Illinois Central RR Co. v. Travis, No. 2000-IA-01074-SCT.

• Decision Date: 28 February 2002
• Docket Number: No. 2000-IA-01074-SCT.
• Citation: 808 So.2d 928
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY, v. Mary Frances TRAVIS, Administratrix of the Estate of Clifton Davis Travis, Jr., Deceased.
• Court: Mississippi Supreme Court

808 So.2d 928

ILLINOIS CENTRAL RAILROAD COMPANY, v. Mary Frances TRAVIS, Administratrix of the Estate of Clifton Davis Travis, Jr., Deceased.

No. 2000-IA-01074-SCT.

Supreme Court of Mississippi.

February 28, 2002.

Curtis R. Picou, Belleville, IL, Chad Michael Knight, Jackson, Thomas R. Peters, Belleville, IL, Attorneys for Appellant.

Thomas W. Brock, William S. Guy, McComb, John Booth Farese, Ashland, Attorneys for Appellee.

Before SMITH, P.J., COBB AND DIAZ, JJ.

SMITH, P.J., for the Court.

¶ 1. Mary Frances Travis (Administratrix of the Estate of Clifton Davis Travis, Jr., deceased), joined ninety-eight others in filing suit against Illinois Central Railroad Company (ICRR) in Marshall County, Mississippi, for alleged exposure to asbestos and products containing asbestos. ICRR moved to dismiss Travis's claims based on improper venue, improper joinder, and forum non conveniens. The circuit court denied this motion. This Court subsequently granted ICRR's request for permission to appeal. See, M.R.A.P. 5. Finding no error by the trial court, we affirm.

FACTS

¶ 2. This is a case filed under the Federal Employers' Liability Act, 45 U.S.C. §§ 51 et seq. ("FELA"), alleging injuries and death due to exposure to asbestos. Mary Frances Travis is the administratrix of the estate of her late husband, Clifton Davis Travis. Travis worked for Illinois Central Railroad Company ("ICRR") from 1949 to 1990. Mr. Travis worked for ICRR as a stationary fireman, a machinist's helper, a carman helper, a carman, and a mechanical foreman. He was diagnosed with asbestosis on February 21, 1998. He developed lung cancer and died on July 21, 1998.

¶ 3. On October 9, 1998, Mrs. Travis joined 71 other former ICRR employees and filed a complaint under the FELA in the Circuit Court of Marshall County, Mississippi. Twenty-seven additional plaintiffs were later joined by amendment. Mrs. Travis's case, along with nine other cases, was set for trial to begin July 24, 2000. Mr. Travis was a resident of Tennessee. His wife is still a resident of Tennessee. He worked for ICRR in Kentucky and Tennessee. Plaintiffs claim there is a possibility that he did some work in Mississippi; although, defendants state that he never worked in Mississippi.

STANDARD OF REVIEW

¶ 4. There are essentially two standards that are to be dealt with in reviewing the case at bar. First, as to the question of forum non conveniens, this Court will uphold the trial court's ruling unless it is clearly erroneous. "When considering a motion to dismiss, the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim." Donald v. Amoco Prod. Co., 735 So.2d 161, 165-66 (Miss.1999) (citing Butler v. Board of Supervisors, 659 So.2d 578, 581 (Miss.1995); Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990)). "A circuit court judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor," and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence. See City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000)

; Puckett v. Stuckey, 633 So.2d 978, 982 (Miss.1993); Sweet Home Water & Sewer Ass'n v. Lexington Estates, Ltd., 613 So.2d 864, 872 (Miss.1993); Allied Steel Corp. v. Cooper, 607 So.2d 113, 119 (Miss.1992). "This Court will not disturb those findings unless they are manifestly wrong, clearly erroneous or an erroneous legal standard was applied." Bell v. City of Bay St. Louis, 467 So.2d 657, 661 (Miss.1985).

¶ 5. Second, as to the issues of improper venue and improper joinder, this Court uses a more deferential standard. The official comment to Rule 20 describes its purpose as:

The general philosophy of the joinder provisions of these Rules is to allow virtually unlimited joinder at the pleading stage but to give the Court discretion to shape the trial to the necessities of the particular case.

Miss. R. Civ. P. 20.

¶ 6. In First Investors Corp. v. Rayner, 738 So.2d 228 (Miss.1999), this Court stated that Rules 20 and 42 give trial courts "broad discretion" in determining when and how claims are tried. Id. at 238. Therefore, for purposes of this appeal, this Court reviews the trial court judge's actions under an abuse of discretion standard. Federal appellate courts identify the appropriate standard of review as whether the trial judge abused his discretion when allowing or denying joinder. Bobby Kitchens, Inc. v. Mississippi Ins. Guar. Ass'n, 560 So.2d 129, 135 (Miss. 1989). See Fenton v. Freedman, 748 F.2d 1358, 1361 (9th Cir.1984)

; Saval v. BL Ltd., 710 F.2d 1027, 1031 (4th Cir.1983).

