                      IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2005-IA-01001-SCT

MEDICAL ASSURANCE COMPANY OF MISSISSIPPI

v.

RONALD V. MYERS, SR., M.D.

DATE OF JUDGMENT:                           05/04/2005
TRIAL JUDGE:                                HON. JANACE H. GOREE
COURT FROM WHICH APPEALED:                  HOLMES COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANT:                    JEFFREY RYAN BAKER
                                            WALTER T. JOHNSON
                                            C. R. MONTGOMERY
                                            ROBERT M. JONES
                                            J. COLLINS WOHNER
ATTORNEYS FOR APPELLEE:                     H. L. MERIDETH, JR.
                                            DAVID L. MERIDETH
                                            EDWARD BLACKMON, JR.
NATURE OF THE CASE:                         CIVIL - TORTS-OTHER THAN PERSONAL
                                            INJURY & PROPERTY DAMAGE
DISPOSITION:                                REVERSED AND REMANDED - 05/17/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    The central issue on appeal in this action between a doctor and his former medical

malpractice insurer is venue. The Chancery Court of Holmes County originally granted the

insurer’s motion to transfer the case to the Circuit Court of Madison County. Five months

later, the chancellor granted the doctor’s motion to reconsider and transferred the case to the

Circuit Court of Holmes County instead. The issue before this Court is whether – after

transferring the case to Madison County – the chancery court abused its discretion by
granting the doctor’s motion to reconsider and transferring the case to the Circuit Court of

Holmes County.

                   BACKGROUND FACTS AND PROCEEDINGS

¶2.    Medical Assurance Company of Mississippi (“MACM”) insured Dr. Ronald V. Myers

from 1998 through 2004, but the company elected not to renew his coverage when his policy

expired on January 1, 2005, under its own terms. One reason for MACM’s decision was Dr.

Myers’s refusal to allow its Risk Management Department to conduct a full review of his

practices in Tchula (Holmes County), Belzoni (Humphreys County), Greenville (Washington

County), and Indianola (Sunflower County).

¶3.    Believing MACM owed him a statutory duty to renew his policy, Dr. Myers sued the

company for damages and petitioned for an injunction to force it to insure him. On

December 8, 2004, Dr. Myers filed his complaint in the Chancery Court of Holmes County.

One week later, MACM filed a motion to dismiss for lack of subject matter jurisdiction and,

alternatively, moved the court to transfer the case to the Circuit Court of Madison County.

¶4.    Chancellor Janace H. Goree heard arguments on the issues of jurisdiction and venue

on December 16, 2004. That same day, the chancellor ruled from the bench that Dr. Myers’s

action was essentially a contract claim, so the Chancery Court of Holmes County did not

have subject matter jurisdiction. The chancellor concluded by stating “the Court is going to

hereby transfer this case to the Circuit Court of Madison County.” Thereafter, the parties

agreed to prepare an order consistent with this ruling. The order, filed January 27, 2005,

incorporated the bench ruling in toto.




                                             2
¶5.    On December 22, 2004, Dr. Myers filed with the chancery court a Motion to Reopen

and Reconsider. The motion asked the court to reopen the case for the admission of

additional evidence and reargument and to reconsider the bench ruling transferring the case

to the Circuit Court of Madison County. On January 6, 2005, this Court decided Snyder v.

Logan, 905 So. 2d 531 (Miss. 2005), a case dealing with permissible venues for an action

between an insured and her insurer under the former venue statute. Dr. Myers thereafter

argued in his February 7, 2005, brief supporting his motion that Snyder represented a change

in controlling venue law and justified the court’s reconsideration of the case.

¶6.    On April 12, 2005, the chancellor held a hearing on Dr. Myers’s motion to

reconsider.1 After taking the matter under advisement, the chancellor granted Dr. Myers’s

motion to reconsider the issue of venue. The chancellor found that credible evidence

satisfactorily established a factual basis to support Dr. Myers’s preference of venue in

Holmes County. The order concluded, “IT IS THEREFORE ORDERED AND ADJUDGED

that this case shall be transferred to the Circuit Court of Holmes County, Mississippi.”

¶7.    On May 23, 2005, MACM filed its Petition for Permission for Interlocutory Appeal,

which this Court granted. MACM argues that the chancery court had no authority to

entertain any motions, including a motion to reconsider, after ruling from the bench and

entering an order transferring the case to the Circuit Court of Madison County. MACM also

argues that venue is proper in Madison County. Because we conclude that the proper county




       1
         Dr. Myers chose to abandon his motion to reopen and proceed only on his motion to
reconsider. Therefore, only the motion to reconsider is before this Court on appeal.

