Rickey Wilkerson v. Ronnie Goss

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2011-IA-01686-SCT
RICKEY WILKERSON AND PHENIX
TRANSPORTATION, INC.
v.
RONNIE GOSS AND PAMELA GOSS
DATE OF JUDGMENT: 10/21/2011
TRIAL JUDGE: HON. DAVID SHOEMAKE
COURT FROM WHICH APPEALED: SMITH COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS: JAMES F. NOBLE, III
ROSS R. BARNETT, JR.
ATTORNEYS FOR APPELLEES: S. WAYNE EASTERLING
JOHN RAYMOND TULLOS
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: REVERSED AND REMANDED - 05/16/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
LAMAR, JUSTICE, FOR THE COURT:
¶1. Ronnie and Pamela Goss filed suit against Rickey Wilkerson and Phenix
Transportation, Inc. (“Defendants”), in the Chancery Court of Smith County, Mississippi,
alleging that “Rickey Wilkerson fraudulently induced the plaintiffs to settle their workers’
compensation claims and to release all claims against Phenix Transportation, Inc.” in return
for $65,000. The Gosses further alleged that Wilkerson knew, or should have known, that
the checks would not clear due to insufficient funds. The Gosses did not allege any specific
facts in their complaint nor have they presented any cognizable evidence to establish venue
in Smith County.
¶2. Defendants timely answered the complaint, including in their answer a motion to
dismiss or, alternatively, to transfer jurisdiction and venue. Defendants argued that the
Gosses’ claims were legal in nature and were improperly brought in chancery court.
Defendants also argued that venue was not proper in Smith County because Wilkerson
resides in Scott County and Phenix has its principal place of business in Scott County.
Defendants further argued that venue was not proper because no substantial act or omission
or substantial event that allegedly caused the injury occurred in Smith County. The Gosses
never filed a response to Defendants’ motion.
¶3. The chancery court heard oral argument on Defendants’ motion. No transcript exists
of this hearing. The chancery court found that the settlement checks and other documents
were sent to the Gosses in Smith County, and the Gosses attempted to negotiate the checks
in Smith County. Therefore, the chancery court concluded that venue was proper in Smith
County because the “cause of action occurred/accrued in Smith County, Mississippi.” The
chancery court also found that the Gosses’ claims were “more legal than equitable in nature”
and transferred the case to the Circuit Court of Smith County.1
¶4. After the chancellor entered his order denying Defendants’ motion to transfer venue,
Defendants sought permission to file an interlocutory appeal, which we granted.2 On appeal,
1
The parties have not appealed the chancery court’s decision that the Gosses’ claims
are more legal than equitable in nature.
2
Although Defendants alternatively had moved the chancellor to dismiss the Gosses’
claims, the chancellor did not address the motion to dismiss in the order appealed from, and
2
Defendants argue that the chancery court erred in denying their motion to transfer venue
because (1) the chancellor relied upon facts to establish venue that the Gosses did not plead
in their complaint; (2) the chancellor relied upon an earlier version of Mississippi’s venue
statute; and (3) venue is proper only in Scott County, as Defendants are residents of and have
their principal place of business in Scott County. The Gosses argue on appeal that the
chancellor was correct in finding that venue is proper in Smith County, because that is where
they received the settlement checks.
DISCUSSION
¶5. We review “a trial court’s grant or denial of a motion for change of venue for an abuse
of discretion, but questions of law, such as interpretation of the general venue statute, are
reviewed de novo.” 3
¶6. Mississippi’s general venue statute, Mississippi Code Section 11-11-3, reads in
pertinent part as follows:
(1)(a)(i) Civil actions of which the circuit court has original jurisdiction shall
be commenced in the county where the defendant resides, or, if a corporation,
in the county of its principal place of business, or in the county where a
substantial alleged act or omission occurred or where a substantial event that
caused the injury occurred.4
the Defendants did not petition for interlocutory appeal on any issue other than venue.
3
Laurel Ford Lincoln-Mercury, Inc. v. Blakeney, 81 So. 3d 1123, 1125 (Miss. 2012)
(citations omitted).
4
Miss. Code Ann. § 11-11-3(1)(a)(i) (Rev. 2004) (emphasis added). The dissent
would find that a discussion of venue under our general venue statute is premature without
a discussion of whether venue is controlled by our Workers’ Compensation Act (“the Act”).
