Abolishing Local Action Rules: A First Step Toward Modernizing Jurisdiction and Venue in Tennessee

Entman, June F

I. INTRODUCTION

For over two hundred years, the law of forum selection in civil actions has included a distinction between local and transitory actions. Categorizing an action as local or transitory determines not only the place or places in which the action may be brought, but also whether a particular forum selection provision is treated as a rule of venue or a rule of subject matter jurisdiction. In 2001, the American Law Institute recommended amendments to the federal venue statutes abolishing the local action concept.1 In 2002, the Tennessee Court of Appeals moved in the opposite direction. The court extended the local action concept by holding that a recentlyenacted Tennessee forum selection statute constituted a new local action rule, a rule of subject matter jurisdiction.2 The following study of local action rules, focusing on Tennessee law, concludes that the civil justice system would be better served by abolition, not extension, of the confusing and inefficient local action concept and the local/transitory distinction.

Historically, actions categorized as transitory could be brought wherever the defendant may be found and served with process.3 Most jurisdictions have expanded the permissible forums for transitory actions to include not only the place where the defendant is found but also, typically, the residence of any defendant and the place where the claim arose.4 Actions historically categorized as local, on the other hand, may be brought in only a single location. The traditional "local action rule" restricts litigation of certain actions involving real property to the situs of the land.5 Some jurisdictions, however, have expanded the category of actions deemed local to include types of cases that have nothing to do with real property.6 There is in fact no single local action rule. Rather, there are sets of cases, varying in composition depending upon the jurisdiction, in which not only is the choice of forum restricted, but the actions are also labeled "local."

Courts often treat forum restrictions in actions labeled "local" as rules of subject matter jurisdiction, rather than as rules of venue. This treatment means that local action objections, unlike ordinary venue objections, may be asserted at any stage of the litigation and may even be grounds for collateral attack upon a judgment. Treating local action restrictions as rules of subject matter jurisdiction also means that the parties may not waive the venue objection or consent to the forum, and courts are obliged to raise the issue sua sponte.1

Most local action rules are anachronisms that can be understood only by examining their origins. To the extent that these rules originally had some rational bases, those rationales have not survived into the modern era. Throughout the evolution of traditional local action rules, courts and scholars have bemoaned their existence, both as illogical restrictions on forum choice and because of the tendency of courts to treat them as rules of jurisdiction.8 A handful of modern courts and legislatures have abandoned or modified local action rules." Nevertheless, local action restrictions have proven remarkably durable. Nowhere is this more true than in Tennessee, where a combination of judicial decisions and legislative enactments have enshrined and elevated the local action concept well beyond its common-law origins.

Tennessee law includes a confusing array of local action restrictions. In some cases, the effect of the restriction is that there is no permissible forum in Tennessee for the controversy even though the defendant would otherwise be subject to the in personam jurisdiction of Tennessee courts. For example:

* Actions seeking to directly affect title to or possession of land10 in other states may not be brought in Tennessee."

* Actions seeking to indirectly affect title to or possession of land12 in other states may not be brought in Tennessee unless the defendant is a resident of Tennessee and the action is based upon fraud, trust, or contract, or is an action for divorce.13

* Actions seeking money damages for trespass or injury to land in other states may not be brought in Tennessee unless the act or omission that caused the damage occurred in Tennessee.14

In other cases, the forum choice is limited to a single county in Tennessee, regardless of the residences of the parties, the locale of the events giving rise to the claim, or the relative convenience of other forums in the state. For example:

* Actions seeking to directly affect title to or possession of land in Tennessee (except suits for partition, for divorce, or to sell a decedent's realty for payment of debts) must be brought in the county in which the land, or a portion of it, is located.15

* Actions seeking to enforce specific execution of a contract relating to realty located in Tennessee must be brought in the county in which the land, or a portion of it, is located.16

* Actions seeking money damages for trespass or injury to Tennessee land must be brought in the county in which the land, or a portion of it, is located.17

* Notwithstanding any of the restrictions listed above, actions against local governments generally must be brought in the county in which the governmental entity is located.18

In addition, Tennessee courts have held in a variety of contexts that when the legislature eliminates the option of venue wherever the defendant may be found and otherwise specifies venue for an action, the lawsuit becomes a "local action." Thus, in a number of areas, the Tennessee courts have "localized" venue, converting it into a rule of subject matter jurisdiction.19

Most of the literature about local action rules focuses on actions that concern land outside a forum state. Little attention has been paid to the profound impact of the local action concept on the law governing permissible venues within the forum state. Intrastate forum restrictions can be equally significant, however, both as a matter of convenience, and as a matter of forum character when rural-urban and other demographically different choices would otherwise be available.

The purpose of this article is to provide a comprehensive description and critique of Tennessee's local action restrictions. Part II describes the origins of the local action concept and the traditional rules that have arisen from it. Part III describes Tennessee's adoption of traditional local action rules in both the interstate and intrastate contexts, and also describes Tennessee's extension of local action treatment into non-traditional contexts through the concept of "localized" actions. Part IV offers a critique of both traditional local action rules and of the "localization" doctrine. Part V concludes the article with proposals for modernizing Tennessee's law of venue and for eliminating from Tennessee forum selection law the troublesome and unnecessary local action concept.

II. ORIGINS OF LOCAL ACTION RULES

Several local action rules originated in English common law:

* Actions seeking to directly affect title to or possession of land must be brought at the situs of the land.

* Actions seeking to indirectly affect title to or possession of land must be brought at the situs of the land except in cases of fraud, trust or contract.

* Actions seeking money damages for trespass or injury to land must be brought at the situs of the land.

The sections below discuss the English origins of each of these rules and their adoption by courts in the United States. The final section in Part II of this article discusses the treatment of these rules as issues of subject matter jurisdiction.

A. Actions seeking to Directly Affect Title to or Possession of Land

Before the fifteenth century, jurors in England were expected to decide cases on the basis of their personal knowledge of the litigants or the circumstances of the case. Consequently, all actions at law were "local" because the jurors summoned to trials at Westminster were chosen from the vicinity of the events at issue. When trials began to be held outside Westminster, the vicinity of the events became the proper venue for the trial as well as the place from which jurors were chosen.20 When the jurors' role changed to deciding cases on the basis of evidence presented at trial, rather than on personal knowledge, venue continued to require trial at the place where the cause of action arose.

The local/transitory distinction began as a rule of pleading.21 As Blackstone described pleadings in the eighteenth century,

In local actions, where possession of land is to be recovered, or damages for an actual trespass, or for waste, etc., affecting land, the plaintiff must lay his declaration or declare his injury to have happened in the very county and place that it really did happen; but in transitory actions, for injuries that might have happened any where, as debt, detinue, slander, and the like, the plaintiff may declare in what county he pleases .. . .22

Blackstone went on to explain that if the defendant in a transitory action made an affidavit that the action arose in another county, the court would change the venue to the county in which the injury was done.23 By the end of the eighteenth century, however, venue had become more flexible and actions deemed "transitory" could be brought anywhere the defendant was found and served with process.24 Actions involving land, however, continued to be deemed local and could be brought only where the land was located.25

The English rule restricting the place of trial for actions at law involving real property became a part of American jurisprudence as early as 1811.26 Scholars who have examined the rule's origins attribute its continuing existence to historical inertia27 and to early English judicial conservatism regarding matters of real property.28 Early cases nonetheless articulated a logical basis for the rule in the dichotomy between actions in personam and actions in rem. In one usage of this distinction,29 in personam actions sought remedies, such as money judgments and specific performance, that imposed a personal liability upon a party to the action. In rem actions sought remedies, such as quiet title, partition and ejectment, that sought recovery of particular property, often by creating and extinguishing titles,30 regardless of whether persons whose interests were affected were parties to the action." Although the in rem/in personam terminology has also been used to refer to the difference between judgments at law and decrees in equity,12 legislatures during the early nineteenth century expanded equity's enforcement powers by statutes permitting the court's decree itself to operate as a transfer of title, or by authorizing the court to appoint an officer to execute a conveyance on behalf of a contumacious party.33 Whether dispensed at law or in equity, remedies characterized as in rem presumably required action by authorities where the subject property was located.34 As a practical matter, therefore, courts declined to act in rem with respect to extraterritorial property.35

Concerns other than the practicality of affording relief most likely influenced early American courts when they rejected the idea of in rem judgments affecting title to or possession of land in other states. Nineteenth century notions of territorial jurisdiction were based upon the presence of persons or property within the state. The now-obsolete doctrine of Pennoyer v. Neff,36 posited that a state had power to dispose of property within its borders regardless of its lack of power over persons whose rights in that property were thereby affected.37 In other words, on the sole basis of its power over property, a court may dispense a remedy that operates in rem, so long as the court does not impose in personam liability in the action.38 This power did not extend to property in other states, which the Pennoyer Court declared to be in the exclusive jurisdiction of the situs state.39 And even if persons affected were before the court, the state lacked power to render judgments that operated in rem with respect to foreign land.40

