Barrett v. Chesney, W2014-01921-COA-R9-CV
| Decision Date | 28 September 2015 |
| Docket Number | No. W2014-01921-COA-R9-CV,W2014-01921-COA-R9-CV |
| Parties | KATHLEEN N. BARRETT, ET AL. v. THOMAS M. CHESNEY, MD |
| Court | Tennessee Court of Appeals |
Appeal from the Circuit Court for Shelby County
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.
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.
OPINIONOn 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, andfail[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,"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.
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).
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).
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...
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