Sue McGee v. The First National Bank and Neal Lovlace, Jr., - Concurring ( 1996 )

IN THE COURT OF APPEALS OF TENNESSEE FILED
WESTERN SECTION AT NASHVILLE January 12,
_______________________________________________ 1996
SUE MCGEE, Cecil Crowson, Jr.
Appellate Court Clerk
Plaintiff-Appellant,
Vs. Maury County Circuit 6359
C.A. No. 01A01-9508-CV-00341
THE FIRST NATIONAL BANK
and NEAL LOVLACE, JR.,
Defendants-Appellees.
_________________________________________________________________________
FROM THE MAURY COUNTY CIRCUIT COURT
THE HONORABLE JAMES L. WEATHERFORD, JUDGE
Winston S. Evans of Nashville
For Appellee, Lovlace
Kevin S. Carr of Spicer, Flynn & Rudstrom of Nashville
For Appellee, First National Bank of Centerville
Michael E. Gilmer of Columbia
For Appellant
AFFIRMED
Opinion filed:
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
ALAN E. HIGHERS, JUDGE
HEWITT P. TOMLIN, JR., SENIOR JUDGE
This appeal involves a venue dispute. Plaintiff, Sue McGee, appeals from
the order of the Circuit Court for the Twenty-Second Judicial District in Maury
County, Tennessee, that dismissed her suit against defendants, First National
Bank and Neal Lovlace, for improper venue. The record in the case consists of
what was formerly called the technical record and a "transcript of proceedings"
which has no testimony and contains only argument and statements of counsel
and the court.
A review of the pleadings and affidavits reveals that in 1993, defendant
First National Bank, represented by defendant Lovlace, filed a suit in the Circuit
Court for the Twenty-First Judicial District in Hickman County, Tennessee, against
Jimmy McGee, husband of plaintiff, Sue McGee, that resulted in a judgment
against Jimmy McGee in excess of $50,000.00. Subsequently, in the course of
postjudgment discovery procedures, defendants caused various subpoenas to
be issued and served in Maury County on the plaintiff, a resident of Maury
County, and other witnesses. Pursuant to the subpoenas, depositions were
taken apparently to ascertain the existence of assets that might be subject to
execution in payment of the judgment against Jimmy McGee.
Plaintiff alleges that each process issued from the Hickman County Circuit
Court to be served in Maury County was maliciously issued and was "a
calculated attempt to harass and embarrass [plaintiff] into paying the debt
incurred by her husband" and therefore, constituted abuse of process.
Both defendants filed motions to dismiss on the ground of improper
venue.1 Both parties concede that a malicious prosecution action and an
1
In this proceeding, defendants have not raised any defense concerning
the viability of the causes of action. Nothing in this opinion should be construed
as dealing with anything other than the question of venue.
2
abuse of process action are transitory actions. Venue of transitory actions is
governed by T.C.A. § 20-4-101 (1994) which provides in pertinent part:
20-4-101. Transitory actions. - (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 defendant resides or is found.
The plaintiff concedes that neither defendant is a resident of Maury
County, nor was either defendant found in Maury County as contemplated by
the statute. The trial court dismissed the action for improper venue, and the only
issue for review is whether the trial court erred in so doing. To decide this issue,
we must determine where the cause of action arose. If it arose in Maury County
the trial judge erred; if it arose in Hickman County, the trial judge was correct.
In Donaldson v. Donaldson, 557 S.W.2d 60 (Tenn. 1977), our Supreme Court
stated:
There are two tort actions that may be brought to
obtain redress for the alleged misuse of legal process
by another: abuse of process and malicious
prosecution. An action for abuse of process lies for the
use of legal process to obtain a result it was not
intended to effect, for a wrongful purpose. Priest v.
Union Agency, 174 Tenn. 304, 125 S.W.2d 142 (1939)
Malicious prosecution, or the malicious use of process,
is the employment of legal process for its ostensible
purpose, but without probable cause.
Id. at 62.
In 72 C.J.S. Process § 108 (1987), it is stated:
b. Wrongful Use
The unlawful use of process after its issuance is the gist
of the wrong of abuse of process.
The gist of the tort or wrong consists of the unlawful
use of lawful process after its issuance. There must be
an actual abuse of the process by its perversion to
obtain a result which it was not intended by law to
effect. A legal and legitimate use of process, to effect
the result which such process is designed by law to
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accomplish, cannot constitute abuse, even though
the user was actuated by a wrongful motive or intent
or by malice.
Plaintiff asserts that a cause of action for abuse of process arises when the
cause of action becomes complete, and in that case the cause of action
became complete in Hickman County. In support of this assertion plaintiff cites
Mid-South Milling Co., Inc. v. Loret Farms, Inc., 521 S.W.2d 586 (Tenn. 1975). From
our examination of this case, we do not reach the same conclusion. In Mid-
South Milling the suit was for breach of warranty in a sales contract. The Court
looked to T.C.A. § 47-2-725, the statute of limitations in sales contracts, to
determine when and where the cause of action arose. The statute specifically
provides that the cause of action for breach of warranty accrues when the
breach occurs, and the breach occurs when the tender of delivery is made.
The court held that since the breach occurred at the time of delivery it also
occurred at the place of the tender of delivery. In the instant case there is no
corresponding statute to determine when and where an abuse of process
cause of action arises.
In Mattix v. Swepston, 127 Tenn. 693, 155 S.W. 928 (1913), our Supreme
Court was called upon to make a determination as to whether an action was
a local action or a transitory action. The Court, in defining the cause of action,
stated:
It may be safely said that no attempt so far to give
an accurate definition of the term so as to meet the
exigencies of all cases which may arise has been
successfully made, and, indeed, such a general and
inflexible definition could serve no particular purpose,
and should not be attempted. With this qualification,
it may be stated generally that the cause of action
includes all the facts which together constitute the
plaintiffs' right to maintain the action. This definition
has the approval of such eminent authority as Mr.
