Michael Salts v. Gulf National Life Insurance Company ( 1997 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 97-IA-01183-SCT
MICHAEL SALTS, ALICE MARIE SALTS AND SALTS FUNERAL HOME,
INC.
v.
GULF NATIONAL LIFE INSURANCE COMPANY d/b/a SELECTED
FUNERAL INSURANCE COMPANY; CHIEF EXECUTIVE OFFICER
JERRY O'KEEFE, AS PRESIDENT OF GULF NATIONAL LIFE
INSURANCE COMPANY, AND INDIVIDUALLY; JAMES C. MAXEY, AS
PRESIDENT OF GULF NATIONAL LIFE INSURANCE COMPANY, AND
INDIVIDUALLY; PRENTISS FUNERAL DIRECTORS, INC. d/b/a
BOONEVILLE FUNERAL HOME; PHILLIP DUNCAN, INDIVIDUALLY,
AND AS OWNER OF PRENTISS FUNERAL DIRECTORS, INC. d/b/a
BOONEVILLE FUNERAL HOME; STAN HOWELL, AS AN EMPLOYEE
OF PRENTISS FUNERAL DIRECTORS, INC. d/b/a BOONEVILLE
FUNERAL HOME, AND INDIVIDUALLY; WILLIAM McDONALD, AS AN
EMPLOYEE OF PRENTISS FUNERAL DIRECTORS, INC. d/b/a
BOONEVILLE FUNERAL HOME, AND INDIVIDUALLY
09/09/99
DATE OF JUDGMENT: 9/24/97
TRIAL JUDGE: HON. L. BRELAND HILBURN, JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: TALMADGE D. LITTLEJOHN
ATTORNEYS FOR APPELLEES: JOSEPH C. LANGSTON
MICHAEL S. ALLRED
WILLIAM W. BUSHING
DENNIS C. SWEET, III.
MARK H. TYSON
LAURA H. TEDDER
CHRISTI R. McCOY
SAM E. SCOTT
MICHAEL A. HEILMAN
MARC A. BIGGERS
NATURE OF THE CASE: CIVIL - CONTRACT
DISPOSITION: REVERSED AND REMANDED-08/19/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE PITTMAN, P.J., McRAE AND SMITH, JJ.
SMITH, JUSTICE, FOR THE COURT:
¶1. On January 30, 1990, the Appellant-Plaintiffs, Michael Salts, Alice Marie Salts and
Salts Funeral Home, Inc., (hereinafter as the "Salts") and the Appellee-Defendants,
Gulf National Life Insurance Company (hereinafter as "Gulf National"), et al., entered
into an exclusive written agreement. On June 28, 1996, the Salts filed suit in the First
Judicial District of Hinds County for breach of contract alleging that Gulf National Life
Insurance Company, d/b/a Selected Funeral Insurance Company, on or about
November 29, 1994, and December 2, 1994, denied the exclusivity of their agreement
and entered into conflicting contracts with others.
¶2. Subsequent pleadings were filed in this case, but on April 16, 1997, the Appellees
filed an application for hearing on their Motion for Change of Venue. After hearing oral
argument thereon, the trial court, the Honorable L. Breland Hilburn presiding, on
August 11, 1997, entered an order granting change of venue to the Circuit Court of
Prentiss County.
¶3. On September 25, 1997, the trial court entered an order denying the certification
required by this Court for interlocutory appeal under Mississippi Rule of Appellate
Procedure (M.R.A.P.) 5(a). The Salts filed their Petition for Certification for
Interlocutory Appeal by permission of this Court on October 8, 1997. On April 8,
1998, this Court entered its order granting the Petition for Interlocutory Appeal.
¶4. Aggrieved, the Salts now raise an interlocutory appeal of the following issue:
I. DID THE TRIAL COURT ERR IN GRANTING A CHANGE OF
VENUE TRANSFERRING THIS CAUSE FROM THE CIRCUIT
COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY,
MISSISSIPPI TO THE CIRCUIT COURT OF PRENTISS COUNTY,
MISSISSIPPI?
Having considered this very issue in Clark v. Luvel Dairy Products, Inc., 731 So. 2d
1098 (Miss. 1998) we find that this case should be reversed and remanded.