In addition to, and perhaps underlying, nineteenth century notions of state court territorial jurisdiction, courts may have feared loss of local control and ensuing confusion in land titles if judgments were permitted to directly affect land titles in other states.41 Insistence upon a state's exclusive power to dispense remedies respecting land within its borders provided the states with protection from sister state adjudications that refused to apply, or misapplied, situs law.42 Courts also expressed concern about the difficulty of their task in determining the real property law of another state and in investigating foreign titles.43 In any event, courts throughout the United States came to view the local action restriction as a matter of sovereignty, holding that the state where land is located may refuse to give Full Faith and Credit to sister state judgments purporting to directly affect rights in that land.44

B. Actions Seeking to Indirectly Affect Title to or Possession of Land

Originating as a matter of juror selection, the local action concept had no application in traditional courts of equity.45 Consistent with the idea that the local action rule was merely a limitation on a court's in rem remedial authority, the rule did not constrain early English courts of equity from entering in personam decrees that affected parties' rights in extraterritorial real property. In Penn v. Lord Baltimore,46 the court granted specific performance of an agreement settling the boundary between the parties' lands in the provinces of Maryland and Pennsylvania.47 The Lord Chancellor acknowledged that the court could not enforce its decree in rem because the lands were outside England, but held the decree nevertheless appropriate because the "party being in England, I could inforce it by process of contempt in personam and sequestration, which is the proper jurisdiction of this court."48 The United States Supreme Court followed the Penn v. Lord Baltimore principle in Massie v. Watts,49 holding that a Kentucky court did not err in ordering the defendant, a constructive trustee, to convey Ohio land to the plaintiff, even though the court would not have had authority to directly transfer the out-of-state title.50

The doctrine of Penn v. Lord Baltimore and Massie v. Watts creates a dichotomy between judgments that operate only in personam and those that operate in rem. In personam decrees respecting extraterritorial land are permitted because they are seen as affecting land only indirectly; in rem judgments concerning extraterritorial land are not permitted because they affect the land directly.51

Chief Justice Marshall's opinion in Massie v. Watts also posited a distinction between a case involving a "naked question of title," and a case of "fraud, trust, or contract."52 Marshall suggested that only in the latter case could a court of equity properly order a party to convey foreign land.53 It is likely that all Marshall meant by this distinction was that the principle of Penn v. Lord Baltimore applies only to a case appropriate for equitable relief.54 Marshall wrote at a time when the prevalent doctrine was that equity would not try title to land, in deference to the right of jury trial available in actions for ejectment. Courts honored the adequate remedy at law requirement by refusing to issue permanent injunctions against trespass when the title was disputed.55 Because the local action restriction applied in an action at law for ejectment, Marshall reasoned that if the suit in chancery involved only a "naked question of title," there would be "much reason for considering it as a local action."56 With an independent ground for equitable relief, however, such as fraud, trust or contract, Marshall fully approved of the court determining an issue of title, including title to land outside the forum state.57

Other than the requirement of initial equitable cognizance, there was nothing inherent in the Penn v. Lord Baltimore rule that limited its application to cases of fraud, trust or contract.58 There is no reason for the principle not to apply, for example, to an action seeking to enjoin a trespass when the remedy at law is inadequate, even if the only issue in the case is a "naked question of title."59 Indeed, modern courts commonly accept the idea of divorce decrees that adjudicate the parties' rights to foreign realty even though these cases fall outside the categories of fraud, trust and contract.60 Nevertheless, judicial opinions frequently take Marshall's dicta literally, and the notion that a court may order conveyance of extraterritorial land only in cases of fraud, trust or contract has become received wisdom.61 To the extent that this limitation is applied, Massie v. Watts imported the local action restriction into equity practice, and extended it into cases seeking to affect rights in land only indirectly.

C. Actions Seeking Money Damages for Trespass or Injury to Land

From inception of the local action restriction in England as a rule of venue for selecting jurors with local knowledge,62 law courts did not confine the rule to in rem actions seeking title to or possession of foreign land. Courts applied the local action limitation to actions seeking money damages for trespass to land,63 and to other types of in personam actions that involved or were somehow related to the ownership of land.64 The leading case in the United States is Livingston v. Jefferson,65 a suit brought in Virginia against former President Thomas Jefferson seeking damages for trespass to land in Louisiana.66 Chief Justice John Marshall, sitting as a Circuit Judge, joined with District Judge Tyler in holding that the suit could not be maintained in Virginia because the action was local.67 Judge Tyler's opinion enthusiastically embraced application of the local action rule to sustain the defendant's plea to the court's jurisdiction.68 Marshall's opinion, on the other hand, criticized application of the rule to an in personam trespass action,69 but concluded that the court was bound to follow "firmly established" law.70

Ironically, Marshall's opinion contributed to the endurance of the local action rule as a restriction on actions for damages or trespass to land by articulating "as the true declaration of the ancient rule"71 a definition that supported such applications. Marshall defined the local/transitory distinction by focusing upon the genesis of the action rather than upon the character of the remedy sought. He wrote that "actions are deemed transitory, where transactions on which they are founded, might have taken place anywhere; but are local where their cause is in its nature necessarily local."72

Marshall's definition-in terms of the place where the action might have arisen, rather than in terms of remedial necessity-has undoubtedly contributed to the lack of logic and uniformity in judicial decisions about which actions are local and which are transitory.73 For example, the definition justifies the conclusion that the local action rule does not apply to a money damage action for breach of a contract concerning real property (a transaction that might have occurred anywhere), while the rule does apply to a money damage action for trespass to real property (an event that could have occurred only where the property was located).74 Rationales for the local action rule, however, do not support such a distinction.75 Both the trespass and contract actions seek only an in personam remedy that requires no extraterritorial action by the court. Proof of extraterritorial title and boundaries, which may or may not be an issue in either case, is no more difficult in one action or the other.76 Despite its illogic and variance from the original rationales for local action restrictions, Marshall's amorphous definition of the scope of the local action rule unfortunately took hold.77

D. Local Action Rules and Subject Matter Jurisdiction

The transitory/local distinction arose at a time before courts attempted to delineate the forum selection doctrines of subject matter jurisdiction, personal jurisdiction, and venue78 as they do today.79 Rules and statutes that designate the permissible places for trial within a state that has proper personal jurisdiction over the defendants are generally categorized as rules of venue, not as jurisdictional rules. Venue, unlike the other two doctrines,80 is not a matter of sovereignty and has not been traditionally found to implicate constitutional limits on judicial power.81 Venue is similar to personal jurisdiction insofar as it concerns whether a court is located in a sufficiently convenient place for the adjudication.82 Also like personal jurisdiction, venue is generally considered a waivable personal privilege of the defendant.83 Subject matter jurisdiction, on the other hand, may not be waived or conferred by consent of the parties.84 Unlike objections to both subject matter and personal jurisdiction, courts ordinarily do not permit a default judgment to be collaterally attacked on the basis of a venue objection.83 These distinctions among the three doctrines generally render venue a more flexible doctrine than either subject matter or personal jurisdiction.86 So long as local action restrictions are considered matters of venue, therefore, their impact is confined to prescribing waivable, albeit limited, choices of forums.

Even though the local action rule originated as a rule of venue for selecting the proper English county for an action arising within the realm,87 United States courts referred to the rule as jurisdictional as soon as they began to follow it.88 Some concept of territorial jurisdiction may have accounted for the local action rule when the action was in rein seeking to directly affect foreign land. The rule coincided with nineteenth century notions of a court's lack of power to affect land outside the realm89 or, in the United States, outside the state.90 Concern with territorial power, however, is a less likely explanation for the local action rule in an in personam action for damages in which the court has jurisdiction over the parties.91 Indeed, as discussed above, there was never a question that in personam equitable relief was proper in a matter involving foreign land so long as the court had jurisdiction of the parties.92

By the early twentieth century, it became clear that United States courts had subject matter jurisdiction in mind when they referred to a local action rule as jurisdictional.'" In Ellenwood v. Marietta Chair Co.,94 the United States Supreme Court found that an Ohio federal court had "no jurisdiction of the cause of action" for trespass to land in West Virginia.95 The Court held, moreover, that the suit was rightly dismissed on the basis of the local nature of the action even though the defendant had not raised that objection by demurrer or in his answer.96 Had the Court considered the local action rule to be in the nature of territorial jurisdiction, the defendant's appearance in the action without raising the objection would have satisfied that jurisdictional requirement.97

