Alston v. Pope

• Decision Date: 17 July 2012
• Docket Number: No. 2010–CA–01760–COA.,2010–CA–01760–COA.
• Citation: 112 So.3d 439
• Parties: Shirley ALSTON and Robert Alston, Appellants v. Justin P. POPE and T.K. Stanley, Inc., Appellees.
• Court: Mississippi Court of Appeals

112 So.3d 439

Shirley ALSTON and Robert Alston, Appellants

v.Justin P. POPE and T.K. Stanley, Inc., Appellees.

No. 2010–CA–01760–COA.

Court of Appeals of Mississippi.

Jan. 31, 2012.

Rehearing Denied July 17, 2012.

Stephen J. Maggio, attorney for appellants.

B. Stevens Hazard, Jackson, Steven James Griffin, Flowood, attorneys for appellees.

EN BANC.

RUSSELL, J., for the Court:

¶ 1. Shirley and Robert Alston appeal the decision of the Wayne County Circuit Court denying their motion for relief from judgment. Upon review, we find that the circuit court abused its discretion in denying the Alstons' motion. Therefore, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 12, 2005, Shirley was a passenger in a vehicle that collided with a vehicle driven by Justin Pope in Tuscaloosa, Alabama. Pope was within the course and scope of his employment operating a vehicle owned by his employer, T.K. Stanley, Inc. (T.K. Stanley), at the time of the accident. On November 27, 2007, Shirley and her husband, Robert, filed suit in the Circuit Court of Wayne County, Mississippi against Pope and T.K. Stanley (“Defendants”) asserting negligence as their cause of action. Pursuant to Mississippi Code Annotated section 11–11–3(1)(a)(i) (Rev.2004), “[c]ivil 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.” One of the defendants in this case, Pope, resides in Mississippi, and T.K. Stanley, the other defendant, has its principal place of business in Mississippi. In the instant case, venue was proper in both Mississippi and Alabama. Litigants are not required to explain their reasons for choosing one venue over another so long as they choose one which is proper.

¶ 3. On January 25, 2008, the Defendants filed their motion to dismiss on the basis of forum non conveniens. On October 14, 2008, a hearing was held on Defendants' motion to dismiss. At that hearing, Defendants argued that Alabama would be the more appropriate forum. In response, the Alstons argued that the Defendants were required to file a written stipulation agreeing to waive any statute-of-limitations defense they might have in an Alabama state court. ¹ Specifically, counsel for the Alstons stated:

So I think the [c]ourt has a balancing [test] to engage in, and I grant you that the [c]ourt may decide on balance that my lawsuit should be over in Alabama; and if it does, the relief I'd request from the [c]ourt in that regard is the requirement that [the defendants] stipulate to a waiver of the statute of limitations and accept service of process.

¶ 4. In response, counsel for the Defendants made the following statement to the circuit court:

In regard[ ] to the statute requiring stipulation of the waiver of statute of limitations, I admit, your Honor, that was an oversight of not having done so beforehand. It was just kind of the path this took. But we certainly don't—we certainly are willing to abide by the statute. So in the event the [c]ourt is inclined to dismiss this and—such that it be re-filed in Alabama, we'll certainly file the necessary stipulation as soon as I leave here today.

The Defendants never filed a written stipulation waiving their statute-of-limitations defense. On October 28, 2008, the circuit court entered its order and final judgment dismissing the case with prejudice, which reads, in pertinent part, as follows:

Having read the motions and briefs and having heard the arguments of the parties, the Court finds that all factors as annunciated in [Missouri Pacific R. Co. v. Tircuit, 554 So.2d 878, 882 (Miss.1989) ] and Miss.Code Ann. § 11–11–3 weigh in favor of dismissal of plaintiffs' complaint based on the doctrine of forum non conveniens and, therefore, the case is dismissed and shall be re[-]filed by the plaintiffs in the more convenient jurisdiction of the Circuit Court of Tuscaloosa County, Alabama. Further, the Court find that since plaintiffs' complaint was filed in this Court on November 27, 2007, before the expiration of the applicable Alabama two[-]year statute of limitations, [the] defendants waive the right to assert a statute of limitations defense upon the refiling of the action in the Circuit Court [of] Tuscaloosa County, Alabama, pursuant to and as defined by Miss.Code Ann. § 11–11–3(4)(b). Lastly, ... the Court finds that the defendants stipulate to accept service of process through service upon their attorney.

¶ 5. On October 15, 2009, the Alstons re-filed their complaint in Tuscaloosa County, Alabama. Thereafter, the Defendants filed a motion for summary judgment in the Alabama proceeding, asserting a statute-of-limitations defense.