Dis. Op. at ¶17. We disagree. It is well-settled that claims “based on tortious conduct
subsequent to the work place injury,” such as the Gosses’ claim for fraudulent inducement
to settle Ronnie Goss’s claim, fall within “recognized exceptions” to the exclusivity of the
3
The Mississippi Legislature amended Section 11-11-3 in 2004, “to set venue where
substantial acts or events causing the injury occurred, not where the cause of action accrued,
as was permissible under the former statute.” 5 There is no dispute that Wilkerson lives in
Scott County and that Phenix’s principal place of business is in Scott County; therefore,
venue is proper in Smith County only if that county is “where a substantial alleged act or
omission occurred or where a substantial event that caused the injury occurred.” 6
¶7. The Gosses’ complaint was filed in May 2010; therefore, the amended version of the
statute clearly governs this case. However, the chancery court denied Defendants’ motion
to transfer venue because the “cause of action occurred/accrued in Smith County.” The
chancery court clearly erred to the extent it based its decision on where the cause of action
accrued, which was permissible only under Mississippi’s former venue statute. As the
chancery court’s order was equally based on its determination that the Gosses’ cause of
Act. Mississippi Power & Light Co. v. Cook, 832 So. 2d 474, 479 (Miss. 2002) (quoting
Peaster v. David New Drilling Co., 642 So. 2d 344, 348 (Miss. 1994)). This is because
“[t]he independent tort is not compensable under our [Act] and to extend immunity to
compensation carriers for separate injury to workers goes far beyond the intent of the [A]ct.”
Southern Farm Bureau Cas. Ins. Co. v. Holland, 469 So. 2d 55, 59 (Miss. 1984). See also
McCain v. Northwestern Nat’l Ins., 484 So. 2d 1001 (Miss. 1986); Miller v. McRae’s, Inc.,
444 So. 2d 368, 371 (Miss. 1984). Furthermore, the Gosses also allege that they were
fraudulently induced to settle Pamela Goss’s claim, which is not compensation related and
clearly is not within the exclusivity provision of the Act. Because the Gosses’ claims are
based on an intentional tort that is an exception to the exclusivity of the Act, we find that the
chancery court properly applied the general venue statute in this case.
5
Medical Assurance Co. of Mississippi v. Myers, 956 So. 2d 213, 217 (Miss. 2007)
(emphasis in original).
6
Miss. Code Ann. § 11-11-3(1)(a)(i) (emphasis added).
4
action occurred in Smith County, we discuss whether the Gosses have shown that venue is
proper in Smith County under the requirements of the current statute.
¶8. Mississippi Code Section 11-11-3 is a plain and unambiguous statute that should be
applied according to its plain meaning.7 “Of right, the 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.” 8 To determine if a plaintiff’s choice of
venue is proper, “[i]t is necessary to begin with the ‘well-pleaded allegations of the
complaint[,]’” which may be supplemented by affidavits or “any ‘other evidence in
cognizable form.’” 9 Our venue statute “lays out four venue options from which plaintiffs can
choose when filing a lawsuit.” 10 While the first two options are based upon where the
defendant resides or, if defendant is a corporation, where it has a principal place of business,
the second two are based upon where the acts or omissions giving rise to the plaintiff’s claim
7
Hedgepeth v. Johnson, 975 So. 2d 235, 238 (Miss. 2008).
8
Id. (citations omitted).
9
Park on Lakeland Drive, Inc. v. Spence, 941 So. 2d 203, 207 (quoting Flight Line,
Inc. v. Tanksley, 608 So. 2d 1149, 1155 (Miss. 1992)). To reiterate, we begin with the
pleaded allegations of the complaint, which may be supplemented by affidavits or other
cognizable evidence. Therefore, a plaintiff may plead facts to support his choice of forum
in his complaint or present other cognizable evidence for the court to consider – we do not
hold that a plaintiff must do both. Furthermore, it is well-settled that a plaintiff’s choice of
venue will be sustained unless there is no credible evidence supporting that choice. A
defendant seeking to transfer venue is not going to produce evidence to support the
plaintiff’s choice. Therefore, if the plaintiff wishes to defeat a motion to transfer venue, it
follows that he or she should be prepared to present some credible evidence supporting his
or her choice of forum.
10
Hedgepeth, 975 So. 2d at 238.
5
occurred.11 Thus, in addition to where a defendant resides or has a principal place of
business, the Gosses could have filed suit “where a substantial alleged act or omission
occurred” or “where a substantial event that caused the injury occurred.” 12
¶9. Furthermore, “even if an act or omission did not cause the injury, it can nevertheless
establish venue if it is both substantial and alleged by the plaintiff.” 13 But, in this case, the
Gosses did not allege in their complaint and the record does not reveal any affidavits or any
other cognizable, credible evidence that would support the chancery court’s finding that the
Gosses received the checks in Smith County or that the checks were dishonored in Smith
County.14 Therefore, we find that the chancery court erred in relying upon facts to support
11
Id.