Treating a local action rule as a matter of subject matter jurisdiction has other significant consequences. Maguire v. Cunningham,98 for example, was an action brought in Los Angeles County seeking to quiet title to land in Alameda and San Francisco counties.99 The California appellate court held not only that the objection of "no jurisdiction of the subject matter" could not be waived,100 but that filing an action in a county other than that in which the land is located "is so completely a nullity that the venue cannot be changed to the county in which the property lies,"'01 In Jacobus v. Colgate,102 Judge Cardozo held that a New York statute abolishing the local action rule in damage actions was not retroactive.103 Judge Cardozo reasoned that before the statute, there was no remedy under New York law, and consequently no cause of action or jurisdiction, for a trespass to foreign land.104 Because the statute created a new cause of action, and changed more than a procedural means of enforcing an existing action, it should not be applied retroactively.105

The idea of the local action rule as a matter of subject matter jurisdiction has not been universally accepted.106 State and federal courts alike disagree about whether the rule is one of subject matter jurisdiction or venue.107

III. LOCAL ACTIONS IN TENNESSEE

A. Extraterritorial Land

1. Actions Seeking to Directly Affect Title to or Possession of Land

In Tennessee, both circuit and chancery courts have authority to act in rem to directly affect title to real property.108 This power has always been restricted, however, to land located within the state.109 Other than occasional comment about the difficulty of proving foreign titles,110 the Tennessee courts generally announce their lack of authority to affect title to foreign land without explaining why this is so. Tennessee courts have also rejected the suggestion that a court may evade this local action restriction by appointing an officer with authority to execute a conveyance of foreign land.111

2. Actions Seeking to Indirectly Affect Title to or Possession of Land

Tennessee courts have embraced the Penn v. Lord Baltimore concept that a court may order a party properly before it to convey foreign lands.112 One early Tennessee decision, however, limited the court's authority to orders against parties who were residents of Tennessee; it was not sufficient that the court had personal jurisdiction over the party ordered to convey foreign lands. In Wicks v. Caruthers,113 the court reasoned that ordering a nonresident trustee, served with process in Tennessee, to sell Mississippi land would only give authority in Tennessee, and be waste paper, as soon as he crossed the line of Mississippi . . . . A mere declaration of right which we could not enforce, is what a court could not do; a decree which we have no jurisdiction to execute, would be tristem fulmen, and a useless form, not in accord with the course of judicial proceedings, nor the dignity of such tribunals.114

Limiting orders to convey foreign land to resident parties appears to be a unique Tennessee addition to the doctrine of Penn v. Lord Baltimore and Massie v. Watts. Other courts, even in the nineteenth century, were not so fearful of exercising their powers merely because successful execution could not be guaranteed.115 The Wicks court also did not consider the option of authorizing a court officer or substitute trustee to execute a deed on behalf of a party who has absconded without complying with the court's order. Even today, Tennessee courts, like most jurisdictions,116 will not use their appointive authority117 with respect to foreign property.118

Other than the Wicks court's reluctance with respect to nonresident parties, Tennessee courts readily followed the Penn v. Lord Baltimore doctrine in ordering parties to convey foreign realty in cases appropriate for equitable relief.119 Tennessee decisions, however, have also followed the dicta in Massie v. Watts120 that a court may order conveyance of extraterritorial land only in cases "of fraud, trust, or contract."121 In Brown v. Dayton Coal & Iron Co.,122 the court held that a Tennessee court could not enjoin a Tennessee resident from trespass on Georgia land.123 The plaintiff had sought an injunction from further trespass, an accounting for ore extracted, and damages for the trespass.124 Describing the action as "a mongrel or conglomerated action of ejectment, trespass and a bill of peace,"125 the court concluded that,

It is impossible to determine an action of this kind without an investigation of the title and right of possession and the nature of possession-all purely local questions with which a foreign Court is never presumed to deal or to be equipped to settle. We repeat that the common law has wisely relegated these questions to the local forum, and that the fact that suit is brought in a Court of Equity does not change the rule when the suit partakes of the old common law action of trespass for wrongful entry upon or injury to land.126

The Brown court's language suggests hostility to the action not only because the court might be called upon to determine title to foreign land, but also because the court considered the case inappropriate for equitable relief.127

Another decision applying a local action restriction to a suit seeking in personam equitable relief that would indirectly affect title to extraterritorial land is Robinson v. Johnson,128 in which creditors of an intestate's estate filed a general administration bill showing insolvency of the estate.129 Heirs of the intestate held lands that he had owned in three states other than Tennessee and the creditors sought a sale of the real estate to pay debts.130 The bill prayed that the defendant heirs be ordered to convey the lands to a court-appointed special commissioner for sale.131 The Court of Chancery Appeals held that the chancery court correctly declined to grant such a decree because there was no question of fraud, trust or contract among the parties.132 The court viewed the request before it as, "simply an attempt . . . to administer upon property in other states; an attempt to infringe upon the civil rights of those states to have such property administered under their own laws, and in accordance with their own regulations."133

Robinson raises the question of why the creditors should have no remedy from the necessity of litigating their claims in three separate proceedings in three states.134 The creditors might invoke the equitable principle of granting relief to avoid multiplicity of litigation135 and the general proposition that a court may order persons over whom it has authority to convey foreign lands. Tennessee courts accept these principles in divorce cases as the means of fairly and efficiently disposing of the parties' real property outside Tennessee in a single proceeding,136 but have not done so in the area of decedents' and insolvents' estates.137

3. Actions Seeking Money Damages for Trespass or Injury to Land

It was not until 1900 that a Tennessee appellate decision addressed the doctrine of Livingston v. Jefferson that actions seeking money damages for trespass or injury to land must be brought at the situs of the land.138 Ducktown Sulphur, Copper & Iron Co. v. Barnes139 began when a foreign company engaged in copper mining in Polk County, Tennessee sought a bill of peace in Polk County Chancery Court.140 The mining company sought to enjoin a number of lawsuits filed against it in Polk County Circuit Court by landowners seeking damages for injury to their real property in Georgia, injuries allegedly resulting from the company's Tennessee operations.141 The chancery court held that some of the landowners were entitled to recover damages and referred the matter to a master to ascertain the amount.142 On appeal from that decree, the mining company cited Livingston v. Jefferson in support of its contention that the Tennessee court had no jurisdiction to award damages because the landowners' actions were local.141 The Tennessee Supreme Court responded simply and decisively:

We cannot subscribe or assent to this contention. The actions of appellees for damages do not involve title to land, nor the assertion of a right to an interest in land. The actions are purely actions for damages sustained by virtue of a nuisance operated by the complainant. The action was personal, and not local.144

The supreme court's opinion is striking in light of the fact that the mining company in Ducktown had in fact challenged the claimants' titles, and the chancellor had directed the master to determine the claimants' estates or interests before considering damages.145

The Tennessee Supreme Court's rejection of Livingston v. Jefferson was short-lived. In 1912, the Court of Chancery Appeals in Brown v. Dayton Coal & Iron Co.,146 stated, with no mention of Ducktown, that a Tennessee chancery court had no jurisdiction in a trespass action for wrongful entry upon and injury to land located in Georgia. Brown may be distinguished from Ducktown because the Brown court declared the claim for money damages "incidental" to the plaintiffs' demand for a permanent injunction against trespass. The Brown court viewed the action as primarily a dispute over title to Georgia land.147 The Ducktown court saw the question of title as incidental.

One year after Brown, the supreme court revived the spirit, if not the letter, of Livingston v. Jefferson. In Mattix v. Swepston,148 the plaintiffs had purchased standing timber in Arkansas from Maudlin, who also gave the plaintiffs an easement over adjacent lands for purposes of hauling the timber to a railroad.149 Maudlin, however, leased the adjacent lands to Swepston, who obstructed the roadway and prevented the plaintiffs from removing their timber.150 As a consequence, the plaintiffs defaulted on contracts to deliver the timber.151 The plaintiffs sued Swepston in Shelby County, Tennessee seeking damages for their losses on the contracts and other consequential damages.152 The trial judge dismissed the suit on the basis that the action was local.153

While the decisions in Ducktown and Brown appeared to focus on the nature of the remedy and whether title was in issue or might be affected, the Mattix opinion wandered through questions of the nature of the plaintiffs' "cause of action,"154 the '"nature of the subject of the injury,"155 and whether the plaintiffs' rights arose in privity of contract or privity of estate.156 In a version of Justice Marshall's formula in Livingston v. Jefferson157 the Mattix court pronounced that, "A true statement of the test between a local and a transitory action is whether the injury is done to a subject matter which, in its nature, could not arise beyond the locality of its situation, in contradistinction to the subject causing the injury."158 The Mattix court never cited Livingston v. Jefferson, and it is not clear if its restatement of the formula was intended to clarify or to modify its substance. Both versions nevertheless led to the same conclusion-if land is injured, the action is local, regardless of the remedy sought or whether title to land is at issue.159