                                             3
of venue in this case is Madison County, we need not address the question of whether the

chancellor had authority to consider the motion for reconsideration.2

                                          DISCUSSION

¶8.    The question before us is whether, after it transferred this case to Madison County,

the chancery court abused its discretion by granting Dr. Myers’s motion to reconsider, and

then transferring the case to the Circuit Court of Holmes County.

       Relief under Mississippi Rule of Civil Procedure 60(b)

¶9.    MACM argues the chancery court erred in granting Dr. Myers’s motion to reconsider

because he failed to satisfy the requirements of Mississippi Rule of Civil Procedure 60(b) for

relief from an order. Dr. Myers asserts the chancery court properly entertained his motion

because the court failed to consider the venue issue when it transferred the case to the Circuit

Court of Madison County based on its lack of subject matter jurisdiction, and because the

chancery court’s ruling was not a “final judgment, order or proceeding.”

¶10.   Rule 60(b) governs relief from a judgment or order based on mistakes, inadvertence,

newly discovered evidence, fraud, and other specified circumstances. It states, in part:

       On motion and upon such terms as are just, the court may relieve a party or his
       legal representation from a final judgment, order, or proceeding for the
       following reasons:

       (1)     fraud, misrepresentation, or other misconduct of an adverse party;

       (2)     accident or mistake;

       (3)     newly discovered evidence which by due diligence could not have been
               discovered in time to move for a new trial under Rule 59(b);


       2
        The timing of the transfer of jurisdiction to a transferee court is a matter more appropriately
addressed by this Court pursuant to its rule-making authority.

                                                  4
       (4)    the judgment is void;

       (5)    the judgment has been satisfied, released, or discharged, or a prior
              judgment upon which it is based has been reversed or otherwise
              vacated, or it is no longer equitable that the judgment should have
              prospective application;

       (6)    any other reason justifying relief from the judgment.

       The motion shall be made within a reasonable time, and for reasons (1), (2)
       and (3) not more than six months after the judgment, order, or proceeding was
       entered or taken.

Miss. R. Civ. P. 60(b).

¶11.   A trial court’s grant of relief under Miss. R. Civ. P. 60(b) is reviewed for abuse of

discretion. R. N. Turnbow Oil Invs. v. McIntosh, 873 So. 2d 960, 963 (Miss. 2004). In his

December 20, 2004, motion to reconsider, Dr. Myers simply asked the court to reopen the

case for the admission of additional evidence and reargument and to reconsider its bench

ruling transferring the case to the Circuit Court of Madison County. In his brief filed two

months later, Dr. Myers argued that a case handed down by this Court on January 6, 2005,

Snyder v. Logan, 905 So. 2d 531 (Miss. 2005), constituted an intervening change in

controlling law. This basis for reconsideration does not fit within the first five enumerated

reasons for relief under 60(b). As such, this Court must determine whether the trial court

abused its discretion by granting relief pursuant to the catchall category of 60(b)(6), “any

other reason justifying relief from the judgment.” Significantly, “[r]elief under Rule 60(b)(6)

is reserved for extraordinary and compelling circumstances.” Briney v. U.S. Fid. & Guar.

Co., 714 So. 2d 962, 966 (Miss. 1998).




                                              5
¶12.   Although never explicitly stated, the chancery court apparently granted Dr. Myers’s

motion to reconsider because it did not specifically address and analyze the issue of venue

in its original order transferring the case to the Circuit Court of Madison County. In contrast,

the court’s May 10, 2005, order did include findings of fact and conclusions of law

explaining its decision to transfer the case to Dr. Myers’s original venue choice – Holmes

County. However, unless extraordinary and compelling circumstances justified the transfer

from the Circuit Court of Madison County to the Circuit Court of Holmes County, the first

order transferring the case to the Circuit Court of Madison County must be enforced.

       Venue: The Circuit Court of Holmes County

¶13.   Both parties agree the circuit court, rather than the chancery court, has jurisdiction in

this case. The dispute concerns whether the Circuit Court of Holmes County is a proper

venue for Dr. Myers’s action. While Dr. Myers acknowledges that Madison County would

also be a permissible venue, he claims that his choice of venue – Holmes County – should

be respected because “the plaintiff is entitled to choose between any of the permissible venue

options where credible evidence or factual basis supports the venue selected.” Wal-Mart

Stores, Inc. v. Johnson, 807 So. 2d 382, 387 (Miss. 2001). MACM, on the other hand,

contends that Madison County is the only proper venue given the facts of this case.