12
Id.
13
Myers, 956 So. 2d at 218 (emphasis in original).
14
The dissent would rely on documents presented to this Court in Defendants’ petition
for interlocutory appeal and on statements allegedly made at the hearing, for which we have
no record. Dis. Op. at ¶¶ 27-29. However, these documents were not filed in the trial court
and the hearing was not transcribed; therefore, they are not part of the record on appeal. See
Miss. R. App. P. 10(a) (“the record shall consist of designated papers and exhibits filed in
the trial court, the transcript of proceedings, if any, and in all cases a certified copy of the
docket entries prepared by the clerk of the trial court”). On appeal, we are limited to a
review of the trial court record, and for good reason. To allow parties to introduce
documents and facts at the appellate level, through petitions for interlocutory appeal or
otherwise, without making a record at the trial-court level would no doubt result in parties
attempting to slip in new evidence through the back door, and would needlessly complicate
the appellate process. Furthermore, our rules provide methods for parties to supplement the
record when no transcript is available and to correct or modify the record; however, these
steps were not taken in this case. See Miss. R. App. P. 10(c), (e). Because the documents
attached to the petition for interlocutory appeal were not made part of the record below, and
no statement in lieu of a transcript from the hearing was filed with the trial court in
accordance with Miss. R. App. P. 10(c), we cannot rely on the documents or statements
allegedly made at the hearing.
6
his ruling which, even if taken as true, were neither alleged in the Gosses’ complaint nor
supported by cognizable evidence.
¶10. Notwithstanding the fact that there is no record support for the allegations upon which
the chancellor based his order, we find that the allegations would not support a finding of
venue in that county even if properly supported by cognizable, credible evidence. We
recently addressed venue in a case involving facts similar to the instant action.15 In Myers,
the plaintiff, a physician located in Holmes County, argued that his insurer, a Madison
County business, had violated a statutory duty to renew his insurance.16 The plaintiff filed
an action against his insurer in the Chancery Court of Holmes County, and the insurer moved
to transfer venue to Madison County.17
¶11. The chancellor found that venue was proper in Holmes County in part because the
plaintiff had completed his insurance application in Holmes County, the premiums were
mailed from Holmes County, there were communications between the plaintiff and the
insurer when the plaintiff was in Holmes County, the plaintiff had mailed letters to and
received letters from the insurer in Holmes County, and the insurer had mailed the letter
advising his coverage would not be renewed to the plaintiff in Holmes County.18
15
Myers, 956 So. 2d at 218.
16
Id. at 214.
17
Id. at 215.
18
Id. at 218.
7
¶12. On interlocutory appeal, we noted that the plaintiff’s basis for his cause of action was
the insurer’s decision not to renew his insurance.19 We found little relevance in the plaintiff’s
claims that he had completed an application for insurance in Holmes County or had mailed
letters from that county, concluding that the plaintiff “is suing [his insurer] based on the
company’s own acts or omissions, all of which occurred in Madison County.” 20 We further
found that “the location of the mailbox where [the plaintiff] received his policy, non-renewal
notice, or other communication from [his insurer] is likewise immaterial.” 21 We concluded
that the plaintiff’s “receipt of information in Holmes County is a passive function of his
presence there and not a substantial event causing the damages he claims.” 22
¶13. We additionally found that, even though the plaintiff claimed he was damaged when
he “experienced” being uninsured in Holmes County, “this could be the result of substantial
acts, omissions, or injury-causing events which occurred in Madison County alone.” 23 We
explained that “the venue statue does not allow the piling of acts or events to establish venue.
It specifically requires a substantial alleged act, omission, or injury-causing event to have
19
Id. at 219.
20
Id.
21
Id.
22
Id.
23
Id. (emphasis in original).
8
happened in a particular jurisdiction in order for venue to be proper there.” 24 We ultimately
determined that venue was not proper in Holmes County.25
¶14. In this case, the Gosses’ basis for their lawsuit is the alleged fraudulent inducement
to settle their claims. They do not argue that fraudulent acts occurred in Smith County, that
they entered into the settlement agreement in Smith County, or that either defendant ever
committed a fraudulent act or omission, or ever was physically present, in Smith County.
Rather, they argue that they received fraudulent documents in Smith County and that they
experienced having a check dishonored in Smith County. We find that, just as in Myers, the
Gosses’ mere receipt of the documents in Smith County was a “passive function” of their
presence there and not a substantial event causing the damages they claim.
