Katherine Grace Short v. Darren Versiga

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2018-IA-01302-SCT
KATHERINE GRACE SHORT
v.
DARREN VERSIGA
DATE OF JUDGMENT: 08/30/2018
TRIAL JUDGE: HON. ROGER T. CLARK
TRIAL COURT ATTORNEYS: CHRISTOPHER EDWARD SMITH
GRADY MORGAN HOLDER
SAMUEL M. BAYARD
MARY ELLEN ROY
ALONZO WICKERS, IV
SCOTT TIMOTHY ELLZEY
KATIE RYAN VAN CAMP
EDWARD C. TAYLOR
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT: CHRISTOPHER EDWARD SMITH
GRADY MORGAN HOLDER
ATTORNEYS FOR APPELLEE: EDWARD C. TAYLOR
KATIE RYAN VAN CAMP
NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL
INJURY & PROPERTY DAMAGE
DISPOSITION: REVERSED AND REMANDED - 10/03/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE RANDOLPH, C.J., ISHEE AND GRIFFIS, JJ.
GRIFFIS, JUSTICE, FOR THE COURT:
¶1. Katherine Grace Short appeals the circuit court’s change of venue in her defamation
case from the Circuit Court of the First Judicial District of Harrison County, Mississippi, to
the Circuit Court of Jackson County, Mississippi. Because a substantial event that caused
the injury occurred in the First Judicial District of Harrison County, venue is proper in that
county. Accordingly, the circuit court’s judgment is reversed and remanded.
FACTS AND PROCEDURAL HISTORY
¶2. On the evening of August 1, 1975, Short’s husband, Tye Breland, died from a gunshot
wound to the chest at their home in Pascagoula, in Jackson County, Mississippi. The Jackson
County coroner’s office determined that Breland’s death was caused by an accidental, self-
inflicted gunshot wound from a .410 shotgun. Short was not charged with Breland’s death.
¶3. Forty-two years later, on August 12, 2017, Cold Justice: Beyond the Grave, a true-
crime documentary (the episode), premiered on the Oxygen Network.1 The episode, which
aired nationally, focused on Breland’s death, and considered whether Short murdered her late
husband. During the episode, crime experts Kelly Siegler (identified as a prosecutor) and
John Bonds (identified as a homicide investigator) investigated Breland’s death. Darren
Versiga, a law-enforcement officer with the Pascagoula Police Department, assisted the
investigation. The investigation team exhumed Breland’s body, prepared a mockup of the
crime scene, conducted ballistics testing, and interviewed numerous witnesses to determine
whether Breland’s death was a suicide, an accident, or a homicide. The team concluded that
Breland did not commit suicide. They identified Short as a suspect in Breland’s death and
turned over their investigation to the Jackson County District Attorney’s Office. According
to the team, they put together enough information for a circumstantial case of murder.
¶4. On February 21, 2018, Short filed a complaint against Siegler, Bonds, Versiga, and
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The Oxygen Network is associated with the NBC Universal Network.
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various media entities in the Circuit Court of the First Judicial District of Harrison County
and alleged defamation and tortious invasion of privacy. Versiga filed an answer and
defenses to Short’s complaint. Versiga then filed a motion to transfer venue to the Circuit
Court of Jackson County. In his motion, Versiga argued that the Circuit Court of Jackson
County was the proper venue under Mississippi law because it was where a substantial
alleged act or omission occurred or where a substantial event that caused the injury occurred.
Versiga further argued that the Circuit Court of Jackson County was the proper venue “as it
is the county in which [he] resides.”
¶5. After a hearing on the motion, the circuit court found that “Jackson County [wa]s
where the investigation of the case and the majority of the acts complained of occurred.” The
circuit court further found that “Versiga is a resident of Jackson County and may not be
found in Harrison County.” As a result, the circuit court granted Versiga’s motion to transfer
venue and transferred the case from the Circuit Court of the First Judicial District of Harrison
County to the Circuit Court of Jackson County. Short timely filed a petition for interlocutory
appeal. The petition for interlocutory appeal was granted by this Court on November 14,
2018. Because the interlocutory appeal is limited to the issue of venue, the media entities,
Siegler, and Bonds were dismissed from the appeal.
STANDARD OF REVIEW
¶6. “This Court reviews a [circuit] court’s determinations regarding venue for an abuse
of discretion.” Ramsey v. Auburn Univ., 191 So. 3d 102, 108 (Miss. 2016) (citing Janssen
Pharmaceutica, Inc. v. Armond, 866 So. 2d 1092, 1097 (Miss. 2004)). “Of right, the
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plaintiff selects among the permissible venues, and his choice must be sustained unless in the
end there is no credible evidence supporting the factual basis for the claim of venue.” Id.