¶14.   This Court has held that “[a]n application for change of venue is addressed to the

discretion of the trial judge, and [her] 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.” Guice v. Miss. Life Ins. Co., 836




                                               6
So. 2d 756, 758 (Miss. 2003). Pursuant to Miss. Code Ann. Section 11-11-3 (Rev. 2004),

venue is appropriate in the following counties:

        Civil actions of which the circuit court has original jurisdiction shall be
        commenced in the county where the defendant resides, or, if a corporation, in
        the county of its principal place of business, or in the county where a
        substantial alleged act or omission occurred or where a substantial event that
        caused the injury occurred.

The defendant MACM has its principal place of business in Madison County, so a substantial

alleged act, omission, or injury-causing event must have occurred in Holmes County to make

it a proper venue for this action.

¶15.    Significantly, the Legislature amended Section 11-11-3, effective September 1, 2004,

to set venue where substantial acts or events causing the injury occurred, not where the cause

of action accrued, as was permissible under the former statute. Since Dr. Myers filed his

action on December 8, 2004, the current statute, quoted above, controls the disposition of this

case.

¶16.    Given this foundation, we must determine whether the chancery court abused its

discretion in finding that credible evidence supported Dr. Myers’s position that a substantial

act, omission, or injury-causing event (or substantial component thereof) occurred in Holmes

County. If no basis exists for such a finding, then the chancellor’s decision granting Dr.

Myers’s Motion to Reconsider must be reversed, and the original judgment transferring the

case to the Circuit Court of Madison County must be reinstated.

        1.     Whether Snyder v. Logan changed controlling venue law

¶17.    Contrary to Dr. Myers’s claims, Snyder did not represent a change in controlling

venue law. In that case, the plaintiff, Snyder, purchased auto insurance from the defendants


                                              7
in December 2000, but the policy was cancelled in December 2001 for failure to pay the

premiums. 905 So. 2d at 532. Snyder paid the requested amount and was informed that she

would be covered from January 7, 2002, through February 7, 2002. Id. On January 8, 2002,

Snyder was involved in a single-car accident. When the defendants denied her claim, she

filed suit in Jefferson County Circuit Court for misrepresentation, negligence, breach of

contract, and bad faith. Id.

¶18.   The trial court found venue to be appropriate where Snyder purchased her auto

insurance (Adams County), where one defendant had a registered agent for process (Rankin

County), and where the plaintiff conducted business with another defendant (Warren

County), but not in Jefferson County. Id. Interpreting the former venue statute, and relying

on Stubbs v. Mississippi Farm Bureau Casualty Insurance Co., 825 So. 2d 8, 13 (Miss.

2002), the Court found that the plaintiff’s action against her insurer could be brought in

Jefferson County because the car accident occurred there. Snyder, 905 So. 2d at 534.

¶19.   The decision did not break any new ground, but merely relied on prior

pronouncements of this Court regarding the former venue statute. Its position that an action

could be properly filed in multiple venues, including where a substantial alleged act or

injury-causing event occurred, was anything but novel. The rationale of the Court advanced

in Snyder was the same reasoning propounded by the Court in cases decided before the

chancery court ruled to transfer Dr. Myers’s case.

       2.     Whether the chancellor’s findings support the venue change




                                             8
¶20.   In its Order Granting Reconsideration of Venue, the chancery court made the

following findings of fact justifying transfer of the case to the Circuit Court of Holmes County:

       (1)       Myers completed his application to [MACM] for the malpractice
                 insurance in Holmes, County, Mississippi.

       (2)       MACM issued the policy from Madison County to Myers in Holmes
                 County, Mississippi.

       (3)       The second quarter of premium was paid by Myers to MACM from
                 Holmes County and mailed to MACM in Madison County.

       (4)       There were discussions between Myers and MACM in 2004, by mail
                 and probably by telephone, from and between Holmes County and
                 Madison County about insurance coverage on a clinic in Tupleo [sic]
                 that was ultimately excluded from coverage by MACM.

