AMERICAN FAMILY LIFE ASSURANCE OF COLUMBUS
v.
Virgil ELLISON.
Supreme Court of Mississippi.
*1050 Sсott Timothy Ellzey, James Grady Wyly, III, Michael Franklin Held, Gulfport, attorneys for appellant.
Eugene Coursey Tullos, attorney for appellee.
EN BANC.
DICKINSON, Justice, for the Court.
¶ 1. In this venue case, the question presented is whether the trial court abused its discretion when it denied the defendant's motion to transfer venue to Rankin County. Because we conclude that venue is proper only in Rankin County, we reverse.
FACTS AND PROCEDURAL HISTORY
¶ 2. On October 10, 2003, American Family Life Assurаnce of Columbus (AFLAC) agents Richard and Anita Atkinson issued a life insurance policy to Henry Myers, whose son, Virgil Ellison, was the named beneficiary under the policy. Myers died on October 13, 2003, and Ellison filed a claim with AFLAC for the insurance benefits. In a letter dated January 28, 2004, AFLAC refused the claim, stating "we must decline this claim and rescind this policy." Ellison filed a complaint in the Circuit Court of Smith County against AFLAC; Richard and Anita Atkinson, individually; and Richard and Anita Atkinson d/b/a AFLAC/Anita Atkinson; alleging that all "breached their duty of fair dealing and good faith owed to [Ellison] in failing to pay the full benefits to which he is entitled...."
¶ 3. AFLAC filed its answer and asserted improper venue as one of its affirmative defenses. Thereafter, Richard and Anita Atkinson filed separate answers.
¶ 4. AFLAC filed a "Rule 82(d) Motion to Transfer," arguing that Ellison's complaint "fail[ed] to establish that any alleged substantial acts or omissions or any alleged events that caused [Ellison's] alleged injuries occurred in Smith County, Mississippi so as to provide venue in this [c]ourt." AFLAC claimed venue was proper in Rankin County pursuant to Mississippi Code Annotated Section 11-11-3, because that was where its codefendants resided and had their principal place of business.
¶ 5. Ellison filed a brief in response to AFLAC's motion to transfer venue, arguing that venue was proper in Smith County under Mississippi Code Annotated Section 11-11-3, because his cause of action occurred or accrued in Smith County. AFLAC responded to Ellison's brief by reiterating its previous аrguments.
¶ 6. In denying AFLAC's motion to transfer, the circuit judge stated:
My reasons for reaching that conclusion are as follows, to-wit:
1. According to the complaint, the plaintiff is a resident of Smith County, Mississippi;
2. Proceeds from the life insurance policy alleged in the complaint were payable to the plaintiff in Smith County; and
3. Failure to pay was a substantial omission and gave rise to this cause of action, thus satisfying paragraph (1)(a)(i) of Section 11-11-3.
Thereafter, the circuit court entered its official order denying AFLAC's motion for change of venue. AFLAC filed a petition for interlocutory appeal, which this Court granted.
*1051 ¶ 7. AFLAC claims the trial court erred in denying its motion to transfer venue. Specifically, AFLAC claims that venue is not proper in Smith County, as "(1) all resident [d]efendants reside or have their principal place of business in Rankin County, and (2) no alleged substantial acts, omissions or events that caused claimed injury occurred in Smith County."
ANALYSIS
¶ 8. This Court will not disturb a trial court's ruling regarding venue "unless it clearly appears that there has been an abuse of discretion or that the disсretion has not been justly and properly exercised under the circumstances of the case." Hedgepeth v. Johnson,
¶ 9. Mississippi Code Annotated, Section 11-11-3(1)(a)(i) states:
Civil actions of which the circuit court has original jurisdiction shall be commenced in the county where the defendant[1] resides, or, if a corporation, in the county of its principal place оf business, or in the county where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred.
Miss.Code Ann. § 11-11-3(1)(a)(i) (Rev. 2004). Thus, according to the plain language of the statute, Ellison may set venue in either: (1) the county where the defendant resides; (2) the county of a corporation's principal plaсe of business; or (3) the county "where a substantial alleged act or omission occurred or where a substantial event that caused the injury occurred."