Justice Cooley in Post v. Campau, 42 Mich., 96, 3 N.W.,
272, and Mr. Justice Johnson in Marquat v. Marquat, 12
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N. Y., 341. Mr. Pomeroy, in his work on Remedies, gives
substantially the same definition at section 521.
Id. at 697.
In the instant case, the gravamen of plaintiff's action is stated in her brief:
The theory of the Appellant's case below is that the
Appellee, Lovlace, and the Appellee, Bank, joined
together to force the Appellant to pay a judgment for
which she was not legally liable by using oppressive
and harassing discovery processes to wear down her
resolve until she capitulated and paid up.
The process about which plaintiff complains consists of subpoenas to
obtain postjudgment discovery from various business enterprises and individuals.
Apparently all of the subpoenas were properly served and the discovery
process completed. The gist of plaintiff's case is that these processes were a
form of extortion to compel plaintiff to pay the judgment against her husband.
It is undisputed that all of the subpoenas were issued from the Circuit Court in
Hickman County, and that if there was an improper motive or purpose behind
the issuance of the subpoenas, that motive or improper purpose was to have a
judgment in Hickman County paid.
We have been cited to no Tennessee authority dealing with the question
before us, nor has our research revealed any such authority. The few cases
touching on the subject from other jurisdictions involve statutes somewhat
different from the Tennessee statutes, or have factual situations not entirely like
the case at bar. However, Harrison Community Hosp. v. Blustein, 76 Mich. App.
176, 255 N.W.2d 802 (Mich. Ct. App. 1977) is somewhat analogous. In Harrison,
a judgment debtor brought an action against a judgment creditor to recover
damages for an unlawful garnishment which the creditor obtained in an
attempt to collect a judgment. The judgment was entered in the Circuit Court
of Wayne County, and the garnishments were issued from that court. The
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judgment debtor brought the action against the judgment creditor in Macomb
County where the garnishments were served. Michigan law provides that the
proper county in which to commence and try an action is the county in which
all or part of the cause of action arose. Mich. Comp. Laws Ann. § 600.1627;
Mich. Stat. Ann. § 27A.1627. The question before the court was whether any
part of the plaintiff's cause of action arise in Macomb County.
In reversing the trial court's denial of defendants' request for change of
venue, the court said:
In the case at bar, the wrong, if any, was
garnishment in Wayne County and the incidental
damages that occurred in Macomb County were not
part of plaintiff's cause of action, except as elements
of damages. Venue in Macomb County was
improperly laid, and it was error not to grant
defendants' request for change of venue.
Id. at 179.
In Cacciaguidi v. Superior Court, 226 Cal. App. 3d 181, 276 Cal. Rptr. 465(Cal. Ct. App. 1990), the Court held that the venue of an action for abuse of
process may not be brought in the county of the plaintiff's residence on the
theory that this is where the process was served and where the injury occurred.
The California venue statute allows suit for injuries to the person to be brought
in the county where the injury occurs or the county in which the defendant
resides. Cal. Code Civ. Pro. § 395.
In State ex rel. Banta v. Wiesman, 864 S.W.2d 374 (Mo. Ct. App. 1993), the
applicable venue statute, Mo. Rev. Stat. § 508.010 (6) (1986) provided:
Suits instituted by summons shall, except as otherwise
provided by law, be brought:
...
(6) In all tort actions the suit may be brought in the
county where the cause of action accrued regardless
of the residence of the parties . . . .
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Plaintiff, the son of the defendant, sued his father in the Circuit Court of St.
Louis County alleging, among other things, abuse of process in connection with
a proceeding filed by the father, a resident of Mississippi County, in the Circuit
Court of Mississippi County. In the underlying suit, writs were issued from the
Mississippi County Circuit Court and served in St. Louis County effecting the son's
confinement in mental institutions. The court noted that all of the father's
conduct occurred in Mississippi County pursuant to his appointment as guardian
in Mississippi County and held that "it is the place of defendant's wrongful
conduct, not the place where the effect of that conduct is ultimately felt or
realized that is controlling for venue purposes." Id. at 376.
In the case at bar, plaintiff does not assert that the process from the
Circuit Court of Hickman County was not served in a lawful manner. Each
process was utilized for its intended purpose, that is, to obtain lawfully authorized
discovery. Plaintiff's claim rests solely on her assertion that the discovery
proceedings were for the purpose of harassing the plaintiff and coercing her
into paying the Hickman County judgment against her husband. Plaintiff argues
that a cause of action for abuse of process arises when and where process is
served, because that is when the cause of action becomes complete.
Therefore, plaintiff argues that her cause of action arose in Maury County. We
do not agree.
Under plaintiff's theory in the case at bar, if plaintiff has a cause of action
for abuse of process, then that cause of action arose in Hickman County where
the process was issued. If defendants committed a wrongful act in connection
with the process, then they committed that act in Hickman County by virtue of
having the process issued in the first place. The fact that the effects of that
wrongful act were felt in Maury County through the allegedly harassing
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discovery procedures does not cause plaintiff's abuse of process action to arise
in Maury County.
Accordingly, the order of the trial court dismissing plaintiff's suit for
improper venue is affirmed. Costs of appeal are assessed against the appellant.
____________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
____________________________________
ALAN E. HIGHERS, JUDGE
____________________________________
HEWITT P. TOMLIN, JR.,
SENIOR JUDGE
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