                          IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 96-IA-00593-SCT
THE ESTATE OF LLOYD JONES, DECEASED;
DOYLE KING, SUCCESSOR IN OFFICE TO
SHERIFF LLOYD JONES, DECEASED; SIMPSON
COUNTY, MISSISSIPPI; WALTER TUCKER,
INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY
AS CHIEF OF BRANDON, MISSISSIPPI, POLICE
DEPARTMENT AND CITY OF BRANDON,
MISSISSIPPI
v.
ESTHER JONES QUINN, AND ALONSO JONES,
SOLE HEIRS-AT-LAW OF ANDRE JONES AND ON
BEHALF OF ALL OTHER WRONGFUL DEATH
BENEFICIARIES

DATE OF JUDGMENT:                               04/10/96
TRIAL JUDGE:                                    HON. JAMES E. GRAVES, JR.
COURT FROM WHICH APPEALED:                      HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                       LUCIEN C. GWIN, JR.
                                                DANNY WELCH
                                                GARY E. FRIEDMAN
ATTORNEY FOR APPELLEES:                         CHOKWE LUMUMBA
NATURE OF THE CASE:                             CIVIL - WRONGFUL DEATH
DISPOSITION:                                    REVERSED AND REMANDED - 06/18/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                 7/9/98




     EN BANC.


     SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:


¶1. On August 20, 1993, Esther Jones Quinn and Alonzo Jones (Plaintiffs) filed their complaint in the
Circuit Court of Hinds County against the defendants in this case, alleging that their son's death was a
result of the intentional and malicious, or grossly negligent, behavior of the defendants in the deficient
upkeep of the Simpson County Jail and the treatment of prisoners at the jail. Their son, Andre Jones,
was found dead, hanging by a shoestring in a shower stall at the jail, while being held on charges of
possession of a stolen tag, altering a vehicle identification number, violating a city beer ordinance,
and carrying a concealed weapon. Andre had been arrested at a road block set up by the Brandon
Police Department, and was transported to the Simpson County Jail due to overcrowding in the
Brandon City Jail. Dr. Steven Hayne, who performed the autopsy, found that the manner of death
was suicide. However, Plaintiffs maintained that their son was murdered. Plaintiffs named as
defendants: Lloyd Jones, Sheriff of Simpson County; John Abernathy, Deputy Sheriff of Simpson
County; Simpson County; Walter Tucker, Chief of the Brandon Police Department; John Henley,
Sergeant at the Brandon Police Department; the City of Brandon; Willie Brown, Inspector for the
Department of Institutional Sanitation of the Health Department for the State of Mississippi; Ed
Thompson, State Health Officer; Jerry Oakes, Acting Director/Assistant Director/Chief Architect for
the Bureau of Buildings, Grounds and Real Property; Millard Mackey, State Chief Deputy Fire
Marshal; and Eddie Lucas, Commissioner of the Department of Corrections for the State of
Mississippi. Plaintiffs later amended their complaint to include Commissioner of Public Safety James
Ingram as a defendant. Upon the death of Lloyd Jones, Plaintiffs filed a motion to substitute the new
Sheriff of Simpson County, Doyle King, and the administratrix of Lloyd Jones's estate, Lucy Jones, in
Lloyd Jones's official and individual capacities, respectively. They also amended their complaint to
include a count for simple negligence and one for wrongful death. Plaintiffs accomplished their
amendments to the complaint both by motion to amend and by filing a new complaint which was later
consolidated into the original complaint.

¶2. In addition to their tort lawsuit filed in state court, Plaintiffs filed a complaint in the United States
District Court for the Southern District of Mississippi on August 24, 1993. The complaint in federal
court was based upon the same set of facts and circumstances surrounding the death of Andre Jones,
and named the same defendants as the complaint filed in circuit court with the exception of
Defendants Brown, Thompson, Oakes, Mackey, Lucas, and Ingram (State Defendants). Plaintiffs
alleged constitutional and federal statutory violations amounting to deliberate indifference, wrongful
death, and conspiracy.