¶ 10. It is undisputed that the Atkinsons (who are defendants) reside in Rankin County, and that AFLAC's principal place of business is outside Mississippi. Thus, pursuant to the plain language of the statute, the action must be commenсed in Rankin County, unless Ellison can show that a "substantial act or omission" or a "substantial event causing the injury" occurred in Smith County. However, in searching the record for activity which occurred in Smith County, we find only that Ellison was in Smith County when he was informed of the denial of insurance benefits. We previously have held that simply experiencing the effects of an act or omission in a county is insufficient to establish venue. See Med. Assurance Co. v. Myers,
¶ 11. In addressing the concerns raised by our learned colleagues in the dissent, we agree that the Atkinsons failed to raise the defense of improper venue and, thus, waived it. We do not agree, however, that the defense belongs exclusively to the Atkinsons, nor do we agree that their waiver acted to completely remove them from the action as far as determining proper venue for the case. Although we have not squarely faced this question before, the Oklahoma Supreme Court has, and it framed the issue well, stating: "The fact that one of several defendants submits to the jurisdiction of the court does not change the venue of the cause of action. It is merely a waiver of *1052 that defendant's personal right to demand a trial of the case in the county where the venue is fixed by statute." City of Cleveland v. Cheatham,
¶ 12. Thus, the dissent's decision to analyze this case under parаgraph (b) is incorrect, as the venue of the "cause of action" is proper in Rankin County under paragraph (a). We disagree with the dissent's claim that our holding "renders the Atkinsons' waiver ineffectual," as they did effectively waive their personal right to require a transfer of venue to Rankin County.
¶ 13. Finally, the dissent incorrectly reads Mississippi Rule of Civil Procedure 12(h)(1) as conferring an exclusive right on a particular defendant to assert a defense, and that one defendant may waive the defense on behalf of all defendants. Nothing in the rule or our jurisprudence suggests such an interesting interpretation.
CONCLUSION
¶ 14. For the reasons stated above, we reverse the trial court's denial of AFLAC's motion to transfer venue and remand this case to the trial court with instructions to transfеr it to the Circuit Court of Rankin County.
¶ 15. REVERSED AND REMANDED.
WALLER, C.J., CARLSON, P.J., LAMAR AND PIERCE, JJ., CONCUR. GRAVES, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION. RANDOLPH, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND CHANDLER, JJ.
GRAVES, Presiding Justice, Specially Concurring.
¶ 16. Today the majority reaches a conclusion that is consistent with Mississippi Code Section 11-11-3 and this Court's prior interpretations of that statute. However, because the majority's decision fails to address the relevant legal precedent, I must specially concur. Since the venue statute was amended relativеly recently, there are only a few cases from this Court regarding its interpretation. Most pertinent to today's decision are this Court's decisions in Baptist Memorial Hospital-DeSoto, Inc. v. Bailey,
¶ 17. In Bailey, the plaintiff sued the dеfendants (a corporation and an individual doctor) for medical malpractice in Quitman County. Bailey,
¶ 18. In Myers, the plaintiff, Dr. Ronald V. Myers, sued the defendant insurance company in Holmes County, alleging that it had wrongfully refused to renew the insurance policy covering Dr. Myers' medical сlinics. Myers,
Table 1
Case Counties Involved Mississippi Supreme
Court's Ruling
Bailey Quitman and DeSoto Venue Proper in DeSoto
County
Myers Holmes and Madison Venue Proper in Madison
County
¶ 19. This Court held in Bailey that a plaintiff may not bring suit in his or her county of residence when one of the defendants is domiciled in Mississippi, despite the involvement of a nonresident defendant. Bailey,
RANDOLPH, Justice, Dissenting.
¶ 20. The "Answer and Affirmative Defenses" of in-state defendants Richard and Anita Atkinson unquestionably failed to assert the defense of improper venue.[3]See *1054 Miss. R. Civ. P. 12(b)(3). In failing to do so, the Atkinsons waived said defense. See Miss. R. Civ. P. 12(h)(1). The Atkinsons' failure to contest venue would not foreclose AFLAC from asserting its separate defense of improper venue; however, in determining the efficacy of AFLAC's motion, the Court's analysis of Mississippi Code Annotated Section 11-11-3(1) should not be restricted to subsection (1)(a). In short, in examining the propriety of the improper venue defense, the Court should consider the venue rights of the complaining defendant(s). To hold otherwise erroneously renders the Atkinsons' waiver ineffectual, in contravention of Mississippi Rule of Civil Procedure 12(h)(1). See Stevens v. Lake,
¶ 21. Mississippi Rule of Civil Procedure 12(b) states, in pertinent part, that:
[e]very defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
(1) Lack of jurisdiction over the subject matter,
(2) Lack of jurisdiction over the person,
(3) Improper venue,
(4) Insufficiency of process,
(5) Insufficiency of service of process,
(6) Failure to state a claim upon which relief can be granted,
(7) Failure to join a party under Rule 19.
