                 IN THE SUPREME COURT OF MISSISSIPPI

                           NO. 2004-IA-02016-SCT


MISSISSIPPI FARM BUREAU FEDERATION,
CLAIBORNE COUNTY FARM BUREAU,
RANKIN COUNTY FARM BUREAU,
AMITE COUNTY FARM BUREAU, LAUDERDALE
COUNTY FARM BUREAU, RURAL INSURANCE
AGENCY, INC.,
SOUTHERN FARM BUREAU
LIFE INSURANCE COMPANY,
SOUTHERN FARM BUREAU
CASUALTY INSURANCE COMPANY, MISSISSIPPI
FARM BUREAU
CASUALTY INSURANCE COMPANY, MISSISSIPPI
FARM BUREAU
MUTUAL INSURANCE COMPANY,
MARCUS MARTIN, DAN MARTIN,
MICHAEL BRIDWELL, RANDY HYNUM
AND TOMMY ALLEN

v.

BRENDA ROBERTS, BARBARA RIGDON, MARTHA
VIA, BECKY KIRKLAND
AND ALINDA WHITE

DATE OF JUDGMENT:                 10/05/2004
TRIAL JUDGE:                      HON. ISADORE W. PATRICK, JR.
COURT FROM WHICH APPEALED:        CLAIBORNE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:         AMY K. ELDER
                                  SAM E. SCOTT
                                  DALE G. RUSSELL
                                  CHARLES G. COPELAND
                                  KEN R. ADCOCK
                                  G. MICHAEL WARREN
ATTORNEYS FOR APPELLEES:          MARK T. McLEOD
                                  MITCHELL H. TYNER
                                  GENEVIEVE G. McLEOD
NATURE OF THE CASE:               CIVIL - OTHER
DISPOSITION:                                    REVERSED AND REMANDED - 03/02/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


        BEFORE WALLER, P.J., DICKINSON AND RANDOLPH, JJ.

        WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.     After the Circuit Court of Claiborne County denied a motion to sever, Appellants

Mississippi Farm Bureau Federation, Claiborne County Farm Bureau, Rankin County Farm

Bureau, Amite County Farm Bureau, Lauderdale County Farm Bureau, Rural Insurance Agency,

Inc., Southern Farm Bureau Life Insurance Company, Southern Farm Bureau Casualty Insurance

Company, Mississippi Farm Bureau Casualty Insurance Company, Mississippi Farm Bureau

Mutual Insurance Company, Marcus Martin, Dan Martin, Michael Bridwell, Randy Hynum, and

Tommy Allen [“defendants”] filed a petition for an interlocutory appeal, which we granted.

Finding that the denial of the motion to sever constituted error, we reverse the circuit court’s

order and remand this case for proceedings consistent with this opinion.

                                                FACTS

¶2.     Five plaintiffs, Brenda Roberts, a resident of Claiborne County; Barbara Rigdon, a

resident of Lauderdale County; Martha Via, a resident of Rankin County; Becky Kirkland, a

resident of Amite County; and Alinda White, a resident of Amite County (“plaintiffs”), alleged

that each of them entered into contracts with some of the defendants,1 appointing them as


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        Via, Rigdon, Roberts and White had contracts with Southern Farm Bureau Life,
Southern Farm Bureau Casualty, Miss. Farm Bureau Casualty and Miss. Farm Bureau Mutual.
Kirkland did not specify with which defendants she had contracts.

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independent agents for the purpose of selling insurance.             They alleged that, even though they

were good producers for the various companies, they were prevented from expanding their

businesses, as promised, subjected to unfair treatment because they were women, and

experienced undue pressure, harassment, discrimination, misdeeds and interference.                More

specifically, the complaint states the following causes of action:

        1.      Breach of contract: Defendants failed to provide assistance and support
                necessary to develop and maintain their businesses as promised; refused
                to allow plaintiffs to operate as independent agents as promised; failed
                and refused to perform their obligations under the contracts; prevented
                plaintiffs from performing their duties as assigned; subjected plaintiffs
                to verbal and emotional abuse; thwarted the plaintiffs’ efforts to produce
                and operate their businesses; effectuated a constructive discharge of the
                plaintiffs and breached the relationships and contracts between the
                parties.

        2.      Tortious bad faith breach of contract: Defendants intentionally caused
                plaintiffs’ businesses to fail and defendants’ actions were oppressive,
                fraudulent and malicious.

        3.      Fraud, intentional misrepresentation and negligent misrepresentation:
                Defendants represented to plaintiffs that their compensation would be
                based on commissions, yet intended to undermine plaintiffs’ abilities to
                receive commissions by stealing clients and switching accounts.

        4.      Conspiracy: Defendants conspired to steal plaintiffs’ clients so that
                defendants, not plaintiffs, would receive the commissions.