Having decided that actions for injuries to land are local, the Mattix court concluded, in a display of sophistic reasoning, that the cause of action before it was not for injury to land.160 The court explained that Swepston "injured the plaintiffs' business, although he adopted as a means of doing so the obstruction of a road on Maudlin's land."161 That Swepston deprived the plaintiffs of their easement did not mean that the plaintiffs suffered an injury to land because the easement was merely appurtenant to the contract, which was for timber, not realty.162

There was nothing equivocal, however, about the Tennessee Supreme Court's subsequent adoption of Livingston v. Jefferson in McCormick v. Brown.ta The plaintiffs in McCormick brought suit in Hamilton County, Tennessee claiming that their home in Walker County, Georgia was damaged by the defendants' operation of a stone quarry near the home.164 Holding that the suit for money damages was a local action and that the Tennessee court had no jurisdiction, the court relied upon Livingston v. Jefferson's definition that "actions are transitory where the transactions on which they are founded might have taken place anywhere, but are local where the cause is in its nature, necessarily local."165

The McCormick court dealt with Ducktown,1'* by relegating it to an "apparent exception . . . where the act or omission which caused the injury did not occur in the state or county where the real property is situated."167 Nothing in Ducktown itself, however, suggested anything other than a total rejection of the rule in Livingston v. Jefferson."* Although the McCormick court noted that there had been criticisms of the rule, it engaged in no discussion of policy or rationale. It broadly held that because both act and injury occurred outside Tennessee, the "general rule" applied that "an action ex delicto based upon a tort against real property is local, and cannot be maintained in a state or county other than that in which the land is located.""9 The general rule controlled, moreover, regardless of whether the action was based upon trespass, negligence or nuisance.170

B. Intrastate Land

1. Tennessee's Intrastate Forum Selection Statutes

In cases involving Tennessee land outside the Tennessee county in which an action is brought, Tennessee courts apply local action restrictions similar to those they apply in cases involving land outside the state. While the authority for local action restrictions in the interstate context is found in common-law traditions and concepts of state sovereignty, the intrastate cases are governed not only by common-law traditions, but also by a number of statutes that address forum selection in Tennessee trial courts. Review of local action restrictions in the intrastate context, therefore, requires some examination of Tennessee's unique configuration of law and equity courts, and the provisions for procedure in those courts.

The circuit court is the trial court of general jurisdiction in Tennessee,171 while the "chancery court has exclusive original jurisdiction of all cases of an equitable nature."172 Although Tennessee's Code of 1858 recognized the traditional rule that courts of equity act in personam,m the Code also gave Tennessee chancery courts authority to act in rem to vest and divest title to real property.174 In 1877, moreover, the jurisdiction of the chancery courts was expanded to include concurrent jurisdiction with the circuit court in "all civil causes of action . . . except for unliquidated damages for injuries to person or character, and except for unliquidated damages for injuries to property not resulting from a breach of oral or written contract."175 Even in the excepted cases, if no objection to jurisdiction is asserted, the case may be "heard and determined by the chancery court upon the principles of a court of law."176

Adoption of the Tennessee Rules of Civil Procedure in 1971 provided a uniform body of procedure for circuit and chancery courts. Prior to that time, some statutory provisions for civil procedure applied exclusively to circuit court and others applied exclusively to chancery court. Some statutes applied to both courts. Many of these statutes were repealed in 1972 in light of adoption of the Rules.177 As the Rules do not, however, include jurisdictional or venue provisions, an often archaic and confusing constellation of statutes continues to control in these areas. For example, with respect to venue, an ancient statute governs the "local jurisdiction" of the chancery court.178 Another statute of comparable pedigree includes other provisions governing venue in "all civil actions of a transitory nature,"179 and has been held applicable to chancery courts.180 Similarly, one statute governs venue for actions in rem,m while another provides for venue in chancery court actions "seeking to divest or clear the title to land."182 In addition, numerous statutes scattered throughout the Code designate venue for particular cases.183 The consequence of Tennessee's overlapping civil court jurisdictions and statutory provisions is that, in any given case, a number of different authorities, both common law and statutory, may determine the proper forums and whether an action is deemed local.

2. Actions seeking to Affect Title to or Possession of Land

Principles of sovereignty do not, of course, limit a Tennessee court's authority to affect title to land within the state. Tennessee courts nevertheless employ common law local action restrictions in cases involving land within the state.184 As early as 1841, Tennessee courts in actions at law applied the local action rule with respect to land located in Tennessee.185 Although an Act of 1809 contained a local action restriction for "actions touching the freehold," the early decisions did not cite the statute and its language did not appear in the Code of 1858.'86 A statute in the Code of 1858,l87 on the other hand, is sometimes cited for the proposition that local actions must be brought in the county in which the property is located.188 That statute, however, did not impose the rule, but rather assumed it.189 On its face, the statute is permissive, not mandatory. It provides that certain actions may be brought in the county in which the land is located.190 Appearing today at section 20-4-103 of the Tennessee Code, the statute provides:

Actions in rem. In actions commenced by the attachment of property without personal service of process, and in cases where the suit is brought to obtain possession of personal property, or to enforce a lien or trust deed or mortgage, or where it relates to real property, the attachment may be sued out or suit brought in any county where the real property, or any portion of it, lies, or where any part of the personal property may be found.'"

The earliest cases citing the statute did so not as authority for the local action restriction, but for its provision relaxing the rule by permitting suit affecting an entire tract of land within the state to be brought in any county in which a portion of the land was situated.192 The statute's other purpose appears to be that of providing a local venue option in otherwise transitory actions against non-residents commenced by attachment of property as the means of acquiring jurisdiction."3 Without such a statute,194 the now-repudiated193 practice of attachment jurisdiction might have been frustrated by the requirement that transitory actions be brought where the defendant is found.196 Regardless of the original purpose of section 20-4-103 and its facially permissive language,"7 Tennessee judicial decisions require that, absent a statutory exception,198 circuit court actions seeking to directly affect rights in real property located in Tennessee must be brought in the county in which a portion of the property is situated.199

In Tennessee chancery courts, where the common law local action restriction did not necessarily apply,200 statutory imposition of the local action rule has been more important. In a section governing the "local jurisdiction"201 of chancery courts, the Code of 1858 provided a generous list of venue options202 that did not distinguish between "local" or "in rem" actions and "transitory" actions.203 In addition to the county in which the defendant was found,201 suit was permissible in the chancery district in which the defendant resided.205 For non-resident defendants, suit was permitted in the county where the cause of action arose or in which the subject of the suit was located.206 Another section provided that bills "seeking to divest or clear up the title to land, or to enforce the specific execution of contracts relating to realty, may be filed in the district in which the land or any material part of it lies."207

An 1875 chancery decision, Roper v. Roper,208 held that because the latter statute was permissive, a court in Davidson County, where a defendant resided, could set aside a sale of land in Trousdale County.209 In 1877, most likely in response to Roper,210 the statute was amended to read that the enumerated actions "shall" be filed in the county where the land is located.211 The amended statute, which appears unchanged today at section 16-11-114(1) of the Tennessee Code, thus imposes the local action rule in chancery actions seeking to directly affect rights in real property.212

The general rule that Tennessee circuit and chancery court actions seeking to directly affect realty in Tennessee must be brought in the county where the land is located is subject to some significant exceptions authorized by statute. A court may directly affect land located anywhere in the state in cases of decedents' estates,213 partitions,214 and divorce.215

Tennessee courts generally accept the principle that they may act to indirectly affect title to or possession of land outside the forum county by in personam order to a party respecting land located in Tennessee.216 No decisions address, however, whether that authority is limited, as it is in the case of land outside Tennessee, to actions based upon fraud, trust, contract, or divorce. Thus, it may be permissible for a Tennessee court to enjoin a trespass to land located in another Tennessee county although it would not be permissible to enjoin a trespass to land outside the state.217 On the other hand, actions for specific performance are excluded from the general principle that courts may issue orders indirectly affecting Tennessee land outside the forum county. The 1877 amendment to section 16-11-114, apparently designed to prohibit actions directly affecting title to land in another county,218 also requires that suits "to enforce the specific execution of contracts relating to realty . . . shall be filed in the county in which the land, or a material part of it, lies."219 The anomalous, and probably inadvertent, consequence of the 1877 amendment, therefore, is that a Tennessee court may order a party subject to the court's jurisdiction to specifically perform a contract by conveying land situated outside Tennessee,220 but the court may not order a party to specifically perform a contract by conveying Tennessee land situated outside the forum county.