¶3. In an order dated January 11, 1996, the federal court granted summary judgment for Chief
Tucker, Sergeant Henley, the City of Brandon, and Deputy Sheriff John Abernathy. However, the
court denied summary judgment for Lloyd Jones and Simpson County. On June 12, 1996, the federal
court entered summary judgment for the remaining defendants. The court entered a final judgment
dismissing the case with prejudice on the same day.

¶4. On October 31, 1995, Hinds County Circuit Court Judge James E. Graves, Jr. granted the
defendants' motion to hold discovery in abeyance until the issue of immunity was decided. On
November 28, 1995, Judge Graves issued a detailed opinion ruling on all of the defendants' motions
to dismiss and for summary judgment. He found that the motions to dismiss filed by the State
Defendants should be granted. The judge also granted the motions to dismiss filed by Deputy Sheriff
Abernathy and Sergeant Henley. However, Judge Graves denied the motions to dismiss and for
summary judgment filed by Simpson County and Sheriff Jones (Simpson County Defendants), and
the City of Brandon and Chief Tucker (Brandon Defendants).

¶5. On January 3, 1996, the Simpson County Defendants and Brandon Defendants filed a joint
motion, requesting that the claims against them be dismissed due to improper venue or, in the
alternative, severed and venue transferred to their respective home counties. Judge Graves denied this
motion in an order dated March 21, 1996, and reaffirmed the March 21 order on April 10, 1996. On
April 24, 1996, the Simpson County Defendants and Brandon Defendants filed their Motion for
Certification of Interlocutory Appeal, requesting that the circuit court enter an order granting them
certification to appeal to this Court on the issue of venue. Judge Graves entered an order denying the
motion on May 30, 1996. However, by an order dated August 5, 1996, this Court granted the
remaining defendants' petition for interlocutory appeal and ordered that the trial court proceedings be
stayed pending review of this appeal. Although the Brandon Defendants and Simpson County
Defendants have raised the issue of res judicata regarding the dismissal of the federal lawsuit in their
answers to the amended complaint and in separate motions for summary judgment, the circuit court
had not yet reached any decision on the issue of res judicata when this Court granted interlocutory
appeal and stayed the lower court proceedings.

                                   STATEMENT OF THE LAW

                                         Standard of Review

¶6. "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." Beech v. Leaf River Forest Prods., Inc., 691 So.2d 446, 448 (Miss. 1997) (quoting
Mississippi State Highway Comm'n v. Rogers, 240 Miss. 529, 539-40, 128 So.2d 353, 358 (1961)).
This Court has also applied an abuse of discretion standard of review on the issue of severance.
Kiddy v. Lipscomb, 628 So.2d 1355, 1358 (Miss. 1993).

                                                   I.

   WHETHER THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI ERRED IN
    DENYING THE JOINT MOTION OF THE BRANDON DEFENDANTS AND THE
 SIMPSON COUNTY DEFENDANTS FOR A SEVERANCE OF THE CLAIMS AGAINST
   THEM AND FOR CHANGE OF VENUE FROM HINDS COUNTY, MISSISSIPPI TO
      RANKIN COUNTY, MISSISSIPPI AND SIMPSON COUNTY, MISSISSIPPI,
                            RESPECTIVELY.