¶ 6. On May 12, 2010, the Alstons filed their motion for relief from judgment in the Mississippi circuit court. The Alstons argued that the judgment dismissing the action on the ground of forum non conveniens was void because the Defendants failed to file a written stipulation waiving the right to assert a statute-of-limitations defense in Alabama in accordance with Mississippi Code Annotated section 11–11–3(4)(b) (Rev.2004).

¶ 7. On July 12, 2010, the Alabama circuit court granted the Defendants' motion for summary judgment due to the running of Alabama's two-year statute of limitations for negligence actions.

¶ 8. On September 30, 2010, the circuit court in Mississippi entered its judgment denying the Alstons' motion for relief from judgment. The circuit court found that the Alstons' motion under Mississippi Rule of Civil Procedure 60(b) was untimely filed, but even if it had been timely filed, the Alstons' argument—that the judgment of dismissal was void—was without merit.

¶ 9. The Alstons timely appealed the circuit court's judgment denying their motion for relief from judgment. We face three issues on appeal: (1) whether the language in Mississippi Code Annotated section 11–11–3(4)(b), which requires a defendant to file a written stipulation waiving any statute-of-limitations defense that the defendant might have in another jurisdiction, is a prerequisite to dismissing a Mississippi action on the ground of forum non conveniens; (2) whether the circuit court's order dismissing the case based on forum non conveniens is void; and (3) whether the circuit court abused its discretion in denying the Alstons' Rule 60(b) motion on the basis that the motion was untimely filed. We will address issues one and two together.

DISCUSSION

I. Whether the language in section 11–11–3(4)(b) operates as a prerequisite to the dismissal of a Mississippi action on the ground of forum non conveniens and whether the order dismissing the case is void.

¶ 10. A circuit court's dismissal of a suit based on the doctrine of forum non conveniens will be reversed “if the trial court abused its discretion or applied an erroneous legal standard[.]” Poole v. Am. Pub. Life Ins. Co., 878 So.2d 1102, 1103 (¶ 6) (Miss.Ct.App.2004) (citing Metro. Life Ins. Co. v. Aetna Cas. & Sur. Co., 728 So.2d 573, 575 (¶ 7) (Miss.1999)). According to the Alstons, the circuit court erred in dismissing their Mississippi action because the Defendants failed to file a written stipulation agreeing to waive any statute of limitations defense they might have had in Alabama pursuant to Mississippi Code Annotated section 11–11–3(4)(b). Section 11–11–3(4)(b) provides:

A court may not dismiss a claim under this subsection until the defendant files with the court or with the clerk of the court a written stipulation that, with respect to a new action on the claim commenced by the plaintiff, all the defendants waive the right to assert a statute of limitations defense in all other states of the United States in which the claim was not barred by limitations at the time the claim was filed in this state as necessary to effect a tolling of the limitations periods in those states beginning on the date the claim was filed in this state and ending on the date the claim is dismissed.

(Emphasis added). The Mississippi Supreme Court has held that “there is one classic instance when the doctrine of forum non conveniens will never be applied, and that is to dismiss a case if it is barred elsewhere by a statute of limitations, unless or until the defendant is willing to stipulate that he will waive the statute of limitation defense.” Shewbrooks v. A.C. & S., Inc., 529 So.2d 557, 562 (Miss.1988) (superceded by statute on other grounds). Our supreme court further noted that “[t]o insure an alternative forum is available, the overwhelming authority in this country requires a defendant to waive the statute of limitations before the court will grant a forum non conveniens transfer.” Id. (emphasis added).² Moreover, “[f]ederal district courts of this state, as a condition precedent to sustaining a forum non conveniens transfer motion, require the defendant to waive any statute of limitations defense.” Id. at 563 (citing Tisdale v. Stone & Webster Corp., 595 F.Supp. 1016, 1020 (S.D.Miss.1984)). Similarly, Georgia requires, as a mandatory condition precedent, a written stipulation be filed prior to the dismissal of an action on the basis of forum non conveniens. See Hewett v. Raytheon Aircraft Co., 273 Ga.App. 242, 614 S.E.2d 875, 881 (2005) (holding that “a written stipulation ‘fil[ed] with the court or with the clerk of court’ is a mandatory condition precedent to the dismissal of a case under the doctrine of forum non conveniens”).

¶ 11. In the instant case, the Defendants were required to file a written stipulation waiving the statute of limitations defense before the circuit court could dismiss the case on the ground of forum non conveniens. Miss.Code Ann. § 11–11–3(4)(b). The statute does not permit “oral” stipulations. To this day, the Defendants have failed to file any such written...