Northcott v. Holloway, 225 Tenn. 141,

145, 464 S.W.2d 551, 553 (1971).

In cases where both the plaintiff and the defendant reside in the same

county, Tenn. Code Ann. § 20-4-101(b) clearly requires the suit to be filed

either in the county where the cause of action arose or in the county where

both parties reside. Localizing a transitory cause of action to the county where

both parties reside was intended to prevent the plaintiff from surprising the

defendant away from home in a forum where it would have been more difficult

or less convenient to defend. Haynes v. Woods, 151 Tenn. at 167, 268 S.W. at

633; S. Gilreath & B. Aderholt, Caruthers' History of a Lawsuit § 41, at 44 (8th

ed. 1963).

Tenn. Code Ann. § 20-4-101(b) is couched in singular terms, and thus

its application to cases involving multiple defendants is not readily apparent. . .

. [W]here all the parties reside in the same county. . . it is reasonable to

conclude that both prosecuting and defending the case will be most convenient

in the county where all the parties reside. The same may not hold true in cases

where one or more of the material defendants reside in different counties.

In cases where all the defendants do not reside in the same county, the

majority rule is that venue is proper wherever any one of the material

defendants against whom substantial relief is sought resides. See 77 Am.Jur.2d

Venue § 33 (1975); 92 C.J.S. Venue § 93(a) (1955). Tennessee, however, does

not follow the majority rule. The Tennessee Supreme Court has held that a suit

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involving a transitory cause of action must be filed in the county where the

cause of action arose if the plaintiff and at least one material defendant resides

there. Tims v. Carter, 192 Tenn. 386, 391, 241 S.W.2d 501, 503 (1951).

Mays, 1992 WL 117058, *2-*3. In Tims, our Supreme Court specifically held:

We, therefore, conclude that where the plaintiff and a material defendant or

defendants reside in the same county, this county being the county where the

cause of action accrued, that then the county of the residences of these parties

should be the county of action for venue purposes.

Tims v. Carter, 241 S.W.2d 501, 503 (Tenn. 1951).

In its June 30, 2014 order, the trial court determined that venue lies in Sumner County

and reasoned that

the action against [Appellees] is localized to Sumner County under Section 20-

4-101(b). . . and case law construing it to include Mills v. Wong, 39 S.W.3d

188 (Tenn. Ct. App. 2000). . . .

Section 20-4-101(b) provides that if “the plaintiff and defendant both

reside in the same county in this state, then the action shall be brought either in

the county where the cause of action arose or in the county of their residence.”

Under Mills, “when the critical factors converge in one county, that county is

the proper venue.” Id. at 189. Mills also provides that Section 20-4-101(b) is

“mandatory” and applies when the “case presents a scenario in which multiple

defendants residing in or having their principal places of business in multiple

counties are sued for separate acts of medical malpractice as part of a single

action.” Id. at 189-90.

It is undisputed that Plaintiff, Kathleen Barrett, resides in Sumner

County and has resided there at all time pertinent; that [Appellees] reside in

Sumner County and have resided there at all times pertinent; and that the cause

of action brought by Plaintiff against [Appellees] arose in Sumner County.

Therefore, venue is not proper in Shelby County as against [Appellees]. The

only proper venue for the cause of action against [Appellees] is Sumner

County.

As noted by this Court in Mays, Tennessee Code Annotated Section 20-4-101(b) “is

couched in singular terms, and thus its application to cases involving multiple defendants is

7

not readily apparent.” Mays, 1992 WL 117058, at *3. In the Mills case, upon which the

trial court relied, the plaintiffs were residents of Lauderdale County, Tennessee. Mills v.

Wong, 39 S.W.3d 188 (Tenn. Ct. App. 2000), perm. app. denied (Tenn. March 5, 2001). The

Mills plaintiffs filed a health care liability complaint in Shelby County against four

defendants, who were all residents of Shelby County. Id. The causes of action against the

Shelby County defendants arose in Shelby County. After filing the lawsuit, the plaintiffs

were granted leave, under Tennessee Rule of Civil Procedure 20,4 to join Dr. Luis Wong as a

defendant in the lawsuit. Id. at 189. Dr. Wong was a resident of Lauderdale County, and the

causes of action against him arose in Lauderdale County. After he was joined in the lawsuit,

Dr. Wong filed a motion seeking dismissal of the plaintiffs‟ case against him on grounds that

venue in Shelby County was improper. Id. The trial court denied Dr. Wong‟s motion, and

this Court granted an interlocutory appeal to address the venue question. Id. On appeal,

this Court framed the issue as “whether, by virtue of the fact there are multiple defendants

from multiple counties, proper joinder of a party under Rule 20 changes the venue analysis.”