A relatively recent decision illustrates the difficulty that courts experience in applying the maze of common-law and statutory doctrines that are relevant to a Tennessee court's authority to affect title to Tennessee land outside the forum county. In Martin v. Martin,221 a Knox County chancellor found that by mistake a promissory note executed by the defendants had been marked "paid" and that, also by mistake, a release of trust deed on Roane County realty securing the note had been executed and recorded.222 In addition to finding the defendants liable for the unpaid balance of the note, the chancellor "ruled the Roane County trust deed was valid although it had been released of record and never re-executed by the Defendants."223 The defendants argued on appeal that under section 16-11-114(1),224 the chancellor did not have jurisdiction to determine the validity of the trust deed.225

Affirming the chancellor, the court of appeals invoked the Penn v. Lord Baltimore principle that a chancery court's jurisdiction '"is sustainable wherever the person be found, although lands not within the jurisdiction of the court may be affected by the decree.'"226 Reliance upon that principle was misplaced, however, because the principle only authorizes a court to issue in personam orders that may indirectly affect title to foreign lands. The chancellor in Martin, however, had not ordered the defendants to re-execute the released deed; she merely declared the deed valid and the release invalid. The court of appeals apparently failed to appreciate the significance of the distinction between decrees that directly affect title to land and those that affect title only indirectly through an in personam order to a party.

The court of appeals also did not appreciate that statutes applicable to suits seeking to affect title to land in Tennessee may limit common-law doctrines that apply in suits seeking to affect title to out-of-state land. The only Tennessee decision relied upon by the Martin court for the Penn v. Lord Baltimore principle was one in which a chancellor enjoined defendants from interfering with a plaintiff's contractual right of access to Arkansas land.227 Because the subject land in the cited case was outside Tennessee, section 16-11-114(1) did not apply in that case to limit the court's common-law authority. The Martin court took no cognizance of any of the prior Tennessee decisions holding that section 16-11-114(1) indeed limits the court's authority to directly affect title to Tennessee land outside the forum county.228

Finally, the Martin court gave section 16-11-114(1) an unreasonably narrow construction, stating without elaboration that the suit did not fall within the types of actions enumerated in the statute, including a suit "to divest or clear the title to land."229 It is difficult to reconcile this conclusion with prior decisions holding that the statute prohibits an action seeking to cancel a trust deed to Tennessee land outside the forum county.230 If a suit to cancel a trust deed is one to "clear title" under the statute, how can a suit to cancel the release of a trust deed not be an action to "divest title" within the meaning of the statute? Although the result in Martin may have been desirable as a matter of efficiency and convenience, it did not correctly apply the Tennessee statute's local action limitation on chancery decrees directly affecting title to land in Tennessee.

3. Actions Seeking Money Damages for Trespass or Injury to Land

As in the case of actions at law seeking to directly affect title to Tennessee land,231 Tennessee courts have acted without a statutory mandate in applying the local action rule to suits seeking money damages for injury to Tennessee land located outside the forum county.232 Although a pair of early opinions involving Tennessee land seemed to resist the rule,233 the courts were undoubtedly influenced by the cases involving damage to out-of-state land,234 and by pronouncements in treatises on Tennessee practice.235

Tennessee courts have recognized at least one exception that permits an action for damages to Tennessee land located in a county other than the forum. The exception arose from a conflict between two local action rules. In Piercy v. Johnson City,236 the plaintiff sued Johnson City, a Washington County municipality, in a Unicoi County circuit court for damage to his Unicoi county land allegedly caused by the city's diversion of waters in Washington County.237 The case presented a conflict between the rule that suits for damage to land must be brought where the land is located,238 and the rule that suits against municipalities must be brought in the county of their situs.239 Deciding that the municipality rule was paramount, the Tennessee Supreme Court stated that the rule regarding land is "based on mere technical grounds or, at most, on considerations of the convenience of private individuals"240 and must "yield to the other founded on public policy as well as public convenience."241 Although there are no appellate decisions on point, it is possible that Tennessee courts would also honor the exception, found in cases involving out-of-state land, permitting suit in a county where the harmful act occurred even though the injury is to land outside the forum.242

The Tennessee Supreme Court also may have created an exception for claims by unnamed class members in class actions. Meighan v. U.S. Sprint Communications Co.243 was an inverse condemnation and trespass action brought in a Knox County circuit court.244 The plaintiff sought to represent a class of all Tennessee landowners whose property the defendant used, without consent or compensation, to install a cable in a railroad right-of-way across the plaintiffs' lands.245 Interpreting as jurisdictional the eminent domain statute permitting suit only in the county where the land is located,246 the trial court certified a class limited to owners of property in Knox County.247 After the court of appeals reversed the class certification altogether, the supreme court held that certification was proper.248 The supreme court also rejected the trial court's and defendant's assertion that the issue of venue was one of subject matter jurisdiction, limiting the authority of the trial court to injuries to land located in Knox County.249

With respect to the jurisdictional issue, the court first indulged in some hyperbole, stating, "[W]ere the specific statutory provision regarding venue interpreted as defendant urges, class actions would, by definition, cease to exist in this and a number of different statutory causes of action."250 Then, without acknowledging Tennessee law treating venue in local actions as jurisdictional,251 the court discussed the general distinction between venue and subject matter jurisdiction.252 The court next invoked the federal doctrine that "[i]n a class action venue is controlled by the residence of the named representative,"253 and concluded that the trial court erred in finding that all class members must "reside" in the same venue.254 The Meighan opinion may be read as rejecting the proposition that an inverse condemnation action for injury to land is a local action and that local action rules are jurisdictional.255 Because the court never directly addressed those propositions, however, and relied so heavily on class action policies and doctrines, it is probably more accurate to read the opinion as, at most, creating an exception to the local action rule for claims of unnamed plaintiffs in class actions.

C. Local Action Rules and Subject Matter Jurisdiction

Like some federal courts and courts of other states, Tennessee decisions usually treat local action restrictions in actions relating to land as rules of subject matter Jurisdiction.256 In the interstate context, Tennessee courts typically refer to the issue as one of subject matter jurisdiction whenever they hold it erroneous for a court to directly257 or indirectly258 affect title to or possession of land outside of Tennessee or for a court to award damages for trespass or injury to land outside Tennessee.259 The Tennessee Supreme Court has applied the no-waiver, no-consent rule of subject matter jurisdiction to a local action objection260 and has refused to give full faith and credit to sister state judgments that purport to directly affect Tennessee land.261

Similarly, in the intrastate context, Tennessee courts have treated a local action objection to suit in a county other than the situs of subject land as an objection to subject matter jurisdiction, which the defendant may assert at any stage of the litigation.262 Tennessee decisions have also held that an action brought in violation of a local action restriction does not bar a subsequent action under the doctrine of prior suit pending,263 and that a judgment entered in violation of a local action restriction may be subject to collateral attack.264

D. Municipal Corporations

The Tennessee Supreme Court has created an additional local action rule that is entirely unrelated to real property. That rule, in short, is that in a suit against a municipal corporation, only the courts in the county in which the corporation is located have subject matter jurisdiction.

In Nashville v. Webb,265 the plaintiff brought suit in Wilson County against two railroad companies and the City of Nashville, a Davidson County municipality, for personal injuries he allegedly suffered by reason of a defective Nashville sidewalk.266 The original writ was served on one of the railroad defendants at its office in Wilson County, and the other defendants were served in Davidson County by counterpart writs.267 The City defaulted in the Wilson County action and then collaterally attacked the judgment against it by seeking in a Davidson County court to enjoin the judgment's execution.268 The Tennessee Supreme Court affirmed the chancellor's injunction against execution on the grounds that the Wilson County court had no jurisdiction, and the judgment was, therefore, void.269

The court gave two rationales for holding that all actions against municipal corporations are local and must be brought in the county in which the city is located.270 First, the court stated that actions against municipal corporations are "inherently local."271 The court did not reach this conclusion by reference to any of the established tests for determining whether an action is transitory or local. Applying the traditional test-the nature of the transaction or the subject injured (negligent injury to the person)-the action would be considered transitory.272 Rather, the court began by noting the consequence of categorizing an action as transitory: "Transitory actions . . . follow the person of the defendant wherever he may be found."273 From this, the court reasoned that the action must be local because municipal corporations "cannot change their situs or their place of abode. They cannot remove from one place to another, and sojourn for a time at this point or that. They remain stationary; hence they must be sued where they are found-that is, in the county of their location."274 This rationale was simply metaphysical nonsense. Municipal corporations, like any other corporation, are capable of acting, through their agents, outside their locales,275 and are capable of suing and being sued in other counties.276

The second rationale expressed by the court in Webb revealed that the court's eagerness to apply the label "local" to the action before it arose from reservations about the rule of transitory venue. The court asserted that actions against municipal corporations should not be considered transitory because:

[I]t is of the greatest importance to the welfare of such bodies, and of the citizens whom they serve, that their officers should be permitted to remain at home and discharge their public duties, instead of being called hither and thither over different parts of the state to attend to litigation brought against the city through the agency of counterpart writs.277