CONCLUSION
¶15. For the forgoing reasons, we find that the Chancery Court of Smith County erred in
its interpretation of Mississippi Code Section 11-11-3 and in denying Defendants’ motion
to transfer venue. We reverse and remand this case to chancery court for entry of an order
transferring the case to the Circuit Court of Scott County.26
24
Id. See also Hedgepeth v. Johnson, 975 So. 2d 235, 239 (Miss. 2008).
25
Myers, 956 So. 2d at 220.
26
The dissent finds that venue is proper in either Scott or Hinds County and would
remand this case for the Gosses to select from the two permissible venues. Dis. Op. at ¶34.
It is true that a plaintiff who files a case in an improper venue shall have the right to choose
between permissible venues if the action could have properly been filed in more than one
court. Miss. R. Civ. P. 82(d). However, in this case, the Gosses failed to make any
allegations and the record does not contain any cognizable evidence regarding where the
alleged fraudulent settlement negotiations occurred. Therefore, we cannot say with certainty
where the alleged fraudulent inducement occurred, and Scott County is the only proper
venue based on the allegations and evidence presented to the trial court.
9
¶16. REVERSED AND REMANDED.
WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., CHANDLER, PIERCE
AND COLEMAN, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY KING, J.
KITCHENS, JUSTICE, DISSENTING:
¶17. While the only proper venue may be Scott County, this decision cannot be made on
the record before us, and I respectfully disagree with the analysis by which the majority
opinion reaches this conclusion. In reversing the trial court and ordering a transfer of venue
to the Scott County Circuit Court, my learned colleagues in the majority disregard the
defendants’ petition for interlocutory appeal and the attached documents, finding that they
are not part of the record. Moreover, I respectfully disagree with the majority’s interpretation
of the law governing motions to transfer venue. Notwithstanding my disagreements with the
analysis, this issue is premature without a determination of whether subject matter
jurisdiction and venue are governed by the Mississippi Workers’ Compensation Act. Thus,
I would remand the case for further proceedings to consider these statutory provisions before
applying the general venue statute, Section 11-11-3 of the Mississippi Code. Should it be
necessary for the trial court to apply Section 11-11-13, the court should apply the current
version of the statute in light of all the relevant facts and allegations, including the
defendants’ contention that venue also may be proper in Hinds County. For these reasons,
I respectfully dissent.
Jurisdiction and the Workers’ Compensation Act
¶18. “It is the first and one of the most important of all the duties of courts to see to it,
before proceeding in any case, that the court has jurisdiction both of the subject matter and
10
of the parties.” Broom v. Bd. of Supervisors of Jefferson Davis County, 171 Miss. 586, 158
So. 344, 345 (1934). Courts are not relieved of this duty if the parties fail to raise the issue;
and like trial courts, we are bound by duty to decide a question of jurisdiction, even if we
must raise the issue sua sponte. Common Cause of Miss. v. Smith, 548 So. 2d 412, 414
(Miss. 1989); Waits v. Black Bayou Drainage District, 186 Miss. 270, 185 So. 577, 578
(1939). This well-established, nondelegable duty is no different when a case is before us on
interlocutory appeal and the parties have failed to raise any jurisdictional error. See Miss.
Mun. Liability Plan v. Jordan, 863 So. 2d 934, 941 (“While we normally limit our review
to specific issues presented by the parties, that limitation is one of expedition and not
jurisdiction. . . . Interlocutory appeals are no different.”)27
¶19. A challenge to subject matter jurisdiction may be facial or factual. Roman Catholic
Diocese of Jackson v. Morrison, 905 So. 2d 1213, 1220-22 (Miss. 2005). A facial attack
challenges the court’s jurisdiction as a matter of law, and the allegations in the complaint are
taken as true. Id. at 1220-21. The court looks to the face of the complaint to ascertain the
nature of the controversy and the relief sought. RAS Family Partners, LP v. Onnam Biloxi,
LLC, 968 So. 2d 926, 928 (Miss. 2007). Whatever the particular language employed by the
plaintiffs, the nature of the case is determined by the substance of the claim and not the form.
Trustmark Nat’l Bank v. Johnson, 865 So. 2d 1148, 1151 (Miss. 2004). A factual attack,
27
Nevertheless, it is worth noting that the defendants raised the jurisdictional question
in the same pleading which sought a transfer of venue. The notice of hearing filed by the
defendants announced that the hearing would address their motion to dismiss. The hearing
was not transcribed, and the order did not address any of the defendants’ arguments for
dismissing the case. For reasons unknown, the trial court limited its ruling to the motion to
transfer venue.