¶7. The Brandon Defendants and Simpson County Defendants argue that their joint motion to sever
the claims and change venue to Rankin and Simpson Counties should have been granted for several
reasons. First they contend that under Miss. Code Ann. §§ 11-45-25 (governing venue in actions
against municipalities), 11-45-17 (governing venue in actions against counties), and 11-46-13(2)
(governing venue in tort actions against political subdivisions), venue is only proper against them, as
city and county government entities, in their home counties. Section 11-45-25 states in pertinent part,
"Suits against any municipality shall be instituted in the county in which such municipality is situated,
where such actions are brought in the circuit or chancery or county courts, and where such
municipality is wholly situated in one (1) county." Miss. Code Ann. § 11-45-25 (Supp. 1997). Proper
venue for a lawsuit against the City of Brandon, therefore, would be in Rankin County. "[S]uits
against the county shall be instituted in any court having jurisdiction of the amount sitting at the
county site. . ." Miss. Code Ann. § 11-45-17 (1972). A complaint against Simpson County, therefore,
would be properly filed in Simpson County. This position is further supported by Miss. Code Ann.
§ 11-46-13(2), which provides that proper venue for a tort suit against any government entity,
including a county or municipality, is "in the county or judicial district thereof in which the principal
offices of the governing body of the political subdivision are located." Miss. Code Ann. § 11-46-
13(2) (Supp. 1997).

¶8. The Brandon Defendants and Simpson County Defendants also assert the right of individual
citizens in this State to be sued in their counties of residence. Mississippi's general venue statute,
Miss. Code Ann. § 11-11-3, provides that civil actions should be "commenced in the county in which
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 (Supp. 1997). The remaining defendants urge us to hold that
proper venue for this case, therefore would be in Rankin County for the Brandon County Defendants
and Simpson County for the Simpson County Defendants. Their position is that the claims against
them should have been severed and transferred to their respective home counties in order for venue
to be proper once the State Defendants were dismissed from the case.

¶9. Plaintiffs, however, assert that venue is proper in Hinds County, based upon the inclusion of the
State Defendants in the action, who are all residents of Hinds County. See Miss. Code Ann. § 11-11-
3 (Supp. 1997), supra.

     In suits involving multiple defendants, where 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.

Blackledge v. Scott, 530 So.2d 1363, 1365 (Miss. 1988) (citing Jefferson v. Magee, 205 So.2d 281
(Miss.1967)). See also Jeffreys v. Clark, 251 Miss. 129, 141-42, 168 So.2d 662, 666-68 (1964),
overruled on other grounds by Sheffield v. Sheffield, 405 So.2d 1314, 1318 (Miss. 1981).

     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--the action was begun in good faith in the bona fide belief that plaintiff had a
     cause of action against the resident defendant; 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 there was a reasonable claim of liability asserted against the
     resident defendant.

New Biloxi Hospital, Inc. v. Frazier, 245 Miss. 185, 192, 146 So.2d 882, 885 (1962).

¶10. The remaining defendants maintain that Plaintiffs only included the State Defendants for the
purpose of forum shopping, so that they could file suit in Hinds County. Under the three-part test in
New Biloxi Hosp., therefore, they argue that the case could not be retained in Hinds County after the
State Defendants were dismissed. New Biloxi Hosp., 245 Miss. at 192, 146 So.2d at 885. See also
Long v. Patterson, 198 Miss. 554, 564, 22 So.2d 490, 493 (1945) (venue was improper when based
upon a defendant against whom "no proof was made or attempted to be made"). Plaintiffs contend
that their inclusion of the State Defendants in the original complaint was justified, because
responsibility for incarcerated individuals is shared by state, county, and municipal entities.

¶11. This Court has held that the proper question is not whether the plaintiff's attorney intended to
fraudulently establish venue, but whether the facts support inclusion of the defendant upon whom
venue is based. Jefferson v. Magee, 205 So.2d 281, 283 (Miss. 1967). Here, Plaintiffs asserted
sufficient facts in their pleadings to reasonably support a claim against the State Defendants. The
mere fact that the trial court dismissed them from the suit does not mean that their inclusion was
based upon fraud. Willie Brown, Inspector for the Department of Institutional Sanitation of the
Health Department for the State of Mississippi; Ed Thompson, State Health Officer; Jerry Oakes,
Acting Director/Assistant Director/Chief Architect for the Bureau of Buildings, Grounds and Real
Property; and Millard Mackey, State Chief Deputy Fire Marshal, were all included as defendants
based upon their responsibilities to investigate and maintain proper conditions at State institutions,
including jails. Eddie Lucas, Commissioner of the Mississippi Department of Corrections, was an
obvious target for a lawsuit involving the conditions at the Simpson County Jail. Plaintiffs later added
Commissioner of Public Safety James Ingram as a defendant based upon his duty to oversee the State
Medical Examiner's Office and his involvement in a statewide prisoner screening program. These are
all reasonable bases for including the State Defendants in the current lawsuit. Based upon the record
before this Court, it does not appear that Plaintiffs included the State Defendants solely for the
purpose of forum shopping.