Id.

In Mills, this Court reversed the trial court and dismissed the complaint against Dr. Wong for

improper venue. Id. at 190. In so ruling, we relied on the Tims holding, supra, for the

proposition that “[t]he language of Tenn. Code Ann. § 20-4-101(b) is mandatory and has

been consistently recognized as such.” Id. at 190. In addition to Tims, the Mills court relied

on Professor Pivnick‟s Tennessee Circuit Court Practice, stating:

First, if venue is proper as to one of several defendants who is a material party,

venue is proper as to all properly joined defendants, even if venue would not

4

Tennessee Rule of Civil Procedure 20.01 governs permissive joinder of parties. The Rule

provides:

All persons may join in one (1) action as plaintiffs if they assert any right to relief

jointly, severally, or in the alternative in respect of or arising out of the same

transaction, occurrence, or series of transactions or occurrences and if any question of

law or fact common to all these persons will arise in the action. All persons may be

joined in one (1) action as defendants if there is asserted against them jointly,

severally, or in the alternative, any right to relief in respect of or arising out of the

same transaction, occurrence, or series of transactions or occurrences and if any

question of law or fact common to all defendants will arise in the action. A plaintiff

or defendant need not be interested in obtaining or defending against all the relief

demanded. Judgment may be given for one or more of the plaintiffs according to their

respective rights to relief, and against one or more defendants according to their

respective liabilities.

8

be proper as to the other defendants if sued individually. An exception,

however, applies as to a defendant having common county residence with the

plaintiff.

Mills, 39 S.W. 3d at 190 (quoting Lawrence A. Pivnick, Tennessee Circuit Court Practice §6-

2 (1999) (citations omitted)) (emphasis in original). Based on these authorities, we

concluded that, “[i]f this case were simply the [plaintiffs] suing [Dr. Wong], Lauderdale

County would be the proper venue pursuant to T.C.A. § 20-4-101(b). We find nothing which

would lead us to conclude that the addition of the Shelby County defendants does anything to

change that fact.” Id. We clarified this holding in a footnote, stating “[s]pecifically, we do

not believe that joinder under Rule 20 can cure what would otherwise be an improper venue.

We note, however, that our holding should not be extended outside the context of a case

involving T.C.A. §20-4-101(b).” Id. at 190, fn. 4.

In this case, Ms. Barrett did not add the Appellees to the lawsuit by permissive joinder

under Tennessee Rule of Civil Procedure 20. Here, Ms. Barrett added the Appellees by

amending her complaint under Tennessee Rule of Civil Procedure 15.01 and pursuant to

Tennessee Code Annotated Section 20-1-119, see footnote 3. In this regard, the Mills case is

distinguishable from the instant appeal, which is more closely aligned with the case of

Hutchings v. Methodist Hospital of McKenzie, W2001-01269-COA-R9-CV, 2000 WL

33774484 (Tenn. Ct. App. June 2, 2000).

In Hutchings, Judge (now Justice) Kirby, writing for this Court, draws a distinction

between the filing of an amendment to a complaint and the filing of an amended complaint as

those distinct actions bear on the question of venue. An “amended complaint,” complete in

itself without adoption or reference to original, supersedes and destroys the original

complaint as a pleading, while an “amendment” to a complaint merely modifies the existing

complaint, which remains before the trial court as modified. McBurney v. Aldrich, 816

S.W.2d 30 (Tenn. Ct. App. 1991) (citing Louisville & N.R. Co. v. House, 104 Tenn. 110, 56

S.W. 836 (1900)), perm. app. denied (Tenn. Sept. 3, 1991). In Hutchings, Plaintiff/Appellee

John Hutchings, a Weakley County resident, was treated in the emergency room at

Defendant/Appellee Methodist Hospital of McKenzie, which is located in Carroll County.

Id. at *1. Defendant/Appellee Dr. John Freeman examined Mr. Hutchings at Methodist

McKenzie and determined that he suffered from a vascular insufficiency in his right leg. Id.