(internal quotation marks omitted) (quoting Hedgepeth v. Johnson, 975 So. 2d 235, 238
(Miss. 2008)).
¶7. “In venue disputes courts begin with the well-pleaded allegations of the complaint.”
Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1155 (Miss. 1992). “These, of course, may
be supplemented—and contested—by affidavits or other evidence in cognizable form.” Id.
(citing Long v. Patterson, 198 Miss. 554, 562-64, 22 So. 2d 490, 492-93 (1945)).
ANALYSIS
¶8. In order to establish a claim for defamation, a plaintiff must prove the following
elements:
(1) a false and defamatory statement concerning plaintiff; (2) [an] unprivileged
publication to [a] third party; (3) fault amounting at least to negligence on [the]
part of [the] publisher; (4) and either actionability of [the] statement
irrespective of special harm or [the] existence of special harm caused by [the]
publication.
Franklin v. Thompson, 722 So. 2d 688, 692 (Miss. 1998) (citing Moon v. Condere Corp.,
690 So. 2d 1191, 1195 (Miss. 1997)). “A cause of action for defamation does not exist in
the absence of communication or ‘publication’ of defamatory statements to a third person,
i.e., to one other than the plaintiff.” Mitchell v. Random House, Inc., 703 F. Supp. 1250,
1252 (S.D. Miss. 1988).
¶9. Mississippi Code Section 11-11-3(1)(a)(i) (Rev. 2016) provides four permissible
venue options for civil actions of which the circuit court has original jurisdiction: “[(1)] in
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the county where the defendant resides, or, [(2)] if a corporation, in the county of its principal
place of business, or [(3)] in the county where a substantial alleged act or omission
occurred[,] or [(4)] where a substantial event that caused the injury occurred.” Short asserts
that “[t]he initial publication of the [e]pisode] [wa]s a . . . substantial injury-causing event.”
She argues that because the “publication aired in Harrison County . . . , her choice of venue
must be honored.”
¶10. In support of her argument that venue is proper in Harrison County, Short cites three
federal cases that, while not binding, are informative. In Doe v. Lee, No. 18 C 1193, 2019
WL 247536, at *1 (N.D. Ill. Jan. 17, 2019), plaintiff John Doe, an Illinois citizen, filed a
defamation lawsuit against defendant Jessica Lee, a Texas citizen, alleging that Lee
“‘engaged in a deliberate campaign to destroy [p]laintiff by spreading rumors and lies about
[p]laintiff to his social and professional circles as well as the general public online.” Lee
moved to transfer venue to the Eastern District of Texas. Id. at *2. The district court denied
Lee’s motion to transfer venue and found that venue was proper in the Northern District of
Illinois “because the events giving rise to [p]laintiff’s defamation claim, i.e., the reputational
harm caused by Lee’s actions, occurred in Illinois.” Id. at *4. The court explained,
“The principal injury giving rise to a defamation claim occur where
[plaintiff’s] reputation would suffer the most harm—where [he] lives and
works and where the people with whom [he] has personal or commercial
relationships reside.” That Lee acted from Texas when she allegedly posted
defamatory statements and salacious content regarding [p]laintiff is irrelevant.
Plaintiff’s reputational harm gives rise to his defamation claims against Lee.
This harm occurred substantially in Illinois, where Plaintiff resides, works, and
has many professional and social contacts.
Id. at *3 (alterations in original) (citations omitted).
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¶11. Additionally, in Capital Corp. Merchant Banking, Inc. v. Corp. Colocation, Inc., No.
6:07-cv-1626-Orl-19KRS, 2008 WL 4058014, at *1 (M.D. Fla. Aug. 27, 2008), the plaintiff
filed an internet libel case against several defendants, including Leonard and Francesca
Norwich. The plaintiff alleged that the Norwiches, who were residents of Pennsylvania,
posted defamatory statements about it on three websites. Id. The district court denied
defendants’ motion to dismiss for improper venue and found that venue was proper in that
district. Id. at *3. The district court stated,
[B]ecause the harm from an online defamatory statement can occur in any
place where the website or forum is viewed, no one forum should be expected
to stand out as a particularly strong candidate for venue. Thus, in the context
of defamation and other non-physical torts, courts generally hold that venue
. . . is proper in the district where the injured party resides and the defamatory
statements were published.
Id. (citing Muse v. Bravo Sports, No. 4:04-cv-00571, 2005 WL 6050732, at *10-11 (S.D.
Iowa July 12, 2005)).