STANDARD OF REVIEW
¶5. "An application for a change of venue is addressed to the discretion of the trial
judge, and his ruling thereon will not be disturbed on appeal unless it clearly appears
that there has been an abuse of discretion or that the discretion has not been justly and
properly exercised under the circumstances of the case." Beech v. Leaf River Forest
Prods., Inc., 691 So. 2d 446, 448 (Miss.1997) (quoting Mississippi State Highway
Comm'n v. Rogers, 240 Miss. 529, 539-40, 128 So. 2d 353, 358 (1961)). Accord,
Estate of Jones v. Quinn, 716 So. 2d 624, 626 (Miss. 1998).
LEGAL ANALYSIS
I. DID THE TRIAL COURT ERR IN GRANTING A CHANGE OF
VENUE TRANSFERRING THIS CAUSE FROM THE CIRCUIT
COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY,
MISSISSIPPI TO THE CIRCUIT COURT OF PRENTISS COUNTY,
MISSISSIPPI?
¶6. The Salts argue that the trial court abused its discretion in transferring venue to the
Circuit of Prentiss County. The Salts offer this Court recent decisions involving venue
and our venue statute (Miss. Code Ann. § 11-11-3 (Supp. 1999)) which hold that the
plaintiff has an inherent right to select among all venues in which the action may be
brought. See Flight Line, Inc. v. Tanksley, 608 So. 2d 1149 (Miss. 1992). The Salts
contend that because they have an inherent right to select among all venues available
and the Circuit Court of Hinds County was a proper venue, the trial court erred in
transferring venue.
¶7. Mississippi Rule of Civil Procedure (M.R.C.P.) 82(b) expressly provides "(e)xcept
as provided by the rule, venue of all actions shall be as provided by statute." Venue is
therefore a function of statute. See Pisharodi v. Golden Triangle Reg'l Med. Ctr.,
1999 WL 191847 (Miss. Apr. 8, 1999). The relevant venue statute is Miss. Code Ann. §
11-11-3 (1972), which provides in pertinent part:
Civil actions of which the circuit court has original jurisdiction shall be
commenced in the county in which the defendant or any of them may be found or
in the county where the cause of action may occur or accrue and, if the defendant
is a domestic corporation, in the county in which said corporation is domiciled or
in the county where the cause of action may occur or accrue, . . . .
Under Section 11-11-3, the Salts chose to bring their suit in the Circuit Court of Hinds
County. Venue was proper in Hinds County because Gulf National and Selected
Funeral Insurance Company are domestic corporations domiciled in Hinds County,
Mississippi, and may be served with process at their Hinds County addresses.
¶8. Finally, the Salts argue that since venue in Hinds County is good as to Gulf
National, it is good to all the defendants. Blackledge v. Scott, 530 So. 2d 1363 (Miss.
1988). The Salts are correct, because in Blackledge, this Court held as follows:
In suits involving multiple defendants, where venue is good as to one
defendant, it is good as to all defendants. This is true where the defendant
upon whom venue is based is subsequently dismissed from the suit. In such
situations, venue as to the remaining defendants continues despite the fact that
venue would have been improper, if the original action had named them only.
Jefferson v. Magee, 205 So. 2d 281 (Miss.1967).
Id. at 1365 (emphasis added); accord Pisharodi, 1999 WL 191847 at *2.
¶9. Gulf National does not deny that venue was technically proper in Hinds County.
However, it argues that under Miss. Code Ann. § 11-11-51 (1972), the change of venue
should be affirmed. Section 11-11-51 allows for grounds for change of venue as
follows:
When either party to any civil action in the circuit court shall desire to change the
venue, he shall present to the court, or the judge of the district, a petition setting
forth under oath that he has good reason to believe, and does believe that, from
the undue influence of the adverse party, prejudice existing in the public mind, or
for some other sufficient cause to be stated in the petition, he cannot obtain a fair
and impartial trial in the county where the action is pending, and that the
application is made as soon as convenient after being advised of such undue
influence, prejudice, or other cause, and not to delay the trial or to vex or harass
the adverse party....
Miss. Code Ann. § 11-11-51 (1972). Gulf National argues that the Salts's selection of
forum created a lack of fairness resulting from unavailable and uncooperative
witnesses. It argues that in Miss. Code Ann. § 11-11-51 (1972), the Legislature created
a mechanism to prevent such problems by transferring venue where it would prevent
an unfair trial.