¶ 7. "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." Donald v. Amoco Prod. Co., 735 So.2d 161, 181 (Miss. 1999) (citing Estate of Jones v. Quinn, 716 So.2d 624, 626 (Miss.1998)(quoting Beech v. Leaf River Prods., Inc., 691 So.2d 446 (Miss.1997)(quoting Mississippi State Highway Comm'n v. Rogers, 240 Miss. 529, 128 So.2d 353, 358 (1961)))).

DISCUSSION

¶ 8. There are essentially three arguments made by ICRR. First, it claims that the circuit court erred in failing to dismiss Travis's claim for improper venue. Second, it claims that the circuit court committed error in failing to dismiss Travis's claim for improper joinder. Third, it claims that the circuit court erred in failing to dismiss or transfer Travis's claim based on the doctrine of forum non conveniens.

(1) DID THE CIRCUIT COURT ERR IN FAILING TO DISMISS TRAVIS'S CLAIM FOR IMPROPER VENUE?

¶ 9. Under its first claim, ICRR argues that Miss.Code Ann. § 11-11-5 (Supp. 2001) controls the venue choice in this case. Thus, it argues that the only appropriate places for venue are where the action accrued, where the defendant has its principal place of business, or where the plaintiff resided. Miss.Code Ann. § 11-11-5. Second, ICRR contends that while Miss. R. Civ. P. 82(c) states that "where several claims or parties have been joined, the suit may be brought in any county which any one of the claims could properly have been brought," this does not apply to those parties joined under Rule 20(a). It cites the second sentence of Rule 82(c) for this finding. That sentence states that:

Whenever an action has been commenced in a proper county, additional claims and parties may be joined, pursuant to Rules 13, 14, 22, and 24, as ancillary thereto, without regard to whether that county would be the proper venue for an independent action on such claims or against such parties.

¶ 10. ICRR acknowledges that this Court has recently stated that "when Rule 20 joinder of parties is involved, `venue is proper wherever it is proper as to one such claim.'" American Bankers Ins. Co. v. Alexander, ___ So.2d ___, ___, 2001 WL 83952 *6 (Miss.2001) (citing McDonald v. Holmes, 595 So.2d 434, 436 (Miss.1992)). Despite this fact, ICRR argues that in Alexander the defendant had conceded that Rule 82(c) applied if Rule 20 was used properly. It asserts that they make no such concession and further argues that the language of Rule 82(c), as well as the logic behind that rule, preclude its application where joinder is asserted under Rule 20.

¶ 11. Plaintiff argues that Travis is properly joined under Rule 20 of the Mississippi Rules of Civil Procedure, and thus Rule 82(c) of the Mississippi Rules of Civil Procedure, which states that venue is proper for all plaintiffs where it is proper for one, makes Marshall County, Mississippi, an appropriate venue for this action. Plaintiff states that within the ten-plaintiff trial group that Travis is a part of, four of the plaintiffs worked for ICRR in Marshall County and were exposed to asbestos during that time. Further, plaintiff Dean Pounders currently resides in Marshall County.

¶ 12. First, this Court has previously stated that Miss.Code Ann. § 11-11-5 is not "the only venue statute to which parties may resort in an action against a railroad." Missouri Pac. R.R. v. Tircuit, 554 So.2d 878, 881 (Miss.1989). In that case, this Court found that this state's general venue statute, Miss.Code Ann. § 11-11-3 (Supp.2001), provides additional venue options, including "where a non-resident corporation `may be found'." Id. Thus, if ICRR can be "found" in Marshall County, Mississippi, this would be an additional venue option. However, plaintiffs' only argument is that Marshall County is the location where the cause of action accrued for at least four of the plaintiffs in this ten-plaintiff trial group, as well as others within the remaining ninety-nine plaintiffs. Their contention is that Rule 82(c) allows for venue to be proper for all where it is proper for one.

¶ 13. As for ICRR's argument that Rule 82(c) does not apply to parties joined under Rule 20, Mississippi law has never suggested that Rule 82(c) might not apply. In two cases, this Court has simply stated that Rule 82(c) applied when parties are joined under Rule 20. The Alabama Supreme Court addressed an argument similar to this in Ex parte Progressive Cas. Ins. Co. 533 So.2d 230 (Ala.1988). There it was argued that a party joined under a Rule 15 amendment to the pleading could destroy venue. The Alabama Supreme Court stated:

[T]he second sentence of Rule 82(c) can be read to mean that the addition of parties whose relation to each other or to existing parties is different from the original plaintiff/defendant relation does not render venue improper or require severance. That sentence's omission of Rule 15 does not mean that amendments adding parties do render venue improper, but rather, the sentence is more properly interpreted as omitting reference to Rule 15

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