Miss. R. Civ. P. 12(b) (emphasis added). Mississippi Rule of Civil Procedure 12(g) adds that:
[i]f a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated.
Miss. R. Civ. P. 12(g) (emphasis added). Furthermore, Mississippi Rule of Civil Procеdure 12(h)(1) states:
[a] defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by a motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.
Miss. R. Civ. P. 12(h)(1) (emphasis added). See also Miss. R. Civ. P. 12(h)(1) cmt. ("[a] party who by motion invitеs the court to pass upon a threshold defense should bring forward all the specified defenses he then has and thus allow the court to do a reasonably complete job. The waiver reinforces the policy of Rule 12(g) forbidding successive motions."). Accordingly, under Mississippi Rule of Civil Procedure 12, Richard and Anita Atkinson waived their defense of imprоper venue.[4]
*1055 ¶ 22. This Court has stated that "the Legislature never intended an interpretation of the venue statutes that would allow a resident defendant to be sued in the plaintiff's county of residence simply because a non-resident defendant, be it an individual or a corporation[,] is joined in the same suit." Baptist Mem'l Hosp.-DeSoto Inc. v. Bailey,
¶ 23. AFLAC asserted that it was entitled to a change of venue, because its co-defendants were entitled to a change of venue. Undoubtedly, as provided in City of Cleveland v. Cheatham,
¶ 24. While the circuit court's statеd reasons for denying the motion to transfer may or may not be accurate,[10] its ultimate disposition is proper. See Cucos, Inc. v. McDaniel,
KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.
NOTES
Notes
[1] The term "the defendant" also extends to and embraces the plural. See Miss.Code Ann. § 1-3-33 (Rev.2005).
[2] At the time, the venue statute included similar, but not identical, language to that in the current version of Mississippi Code 11-11-3(1)(a)-(b). See Bailey,
[3] However, both included the Mississippi Rule of Civil Procedure 12(b)(6) dеfense of "[f]ailure to state a claim upon which relief can be granted...." Miss. R. Civ. P. 12(b)(6).
[4] In fact, it was not until August 16, 2007, more than ten months after Ellison's complaint was filed in Smith County, that either Richard or Anita Atkinson made any assertion regarding venue. When they did, it was merely by joining AFLAC's rebuttal brief.
[5] Adams is further distinguished insofar as it involved a medical malpractice claim, thereby implicating Mississippi Code Annotated Section 11-11-3(3). This Court dеtermined that subsection was clear and, therefore, "[r]egardless of Goldstrike's joinder as a defendant, the only proper venue for a suit against medical providers is the county in which the alleged act or omission occurred." Adams,
[6] Other than joining the rebuttal brief filed by AFLAC. See footnote 2 supra.
[7] 12 Oklahoma Statute Section 133 states, in pertinent part, that "[a]ctions for the following causes must be brought in the county where the cause, or some part thereof arose:. . . [a]n action against a public officer for an act done by him in virtue, or under color, of his office, or for neglect of his official duties." 12 O.S.1951 § 133. Therefore, the residence of the waiving codefendant is of no consequence under said statute. Rather, the legal standing of the cоdefendant as a "public officer" acting "in virtue, or under color, of his office" alone necessitates venue "in the county where the cause, or some part thereof arose...." Id.
[8] Likewise, a defendant may not avail itself of a codefendant's waived motion for time, answer, or affirmative defenses, for that matter. See Miss. R. Civ. P. 6-8.
[9] Gardner did not discuss whether venue rights vested in the waiving defendants are otherwise proper for the non-waiving defendants.
[10] See Majority Opinion at ¶ 6.
[11] See Majority Opinion at ¶ 10.