                      IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2004-IA-00526-SCT

BAPTIST MEMORIAL HOSPITAL-DESOTO INC.
AND DR. WINSTON CRAIG CLARK

v.

JAMES BAILEY


DATE OF JUDGMENT:                         02/27/2004
TRIAL JUDGE:                              HON. KENNETH L. THOMAS
COURT FROM WHICH APPEALED:                QUITMAN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                 WALTER ALAN DAVIS
                                          JOHN H. DUNBAR
                                          MACEY LYND EDMONDSON
                                          SHELBY KIRK MILAM
                                          S. DUKE GOZA
ATTORNEY FOR APPELLEE:                    JENNY M. VIRDEN
NATURE OF THE CASE:                       CIVIL - OTHER
DISPOSITION:                              REVERSED AND REMANDED - 06/02/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       EASLEY, JUSTICE, FOR THE COURT:

                                PROCEDURAL HISTORY

¶1.    Prior to trial of this medical malpractice case, defendant Baptist Memorial Hospital-

DeSoto Inc. (BMH) filed a motion to transfer venue on October 7, 2003, which sought to have

the Circuit Court of Quitman County transfer venue to the Circuit Court of DeSoto County.

BMH subsequently filed a supplement to its objection to venue. Defendant Dr. Winston Craig

Clark filed a joinder in BMH’s objection to venue and adopted BMH’s supplement to its
objection to venue.       The plaintiff, James Bailey, is a resident citizen of Crowder, Quitman

County, Mississippi.      BMH is a Mississippi corporation with its principal place of business

in Southaven, DeSoto County, Mississippi. Dr. Clark is a resident citizen of Memphis, Shelby

County, Tennessee. The trial court denied the motion for change of venue to DeSoto County.

¶2.     However, the trial court in a separate order granted BMH’s request for permission to

file an interlocutory appeal to this Court pursuant to M.R.A.P. 5 certifying that a substantial

basis existed for a difference of opinion on the issue of venue. BMH appealed the trial court’s

denial of transfer of venue to this Court. Dr. Clark filed a joinder in BMH’s brief and adopted

the grounds stated by BMH. This Court granted the petition for interlocutory appeal.

                                                   FACTS

¶3.     On September 9, 2003, Bailey filed a medical malpractice case against BMH and Dr.

Clark in the Circuit Court of Quitman County.                 Bailey’s complaint alleges that Dr. Clark

performed a bilateral partial hemilaminectomy and microdicectomy on Bailey at the BMH in

Southaven, DeSoto County. As a result of Dr. Clark’s alleged negligence and deviation from

the acceptable standard of care, Bailey contends that he suffered physical damages, emotional

distress, pain and suffering, disfigurement and is now wheelchair bound.           Bailey also contends

that BMH negligently failed to supervise, monitor and assist Bailey following his surgery

resulting in his falling to the hospital floor on two occasions.




                                               DISCUSSION

¶4.     This Court applies an abuse of discretion standard on a motion to change venue. Wayne

Gen. Hosp. v. Hayes, 868 So.2d 997, 1002 (Miss. 2004) (citing Guice v. Miss. Life Ins. Co.,


                                                       2
836 So.2d 756, 758 (Miss. 2003)). This Court will not disturb a trial judge's ruling 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." Id. (quoting

Guice, 836 So. 2d at 758).

¶5.        On appeal, Bailey argues that the trial court did not err in denying the defendants’

motion to transfer venue to DeSoto County.          Bailey contends that at the time the lawsuit was

filed against BMH and Dr. Clark the “good for one good for all” rule in Senatobia Communi t y

Hosp. v. Orr, 607 So.2d 1224 (Miss. 1992), was the law in Mississippi. 1 Bailey cites Orr as

holding that “the plaintiff’s county of residence was proper venue where a non-resident

defendant doctor was sued, together with a resident defendant medical facility where the

alleged negligent act occurred.” In Orr, we held:

       [I]f one of the defendants is a nonresident of the State,       the plaintiff may bring
       suit against the nonresident in the county of plaintiff's        residence. Jurisdiction
       and venue of that nonresident defendant makes the                county of plaintiff's
       residence the proper venue against all resident defendants,     even though they may
       live in different counties.

Orr, 607 So.2d at 1226, overruled by Capital City Ins. Co. v. G. B. “Boots” Smith Corp., 889
So.2d 505, 517 (Miss. 2004).

¶6.    At the time Bailey’s complaint was filed, the general venue statute, Miss. Code Ann.

§ 11-11-3, provided:



       1
           In Orr, plaintiffs who lived in Tunica County filed a wrongful death malpractice
case against a hospital and doctors in the Tunica County Circuit Court. The cause of action
accrued in Tate County. All of the defendants resided in Tate County. At the time that the
suit was filed, one of the doctors had moved to Louisiana and was therefore a non-resident
citizen of Mississippi. The circuit court denied the defendants' motion for change in venue
to Tate County.

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        Civil actions of which the circuit court has original jurisdiction shall be
        commenced in the county where the defendant resides or in the county where
        the alleged act or omission occurred or where the event that caused the injury
        occurred. Civil actions against a nonresident may also be commenced in the
        county where the Plaintiff resides or is domiciled.

Miss. Code Ann. § 11-11-3, as amended by Laws 2002, 3rd Ex.Sess., Ch. 4, §1, effective

January 1, 2003.2 (emphasis added).

¶7.     BMH and Dr. Clark correctly argue that this Court overruled Orr and its progeny in

Capital City Ins. Co. v. G.B. “Boots” Smith Corp., 889 So.2d 505 (Miss. 2004), in which this

Court addressed a similar situation involving use of the mandatory “shall” and the permissive

“may” language in the venue statutes. They contend that based on our holding in Capital City

Ins. Co. where at least one defendant is domiciled in Mississippi there is no basis for retaining

venue in the plaintiff’s county of residency as in this case.