       (5)       There were multiple written communications to and from Myers in
                 Holmes County and to and from MACM in Madison County pertaining
                 to a review by MACM Risk Management Committee at various Myers’
                 clinics, including the clinic in Holmes County, Mississippi.

       (6)       The letter advising Myers that his malpractice insurance had been
                 cancelled [3] was sent by U.S. Mail in Tchula, Holmes County,
                 Mississippi, and received by him in Tchula, Holmes County,
                 Mississippi.[4]

       (7)       One of the clinics operated by Myers and insured by MACM is located
                 in Tchula, Holmes County, Mississippi.

       (8)       Myers selected Holmes County, Mississippi to file his lawsuit.

¶21.   As stated above, the venue statute permits a case to be filed where a substantial

alleged act, omission, or injury-causing event occurred. Therefore, even if an act or omission

did not cause the injury, it can nevertheless establish venue if it is both substantial and


       3
           Dr. Myers’s suit against MACM is for failing to renew his policy, not for cancelling it.
       4
      This appears to be a misstatement by the chancery court. The non-renewal notice was sent
by MACM from Madison County to Dr. Myers in Holmes County.

                                                  9
alleged by the plaintiff. Dr. Myers’s complaint does not allege that his decision not to give

MACM’s risk management team full access to his practice, including his practice in Holmes

County, contributed to his claim. Thus, that fact – even if true – does not meet the “alleged”

portion of the test.

¶22.   Next, we note that the basis for Dr. Myers’s action was MACM’s decision not to

renew his coverage once it expired on January 1, 2005, under its own terms. With respect

to establishing Dr. Myers’s cause of action and claims of wrongful conduct, we find little or

no relevance to the particular place he completed his application or mailed his premium

payments. Dr. Myers is not claiming that MACM rejected his application or decided not to

renew his policy for failure to pay premiums. Completing an application in, and making

payments from, Holmes County cannot be considered substantial acts or injury-causing

events in this case.

¶23.   Additionally, the chancery court’s finding of communications “from and between

Holmes County and Madison County” and “to and from Myers in Holmes County and to and

from MACM in Madison County” is an insufficient basis for establishing venue. MACM

never communicated to Dr. Myers from Holmes County, and all of MACM’s deliberations,

meetings, correspondence, and communication with Dr. Myers occurred in or were

transmitted from its offices in Madison County. MACM never met with Dr. Myers in

Holmes County, but the parties did meet in Madison County. In other words, Dr. Myers is

suing MACM based on the company’s own acts or omissions, all of which occurred in

Madison County.




                                             10
¶24.   The location of the mailbox where Dr. Myers received his policy, non-renewal notice,

or other communications from MACM is likewise immaterial. As MACM properly notes,

“Dr. Myers’s receipt of information in Holmes County is a passive function of his presence

there and is not a substantial event causing the damages he claims.” Along those same lines,

Dr. Myers is not claiming that his own actions or communications contributed to his injuries,

so where he performed those actions or from where he made those communications does not

impact this Court’s venue analysis. Since it is MACM’s decision not to renew the insurance

policy that is the alleged cause of Dr. Myers’s injuries, every substantial act, omission, or

injury-causing event occurred in Madison County.

¶25.   Finally, Dr. Myers argues that because he operated a clinic in Holmes County, a

substantial injury-causing event occurred or accrued in Holmes County. However, under

the amended statute, venue is no longer set by where a cause of action accrued. Even though

Dr. Myers claims he was damaged when he experienced being uninsured in Holmes County

(and in Humphreys, Washington, and Sunflower counties), this could be the result of

substantial acts, omissions, or injury-causing events which occurred in Madison County

alone. Following Dr. Myers’s logic, a plaintiff injured in an automobile accident in Madison

County could establish venue in every county in which the plaintiff traveled simply by

showing that, in each county, his or her injuries worsened.

¶26.   The venue statute does not allow the “piling” of acts or events to establish venue. It

specifically requires a substantial alleged act, omission, or injury-causing event to have

happened in a particular jurisdiction in order for venue to be proper there. In American

Home Products Corp. v. Sumlin, 942 So. 2d 766 (Miss. 2006), the plaintiff filed suit against


                                             11
a pharmaceutical company for injuries sustained from taking Redux. The plaintiff obtained

the prescription, filled it, and ingested the pills in Wayne County. Id. at 771. However, she

filed suit in Smith County because the echocardiogram revealing her injuries was performed

there. Id. Whether the test was properly performed was a major point of contention between

the parties. Id. at 769. Nevertheless, this Court held that venue was only proper in Wayne

County, saying “the performance and interpretation of an echocardiogram, alone, is not

sufficient so as to constitute a ‘substantial component’ of this claim.       Likewise, any

emotional distress or psychological pain resulting from the findings of an echocardiogram

does not constitute a substantial component of the claim.” Id. at 771 (internal citations

omitted). Thus, the performance of an echocardiogram or the place where the plaintiff

experienced her injuries was not “substantial” enough to establish venue in a particular

county. The same is true of the receipt of correspondence, the location of a single clinic in

a multi-clinic operation, or the place where Dr. Myers “experienced” being uninsured.