11
on the other hand, goes beyond the face of the complaint and requires resolution of a disputed
fact, for example, when there is a question regarding diversity jurisdiction in federal court.
Roman Catholic Diocese of Jackson v. Morrison, 905 So. 2d 1213, 1221 n.4 (Miss. 2005);
28 U.S.C. § 1332. When there is a factual attack on jurisdiction, the plaintiff must prove
jurisdiction by a preponderance of the evidence. Schmidt v. Catholic Diocese of Biloxi, 18
So. 3d 814, 822 (Miss. 2009). This case potentially could fall under either category; but that
is a matter to be addressed on remand.
¶20. As noted in the majority opinion, the plaintiffs alleged in their complaint that they
were fraudulently induced to settle their workers’ compensation claims, contending that
Wilkerson knew, or should have known, that the settlement checks would be issued from an
account that lacked sufficient funds. The plaintiffs prayed for actual damages in the amount
of the settlements, punitive damages, and general relief. From the documents attached to the
plaintiffs’ petition for interlocutory appeal, we learn that the damages claimed by Pamela
Goss were $15,200 more than the compromise settlement approved by the Commission and
that this additional amount represented a settlement for a non-workers’ compensation claim.
The nature of the claim underlying the settlement is unknown. The majority correctly notes
that Pamela’s additional settlement would not be governed by our workers’ compensation
statutes. Maj. Op. n.4. Yet, this would not give a court jurisdiction over this entire case.
The plaintiffs cannot manipulate jurisdiction by adding Pamela’s non-workers’ compensation
claims to the complaint, and any claim related to this settlement is a separate matter. The
complaint gave no indication that the settlement amounts were for anything other than
12
workers’ compensation claims. This is but another issue that should be developed on
remand.
¶21. Based on the allegations in the complaint and the limited record before us, the nature
of the claim is far from clear. The plaintiffs alleged that they were fraudulently induced into
settling, but the actual damages sought via the complaint do not exceed the settlement
amounts. The complaint did not allege that the plaintiffs suffered any damages beyond the
sum of the dishonored checks; thus there appears to be no basis for punitive damages.
Accordingly, any and all issues regarding the workers’ compensation settlements would be
governed by the provisions of the Workers’ Compensation Act.
¶22. Considering that the alleged compensatory damages do not exceed the amount of the
award, the relief sought by the plaintiffs is susceptible to two interpretations. If the
plaintiffs’ ultimate goal was to set aside the settlement, the Commission has the power to
reopen a case under limited circumstances, for example, when compromise settlements are
induced by fraud, as alleged here. Miss. Code Ann. § 71-3-53 (Rev. 2004); Bailey Lumber
Co. v. Mason, 401 So. 2d 696 (Miss. 1981); Dixon v. Green, 240 Miss. 204, 127 So. 2d 662
(Miss. 1961). The parties having submitted to the Commission’s jurisdiction, the
Commission is the only body with the authority to set aside or otherwise disturb the award,
as the Commission has continuing jurisdiction over compromise settlements. Miss. Code
Ann. § 71-3-53.
¶23. On the other hand, it is reasonable to interpret the complaint as an attempt to enforce
the settlement. If an employer defaults on a payment of workers’ compensation, Mississippi
Code Section 71-3-49 provides a remedy by means of an entry of judgment in circuit court.
13
In that case, a circuit court would have limited jurisdiction, and Section 71-3-49 would
control venue. That section requires that the interested party file a certified copy of the
Commission’s order with the circuit clerk of the county “in which the injury occurred or in
the county in which the employer has his principal place of business.” Id. The record
reveals that the Gosses were injured in California; thus, Scott County, as the employer’s
principal place of business, would be the only proper venue. Of course, to invoke this
statute, the employer’s payment must be thirty days in default, and the record supports the
defendants’ contention that the plaintiffs’ complaint was filed before thirty days had passed.
This presents yet another issue to be considered on remand.