¶12. Moreover, in Seidel v. Kirby, 296 F. Supp. 3d 745, 747 (D. Md. Oct. 27, 2017), the
plaintiffs, who were all Maryland residents, brought a defamation suit against five out-of-
state defendants “in response to alleged abusive behavior that [d]efendants engaged in
online.” “Plaintiffs did not allege that any [d]efendants engaged in any actions while in or
from Maryland, but that the effects of the [d]efendants’ actions were felt by the [p]laintiffs
in Maryland.” Id. The defendants moved to dismiss for improper venue. Id. at 748. The
district court denied the motion and found that “[t]he legally relevant ‘occurrence’ in a
defamation action is where the publication occurred, i.e. where third persons were exposed
to the material that would tend to damage the plaintiff’s reputation.” Id. at 753. The court
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explained,
It would seem that, in the context of defamation publicized over the Internet,
such a rule would make venue proper in any district in the United States. The
venue statute, however, does not authorize venue in any district where any
events that gave rise to the action occurred, but rather where a substantial part
of those actions occurred. Therefore, while it may not always be the case, the
district in which a plaintiff resides is often going to be where the substantial
part of the harmful publication occurred, i.e where people are exposed to the
material who may actually know the plaintiff or interact with him in a way that
could be affected by the information. The [c]ourt therefore agrees with other
courts that have held that “venue . . . is proper in the district where the injured
party resides and the defamatory statements were published.”
Id. (citing Capital Corp., 2008 WL 4058014, at *3).
¶13. Here, similarly as in Doe, Capital Corp., and Seidel, the allegedly defamatory episode
was published simultaneously nationwide. Versiga argues that under Short’s theory of the
case, because the episode was published nationally, venue would be permissible in all
counties. But, as in Seidel, our venue statute does not authorize venue in every county where
an event occurred. Rather, our venue statute requires a case to be filed “where a substantial
event that caused the injury occurred.” Miss. Code Ann. § 11-11-3(1)(a)(i) (emphasis
added).
¶14. In defamation cases, the injury is to one’s reputation. Indeed, “[a] defamatory
statement is ‘[a]ny written or printed language which tends to injure one’s reputation, and
thereby expose him to public hatred, contempt[,] or ridicule, degrade him in society, lessen
him in public esteem[,] or lower him in the confidence of the community.’” Franklin, 722
So. 2d at 692 (second alteration in original) (citing Fulton v. Miss. Publishers Corp., 498
So. 2d 1215, 1217 (Miss. 1986)).
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¶15. Short does not allege that the publication of the episode caused her injury, i.e,
reputational harm, in every county across the state. Simply because the episode aired in
Hinds County, for example, does not make Hinds County a permissible venue since no
allegation was made that the publication of the episode in Hinds County caused Short injury.
Stated differently, although the publication of the episode in Hinds County was an event, it
was not a “substantial event that caused the injury.” Instead, Short alleges that the
substantial event that caused her injury, i.e., the publication of the episode that caused her
reputational harm, occurred in Harrison County. In her complaint, Short addresses her injury
and asserts how the publication of the episode caused her reputational harm. Specifically,
Short asserts,
Defendants focused the episode on [Short] and expressly aimed their false and
defamatory accusations and insinuations at her, knowing she is a resident of
the First Judicial District of Harrison County, Mississippi.
It was the natural and foreseeable result of the episode that Defendants’ false
and defamatory accusations and insinuations against and about [Short] would
be published and republished in the First Judicial District of Harrison County,
Mississippi, causing harm, injury, and damage to [Short] in the First Judicial
District of Harrison County, Mississippi, where [Short] resides.
Defendants knew, or should have known, and intended that the brunt of the
harm the episode caused and continues to cause [Short] would be felt in the
First Judicial District of Harrison County, Mississippi, where [Short] resides.
The publication and broadcast of these false and defamatory statements, and
the episode as a whole, have injured and damages [Short]’s reputation; have
diminished the esteem, respect, goodwill, or confidence in which [Short] is
held; have excited adverse, derogatory or unpleasant feelings or opinions
against her; and have caused her to suffer loss of income, as well as other
damages.
¶16. The record shows that the substantial event that caused Short injury, i.e., the
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publication of the episode that caused her reputational harm, occurred in the First Judicial
District of Harrison County, where Short resides, “where people [we]re exposed to the
material who may actually know [Short] or interact with [her] in a way that could be affected
by the information,” Seidel, 296 F. Supp. 3d at 753 (citing Capital Corp., 2008 WL 4058014,
at *3), and where Short’s “reputation would suffer the most harm—where she lives and
works and where the people with whom she has personal or commercial relationships
reside.” Doe, 2019 WL 247536, at *3.