The court's concern about the defendant being called "hither and thither" as a consequence of transitory venue was not the first time the Tennessee Supreme Court expressed concern about transitory venue. In an 1886 decision, Carlisle v. Cowan,278 a suit between private parties, the court strictly construed Tennessee's transitory venue statute, which stated, "In all transitory actions, the right of action follows the person of defendant, unless otherwise expressly provided."279 The court held that for venue to be proper with respect to a defendant who resided outside the forum county, the defendant must be present in the county both when the suit is instituted and when the summons is served on him.280 In justifying its construction, the Carlisle court explained that,

[t]he common law was exceedingly averse to permitting defendants to be sued, even in transitory actions, other than at the place where [they] resided. That a defendant should be harassed by a suit at a distant point, and to which he might not be able to carry his witnesses, was rigidly guarded against. . . .281

The court further explained that approving of venue solely on the basis that the defendant was served with process in the county, without his presence when the suit was instituted, "would be to legalize the setting of a trap which might await the coming of a defendant an indefinite time, and merely for the purpose of suing him out of the county of his residence."282

In Webb, the court endeavored to protect at least municipal corporations from the operation of the transitory venue rule. Whatever the merits of giving municipal corporations this immunity, use of the local action doctrine, with its "jurisdictional" characteristics, is strong medicine. Following Webb, a municipal corporation is permitted to collaterally attack a judgment entered in another forum, and to raise the venue objection at any stage in the litigation.283 The Tennessee Supreme Court has also invoked the Webb doctrine in finding that suits against state departments and agencies are local actions.284 Moreover, as a rule of subject matter jurisdiction, the venue restriction may not be waived by the defendant even when it prefers to litigate in a foreign county.285

E. The Localization Doctrine

As troublesome as it is for courts to treat venue rules as rules of subject matter jurisdiction, Tennessee would be no more guilty than other jurisdictions if it limited the practice to traditional local action rules respecting land. Tennessee has gone much further, however, by evolving a doctrine of "localization" that extends subject matter jurisdiction treatment to many other venue provisions. The localization doctrine declares that when a statute eliminates the option of suit wherever the defendant may be found and fixes venue for an otherwise transitory action in a particular county or counties, the legislative intent is to "localize" venue. Thus, the formerly transitory action becomes a local action. Once the label "local" is attached, the selection of a forum county becomes jurisdictional, subject to the no-waiver, no-consent rule and other consequences of litigation in a court lacking subject matter jurisdiction. Tennessee's localization doctrine does not create any new forum restrictions. It has nothing to do with the nature of the action, or with the policies that prompted the legislature to limit permissible venues. The doctrine merely converts a statutory venue restriction into a rule of subject matter jurisdiction solely because the legislative treatment no longer supports the historical label "transitory."

One particular venue statute has figured prominently in the evolution of the localization doctrine. As an exception to the general provision for venue in transitory actions wherever the defendant may be found, the Code of 1858 provided, "If the plaintiff and defendant both reside in the same county in this state, such action shall be brought in the county of their residence."286 This unique287 Tennessee statute is known as the "common county rule."288 As an early treatise described the statute:

[I]t would be most unjust to permit the plaintiff in a simple action of debt or other such action, although the venue may be wherever the defendant may be found, to catch his neighbor away from home, and the home of his witnesses, and surprise him with a suit which, however able he may be to resist at home, he is wholly unable to do so among strangers. Such oppressive use as this would be of the process of courts is prevented by Section 8641, and it is believed this was all it was intended to do.289

Thus, the common county rule is a band-aid on the problem of abuse, discussed by the Tennessee Supreme Court in Carlisle,290 that may result from application of the rule that transitory actions may be brought wherever the defendant is found.

Several Tennessee Supreme Court decisions in the 1920s set the stage for the localization doctrine. In Haynes v. Woods,291 the Tennessee Supreme Court used fateful language when it described the common county rule as intended by the legislature to "localize" transitory actions.292 The common county rule, however, was not at issue in the Haynes case, which concerned only an interpretation of the general transitory venue statute. The same year, in Burger v. Parker,293 the court again spoke of venue that has been "localized by statute." Holding that the plaintiff was permitted to bring an action in Hamilton County against the sheriff of Marion County for an assault committed in Marion County, the Burger court observed that "in most of the states such actions have been localized by statute, but it is conceded that no statute of this character exists in Tennessee."294 Although the Haynes and Burger opinions introduced the terminology of legislative intent to "localize" venue, neither opinion suggested any particular consequences that would follow from labeling venue "localized."295

The next year, in Brown v. Brown,296 the court rejected an argument that by specifying certain counties as proper venues in divorce actions,297 the legislature had made divorce actions "local," and therefore, made venue jurisdictional.298 The court observed that the venue statute for divorce actions continued to include the option of the county in which the defendant "is found."299 The court stated that the "characteristic feature of a transitory action is that 'the right of action follows the person of the defendant.'"300 The Brown opinion is significant because, like the opinion in Webb,301 it articulated the distinction between local and transitory actions not by reference to the nature of the action or the remedy sought, but solely in terms of the result that obtains once the label is applied. Brown's statement about the "characteristic feature" of transitory actions amounts to nothing more than the proposition that actions are transitory when they are transitory. Brown, however, laid further groundwork for a court to reason that if the legislature eliminates the option of venue wherever the defendant may be found, the action is no longer transitory and, therefore, has become a "local action."

That is exactly the reasoning in Curtis v. Garrison,302 an action for assault and battery brought in Warren County by a resident of Coffee County against a defendant who was also a resident of Coffee County.303 The defendant filed a "plea of general issue," but later sought to withdraw the plea and to file a plea in abatement challenging venue on the ground of the common county rule.304 The plaintiff contended that the defendant's plea of general issue had waived the venue objection.305 The trial court dismissed the case and the Tennessee Supreme Court affirmed.306 Citing Haynes,307 the court stated that the common county rule evinced a "legislative purpose to localize transitory actions."308 Then, citing Webb,309 the court stated that the courts have "no jurisdiction of local actions brought in the wrong county and consent cannot give jurisdiction."310 Curtis thus took a statute limiting venue options and transformed it into a rule of subject matter jurisdiction.311

Locked into the transitory/local dichotomy, the Curtis court apparently felt compelled to force all actions into the two categories. Because the legislature had removed the venue option of "wherever the defendant might be found," the action could not be transitory. It must be local, and therefore the defect in the place of suit was jurisdictional. Unfortunately, the court did not consider the possibility of a third category-transitory actions subject to limited, but waivable, venue options designated by the legislature. Nor did the court undertake any serious inquiry, beyond its categorical reasoning, in determining the legislative purpose upon which it based its holding.

Following Curtis, Tennessee courts continued to transform venue into subject matter jurisdiction on the sole basis that a statute eliminates the option of suit wherever the defendant is found and limits venue to particular locales.312 A potentially disastrous example surfaced in the 1960s when the legislature removed the option of the county where the defendant is found from the statute governing venue in divorce actions.313 A 1965 court of appeals decision, Oliphant v. Oliphant,314 held that as the legislature had localized divorce actions, venue had become jurisdictional. Consequently, regardless of the parties' waiver or consent to venue, any decree entered by a court with improper venue was void and subject to collateral attack.315 Oliphant raised the unpleasant prospect that scores of unsuspecting couples would suddenly find themselves still married.316

The legislature acted quickly to undo the worst of the damage, amending the divorce venue statute in 1967 to add a provision that, "Any divorce granted prior to the passage of this act will not be deemed void solely on the ground that the parties to the divorce action were residents of a county or counties other than the county in which said divorce was entered."317 The amendment did not provide, however, that venue in future divorces would be waivable and did not, therefore, eliminate the possibility that divorces granted in an improper venue after enactment of the amendment would be found void.

Ten years later, the Tennessee Supreme Court cured that problem. In Kane v. Kane,318 the parties, both Davidson County residents, had been divorced by a 1964 decree in a Robertson County court.319 Sometime in the 1970s in an ongoing child custody dispute, the wife brought an action in a Davidson County court challenging a ruling of the Robertson County court on the grounds that the latter court had never acquired "jurisdiction" in the case because venue was improper.320 The supreme court rejected the wife's argument not only on the basis of the 1967 amendment, but also on the ground that the parties had waived venue objections in the Robertson County action.321 With no mention of the "localizing" effect of the venue statute, the court stated that the wife "confuses venue with jurisdiction."322 While the court in Kane removed the localization doctrine from cases governed by the venue statute for divorces,323 it did nothing to undo the effect of the doctrine in other areas in which the court itself, both before and after Kane, can fairly be accused of the same confusion.

