183 So. 3d 833
Miss.2016Background
- Brennan and Robin McMullan sued Johnson Group (seller) and U.S. Bank (lender) in Smith County, alleging the loan was finalized without consent and before delivery of a mobile home, harming their credit.
- Johnson Group and U.S. Bank repeatedly pleaded improper venue in their answers to the original and amended complaints.
- Johnson Group filed a cross-claim against U.S. Bank; U.S. Bank answered the cross-claim and again asserted improper venue.
- Johnson Group moved to transfer venue to Lauderdale County; U.S. Bank joined the motion.
- Trial court denied transfer, concluding defendants had waived the venue defense by delaying and by actively participating (relying on the cross-claim and answer).
- Defendants appealed interlocutorily; Supreme Court reversed, finding no waiver and ordering transfer in accordance with Miss. Code Ann. § 11-11-3(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants waived improper-venue defense by delay and participation | McMullans: defendants unduly delayed asserting venue and participated in litigation (cross-claim), so defense waived | Defendants: they timely pled venue in answers, promptly moved to transfer after amended complaint, and limited participation (mere cross-claim/answer) is not active participation | Court: No waiver. Answers preserved venue; motion to transfer was timely after amended complaint; limited activity did not constitute substantial participation |
| Whether one defendant's conduct can waive another defendant's venue right | McMullans: Johnson Group’s cross-claim submitted to Smith County and waived venue for all defendants | Defendants: one defendant’s waiver cannot be imputed to another; Bank maintained independent right to contest venue | Court: Held waiver by one defendant does not bind another; Bank’s joinder and repeated venue pleas preserved its right |
Key Cases Cited
- Wood v. Safeway Ins. Co., 114 So. 3d 714 (Miss. 2013) (standard of review for venue-transfer rulings)
- Lowery v. Will of Smith, 543 So. 2d 1155 (Miss. 1989) (failure to plead venue defense waives it)
- MS Credit Ctr., Inc. v. Horton, 926 So. 2d 167 (Miss. 2006) (undue delay plus active participation can waive an affirmative defense)
- East Miss. State Hosp. v. Adams, 947 So. 2d 887 (Miss. 2007) (examples of actions that constitute active participation)
- Spann v. Diaz, 987 So. 2d 443 (Miss. 2008) (measuring delay from answer to amended complaint; short delays may not be waiver)
- Kinsey v. Pangborn Corp., 78 So. 3d 301 (Miss. 2011) (long delay alone insufficient; must be coupled with active participation)
- Am. Family Life Assur. of Columbus v. Ellison, 4 So. 3d 1049 (Miss. 2009) (one defendant’s waiver does not alter venue rights of other defendants)
- Lemon Drop Props., LLC v. Pass Marianne, LLC, 73 So. 3d 1131 (Miss. 2011) (waiver by one party does not bind separately sued parties)