Beech v. Leaf River Forest Products, Inc.

• Decision Date: 20 March 1997
• Docket Number: No. 94-CA-00055-SCT,94-CA-00055-SCT
• Citation: 691 So.2d 446
• Parties: Odis BEECH, Lurvia Beech, Wilson Williams and Ernestine B. Williams v. LEAF RIVER FOREST PRODUCTS, INC., Warren Richardson, Acker Smith, Leaf River Corporation, Great Northern Nekoosa Corporation and Georgia Pacific Corporation.
• Court: Mississippi Supreme Court

Page 446

691 So.2d 446

Odis BEECH, Lurvia Beech, Wilson Williams and Ernestine B. Williams v. LEAF RIVER FOREST PRODUCTS, INC., Warren Richardson, Acker Smith, Leaf River Corporation, Great Northern Nekoosa Corporation and Georgia Pacific Corporation.

No. 94-CA-00055-SCT.

Supreme Court of Mississippi.

March 20, 1997.

Robert A. Pritchard, Kenneth B. Robertson, Pascagoula, Irwin W. Stolz, Jr., Seaton D. Purdom, Gambrell & Stolz, Atlanta, GA, for Appellant.

W. Wayne Drinkwater Jr., Lake Tindall & Thackston, Jackson, Joe Sam Owen, Owen & Galloway, Gulfport, for Appellee.

Before SULLIVAN, P.J., and McRAE and JAMES L. ROBERTS, Jr., JJ.

STATEMENT OF THE CASE AND FACTS

SULLIVAN, Presiding Justice, for the Court.

In 1989 the Mississippi Department of Environmental Quality released a report showing that fish in the Leaf River and Pascagoula River contained dioxin, and warned citizens to refrain from eating the fish. Subsequently, the Mississippi Commission on Wildlife, Fisheries, and Parks ordered that the Leaf River, Pascagoula River, and Escatawpa River be closed to commercial fishing. This order was later rescinded in January of 1991. However, the report spurred a flurry of litigation between residents along the rivers and the companies allegedly responsible for the water contamination. See Leaf River Forest Products, Inc. v. Ferguson, 662 So.2d 648, 650-51 (Miss.1995).

Odis and Lurvia Beech, and Wilson and Ernestine Williams are all residents of Plum Bluff Estates on the Pascagoula River. On February 26, 1991, the Beeches filed a complaint against Leaf River Forest Products, Inc., Warren Richardson, Acker Smith, Great Northern Nekoosa Corporation, and Georgia Pacific Corporation in the Circuit Court of George County for loss in property value, mental and emotional anguish, physical and emotional suffering, fear of future disease, and loss of enjoyment of life. Richardson was General Manager of Leaf River, and Smith was Manager of Environmental Affairs for Leaf River. Great Northern Nekoosa Corporation was the parent company of Leaf River until being acquired by Georgia Pacific Corporation. The Beeches' complaint alleged that Leaf River operated a pulp mill that dumped pollutants into the Leaf and Pascagoula Rivers. The Beeches pursued their claim under the theories of public and private nuisance, negligence, absolute liability for ultrahazardous activity, trespass, and On June 11, 1993, the Circuit Court of George County entered an order changing venue from the Circuit Court of George County to the Circuit Court of Harrison County, pursuant to a motion filed by the defendants on March 22, 1993. The Circuit Court of Harrison County issued an order vacating orders previously entered by the Circuit Court of George County, including the order changing venue, on June 23, 1993. On June 20, the Circuit Court of Harrison County entered an order changing venue. Both courts cited the community bias against the defendants in the case due to the large number of plaintiffs involved in similar actions residing in the county and the substantial media attention generated by the case in George County. Voir dire began on June 22, 1993.

outrageous conduct. The Williamses filed a similar complaint on the same day, in the same court. The court consolidated the two actions on May 11, 1993, per the plaintiffs' motion.

On June 23, 1993, the Circuit Court of Harrison County entered an order excluding the testimony of plaintiffs' witness Elmo R. Zumwalt, Jr., finding that he was not qualified to testify as an expert regarding dioxin, the pulp and paper industry, or government activities, and that his testimony would be irrelevant and prejudicial. Also entered on June 23 was an order granting partial summary judgment to the plaintiffs on the issue of interference with the plaintiffs' riparian rights, because the court found that the plaintiffs had no riparian rights in the rivers. The court also granted summary judgment for defendants Warren Richardson and Acker Smith on June 23. On June 24, 1993, the court granted summary judgment for the defendants on plaintiffs' claims for mental and emotional distress and fear of future disease. On July 8, the jury submitted a verdict in favor of the defendants on all remaining claims. The court entered judgment in favor of the defendants on all claims on August 9, 1993. Beech et al. filed a motion for a new trial, which the circuit court denied on December 16, 1993. The plaintiffs filed their notice of appeal to this Court, assigning as error the following:

I. THE TRIAL COURT ERRONEOUSLY CHANGED TRIAL VENUE.

II. THE TRIAL COURT ERRONEOUSLY LIMITED PLAINTIFFS' EXPERT TESTIMONY.

STATEMENT OF THE LAW

Standard of Review

SB11 [1-4] An application for a change of venue is addressed to the discretion of the trial judge, and his ruling thereon will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the case.