The localization doctrine has also corrupted the concept of venue in the area of suits against state governmental officials and entities. The general rule in Tennessee is that actions against state boards and commissions, departments, agencies, and their officials are local actions that may be brought only in Davidson County,324 unless a statute specifically permits the action to be brought elsewhere.325 This general rule originally derived from judicial interpretations of a statute providing that each department of state government "shall maintain a central office at the capitol, which shall be the official residence of each commissioner, or head of department."326 For example, in Delta Loan & Finance Co. v. Long,327 the plaintiff sought judicial review in a Shelby County court of a cease and desist order issued by the Commissioner of the Department of Insurance and Banking.328 The Commissioner moved to dismiss the action, asserting that the Shelby County court had no "jurisdiction of the matter."329 The supreme court reversed the trial court's denial of the motion.330 The supreme court's opinion noted the statute that established the Commissioner's "official residence" in Nashville, and then reasoned that, "The situs of such department and official residence is, therefore, local like that of a municipal corporation."331 On the basis of the Commissioner's exclusive official residence in Nashville, the court held that the Commissioner could be sued only in Davidson County.332

In 1996, the Tennessee General Assembly enacted a set of statutes governing lawsuits by prison inmates.313 The statutes include a venue provision that appears to create an exception to the general rule that actions against departments of state government must be brought in Nashville.334 Section 41-21-803 of the Tennessee Code provides, "Venue. Except as otherwise provided by law, an action that accrued while the plaintiff inmate was housed in a facility operated by the department shall be brought in the county in which the facility is located." The courts have had considerable difficulty determining when section 41-21-803 applies, as opposed to the general rule permitting suit only in Davidson County.335 In Hawkins v. Tennessee Department of Corrections,336 the court of appeals delivered an extensive analysis of the conflicting statutes and judicial decisions pertinent to the problem. The court concluded in the case before it that pursuant to section 41-21-803, the inmate's suit arising from events that took place at the state penitentiary in Henning should have been brought where the prison was located, not in Davidson County.337

The Hawkins opinion repeatedly invoked the "localization" doctrine.338 Indeed, the court stated that the issue before it was "which 'localizing' statute should prevail."339 The court's holding that section 41-21-803 had localized the action,340 and that the statute was jurisdictional,141 had two important consequences. First, these holdings justified the action of the trial court in dismissing the suit sua sponte, and also justified the appellate court's holding that venue was improper in spite of the fact that on appeal both the plaintiff and the Department of Corrections contended otherwise.342 Second, unlike many jurisdictions,343 Tennessee has no statute providing for transfer of a suit brought in an improper venue.344 A recently-enacted statute, however, authorizes transfer of a case filed in a court that "lacks jurisdiction."145 The "jurisdictional" holding in Hawkins, therefore, permitted the court of appeals to remand the case with instructions to the trial court to transfer to the county in which the prison was located,346 an option that would not have been available had the venue not been deemed "local."347

IV. CRITIQUE

Local action rules interfere with the modern ideal of just, speedy and inexpensive determination of disputes.348 Because local action rules are often illogical, uncertain and difficult to apply, they may necessitate time-consuming preliminary adjudication before litigation proceeds to the merits.349 These rules sometimes dictate a forum that is inconvenient for both parties and witnesses, and may prevent the forum having the greatest interest in the controversy from adjudicating the matter.350 Local action restrictions cause inefficiency when they interfere with unified distribution of property in cases of divorce and decedents' and insolvents' estates.351 Application of the no-waiver, no-consent rule assures that parties will have no way to avoid litigating in a forum that all concerned consider to be less desirable than some other choice. When courts allow local action objections to be raised at any time in the litigation, even for the first time on appeal or collateral attack, considerable resources may be completely wasted by a belated but successful assertion of the objection.

A. Local Action Rules

Courts should not be prohibited from adjudicating disputes on the sole basis that the action may determine rights respecting land located outside the forum. No useful purpose or important policy justifies the disadvantages of traditional local action rules. The various rationales for the rules do not withstand scrutiny.

The original rationale for the local action concept-selection of jurors with first-hand knowledge of disputed facts352-has long been an anachronism. The early notion that actions involving land are inherently, or by nature, local because their cause could occur in only one place353 is nothing but an abstraction that reveals no reason or purpose for a local action rule.

In ninteenth century United States courts, state sovereignty became the force behind local action restrictions in suits seeking title to or possession of land outside the forum state. Courts at that time assumed that there was a distinction between in rem and in personam proceedings; that in rem judgments affected property directly without exerting authority over persons;354 and that judgments directly affecting land in another state invaded the situs state's sovereignty.355 Nineteenth-century local action rules, including the doctrine that courts could exercise in personam remedial authority respecting land located in another state,356 expressed these policies.

The in personam/in rem distinction, and its premise that a judgment can affect property without affecting persons, was rejected in the twentieth century. In Shaffer v. Heitner,357 the Supreme Court explained that a proceeding in rem is nothing other than an adjudication of a person's rights in property,358 and held that all actions require in personam jurisdiction over affected parties.359 After Shaffer, a court's judgment cast in the in rem format, for example divesting title to land, can be understood only as an assertion of power over the parties and their interests in the property. In other words, no judgments directly affect land. Judgments affect only persons and are permissible so long as the court has jurisdiction over those persons. Thus, the notion that a state has exclusive authority over land in its territory is illusory, or at best overly broad. State sovereignty does not justify a local action rule that prohibits a court at the outset from adjudicating the parties' rights to title or possession of land located in another state.

Recognition that all proceedings are in personam, however, does not dispel all legitimate concerns about in rein-styled remedies respecting land in another state. A court's judgment divesting, vesting, conveying, or creating title to land, or imposing or releasing a lien on land, is an instrument, like any other conveyance or mortgage, that clouds the title. The concern, therefore, is that non-situs judgments will introduce uncertainty into a state's title records.360

Judgments, however, are subject to state recording acts,361 which are designed to insure the integrity of titles by protecting the public from undisclosed instruments affecting the title.362 Under the recording acts, judgments generally are not effective against third parties until recorded in the county land records.363

Nevertheless, as Professor Currie asserted, a state legitimately may be concerned about certainty in land titles because a foreign court's conveyance in the chain of title, albeit recorded, is vulnerable to attack on grounds such as the court's lack of jurisdiction or some other irregularity in its proceedings. Local title examiners should not be required to evaluate the validity of judgments rendered in unfamiliar forums. Currie posited that a state is justified in insisting upon a subsequent judicial proceeding at the situs to create a local title instrument (judgment or commissioner's deed) before the substance of the foreign judgment is enforced or the interest it creates is perfected through recording.364 Currie concluded, however, that this interest of the situs state does not support a state's refusal to otherwise give full faith and credit to sister states' judgments adjudicating rights in land.365 Similarly, concern for sister states' title records does not justify a state's refusal to adjudicate parties' rights to extraterritorial land.366 Local action rules that prohibit adjudications of disputes merely because extraterritorial land is involved are overbroad. Concerns about title integrity are adequately addressed by a remedial prohibition against judgments that purport to directly vest or divest interests in extraterritorial land.367

In addition, concerns about enforceability368 provide little support for rules prohibiting judgments affecting parties' rights in land in other states. So long as the forum court has jurisdiction over the parties, its judgment as to their rights and liabilities should be accorded full faith and credit at the situs,369 which will entitle the prevailing party to the situs courts' machinery for enforcing its own judgments.370

Issues of title integrity and enforceability provide even less support for local action restrictions in suits seeking traditionally in personam remedies. Both the local action rule in suits seeking money damages for trespass or injury to land,371 and rules limiting a court's authority to order parties to convey land located outside the forum,372 are sustained primarily by blind adherence to arbitrary precedent.373 Courts also justified local action restrictions, however, by concerns about choice of law, which may call for application of non-forum law in any variety of suit involving land outside the forum. Situs courts feared that foreign forums would ignore or misapply situs law,"4 and non-situs courts feared the difficulty of ascertaining situs law.375 A state's jealousy about its law, however, does not justify denying the jurisdiction of a sister state to adjudicate controversies between parties properly before it in any other context,376 and there is no reason to make an exception merely because the controversy involves land.377 Likewise, the fact that the particular foreign law that a court must ascertain involves rights in land does not make the forum court's task any more difficult than in the myriad of other situations in which courts determine and apply foreign law.378

Local jealousy alone may be the reason for the endurance of local action restrictions in the area of decedents' estates. States generally require application of situs law to all questions of the descent of real property379 and also require separate proceedings in each state in which assets of the estate are located.380 Although criticized by scholars,381 these rules have been especially resistant to reform. The Uniform Probate Code,382 for example, was a step toward unified administration of estates,383 but the Code has been adopted in only sixteen states. Commentators blame the continuation of this unnecessarily complex and inefficient system on the parochialism of the probate bar, which benefits from the resulting specialization of practice and redundant costs of administration.384 As Professor Leflar wrote,