        5.      Intentional and negligent infliction of emotional distress.

¶3.     The circuit court denied the defendants’ motion to sever, and the defendants requested

permission to file an interlocutory appeal to this Court, which granted the request.




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                                           DISCUSSION

                I.      M.R.C.P. 20 JOINDER

¶4.    Rule 20(a) of the Mississippi Rules of Civil Procedure provides that two or more

plaintiffs may join their claims in one cause of action if the claims arise out of the same

transaction, occurrence, or series of transactions or occurrences, and if there is any common

question of law or fact.2 Both of these prongs of Rule 20(a) must be met in order to deny a

motion for severance.     Wyeth-Ayerst Laboratories v. Caldwell, 905 So. 2d 1205, 1207,

(Miss. 2005).

¶5.    Mississippi Rule of Civil Procedure 20 gives trial courts broad discretion in

determining when and how to try claims.        Id.   Therefore, appellate courts review trial court

decisions regarding venue and joinder for abuse of discretion. Id.       Cases involving a question

of the propriety of Rule 20(a) joinder are reviewed on a case-by-case basis. Id.           Before an



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        Rule 20 provides in part as follows:

                 (a) Permissive Joinder. All persons may join in one action as
       plaintiffs if they assert any right to relief jointly, severally, or in the alternative
       in respect of or arising out of the same transaction, occurrence, or series of
       transactions or occurrences, and if any question of law or fact common to all
       these persons will arise in the action. All persons may be joined in one action
       as defendants if there is asserted against them jointly, severally, or in the
       alternative, any right to relief in respect of or arising out of the same
       transaction, occurrence, or series of transactions or occurrences, and if any
       question of law or fact common to all defendants will arise in the action. A
       plaintiff or defendant need not be interested in obtaining or defending against
       all the relief demanded. Judgment may be given for one or more of the
       plaintiffs according to their respective rights to relief, and against one or more
       defendants according to their respective liabilities.

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alleged “transaction or occurrence” will pass muster under Rule 20(a), an appellate court must

find a “distinct litigable event linking the parties.”           Id. at 1208.     Another important

consideration in deciding if joinder is appropriate is whether the proof presented to the jury

would be confusing due to the multiplicity of the facts. Id. at 1209. We have held:

                [The determination of whether a distinct litigable event linking
                the parties exists] includes, among other things, whether a finding
                of liability for one plaintiff essentially establishes a finding for
                all plaintiffs, indicating that proof common to all plaintiffs is
                significant. The appropriateness of joinder decreases as the need
                for additional proof increases.       If plaintiffs allege a single,
                primary wrongful act, the proof will be common to all plaintiffs;
                however separate proof will be required where there are several
                wrongful acts by several different actors. The need for separate
                proof is lessened only where the different wrongful acts are
                similar in type and character, and occur close in time and/or
                place.

Ill. Cent. R.R. v. Gregory, 912 So. 2d 829, 834-35 (Miss. 2005).

¶6.     The defendants argue that joinder is improper in this case because:

                (1)     Each plaintiff entered into a separate contract with
                        different insurance companies selling different types of
                        insurance.

                (2)     The contracts were entered into at different times.

                (3)     The contracts were entered into in different counties
                        (except for White and Kirkland, residents of Amite
                        County who both entered into their separate contracts in
                        Amite County).

                (4)     Each plaintiff worked for a different manager (with the
                        exception noted above).

                (5)     Each plaintiff alleges a different set of facts.


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                (6)     Each plaintiff would require different witnesses to prove
                        her case.

                (7)     The circumstances underlying each plaintiff’s resignation
                        are separate and distinct.

The defendants also contend the only commonalities between the plaintiffs’ allegations are that

they were each dissatisfied with their employment and they each sold insurance for a Farm

Bureau insurance company.          The plaintiffs add that the contract signed by each of them is

substantially the same contract.

¶7.     The plaintiffs all allege breach of contract, negligent and intentional torts, conspiracy,

and fraud; however, they worked under different supervisors in different locations, and were

subject to several different alleged circumstances at different times. Inasmuch as proof of the

fraud and conspiracy claims alone would require intricate factual narratives and multiple

witnesses, the amount of evidence that would have to be introduced to prove all the claims in

one trial would certainly overwhelm a jury. It is important to note that no plaintiff has claims

against every defendant.

¶8.     The only alleged distinct litigable events which could tie together the plaintiffs claims

against the defendants are the fraud and conspiracy claims. The complaint, however, does not

state any specific facts to support such claims. In their depositions, the plaintiffs make vague,

conclusory statements about Farm Bureau forcing out long-term agents so the managers can

reap the rewards of the agents’ hard work.         These same issues were discussed in a recent

severance case, MS Life Ins. Co. v. Baker, 905 So. 2d 1179 (Miss. 2005), in which we held

that severance was appropriate because:

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       Though the forty-five plaintiffs in this case have lodged multifarious complaints
       of deception by Mississippi Life in their pleadings, motions, and briefs, they
       have failed to present any evidence which specifically identified any common
       misrepresentation to all plaintiffs by Mississippi Life, either written or oral. .
       ..