Dr. Freeman advised Mr. Hutchings to go home and to schedule an appointment the

following day with his family physician, Defendant/Appellant Dr. Sidney Ray, a Carroll

County resident. Id. Dr. Ray examined Mr. Hutchings the following day and advised him to

return home while Dr. Ray‟s office made an appointment for Mr. Hutchings to be examined

by a specialist. Id. Two days later, Dr. Ray‟s office contacted Mr. Hutchings and told him to

go immediately to Methodist Hospital of Memphis in Shelby County. Id. Mr. Hutchings was

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subsequently admitted to the emergency room at Methodist Memphis. Id. On October 3,

1994, his right leg was amputated at Methodist Memphis. Id.

Mr. Hutchings filed suit in Shelby County against Methodist McKenzie, Methodist

Memphis, Dr. Freeman, and his treating physicians in Memphis. Id. Three days later, Mr.

Hutchings filed an identical lawsuit in Carroll County. Id. Dr. Ray was not named as a

defendant in either lawsuit. Id. Mr. Hutchings subsequently filed a motion asking the

Carroll County court to transfer the Carroll County lawsuit to Shelby County. Id. at *2. At

the same time, Mr. Hutchings filed a motion to amend his Carroll County complaint by

deleting Methodist Memphis and the other Shelby County defendants. Id. Mr. Hutchings

ultimately non-suited his Carroll County lawsuit.

Thereafter, a series of agreed orders were entered in Shelby County, dismissing all of

the Shelby County physicians from the Shelby County lawsuit except Dr. Alan Hammond.

Id. Likewise, Methodist Memphis was dismissed from the lawsuit by grant of summary

judgment, thus leaving Dr. Hammond as the sole Shelby County defendant. Id.

Within one year of entry of the non-suit in the Carroll County lawsuit, Mr. Hutchings

filed a second lawsuit in Carroll County. Id. This lawsuit named only Methodist McKenzie

and Dr. Freeman as defendants. Id. Shortly thereafter, in the Shelby County lawsuit,

Methodist McKenzie and Dr. Freeman filed an amended answer, in which they identified Dr.

Ray and Dr. Hammond as potentially liable parties. Id. Methodist McKenzie and Dr.

Freeman filed a similar amended answer in the Shelby County lawsuit. The Shelby County

trial court granted Mr. Hutchings permission to amend his complaint; a virtually identical

order was entered in Carroll County. Id. at *3. Mr. Hutchings amended his complaints, in

both Shelby County and Carroll County, to name Methodist McKenzie, Dr. Freeman, and Dr.

Ray as defendants. Id. At that point, all defendants resided in Carroll County, and the

negligent conduct alleged occurred in Carroll County. Id. Dr. Ray filed a motion to dismiss

for improper venue in Shelby County. Id. Mr. Hutchings filed a motion to transfer the

Shelby County lawsuit to Carroll County for consolidation with the Carroll County lawsuit.

Id.

The Shelby County court issued an order holding that venue in Shelby County was

proper when Mr. Hutchings originally filed his action there; that Dr. Ray was properly added

as a defendant in the case; and that the case was transferable to Carroll County. Id.

Accordingly, the Shelby County court denied Dr. Ray‟s motion to dismiss and granted Mr.

Hutchings‟ motion to transfer the Shelby County lawsuit to Carroll County. Id. The Carroll

County court issued an order accepting the transfer. Id. The Carroll County court found that

Mr. Hutchings had properly and timely amended his complaint under Tennessee Code

Annotated Section 20-1-119 to add Dr. Ray as a defendant to his Shelby County action and

10

that the case was transferrable to Carroll County. Id.

After granting interlocutory appeal under Tennessee Rule of Appellate Procedure 9,

we reviewed the question of proper venue and noted:

In this case, Hutchings‟ original Shelby County complaint contained

allegations of negligent conduct occurring in both Shelby County and Carroll

County. Therefore, for purposes of determining venue, his cause of action

arose in Shelby County and Carroll County. The original Shelby County

complaint named defendants residing in both Shelby County and Carroll

County. . . .

Hutchings filed his amended Shelby County complaint. . . to add Dr.

Ray as a defendant under Tennessee Code Annotated § 20-1-119. See Tenn.