The absurd inefficiency that inheres in complete separation of administrations can be quite evident where land is concerned .... The courts are under no duty to preserve wasteful procedures merely out of deference to the legislative inertia or unenlightened self-interest which in any particular state may delay the enactment of the Uniform Probate code or comparably realistic statutes.385

Trial convenience and simplification of factual determinations have also been cited as rationales for local action rules.386 Modern technology and procedural law, however, have greatly diminished the problems of finding and proving both foreign law and records of title located in another state.387 Moreover, in many cases subject to local action restrictions, such as suits for injury to land, title to the subject land may not be a disputed issue. Issues of trial convenience, considering both applicable law and factual development, are better served by the doctrine of forum non conveniens than by an overly-broad per se rule.388

Rationales that derive from concerns about state sovereignty provide no support, of course, for local action rules in the intrastate context. Nor are any of the other concerns discussed above sufficient reasons for local action rules in the intrastate setting. Tennessee judgments affecting title to or possession of land in a Tennessee county outside the forum do not threaten the integrity of county land records, a fact that the legislature implicitly recognized in statutes permitting courts, in certain cases, to divest title and to decree sales of land anywhere in the state,189 and requiring that such judgments be registered in the county land records.390 Enforceability and choice of law are, of course, of no concern in a Tennessee action involving land located in Tennessee, whether the action seeks to directly or indirectly affect title to or possession of the land, or only to recover money damages for trespass or injury to the land.

Tennessee's court-made local action restrictions respecting municipal corporations also enjoy no sound rationale. The municipal corporation rules are based on abstract and unrealistic notions that such entities are "stationary" and that they should be protected from suits outside their official situs.3" These propositions are belied by judicially recognized exceptions and legislative enactments that specifically permit suits against municipal corporations in various counties in the state.392

Of perhaps greatest importance, there is no tenable basis for treating any of the local action restrictions as rules of subject matter jurisdiction. The original reasons for this treatment lie somewhere in the early history of local action rules, arising from the same notions of sovereignty and power that gave rise to the local action restrictions themselves. Given pre-twentieth century ideas about territorial authority, it is not surprising that courts thought of the local action rule for in rem proceedings as jurisdictional.393 Courts unthinkingly carried that treatment over to all actions categorized as "local," regardless of the nature of the action or the remedy sought. Subject matter jurisdiction treatment is also unjustified when applied to local action rules unrelated to land-such as Tennessee's municipal corporation and common county rules. These rules, designed to protect defendants from inconvenient venues, are turned on their heads when the defendants are unable to waive their application.

B. The Localization Doctrine

Tennessee's localization doctrine is a triumph of labeling over reasoning. "Localized" venue, in the parlance of Tennessee decisions, has nothing to do with the traditional local action concept that some actions are inherently tied to a situs because of the nature of the claim or the remedy sought. Localized venue is merely a label courts apply to a legislative decision to limit venue to counties with some meaningful relation to the controversy or the parties, rather than to permit suit in any county in which the defendant is found. There is no reason to assume, however, that whenever the legislature specifies where an action may be brought that it also intends those venue restrictions to be treated as limitations on the courts' subject matter jurisdiction. Indeed, in those states that have abandoned altogether the option of venue wherever the defendant may be found,194 the localization doctrine would lead to the absurd conclusion that all venue is jurisdictional.

Venue statutes are commonly described as creating a waivable personal privilege focused on convenience to the parties, particularly the defendant.195 When the legislative purpose in specifying venues is to promote convenience for the parties, that purpose is undermined by Tennessee's localization doctrine. By declaring that venue is jurisdictional, the courts inflexibly impose the statutorily designated venues even when all parties consider another forum more convenient.3'6 The localization doctrine requires that courts reject the collective judgment of opposing parties, even though the parties' familiarity with the case places them in a far better position than the court to know the most convenient forum for presenting the evidence. The localization doctrine also undermines the legislature's judgment that defendants should be required to assert their objections to the place of trial in a timely fashion.3'" Tennessee courts, moreover, have applied the localization doctrine inconsistently, ignoring it altogether in categories of cases in which they find it unpalatable.398

Admittedly, there may be instances in which the legislature intends that a particular forum restriction be treated as a limitation on the courts' subject matter jurisdiction. When a statutory provision is ambiguous, the courts may be obliged to make that determination. Because of the inflexibility of jurisdictional rules, however, courts should be particularly careful before categorizing place-of-suit provisions as jurisdictional rules. Absent an unequivocal legislative statement, courts should accord subject matter jurisdiction treatment only after taking into account all relevant considerations, including the statutory language,31" context, and purpose. Tennessee's localization doctrine permits the courts to avoid struggling with these often difficult inquiries. The localization doctrine substitutes categorical reasoning for a realistic decision about whether the legislature intends its forum restriction to have particular consequences. Tennessee courts should abandon the doctrine.

V. PROPOSAL FOR REFORM

The Tennessee Supreme Court should abrogate the judiciallycreated localization doctrine. The court should adopt instead a presumption that, so long as any court-circuit, chancery, probate, etc.-has subject matter jurisdiction for a type of action, statutory limitations on the geographical locales in which the action may be brought are nothing more than waivable venue rules.

The Tennessee Supreme Court can, and should, abrogate judicially-created local action restrictions by holding that in all actions seeking to adjudicate persons' rights, including rights respecting real property, venue is governed by the general statutory provision for transitory actions.400 Such a holding would at least eliminate the local action restriction on actions seeking money damages for injury or trespass to land.401 The court should also make clear that judgments indirectly affecting interests in land, wherever located, are appropriate so long as the court has jurisdiction over the parties and, when equitable relief is ordered, the case is appropriate for such relief.402 In addition, the court should overrule Nashville v. Webb and its progeny,403 and hold that absent a specific statute to the contrary, governmental entities are subject to the same venue rules as any other party.

Judicial action, however, is an imperfect method of reform for the problem of local action restrictions, both because the court must await an appropriate case and because some of the commonlaw rules have been codified. Consequently, legislative reform is required. The legislature could accomplish the reforms suggested above by adding provisos to the general venue statute to the effect that the statute governs actions seeking to adjudicate persons' rights in real property and suits by and against governmental entities, as well as a statement that venue provisions are not intended to affect the subject matter jurisdiction of any Tennessee court.404

To completely eliminate local action restrictions for suits seeking to directly or indirectly affect title to or possession of real property, section 16-11-114(1 )405 and section 20-4-103(406) of the Tennessee Code must be repealed.407 In place of these statutes, an option should be added to the general venue statute, section 20-4101, for the county in which a substantial part of the property that is the subject of the action is situated.408 In deference to the federalism and practical concerns regarding judgments that purport to directly affect title to land outside the state,409 such a prohibition could be added to the provisions currently authorizing courts to divest and vest interests in land.410 judgments directly affecting title to Tennessee land, however, should be permitted in any Tennessee county that is otherwise a proper venue, as statutes currently allow in some particular cases.411

If these statutory revisions are accomplished, the legislature will have interred the concept of a local action, and it will be appropriate to change the name of the general venue statute, section 20-4-101, from "Transitory Actions" to "Venue Generally" or "Residual Venue." In addition, the legislature should consider eliminating the anachronistic provision for venue where ever the defendant is found.412 The provision has been criticized by the courts,413 has spawned the common county rule,414 and, by preserving the concept of a transitory action, has led to the localization doctrine.413 The only situation in which the provision serves any conceivable purpose is the case of a suit against only non-residents for a claim that arose outside Tennessee, in which case there may be no venue option under the current general venue statutes, despite the ability to assert personal jurisdiction over the non-resident defendants in Tennessee.416 A better option for such cases would be to provide for venue where any plaintiff resides, or in any county chosen by the plaintiff, when there is no other proper venue.417

Modernization of Tennessee's confusing and outdated venue law is overdue. An essential first step is to eliminate the local/transitory distinction.418 That step will require that courts repudiate the local action and localization concepts, and that the legislature revise current venue statutes that codify traditional local action rules. A thorough revision of Tennessee's venue law would be even better.

JUNE F. ENTMAN*

* Professor of Law, University of Memphis Cecil C. Humphreys School of Law. A portion of this article previously appeared in june F. Entman, jurisdiction, Venue, and "Localized" Actions in Tennessee, 39 TENN. B. J. Apr. 2003, at 34. The University of Memphis School of Law supported this work through the services of student research assistants. justin Joy, Class of 2004, met all of my many demands promptly, thoroughly, and cheerfully. Brian Russell, Rajiv Singh, and Joni Smith also helped in the early stages of research. In addition, my colleague, Robert Banks, assisted enormously with criticism of both writing and analysis. I am grateful to them all.

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