¶12. Since the State Defendants were properly included in the suit, Section 11-46-13(2) controls
determination of proper venue in this case:

     The venue for any suit filed under the provisions of this chapter against the state or its
     employees shall be in the county in which the act, omission or event on which the liability phase
     of the action is based, occurred or took place. The venue for all other suits filed under the
     provisions of this chapter shall be in the county or judicial district thereof in which the principal
     offices of the governing body of the political subdivision are located. The venue specified in this
     subsection shall control in all actions filed against governmental entities, notwithstanding that
     other defendants which are not governmental entities may be joined in the suit, and
     notwithstanding the provisions of any other venue statute that otherwise would apply.

Miss. Code Ann. § 11-46-13(2) (Supp. 1997). The second sentence regarding venue for suits against
other political subdivisions does not apply here, because it controls only in "all other suits filed under
the provisions of this chapter," meaning all suits other than those filed against state employees. Id.
This is a suit filed against state employees, so proper venue is in the county in which the negligence
took place. Here, that would be Simpson County, where Andre Jones died and the alleged negligent
upkeep of the Simpson County Jail occurred. Section 11-46-13(2) specifically states that no other
venue statutes that otherwise would apply will be controlling in a lawsuit against the state or its
employees. As a result, the Simpson County Defendants and Brandon Defendants are incorrect in
asserting that the individual statutes governing venue for actions against counties and municipalities
apply. As previously discussed, it is of no consequence that the State Defendants were eventually
dismissed from the suit, because proper venue is determined at the time the lawsuit is originally filed,
and subsequent dismissal of the defendant upon whom venue is based does not destroy proper venue.
Blackledge, 530 So.2d at 1365. Venue in this case was only proper in Simpson County based upon
Section 11-46-13(2). Judge Graves should have transferred venue to Simpson County under Rule
82(d) of the Mississippi Rules of Civil Procedure. Miss. R. Civ. P. 82(d) (improper venue).

¶13. Since the remaining defendants' only basis for requesting severance was their position that venue
was only proper for each of them in their respective counties, we find that the circuit court properly
denied severance in this case. Plaintiffs also contend that severance is not appropriate here, because
there is no obvious conflict in the defenses of the defendants, and justice would best be served by a
joint trial. "When there is more than one possible proximate cause of an injury, brought about by the
negligence of more than one party, the purposes of the applicable rules best would be served by a
single trial." Kiddy, 628 So.2d at 1358. Severing the cases against the parties would allow them to
"play a game of 'divide and conquer.'" Id. Judge Graves did not abuse his discretion by determining
that severance was not proper in this case.

                                                  II.

   WHETHER THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI ERRED IN
  REJECTING DEFENDANTS' FORUM NON CONVENIENS MOTION TO TRANSFER
                   THE CASE FROM HINDS COUNTY.

¶14. Alternatively, the Brandon Defendants and Simpson County Defendants argue that the circuit
court should have transferred venue on the theory of forum non conveniens. Because we find that
Judge Graves's decision must be reversed based upon improper venue, we decline to address the
issue of forum non conveniens in this case.

                                           CONCLUSION

¶15. Based upon the dictates of Section 11-46-13(2), this case was improperly filed in Hinds County,
and Judge Graves should have transferred venue to Simpson County. We must reverse the trial
court's denial of the motion for transfer of venue. However, based upon the rules governing proper
venue in this case, and in the interest of judicial economy, we affirm Judge Graves's decision to deny
the remaining defendants' request for severance. Since the issue of res judicata is not raised in the
interlocutory appeal to this Court, we remand the case to the Hinds County Circuit Court for further
proceedings consistent with this opinion.