R. Civ. P. 15.01. In the amended Shelby County complaint, Hutchings named

as defendants Dr. Ray, Methodist McKenzie and Dr. Freeman, all Carroll

County residents. The negligent conduct alleged against these defendants in

the amended complaint occurred in Carroll County. As noted above,

Tennessee Code Annotated §20-4-101 provides that venue is proper “in the

county where the cause of action arose or in the county where the defendant

resides or is found.” Id. Consequently, venue in Shelby County was improper

as to Dr. Ray if based only on the amended complaint because the amended

complaint did not name a Shelby County resident as a defendant nor did it

allege negligent conduct against the defendants named in the amended

complaint occurring in Shelby County.

In his original Shelby County complaint, Hutchings named Dr. Alan

Hammond, a Shelby County resident, as a defendant. The record contains no

order dismissing Dr. Hammond from the suit; however, he is not named as a

defendant in the Shelby County amended complaint. . . . If the amended

complaint was intended to supplement the original complaint instead of

completely replacing it, and if Dr. Hammond was a defendant in the case when

the amended complaint was filed, venue in Shelby County was proper as to Dr.

Ray when the amended complaint was filed. . . . As noted above, whether

venue was proper as to Dr. Ray at the time the amended complaint was filed

hinges on whether Dr. Hammond, the lone remaining named Shelby County

defendant, was a defendant when the amended complaint was filed. This

depends on whether. . . the amended complaint was intended to replace or

supplement the original complaint.

Hutchings, 2000 WL 33774484, at *5-*6. Because we could not determine whether “the

amended complaint was intended to replace or supplement the original complaint,” we

11

remanded “the case to the Carroll County trial court for a determination of whether the

amended Shelby County complaint was intended to supplement or replace the original

complaint. . . .” Id. at *6. Although procedurally convoluted and distinguishable from the

instant case, the Hutchings case does indicate that, in cases such as the one at bar, where a

party is added by some amendment to the complaint, the question of proper venue rests on

whether the Rule 15.01 amendment was meant to supersede and replace the original

complaint (i.e., amended complaint), or whether the amendment was meant only to change or

supplement the original (i.e., amendment to the complaint). As noted by the Hutchings

Court, “[i]f the amended complaint was intended to supplement the original complaint

instead of completely replacing it, and if Dr. Hammond[, a Shelby County resident,] was a

defendant when the amended complaint was filed, venue in Shelby County was proper as to

Dr. Ray.” Because an amendment to a complaint merely modifies the original complaint, the

original complaint still forms the basis for a determination of proper venue. However, the

inverse is also true: if the amended complaint is meant to replace and supersede the original

complaint, then the trial court must determine venue based on the amended complaint. So,

here, the question is whether Ms. Barrett‟s First Amended Complaint is, indeed, an amended

complaint, which replaces the original, or whether it is merely an amendment to the original

complaint. We now turn to address that question.

As set out above, in Hutchings, this Court looked to the order granting the amendment to the

complaint in order to determine whether the amended complaint was a superseding complaint

or merely a modification of the original. Specifically, the Hutchings Court states that “[t]he

amended Shelby County complaint could be construed as a substitute, intended to replace the

original complaint. However, the amended complaint was filed pursuant to the trial court‟s

order granting leave to amend. This order does not grant leave to file an amended or

substitute complaint; rather, it states that Hutchings was “allowed to amend” his original

complaint, i.e., to change or supplement the original complaint.” Likewise, in the instant

case, the trial court‟s order of January 14, 2014 allows Ms. Barrett to “amend her Complaint

to add additional Defendants . . . .” Importantly, the Hutchings case was decided in 2000,

which was prior to the 2007 amendment to Tennessee Rule of Civil Procedure 15.01, see

footnote 5, infra.

Tennessee Rule of Civil Procedure 15.01 currently provides, in relevant part, that,

“[f]or amendments adding defendants pursuant to Tenn. Code Ann. § 20-1-119. . . written

consent of the adverse party or leave of the court is not required.” The Advisory

Commission Comment to Rule 15.01 clarifies that, “[b]ecause Tenn. Code Ann. §20-1-119

allows potential comparative tortfeasors pleaded in the answer to be added to the complaint,

there is no reason to trouble the trial court with permission to amend.”5 Although not

5

Before the 2007 amendment to Tennessee Rule of Civil Procedure 15.01, which added the

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required under Rule 15.01, here, Ms. Barrett did file a motion “for leave to amend her

complaint.” The trial court granted her motion by order of January 14, 2014. Specifically,

the court granted Ms. Barrett leave to “amend her complaint to add additional Defendants. . .