¶8.     In the case sub judice, BMH is a Mississippi corporation with its principal place of

business in DeSoto County, Mississippi.            Dr. Clark is a resident citizen of Shelby County,

Tennessee.      Bailey is a resident citizen of Quitman County, Mississippi.            The alleged

negligence by Dr. Clark and BMH occurred in DeSoto County, Mississippi. The complaint was

filed in the Circuit Court of Quitman County.




        2
          Miss. Code Ann. § 11-11-3, as amended, Laws 2002, 3rd Ex.Sess., Ch. 2, § 1, eff.
January 1, 2003, was repealed by Laws 2002, 3rd Ex.Sess., Ch. 4, § 1, eff. January 1, 2003,
within the same special session. Miss. Code Ann. § 11-11-3, as amended, Laws 2002, 3rd
Ex.Sess., Ch. 2, § 1, eff. January 1, 2003, which was repealed, established a provision that
venue for actions against certain heath care providers shall be the county where the alleged
act or omission occurred.

                                                      4
¶9.     As in Capital City Ins. Co., the issue here centers on the mandatory “shall” language in

Miss. Code Ann. § 11-11-3.3 The venue statutes which control this case were never designed

to remove a resident defendant’s right to be sued in his or her own county of residence.

Moreover, the Legislature never intended an interpretation of the venue statutes that would

allow a resident defendant to be sued in the plaintiff’s county of residence simply because a

non-resident defendant, be it an individual or a corporation is joined in the same suit.      The

reasoning and logic in Capital City Ins. Co. control the case sub judice.

¶10.    In Capital City Ins. Co., we stated:

                 We find that the statutes have been wrongly interpreted under rules of
        statutory construction to allow this situation. The general venue statute, section
        11-11-3 is mandatory: "Civil actions of which the circuit court has original
        jurisdiction shall be commenced in the county where the defendant or any of
        them may be found or in the county where the cause of action may occur or
        accrue ...." Miss.Code Ann. § 11-11-3. By contrast, the insurance company
        venue statute is permissive: "Actions against insurance companies ... may be
        brought in any county in which a loss may occur...." Miss.Code Ann. § 11-11-7.
        Thus, where there is a resident defendant, the general venue statute "shall" apply;
        and where there is no resident defendant, the insurance company venue statute
        offers the plaintiff other options.

                The additional option of suing in the plaintiff's home county is not
        available to a plaintiff when a resident defendant is sued. This logical
        conclusion has the effect of ranking the general venue statute above the other
        venue statutes in circumstances where more than one may apply. Cf. Missouri
        Pac. R.R. v. Tircuit, 554 So.2d 878, 881 (Miss.1989) ("But because the railroad
        venue statute [Miss.Code Ann. § 11-11-5] employs the permissive 'may' and
        because the general venue statute provides that, 'except where otherwise
        provided,' actions 'shall' be commenced in one of the counties authorized, we
        have no authority to ignore the latter."). In Orr this Court incorrectly presumed
        that there was no ranking of the statutes and thus did not discuss the possibility.




        3
          Although not applicable here, the general venue statute has been further revised
effective September 1, 2004. Miss. Code Ann. § 11-11-3.

                                                   5
          We find today that the reasoning in Orr is flawed; and therefore, it is overruled.




889 So.2d at 516-17 (emphasis added).

¶11.      Bailey also states that when the lawsuit was filed in September 4, 2003, M.R.C.P. 82

(c) authorized venue in the county of the plaintiff’s residency, Quitman County.        In Capital

City Ins. Co., the Court also briefly addressed whether M.R.C.P. 82(c) authorized venue in the

plaintiff’s county of residence when a resident defendant is a party to the suit. This Court held:

          The argument that Rule 82(c) was never intended to allow this situation is even
          more convincing. The Comment to Rule 82(c), prior to the recent changes,
          stated that the rule "tracks prior Mississippi law" in situations where several
          defendants are involved, providing that the action may be brought in any court
          where any one of the claims could have been brought and that venue would be
          good as to all defendants. The comment then referenced supporting law for this
          contention, which included Miss.Code Ann. § 11-11-3 and two cases: Gillard
          v. Great Southern Mortgage & Loan Corp., 354 So.2d 794 (Miss.1978) and
          Wofford v. Cities Service Oil Co., 236 So.2d 743 (Miss.1970). Each of these
          supporting authorities concerns the situation in which multiple resident
          defendants are joined in a single suit. None concerns the situation where a
          resident and a non-resident defendant (individual, corporation, or insurance
          company) are joined in the same trial. Thus, Rule 82(c) does not support a
          plaintiff establishing venue in his own county of residence when a resident
          defendant is a party to the suit. We, thus, overrule any contrary language in
          McDonald, American Bankers, Travis, and Boston, which are in conflict with
          this opinion.

889 So. 2d at 517 (emphasis added).

¶12.      Here, defendant BMH is a Mississippi corporation with its principal place of business

in DeSoto County. Bailey was treated at BMH in DeSoto County when he received the alleged

negligent care and treatment from BMH and Dr. Clark. In this case, venue is proper in DeSoto

County.      Thus, the circuit court abused its discretion in denying a change of venue from

Quitman County to DeSoto County.

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                                       CONCLUSION

¶13.    For the foregoing reasons, we reverse the judgment of the trial court denying the

motion to transfer venue to DeSoto County and remand this case to the Quitman County

Circuit Court with directions that it transfer venue in this case to the Circuit Court of DeSoto

County consistent with this opinion.

¶14.    REVERSED AND REMANDED.

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




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