¶10. In Beech v. Leaf River Forest Prods., Inc., this Court affirmed a change of
venue under Section 11-11-51 where the change was reasonable in light of extensive
pretrial publicity and citizen bias against the defendants. Beech v. Leaf River Forest
Prods., Inc., 691 So. 2d 446, 448-50 (Miss. 1997). However, in the instant case, there
has been little, if any, pretrial publicity and no citizen bias against the defendants in the
forum chosen. Therefore, the application of Section 11-11-51 is not supported under
the facts of this case.
¶11. Gulf National asks this Court to overrule Clark v. Luvel Dairy Prods., Inc., 731
So. 2d 1098 (Miss. 1998), where this Court held the doctrine of forum non
conveniens to be inapplicable when the trial court is faced with a choice of venue
between two Mississippi counties. Gulf National contends that the factors considered
in a forum non conveniens analysis are relevant to a fairness and partiality
determination under Miss. Code Ann. § 11-11-51 (1972). Gulf National strenuously
urges this Court to reconsider the importance of intrastate forum non conveniens in
that it alleviates forum-shopping, allows trial judges to effectively and efficiently
administer lawsuits, and advances justice and promotes the ideals embodied in the
Mississippi Rules of Civil Procedure.
¶12. Gulf National asserts that the unique facts in this case justify transferring venue to
Prentiss County. They assert that the Plaintiff-Appellants are all residents of Prentiss
County, that every act or omission alleged occurred or accrued in Prentiss County,
that almost all of the 200-300 witnesses having relevant knowledge reside in Prentiss
County or the surrounding counties, and that the majority of Defendant-Appellees
reside in Prentiss County. Based on similar arguments, the trial court transferred venue
to the Circuit Court of Prentiss County.
¶13. In Clark, this Court specifically held as follows:
Our research on the doctrine of forum non conveniens, the common law, and
the development of venue conclusively establishes the following:
1) The history of the doctrine of forum non conveniens reveals no support
for intrastate forum non conveniens.
2) Venue is a function of statute, and reference to common law can only be
had where the venue statutes are silent.
3) By enacting a general venue statute which limited venue to the residence of
the defendant or the place where the defendant could be found, the legislature
effectively repealed the common law with regard to changing venue for the
sake of convenience.
4) Venue is a matter of convenience, and the legislative directive with regard
to convenience in this state is that counties meeting certain criteria will
generally be more convenient to the parties.
5) The issue is one of legislative prerogative, and the Court today does not
invade that prerogative.
Clark, 731 So. 2d at 1107 (emphasis added). Gulf National asks this Court to allow
the change of venue for convenience at the trial court's discretion. There are no more
compelling a set of facts here than there were in Clark. Hence, Clark should be
followed.
¶14. Moreover, in Pisharodi, this Court followed Clark and stated as follows:
In the case sub judice, the Defendants/Appellees supported their change of
venue argument with the fact that medical care in the Lowndes County area would
be crippled if they were forced to defend in Hinds County and that they would be
required to incur higher costs of obtaining the attendance of unwilling witnesses to
testify.
They have not, however, shown bias under the statute (Section 11-11-51) and
have failed to prove Pisharodi's choice of venue would have denied them a fair
and impartial trial, which the statute requires. While defending in Hinds County
may have been more burdensome on them than defending in Lowndes County,
the statute clearly provides mere inconvenience is insufficient grounds for a
change of venue from an obviously proper forum.
Pisharodi, 1999 WL 191847 at *2. The same is true here. While defending in Hinds
County may be more burdensome for Gulf National, mere inconvenience is not a
sufficient ground for a change of venue from a proper forum.
CONCLUSION
¶15. This Court declines the invitation to overrule Clark v. Luvel Dairy Prods., Inc.,
cited supra, and its progeny. The application of intrastate forum non conveniens
remains invalid where the trial court is faced with a choice of venue between two
Mississippi counties as is the case here. Thus, the Circuit Court of Hinds County
abused its discretion by improperly transferring venue to the Circuit Court of Prentiss
County. Because venue was proper in Hinds County and the Defendants-Appellees
have failed to meet the requirements for transfer in Section 11-11-51, we reverse the
order granting a change of venue, and we remand for further proceedings consistent
with his opinion.
¶16. REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT
WITH THIS OPINION.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE,
MILLS, WALLER AND COBB, JJ., CONCUR.