Id. at 1155-86. The Baker court quoted with favor McLernon v. Source Int’l, Inc., 701

F. Supp. 1422 (E.D. Wis. 1988), as follows:

               In order to satisfy Rule 20(a), [plaintiffs] must allege that their
               claims arise from one or more uniform misrepresentations. To
               do so, they must specifically identify which representations
               and/or omissions, if any, were made to all plaintiffs. If the
               representation was written, the writing in which the
               representation appeared and the date of publication must be set
               forth.    That plaintiffs’ claims may be premised on oral
               misrepresentations does not preclude joinder, provided plaintiffs
               allege that the substance of the oral representations was
               standardized . . . .

701 F. Supp. at 1425-26 (emphasis in original).

¶9.    We find the plaintiffs have woefully failed to provide sufficient facts to prove their

claims of fraud and conspiracy can withstand severance. To meet the above standards, there

should be a showing that all of the plaintiffs’ managers had a common plan in place prior to the

hiring of the plaintiffs to induce the plaintiffs to work hard and sell insurance policies with

recurring premiums and then force the plaintiffs to resign so the managers could receive the

percentage of the recurring premiums.

¶10.   Therefore, we find the circuit court erred in denying the defendants’ motion to sever

because the plaintiffs cannot show a distinct litigable event; and because all the actions




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complained of occurred (except for the two Amite County plaintiffs) in separate counties, in

separate offices and were performed by different and separate actors.

¶11.    We order the circuit court to sever and dismiss all causes of action filed by plaintiffs

who were improperly joined. Said dismissal shall be without prejudice for each plaintiff to file

a new complaint in an appropriate venue.3

                II.     MOTION FOR CHANGE OF VENUE.

¶12.    The plaintiffs argue that the defendants have waived their claim for change of venue

because they did not raise this issue in the circuit court.         The record shows that all of the

defendants’ answers to the complaint contained motions to change venue. The Rural Insurance

Agency, the Southern Farm Bureau Life Insurance Company, the Southern Farm Bureau

Casualty Insurance Company, the Mississippi Farm Bureau Casualty Insurance Company and

Mississippi Farm Bureau Mutual Insurance Company also filed a separate “motion to sever and

transfer venue.” The other defendants joined in this motion. The circuit court, however, ruled

only upon the severance part of the motion.              The defendants immediately thereafter filed a

motion for permission to take an interlocutory appeal.

¶13.    The defendants did not waive their motion for change of venue.                The motion was

considered by the circuit court when it considered the severance portion of the motion.           For


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          The dismissal of a plaintiff’s “duly commenced” case based solely on misjoinder and
improper venue would constitute dismissal for a matter of form, bringing into play the
provisions of Miss. Code Ann. § 15-1-69 (Rev. 2003), which provides that “the plaintiff may
commence a new action for the same cause, at any time within one year. . . .” The “new action”
would, of course, be subject to the same affirmative defenses and substantive challenges as was
the original suit.

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reasons not due to any action or non-action of the defendants, the circuit court did not rule

upon it.

                 III.   MOTION TO DISMISS.

¶14.       Defendants contend the Mississippi Farm Bureau Federation, the Claiborne County

Farm Bureau, the Rankin County Farm Bureau, the Amite County Farm Bureau, and the

Lauderdale County Farm Bureau should be dismissed because this action is based on

allegations of breach of contract and these entities did not enter into any contracts with the

plaintiffs and are not in the business of selling insurance.    The plaintiffs respond that, even

though motions to dismiss were filed in the circuit court, they were not considered on the

merits; therefore the issue may not be considered on appeal.

¶15.       In the interest of judicial economy, a motion to dismiss not considered by the trial

court may be ruled upon on appeal. See, e.g., Watters v. Stripling, 675 So. 2d 1242, 1244

(Miss. 1996).      However, we find the motion to dismiss is more appropriate for consideration

by the trial court. The complaint shows that, even though there is a cause of action for breach

of contract, there are also causes of action for fraud, intentional misrepresentation,         and

negligent misrepresentation, conspiracy, and intentional and negligent infliction of emotional

distress.     And, even though the complaint does not state any specific facts against these

defendants, plaintiffs do state specific facts against these defendants in their briefs before this

Court. Because the issue appears to be complex, we decline to address the motions to dismiss.

                                          CONCLUSION




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¶16.     We reverse the circuit court’s denial of defendants’ motions to sever and to transfer

venue.     We remand this matter to the circuit court with instructions to dismiss without

prejudice the non-Claiborne County plaintiffs so that they may refile their complaints in an

appropriate venue.

¶17.     REVERSED AND REMANDED.

     SMITH, C.J., COBB, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ.,
CONCUR. EASLEY AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN
OPINION. DIAZ, J., NOT PARTICIPATING.




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