¶24. The majority says, in a footnote, that the Gosses’ claims are “clearly” excepted from
the Workers’ Compensation Act because the complaint alleged tortious acts occurring after
the workplace injury. Maj. Op. n.4. Undoubtedly, this Court has held that certain claims are
not barred by the exclusivity of the available remedies under the Workers’ Compensation
Act. Miller v. McRae’s, Inc., 444 So. 2d 368, 372 (Miss. 1984). However, the type of
claims alleged in those cases cited by the majority are for intentional tortious conduct causing
damages that are beyond the Commission’s power to award. For example, Mississippi
Power & Light Co. v. Cook, 832 So. 2d 474 (Miss. 2002), and Southern Farm Bureau
Casualty Insurance Co. v. Holland, 469 So. 2d 55 (Miss. 1984), involved claims for bad-
faith refusal to pay legitimate claims. In both cases, the alleged refusals to pay either delayed
the compromise settlements or induced the plaintiff to settle for less than his or her claim was
worth. As a result, the plaintiffs incurred actual damages beyond the amount of the final
workers’ compensation award, damages which the Commission did not have the authority
14
to address. Cook, 832 So. 2d 474 (action in tort permissible when injuries allegedly caused
by insurer’s bad-faith handling of employee’s claim were not compensable under the
Workers’ Compensation Act); Holland, 469 So. 2d 55 (action in tort permissible when
insurance company’s intentional and bad-faith refusal to pay allegedly forced employee to
agree to inadequate settlement). Miller, 444 So. 2d 368, involved a claim against the
employer for false imprisonment, a tortious act for which the Commission could not grant
relief. In McCain v. Northwestern National Insurance Company, 484 So. 2d 1001, 1002
(Miss. 1986), this Court held that an employee’s claim against his employer’s insurer for
intentional and bad-faith breach of a settlement contract was sufficient to survive a motion
to dismiss for failure to state a claim.
¶25. Lastly, in Peaster v. David New Drilling Co., Inc., 642 So. 2d 344, 346 (Miss. 1994),
the employee filed an action seeking damages based on the employer’s alleged failure to
repair brakes on tractors and trailers operated by employees. On appeal, this Court held that
the claim was barred because the workplace injury was a direct result of the alleged conduct,
and because the employer’s actions were, at most, grossly negligent and not intentional.
Id. at 346. As in Peaster, the defendants in the present case also argued before the trial court
that the conduct alleged in the complaint was merely negligent and not the result of an
intentional act.
¶26. In sum, the Workers’ Compensation Act does not bar an employee from pursuing a
common law remedy for an injury caused by an intentional act that occurred after the
workplace injury and when the Commission lacks the authority to remedy the alleged wrong.
Cook, 832 So. 2d at 179 (citing Peaster, 642 So. 2d 344 at 348). While the Gosses alleged
15
intentional, tortious conduct, i.e., fraudulent inducement, the particular language used to
describe the defendants’ conduct is not determinative. The nature of the case is determined
by the substance of the claim and not the form. Trustmark, 865 So. 2d at 1151. Because the
complaint does not assert that any injury was caused by the defendants’ alleged tortious
conduct, I cannot agree with the majority’s conclusion that the plaintiffs clearly allege an
independent tort that is excepted from the exclusivity of the Workers’ Compensation Act.
The true nature of the plaintiffs’ claim is uncertain, and the trial court should address the
defendants’ jurisdictional arguments and determine whether the Workers’ Compensation Act
is the only avenue for relief.
Venue under Section 11-11-3
¶27. To be clear, I fully agree that, as a question of law, venue is not proper in a county
simply because that county is where the plaintiffs received certain documents related to a
fraudulently induced agreement or because the plaintiffs learned that they had been
defrauded while they were present in that county. See e.g., Laurel-Ford Lincoln Mercury,
Inc. v. Blakeney, 81 So. 3d 1123 (Miss. 2012). However, I simply cannot speculate on the
application of our general venue statute without any certainty regarding the nature of the
injury and the relief sought. The plaintiffs’ choice of venue may be disregarded “in the end,”
but we are not yet there. Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1155-56 (Miss.
1992).
¶28. Finding that the plaintiffs’ claims are sufficiently clear to determine that the general
venue statute applies, the majority provides two alternate analyses for its disposition: (1) that
the plaintiffs neither pled nor proved facts to support their choice of venue; or (2) assuming
16
those facts were pled and/or proved, they do not support Smith County as a proper venue
under Section 11-11-13. Regarding the first line of reasoning, I disagree with the majority’s
finding that the chancellor abused his discretion by basing his findings of fact on unpled
allegations that were not supported by “cognizable, credible evidence.” A nonmoving
plaintiff is under no obligation to provide “cognizable, credible evidence” for its choice of
venue to defend against a pretrial motion when the defense has provided this evidence, and
the only matter before the trial court is the application of a statute. When this Court has
applied the concept of “cognizable evidence” to venue transfers, it is in cases involving
motions to transfer for cause. For example, certain evidentiary burdens are placed on
defendants moving to transfer venue for prejudice or for fraudulent joinder of another
defendant. See Miss. Code Ann. § 11-11-15 (procedure for motions to transfer venue because
of prejudice or undue influence that would impair movant’s right to a fair and impartial trial);
Park on Lakeland Drive, Inc. v. Spence, 941 So. 2d 203, 206-08 (Miss. 2006) (transfer of
venue based on fraudulent joinder of defendant warranted when plaintiff failed to assert a
reasonable claim of liability against resident defendant).