.” If the trial court‟s permission had been necessary under Rule 15.01, then we would

possibly be faced with the same problem that required remand in the Hutchings case, i.e.,

whether the trial court allowed the plaintiff to file an amended complaint, which would

supersede and replace the original complaint, or whether she was allowed to file only an

“amendment to” her original complaint, which would merely modify the original complaint,

not replace it. Under the holding in Hutchings, supra, the distinction between an amended

complaint and an amendment to a complaint affects the question of venue. However, since

the Hutchings decision, Rule 15.01 has been amended to clarify that a party seeking to

amend his or her complaint pursuant to Tennessee Code Annotated Section 20-1-119 does

not have to seek permission from the trial court. Because Ms. Barrett was not required to

seek permission from the trial court, its order allowing the amendment is not dispositive of

the question of whether the actual amended document supersedes the original complaint or

merely adds another set of defendants to the original complaint. Rather, we look to the

substance of Ms. Barrett‟s First Amended Complaint to determine whether it supersedes and

replaces the original complaint or merely modifies it. “[I]t is well established that the courts

of this state look to the substance rather than the form of pleadings in determining their

nature and effect. Morgan v. Layne, 56 S.W.2d 161, 162 (Tenn. 1933); Rawlings v. John

Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 300 (Tenn. Ct. App. 2001).

As noted above, an “amended complaint,” which supersedes and destroys the original

complaint as a pleading, is complete in itself without adoption or reference to the original,

while an “amendment” to a complaint merely modifies the existing complaint, which remains

before the trial court as modified. McBurney v. Aldrich, 816 S.W.2d 30 (Tenn. Ct. App.

1991) (citation omitted). Turning to the record, Ms. Barrett‟s First Amended Complaint

makes no reference to her original complaint. Furthermore, the document is complete in

itself in that it contains the names of all defendants, including the added defendants, in its

heading. Moreover, the First Amended Complaint sets out the causes of action against each

defendant without reference to the original complaint. From the substance of this pleading,

we can only conclude that Ms. Barrett‟s First Amended Complaint is just that: an amended

complaint, which supersedes and destroys her original complaint. As such, and under the

holding in Hutchings, we conclude that the trial court was required to revisit the question of

venue in light of the parties and causes of action included in the First Amended Complaint.

Here, our analysis merges with the trial court‟s reasoning as set out in its June 30, 2014 order.

language that “written consent . . . or leave . . . is not required,” there was some ambiguity as to

whether such leave or consent was required. See Jones v. Professional Motorcycle Escort Service,

LLC, 193 S.W.3d 564 (Tenn. 2006).

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Tennessee Code Annotated Section 20-4-101(b) provides that if “the plaintiff and defendant

both reside in the same county in this state, then the action shall be brought either in the

county where the cause of action arose or in the county of their residence.” Ms. Barrett is a

resident of Sumner County. Likewise, the Appellees, who were added to the lawsuit in the

First Amended Complaint, are residents of Sumner County. The trial court found that Ms.

Barrett‟s cause of action arose in Sumner County; this finding is not contested on appeal. “In

cases where both the plaintiff and the defendant reside in the same county, Tenn. Code Ann.

§ 20-4-101(b) clearly requires the suit to be filed either in the county where the cause of

action arose or in the county where both parties reside.” Mays, 1992 WL 117058, *2; accord

Tims, 241 S.W.2d at 503 (holding that a suit involving a transitory cause of action must be

filed in the county where the cause of action arose if the plaintiff and at least one material

defendant resides there.). Because the cause of action in this case arose in Sumner County

and because both Ms. Barrett and the Appellees reside in Sumner County, we conclude that

venue is proper in Sumner County under Tennessee Code Annotated Section 20-4-101(b).

Accordingly, the Shelby County trial court did not err in transferring the case to Sumner

County.

V. Conclusion

For the foregoing reasons, we affirm the order of the trial court. The case is remanded

for such further proceedings as may be necessary and are consistent with this opinion. Costs

of the appeal are assessed against the Appellants, Trumbull Laboratories, LLC, Thomas M.

Chesney, Pathology Group of the Midsouth, PC., and their surety, for all of which execution

may issue if necessary.

_________________________________

KENNY ARMSTRONG, JUDGE

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