¶27.   We conclude the chancery court abused its discretion in finding credible evidence

supported transfer of the case to the Circuit Court of Holmes County. Madison County was

the county of proper venue under Section 11-11-3, and the chancellor’s original decision to

transfer the case there was correct. Therefore, the chancery court improperly granted Dr.

Myers’s motion to reconsider its original order transferring the case to the Circuit Court of

Madison County, as there were no extraordinary circumstances compelling relief from the

original order.

                                     CONCLUSION




                                             12
¶28.   For the reasons discussed herein, we reverse the chancery court’s Order Granting

Reconsideration of Venue, reinstate the chancery court’s original order transferring the case

to the Circuit Court of Madison County, and remand the case for further proceedings

consistent with its opinion.

¶29.   REVERSED AND REMANDED.

    SMITH, C.J., WALLER, P.J., EASLEY, CARLSON AND RANDOLPH, JJ.,
CONCUR. DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.
GRAVES, J., NOT PARTICIPATING.

       DIAZ, PRESIDING JUSTICE, DISSENTING:

¶30.   Because the majority today declines to address the critical issue at hand in this case,

I must respectfully dissent. The threshold issue that must be decided before any other is

whether the chancery court retained the jurisdiction to reconsider the motion to transfer

venue after previously ordering the transfer. Instead of deciding this point, the majority leaps

ahead of itself and concludes that venue is proper. In my view, this issue must addressed

first, and we provide no guidance to the Bench and Bar by ignoring it.

¶31.   There is only one practical method for determining at what point a transferring court

loses jurisdiction over a case after granting a motion to change venue. Simply, the full

transfer of a case should not be effected until after a motion for reconsideration has been

granted or denied by a trial court (assuming, of course, that one is filed). This bright-line

method avoids the needless complications that have arisen in other jurisdictions and

preserves uniformity with other motions. Just as we will not find error with a trial court

regarding issues never presented to it for consideration, we should not find error when a trial

court has never had the opportunity to correct itself. See Mills v. Nichols, 467 So. 2d 924,

                                              13
931 (Miss. 1985). Other methods that involve immediate transfers from court to court would

squander judicial resources and slow the passage of justice. It goes without saying that the

trial court which ruled on the original motion is in the best position to adjudicate if a motion

for reconsideration is worthy of deliberation or simply a repeat of the arguments the court

has already considered. The original court can best separate the wheat from the chaff.

¶32.   The majority also misplaces its analysis of motions to reconsider upon Mississippi

Rule of Civil Procedure 60(b). The trial court ruled verbally on December 16, 2004, and the

motion to reconsider was filed on December 22. Because the motion to reconsider was filed

less than ten days after the ruling, it was filed pursuant to Rule 59. See MRCP 59(e);

Cannon v. Cannon, 571 So. 2d 976, 978 (Miss. 1990) (if a “motion was filed more than ten

days after the entry of the final judgment . . . [the] appeal cannot be considered under Rule

59”); Bresler v. Bresler, 824 So. 2d 641, 642 (Miss. Ct. App. 2002) (motions to reconsider

will be treated “as a Rule 59 motion [when] filed within ten days after the judgment”);

compare MRCP 60, which focuses exclusively on mistakes, inadvertence, fraud, or new

evidence, and which allows six months’ time to file a motion. For a discussion of the

differences between the rules, see Bruce v. Bruce, 587 So. 2d 898, 903 (Miss. 1991), which

makes clear that “Rule 60(b) is for extraordinary circumstances, for matters collateral to the

merits, and affords a much narrower range of relief than Rule 59(e).”

¶33.   Because today the majority forgoes providing practical guidance to our trial courts and

practitioners on this sticky procedural issue, and because it misapprehends the process by

which a motion to reconsider is filed, I must respectfully dissent.




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