TBA Law Blog

Posted by: Donald Paine on Jul 1, 2012

Journal Issue Date: Jul 2012

Journal Name: July 2012 - Vol. 48, No. 7

For transitory actions generally, a plaintiff has two venue choices. The plaintiff can commence the action in the county where the defendant resides or in the county where the cause of action arose. Tenn. Code Ann. §20-4-101(a). What about suing in any county where the defendant can be served with summons and complaint (“is found”)? This third choice is slowly fading from practice. If your client’s cause of action accrued on or after Oct. 1, 2011, this option is unavailable. Chapter 510 of the 2011 Public Acts so provides.

The common county rule remains codified at Tenn. Code Ann. §20-4-101(b). If the plaintiff and defendant reside in the same county, venue is set there or where the cause of action arose. While the rule may seem superfluous in light of the foregoing paragraph, some older law discussed later in this column may make it worth preserving.

For lawsuits against entities such as corporations and partnerships which are not “natural persons,” we turn to Tenn. Code Ann. §20-4-104. Here are our choices:

  1. county where cause of action arose,
  2. county where Tennessee entity maintains its principal office, or
  3. if no registered agent here, the Tennessee county where the statutory agent resides.

Concerning the third choice, the Secretary of State is usually the statutory agent and by legal fiction resides in all counties. Consequently, the plaintiff may sue in the home county.

If the defendant is a nonresident individual and you are using either of the two long-arm statutes (Tenn. Code Ann. §§20-2-214–219 or Tenn. Code Ann. §§20-2-221–225) or the nonresident motorist statute (Tenn. Code Ann. §§20-2-203–207), service of process can be made through the Secretary of State. The plaintiff can sue in the home county or the county where the cause of action arose. See Carroll v. Matthews, 172 Tenn. 590, 113 S.W.2d 742 (1938).

Let’s keep in mind the venue principle for multiple defendants. If venue is correct for one defendant, properly joined codefendants can be sued in that same county.

Forum selection clauses are generally allowed in Tennessee, with three exceptions:

  1. construction contracts (Tenn. Code Ann. §66-11-208),
  2. vehicle dealership franchise contracts (Tenn. Code Ann. §55-17-115), and
  3. Consumer Protection Act (Tenn. Code Ann. §47-18-113(b)).

Some lawsuits are governed by specific venue provisions. Workers’ compensation actions are filed in the county where worker resides or in the county where injured. Tenn. Code Ann. §50-6-225(a). Divorce suits are usually filed where the parties separated or where the defendant resides; if the defendant is nonresident (or a convict), venue is in the plaintiff’s home county. Tenn. Code Ann. §36-4-105.

Local actions, as you know, must be filed in the county where the land lies. Moreover, while improper venue choice normally can be waived by failure to object, that is not true with “jurisdictional” local venue.

Finally, what if we pick the wrong county for our client’s action and the defendant moves to dismiss pursuant to Civil Rule 12.02? Must the judge toss the lawsuit? No, the case can be transferred under Tenn. Code Ann. §16-1-116 to the correct county.

Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, and the Tennessee Judicial Conference.