¶16. REVERSED AND REMANDED.

PRATHER, C.J., BANKS AND ROBERTS, JJ., CONCUR. McRAE, J., CONCURS IN
RESULT ONLY. WALLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY PITTMAN, P.J., SMITH AND MILLS, JJ.




     WALLER, JUSTICE, DISSENTING:

¶17. While I agree with the conclusion of the majority that venue is not proper in Hinds County, I
dissent because, based on the facts before this Court, there was no reasonable basis for the inclusion
of the State Defendants in this action. Had the inclusion of the State Defendants been proper in this
action, I would agree with the majority that Miss. Code Ann. § 11-46-13(2) controls the
determination of proper venue in this case.

¶18. Mississippi's venue statutes and this Court's decisions concerning proper venue have been
summarized as follows:

     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--the action was begun in good faith in the bona fide belief that plaintiff had a
     cause of action against the resident defendant; 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 there was a reasonable claim of liability asserted against the
     resident defendant.

New Biloxi Hosp., Inc. v. Frazier, 245 Miss. 185, 192, 146 So.2d 882, 885 (1962). As outlined
above, there are three requirements which must be met for jurisdiction to be maintained when the
resident defendant has been dismissed.

¶19. In the case sub judice, Quinn failed to assert a reasonable claim of liability against the resident
defendants, the State Defendants. The third prong of the test set forth above has not been satisfied.
As such, venue in Hinds County was never proper. The proper inquiry before this Court is whether
the facts support inclusion of the defendant upon whom venue is based. Jefferson v. Magee, 205
So.2d 281, 283 (Miss. 1967) (citing Jeffreys v. Clark, 251 Miss. 129, 168 So.2d 662 Miss. (1964)).
Based on the record before this Court, it is apparent that there is no factual support for the inclusion
of the State Defendants.

¶20. Although the death of Andre Jones is a tragedy, the State Defendants did not owe him a duty.
He was not apprehended by a state law enforcement agency; he was not housed in a state
correctional facility; nor was there any other action by the state that was even arguably related to the
circumstances surrounding this tragic incident. Andre Jones was apprehended by a local law
enforcement agency (Brandon Police Department), incarcerated in a county jail (Simpson County
Jail) due to overcrowding at the Brandon City Jail, and was a pre-trial detainee, not a state prisoner.
Under these facts, it is clear that the plaintiffs failed to satisfy the third requirement of the New Biloxi
test. This conclusion is further supported by the fact that the trial judge granted the State Defendants'
motion to dismiss under M.R.C.P. 12(b)(6).

¶21. A motion to dismiss pursuant to M.R.C.P. 12(b)(6) raises an issue of law. When considering a
motion to dismiss, the allegations made 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. T.M. v. Noblitt, 650 So.2d 1340, 1342 (Miss. 1995). Despite these inferences
in favor of the plaintiffs, the trial judge found that the State Defendants were not "vested with duties
to maintain or take appropriate steps dealing with the Simpson County jail." In short, the plaintiffs
failed to assert a reasonable claim of liability against the state defendants, who were the resident
defendants. Where the plaintiff's claim cannot withstand a 12(b)(6) motion, the logical inference is
that there was no reasonable claim of liability asserted against the defendant. Thus, the final prong of
the New Biloxi test has not been satisfied, and Hinds County was never a proper venue for this
action.
¶22. Based on the facts before us, it is clear that the plaintiffs have failed to assert a reasonable claim
of liability against the State Defendants. Therefore, venue in Hinds County was never proper as to the
resident defendants (State Defendants), and Miss. Code Ann. § 11-46-13(2) was erroneously applied
in this action. Therefore, I respectfully dissent.

PITTMAN, P.J., SMITH AND MILLS, JJ., JOIN THIS OPINION.