Mississippi State Highway Comm'n v. Rogers, 240 Miss. 529, 128 So.2d 353, 358 (1961) (Kyle).

The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused. Johnston v. State, 567 So.2d 237, 238 (Miss.1990), citing Hentz v. State, 542 So.2d 914, 917 (Miss.1989); Monk v. State, 532 So.2d 592, 599 (Miss.1988). Unless the trial judge's discretion is so abused as to be prejudicial to a party, this Court will not reverse his ruling. Shearer v. State, 423 So.2d 824, 826 (Miss.1982), citing Page v. State, 295 So.2d 279 (Miss.1974). The discretion of the trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence. Johnston, 567 So.2d at 238. See M.R.E. 103(a), 104(a).

Century 21 Deep South Properties, Ltd. v. Corson, 612 So.2d 359, 369 (Miss.1992). "The decision whether an expert is qualified rests in the sound discretion of the trial court." T.K. Stanley, Inc. v. Cason, 614 So.2d 942, 951 (Miss.1992) (citing Smith v. State, 530 So.2d 155, 162 (Miss.1988)).

I.

THE TRIAL COURT ERRONEOUSLY CHANGED TRIAL VENUE.

Beech et al. claim that the court abused its discretion in changing venue. When either party to any civil action in the circuit court shall desire to change the venue, he shall present to the court, or the judge of the district, a petition setting forth under oath that he has good reason to believe, and does believe that, from the undue influence of the adverse party, prejudice existing in the public mind, or for some other sufficient cause to be stated in the petition, he cannot obtain a fair and impartial trial in the county where the action is pending, and that the application is made as soon as convenient after being advised of such undue influence, prejudice, or other cause, and not to delay the trial or to vex or harass the adverse party. On reasonable notice in writing to the adverse party of the time and place of making the application, if made in vacation, the court, if in term time, or the judge in vacation, shall hear the parties and examine the evidence which either may adduce, and may award a change of venue to some convenient county where an impartial trial may be had, and, if practicable, in which the circuit court may next be held. If made in vacation, the order shall be indorsed on the petition and directed to the clerk, who shall file the same with the papers in the suit.

They first assert that the defendant's petition for change of venue was not in proper form, because it wasn't signed by one of the parties, and was not filed in a timely fashion. The court granted the defendants' motion for change of venue pursuant to Miss.Code Ann. § 11-11-51. That statute reads as follows:

Miss.Code Ann. § 11-11-51. The defendants filed their motion for change of venue on March 22, 1993, nearly two years after the action was commenced in the Circuit Court of George County. However, the motion was filed a full three months before the trial began on June 22, 1993. This Court has previously held that a change of venue motion filed within one month of trial should have been granted. Mississippi State Highway Comm'n, 128 So.2d at 355-58. The trial in this case was not delayed as a result of the change of venue, and a plain reading of § 11-11-51 clearly shows that the requirement of a timely filing is intended to prevent a party from filing a change of venue motion simply as a delay tactic. Since part of the basis of the change of venue motion was the amount of pre-trial publicity, it would have been premature to file such a motion so long before the trial that the effects of the publicity would have been too remote for a determination of resulting prejudice in the community. Based upon all of these facts, it cannot be said that the change of venue motion filed three months before the trial, and not resulting in any trial delay, was untimely.

Plaintiffs' argument that the change of venue motion was improper because it lacked the parties' signatures is also without merit. The petition for change of venue was signed by Lee Davis Thames, attorney for the defendants. There is no requirement that a petition for change of venue be signed by the party himself and not by the attorney. Beech et al. point to Lane v. Woodland Hills Baptist Church, 285 So.2d 901, 905 (Miss.1973), in which this Court held that the appellants in a will contest were not bound by their attorney's stipulation which would have surrendered their rights to any relief. While this Court determined that an attorney generally has no authority to bind his client as to matters of law, this Court also recognized that in certain cases, an attorney may have the authority to do so if "such admission or stipulation is a proper step in the accomplishment of the purpose for which he is employed." Id. (citations omitted). The current case differs from Lane, because it does not...