¶29. Curiously, the majority states that the record does not contain “evidence that would
support the chancery court’s finding that the Gosses received the checks in Smith County.”
Maj. Op. ¶ 9. My review of the record indicates otherwise. Attached to the defendants’
petition for interlocutory appeal are briefs and exhibits from the parties to the trial court.
These documents are specifically referenced in the trial court’s order denying transfer. In
these documents, the parties allege and offer proof of various matters, but most importantly,
the defendants affirmatively state that they mailed the settlement checks and release
17
documents to the plaintiffs’ attorney in Smith County. In fact, the defendants themselves
provided the trial court a copy of the cover letter showing that the documents were mailed
to the city of Raleigh in Smith County, Mississippi. The plaintiffs’ submitting the same
documents would have served no purpose.
¶30. As for where the checks were dishonored, the defendants’ petition for interlocutory
appeal acknowledged the plaintiffs’ argument at the hearing that the checks were presented
to a bank in Smith County. The hearing was not transcribed, but there is no reason to
question that the argument was made. In addition, the defendants’ brief to the trial court
stated that the plaintiffs “appeared at a Regions Bank to cash [the checks] and were informed
at the time that Phenix’s account had non-sufficient funds.” While the parties seemingly
dispute the location of the particular branch bank to which the checks were presented, it
cannot be said that this allegation does not appear in the record.
¶31. The majority finds that anything not “filed in the trial court” that was submitted to this
Court with the defendants’ petition for interlocutory appeal cannot be considered part of the
record and cannot be considered. Maj. Op. n.14 (quoting M.R.A.P. 10(a)). However, Rule
10(a) is not a limitation on the contents of the record; rather, it merely sets forth required
contents. As recognized by Rule 10 and the comment, not all papers relevant to an issue on
appeal are filed with the trial court. For example, Rule 10(b)(3) lists “matters excluded
absent designation,” and the comment states, “[b]ecause counsel customarily do not file trial
court briefs with the clerk, briefs are not included in the (b)(3) list. Briefs do not normally
belong in a record on appeal, unless necessary to show that an issue was presented to the trial
court.” In this case, briefs and supporting exhibits were given to the trial judge, and these
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documents were filed with this Court as attachments to the defendants’ petition for
interlocutory appeal. It seems unreasonable to consider these documents for purposes of
granting the petition for interlocutory appeal, yet ignore their existence when deciding the
merits of the issue before us.
¶32. The majority opinion faults the chancellor for finding facts based on arguments that
were not transcribed and on documents that did not pass through the court clerk. This
position conflicts with the well-established rule that “[i]t must be presumed that the rulings
of the trial court were correct, and such presumption will prevail, unless the actual record
supports the contrary view.” Shelton v. Kindred, 279 So. 2d 642, 644 (Miss. 1973).
Moreover, the defendants have the duty to ensure “that the record contain[s] all data essential
to an understanding and presentation of matters relied upon for reversal on appeal.” Pratt
v. Sessums, 989 So. 2d 308, 309-10 (Miss. 2008) (quoting Shelton, 279 So. 2d at 644). Long
ago we applied this rule to a venue dispute on appeal:
If any default attaches to the failure of the record herein to set forth the
evidence on which the change of venue was granted, it must be attributed to
the appellant, for the appellee was not concerned therewith, as he, of course,
is satisfied with the order entered thereon. Moreover, the evidence not
appearing in the record, we must assume that it supports the allegations of the
petition.
Humphreys County v. Cashin, 128 Miss. 236, 90 So. 888, 891 (Miss. 1922).
¶33. As for the majority’s second line of reasoning, the majority notes that the plaintiffs
did not specify where they received the settlement checks and where the checks were
dishonored. The majority cites Medical Assurance Company of Mississippi v. Myers, 956
So. 2d 213, 218 (Miss. 2007); but I read that case to say that venue could not be established
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on acts, omissions, or events not alleged in the complaint, not that a complaint must allege
where such acts, omissions, or events took place. Id. (“Dr. Myers’s complaint does not
allege that his decision not to give [the defendant’s] risk management team full access to his
practice, including his practice in Holmes County, contributed to his claim. Thus, that fact
– even if true – does not meet the ‘alleged’ portion of the test.”).
¶34. In the present case, the complaint alleged that the plaintiffs were fraudulently induced
into settling a case when the defendants knew the settlement checks would be dishonored.
