Park On Lakeland Drive, Inc. v. Spence, No. 2005-IA-02033-SCT.

• Decision Date: 19 October 2006
• Docket Number: No. 2005-IA-02033-SCT.
• Citation: 941 So.2d 203
• Parties: The PARK ON LAKELAND DRIVE, INC. and Shane Douglas v. Nancy J. SPENCE.
• Court: Mississippi Supreme Court

Page 203

941 So.2d 203

The PARK ON LAKELAND DRIVE, INC. and Shane Douglas v. Nancy J. SPENCE.

No. 2005-IA-02033-SCT.

Supreme Court of Mississippi.

October 19, 2006.

Leann W. Nealey, Robert A. Miller, Jackson, Lem Montgomery, III, attorneys for appellants.

Michael Hartung, Jackson, S. Malcolm O. Harrison, attorneys for appellee.

Before WALLER, P.J., EASLEY and CARLSON, JJ.

CARLSON, Justice, for the Court.

¶ 1. This case comes to us via an interlocutory appeal after the Circuit Court for the First Judicial District of Hinds County entered an order denying the motion to transfer venue to Rankin County and to dismiss Shane Douglas, filed by The Park on Lakeland Drive, Inc. The parties present a question of whether Shane Douglas was fraudulently joined for the sole purpose of establishing venue in Hinds County, Mississippi. Therefore, at issue is whether the plaintiff, Nancy J. Spence, asserted a reasonable claim of liability against Shane Douglas. Finding that the trial judge erred in refusing to transfer venue to Rankin County and dismiss Shane Douglas, we reverse the circuit court's order and remand this case to the Circuit Court for the First Judicial District of Hinds County with instructions to transfer venue to the Circuit Court of Rankin County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. This personal injury suit arises from a collision between two ice skaters at The Park on Lakeland Drive, Inc. (The Park) during a public session. The Park is an amusement park in Rankin County. On or about January 2, 2002, the plaintiff, Nancy J. Spence, took her two children ice skating at The Park. Because her children were inexperienced skaters, Spence proceeded to teach them how to skate by skating backwards and holding their hands for guidance. While skating backwards, Spence and Maggie Harper, a ten-year-old girl, collided. Maggie was an amateur competition skater who was also a student at The Park. Maggie had attended private one-on-one lessons and group lessons. However, when this particular incident took place, Maggie was skating for her own recreational purposes. At the time of this incident, Maggie was at The Park during a paid public session, although she previously had a skating lesson earlier that same morning. The facts are disputed as to how the collision occurred. Spence claims Maggie was practicing maneuvers in the center ice when Maggie fell into Spence's path and Spence tripped over Maggie, hitting Spence's head on the ice.

¶ 3. Thereafter, on June 29, 2004, Spence filed the present lawsuit against The Park and its managers, Martha White, Jeffrey Wilburn,¹ and Shane Douglas.² After being served with process on August 31, 2004, The Park filed a motion for a transfer of venue and dismissal of Shane Douglas as a fraudulently joined defendant.³ The Park's motion was heard on November 22, 2004, before Circuit Judge Winston L. Kidd. In support of its motion, The Park appended the sworn affidavit of Martha White, its general manager, detailing the incident and the responsibilities of Shane Douglas.⁴

¶ 4. Spence then filed a motion to stay until discovery had been completed on the issue of whether venue was proper in Hinds County. Since the circuit court did not rule on the motion, discovery ensued. After discovery was completed, The Park again raised its objection to venue.⁵ On October 10, 2005, the Circuit Court of Hinds County entered an order denying The Park's motion to transfer venue and Douglas's motion to dismiss. It is from this order that The Park and Douglas filed a petition for an interlocutory appeal, which was granted by this Court. See M.R.A.P. 5.

DISCUSSION

I. WHETHER THE CIRCUIT COURT ERRED IN DENYING THE PARK'S MOTION FOR A CHANGE OF VENUE FROM HINDS COUNTY TO RANKIN COUNTY.

¶ 5. While the primary issue is that of the trial judge's failure to transfer venue, we must also review the trial judge's refusal to dismiss Shane Douglas as a defendant. When we are called upon to consider a trial court's grant or denial of a motion to dismiss, this Court must apply a de novo standard of review. Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (Miss.2006). Likewise, in reviewing a trial court's ruling on a motion to dismiss, we will consider the allegations of the complaint to be taken as true, and the motion to dismiss "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." Id. (citing Lang v. Bay St. Louis/Waveland Sch. Dist., 764 So.2d 1234, 1236 (Miss.1999)). See also T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss.1995).