¶17. Versiga disagrees and argues that Jackson County is the “only” proper venue in this
matter because “absolutely no meaningful portion of the events that spurred the allegedly
defamatory episode occurred in Harrison County . . . .” Versiga asserts that the “substantial
act is the death of Tye Breland . . . and what investigation was done as to the cause of that.”
This Court disagrees. Neither Breland’s death nor the subsequent investigation was
defamatory. The defendants had a right to investigate Breland’s death. But without the
initial publication of the episode, Short would have no defamation claim regardless of what
the defendants did or did not do during the investigation. In other words, had the defendants
investigated Breland’s death, recreated the crime scene, performed ballistics testing,
exhumed the body, and filmed all of it, but never published it, Short would have no
defamation claim. It is the initial publication of the episode from which Short’s defamation
claim emanates. Indeed, it is the publication of the episode, not the investigation, that Short
claims defamed her.2
2
Short asserts that the defendants chose to publish certain information in the episode
while purposefully withholding favorable information obtained during the investigation.
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¶18. Additionally, despite Versiga’s assertion, the record shows that “meaningful portion[s]
of the events that spurred the allegedly defamatory episode” did occur in Harrison County.
For instance, on at least two occasions, Versiga and Siegler came to the First Judicial District
of Harrison County in an attempt to conduct an in-person, on-camera interview with Short
at her residence. During one scene, while outside of Short’s residence, Versiga called Short
and the following conversation occurred:
Short: Hello.
Versiga: Kathie?
Short: Yes.
Versiga: Hey, Darren Versiga. How are you?
Short: I’m fine.
Versiga: I need to talk to you. What’s a good time that I can meet with
you?
Short: Well, when I have an attorney present.
Versiga: Okay. Is that what you want?
Short: Oh, absolutely.
After the conversation, Siegler referred to Short as “one of the smartest suspects that [she
has] ever seen.”
¶19. Short asserts that “[t]he effect the defendants intend[ed] to achieve by including this
narrative in the [e]pisode is obvious: that [Short] would look ‘guilty’ by virtue of the
common misconception that only guilty people ask for a lawyer when contacted by the
police.” The defendants apparently felt that these “portion[s] of . . . events,” which occurred
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in Harrison County, were “meaningful” because they elected to include them in the episode.
¶20. Versiga further argues that Short “has not established that any harm has come from
the episode in Harrison County, or anywhere for that matter . . . .” But this is a venue
dispute, not a motion for summary judgment. In venue disputes, we look to the allegations
of the complaint. Tanksley, 608 So. 2d at 1155. In her complaint, Short alleges damage to
her reputation and a loss of income as a result of the publication of the episode. Short’s
alleged reputational harm as a result of the publication establishes that venue is proper in the
Circuit Court of the First Judicial District of Harrison County.
¶21. Versiga last argues that “[c]learly, Jackson County is the most convenient for the
parties due to the fact that all important witnesses and evidence can be found there . . . .”
Despite Versiga’s assertion, not all of the “important witnesses and evidence” are located in
Jackson County. Short is from the First Judicial District of Harrison County; Oxygen Media,
LLC, is a Delaware limited liability company with its principal office in New York City,
New York; Magical Elves, Inc., is a California corporation with its principal office in
Encino, California; and Siegler and Bonds are both from Texas. In fact, Versiga is the only
party who resides in Jackson County. Moreover, the Court can take judicial notice that
Harrison County and Jackson County are adjacent counties, with the courthouses less than
forty miles from each other. Thus, Versiga’s convenience argument fails.
CONCLUSION
¶22. “[V]enue is as much a valuable right to the plaintiffs as it is to the defendants . . . .”
McMillan v. Puckett, 678 So. 2d 652, 656 (Miss. 1996). Upon review, there is ‘“credible
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evidence supporting [Short’s] factual basis for the claim of venue”’ in the First Judicial
District of Harrison County. Ramsey, 191 So. 3d at 107 (quoting Hedgepeth, 975 So. 2d at
238). While Jackson County is a permissible venue, “the language of [Mississippi Code
Section 11-11-3(1)(a)(i)] acknowledges that venue may be proper in more than one county.”
McMillan, 678 So. 2d at 656. The record shows that a substantial event that caused the
injury occurred in the First Judicial District of Harrison County. Accordingly, venue is
proper in the Circuit Court of the First Judicial District of Harrison County. As a result, we
reverse the circuit court’s judgment, and remand this case to be transferred from the Circuit
Court of Jackson County to the Circuit Court of the First Judicial District of Harrison County
for further proceedings consistent with this opinion.
¶23. REVERSED AND REMANDED.
RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL,
BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.
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