Yet, the plaintiffs were not required to justify their choice of venue by affirmatively pleading
where every alleged act, omission, or event occurred. See e.g., M.R.C.P. 8(a) (A complaint
shall contain “(1) a short and plain statement of the claim showing that the pleader is entitled
to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.”);
M.R.C.P. App. A Forms 2-21 (providing suggested forms for complaints, none of which
includes a specific averment for venue). See also Estate of Stevens v. Wetzel, 762 So. 2d
293, 295 (Miss. 2000) (noting that under Rule 8, “it is only necessary that the pleadings
provide sufficient notice to the defendant of the claims and grounds upon which relief which
is sought”) (citation omitted)). Indeed, before this Court adopted Rule 8 of the Mississippi
Rules of Civil Procedure, which abolished various technical requirements of pleadings, we
recognized that “[v]enue need not be stated in the body of the declaration.” Hayes Produce
Co. v. Taylor, 213 Miss. 217, 219, 56 So. 2d 503, 504 (1952) (citing Miss. Code § 1465
(1942)).
¶35. Rule 9(f) is the only rule of civil procedure requiring a complaint to allege a particular
place, but this rule is limited to those cases where time and place are material to the
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sufficiency of a pleading. M.R.C.P. 9(f) (“For the purpose of testing the sufficiency of a
pleading, averments of time and place are material and shall be considered like all other
averments of material matter.”) For example, the location of the alleged harm is material in
cases involving motions to sever multiple plaintiffs under Rule 20 of the Mississippi Rules
of Civil Procedure. See Harold’s Auto Parts, Inc. v. Mangialardi, 889 So. 2d 493, 495
(Miss. 2004) (to defend a motion to sever in a mass-tort asbestos litigation, plaintiffs are
required to provide “the name of the defendant or defendants against whom each plaintiff
makes a claim, and the time period and location of exposure”). Place is also material when
the cause of action is based on fraud, as fraud must be pled with particularity. M.R.C.P. 9(b);
Allen v. Mac Tools, Inc., 671 So. 2d 636, 642 (Miss. 1996) (“The circumstances of the
alleged fraud such as the time, place and contents of any false representations or conduct
must be stated.”) (quoting Brabham v. Brabham, 483 So. 2d 341, 342 (Miss. 1986)). While
this case involves allegations of fraud, the majority does not address, and the defendants have
not argued that the complaint for fraudulent inducement failed to plead the alleged fraud with
sufficient particularity.
¶36. Finally, the majority finds that Scott County is the only proper venue, ignoring the
defendants’ concession that, because the settlements were approved by the Commission in
Jackson, Hinds County, Mississippi, venue also would be proper in the First Judicial District
of Hinds County. Rule 82 of the Mississippi Rules of Civil Procedure is simple and clear:
“The plaintiff shall have the right to select the court to which the action shall be transferred
in the event the action might properly have been filed in more than one court.” M.R.C.P. 82
(d). Because the plaintiffs have a right to select among the permissible venues, Hedgepeth
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v. Johnson, 975 So. 2d 235, 238 (Miss. 2008), the plaintiffs should have the opportunity to
opt for transfer to Hinds County, if it is found to be a permissible venue. As for evidentiary
support in the record, we have the Commission’s orders approving the settlements signed by
two commissioners, the Gosses’ attorney, and Phenix’s attorney, and duly attested by the
secretary of the Workers’ Compensation Commission. Even if we did not have these orders,
this Court can take judicial notice that the Worker’s Compensation Commission is located
in Jackson, Mississippi, Hinds County, and that it was the Commission which approved the
settlement, oversaw the proceedings leading up to the settlement, and to which the plaintiffs
had submitted their claims. See M.R.E. 201. On remand, the trial court should consider all
appropriate venues, rather than defaulting to the defendants’ preferred choice.
Conclusion
¶37. “[A]ll courts must be constantly aware of questions of their jurisdiction to proceed and
must be prepared to decide a question pertaining to jurisdiction at any time, even if the court
must raise the issue on its own motion.” Dunaway v. Dunaway, 749 So. 2d 1112, 1120
(Miss. Ct. App. 1999) (citing Waits, 185 So. at 578). Based on the record before us, it is
questionable whether a court has subject matter jurisdiction over the plaintiffs’ claims; and
even if jurisdiction is proper, the next question is whether venue is governed by the Workers’
Compensation Act, specifically Mississippi Code Section 71-3-49. Unless and until it is
these questions are answered, application of the general venue statute, Section 11-11-3, is
premature. For these reasons, I respectfully dissent and would remand the case with
instructions to address these preliminary issues before considering the current general venue
statute’s application to this cause of action.
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KING, J., JOINS THIS OPINION.
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