¶ 6. On the other hand, when reviewing a trial court's ruling on a motion to change venue, this Court applies an abuse of discretion standard of review. Austin v. Wells, 919 So.2d 961, 963 (Miss.2006) (citing Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1002 (Miss.2004)); see also Christian v. McDonald, 907 So.2d 286, 287-88 (Miss.2005). A trial judge's ruling on such motion "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." Austin, 919 So.2d at 964 (quoting Wayne Gen. Hosp., 868 So.2d at 1002) (citing Stubbs v. Miss. Farm Bureau Cas. Ins. Co., 825 So.2d 8, 12 (Miss.2002); McCain Bldrs., Inc. v. Rescue Rooter, LLC, 797 So.2d 952, 954 (Miss.2001); Beech v. Leaf River Forest Prods., Inc., 691 So.2d 446, 448 (Miss.1997)).

¶ 7. The Park asserts that Douglas is not a proper party to this lawsuit and that Spence named Douglas as a defendant solely for the purpose of establishing venue in Hinds County. Because The Park believes that Douglas was fraudulently joined, The Park requests this Court to transfer venue to Rankin County, which, according to The Park, is the only proper county for venue purposes.

¶ 8. "Venue is a function of statute." Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1155 (Miss.1992). This lawsuit was commenced on June 29, 2004; however, in 2004, the Legislature amended Miss. Code Ann. Section 11-11-3. Despite the 2004 legislative amendment to the statute, the pre-amendment version was applicable to the facts of this case because of the June 2004 filing date. When this lawsuit was commenced, the relevant parts of Mississippi's general venue statute, section 11-11-3 stated, "[c]ivil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant resides or in the county where the alleged act or omission occurred or where the event that caused the injury occurred . . ."⁶ Id. We have previously addressed venue issues in cases involving more than one defendant.

[W]here venue is good as to one defendant, it is good as to all defendants. This is true where the defendant upon whom venue is based is subsequently dismissed from the suit. In such situations, venue as to the remaining defendants continues despite the fact that venue would have been improper, if the original action had named them only.

Estate of Jones v. Quinn, 716 So.2d 624, 627 (Miss.1998); Blackledge v. Scott, 530 So.2d 1363, 1365 (Miss.1988) (citing Jefferson v. Magee, 205 So.2d 281 (Miss.1967)).

¶ 9. In New Biloxi Hospital, Inc. v. Frazier, 245 Miss. 185, 192, 146 So.2d 882, 884-85 (1962), we outlined a three-prong test in which an action may remain in a county where it was brought.

Where an action is properly brought in a county in which one of the defendants resides, it may be retained notwithstanding there is a dismissal of the resident defendant, provided the following exists—[1] the action was begun in good faith in the bona fide belief that plaintiff had a cause of action against the resident defendant; [2] the joinder of the local defendant was not fraudulent or frivolous, with the intention of depriving the non-resident defendant of his right to be sued in his own county; and [3] there was a reasonable claim of liability asserted against the resident defendant.

Frazier, 245 Miss. at 192, 146 So.2d at 884-85 (citations omitted). Furthermore, to determine whether the joinder of a defendant is a result of fraud, the appropriate question to ask is "whether the facts support inclusion of the defendant upon whom venue is based." Wayne Gen. Hosp., 868 So.2d at 1002; Estate of Jones, 716 So.2d at 628 (citing Jefferson v. Magee, 205 So.2d at 283). The Court is not concerned with whether the plaintiff's attorney had the intent to fraudulently or frivolously establish venue. Id. In fact, the intent of the plaintiff's attorney is irrelevant. Therefore, in today's case, we must determine whether Spence had a reasonable claim of liability against Douglas, or whether Douglas was in fact fraudulently joined.

¶ 10. It is necessary to begin with the "well-pleaded allegations of the complaint[,]" and any "other evidence in cognizable form[,]" including affidavits. Flight Line, Inc., 608 So.2d at 1155. In addition, it is well settled in Mississippi that "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." Id. However, venue is a valuable right to the defendant as well and timely objections to improper venue must be honored. Id.

¶ 11. In the instant case, Spence failed to assert a reasonable claim of liability against Douglas. Therefore, the third prong of the Frazier test has not been satisfied. That being said, we are constrained to find that venue was never proper in Hinds County and that the trial judge abused his discretion in allowing Spence to conduct discovery. Douglas should have been dismissed following The Park's submission of affidavits detailing the incident and the role, or non-role, that Douglas maintained in this incident. Spence never offered any evidence to support the inclusion of Douglas as a defendant.

¶ 12. Spence's complaint alleges that the "Defendants, ...