                        IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2005-IA-01868-SCT

ANDREW H. CRENSHAW, M.D.

v.

MICHAEL A. ROMAN AND EVA E. ROMAN


DATE OF JUDGMENT:                           09/20/2005
TRIAL JUDGE:                                HON. HENRY L. LACKEY
COURT FROM WHICH APPEALED:                  MARSHALL COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     CLINTON M. GUENTHER
ATTORNEY FOR APPELLEES:                     JAMES KIZER JONES
NATURE OF THE CASE:                         CIVIL - OTHER
DISPOSITION:                                REVERSED AND REMANDED - 11/16/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




        EN BANC.

        EASLEY, JUSTICE, FOR THE COURT:

                                 PROCEDURAL HISTORY

¶1.     Michael A. Roman and Eva E. Roman (Eva), collectively “the Romans,” filed suit on

December 31, 2002, in the Circuit Court of Marshall County, Mississippi, against Wal-Mart

Stores, Inc. (Wal- Mart), Baptist Memorial Hospital-DeSoto, Inc. (BMH-DeSoto), and Andrew

H. Crenshaw, Jr., M.D. (Dr. Crenshaw). The Romans lived in Holly Springs, Marshall County,

Mississippi.   The Romans were shopping at the Wal-Mart store located in Southaven, DeSoto

County, Mississippi, when Eva allegedly slipped and fell on a slippery surface in the store. Eva
was transported by ambulance directly to BMH-DeSoto for medical treatment.         Dr. Crenshaw,

an orthopedic surgeon, performed all three of Eva’s surgeries at BMH-DeSoto.

¶2.       Wal-Mart is a non-resident defendant incorporated in the State of Delaware, doing

business in the State of Mississippi.     BMH-DeSoto is a resident corporation organized under

the laws of the State of Mississippi with its principal place of business located at 1605

Stateline Road, Southaven, DeSoto County, Mississippi.          Dr. Crenshaw is a non-resident

defendant who resided in Shelby County, Tennessee, but he practiced medicine at the Campbell

Clinic, 7545 Airways Boulevard, Southaven, DeSoto County, Mississippi.

¶3.       The Romans’ complaint alleged that while shopping at the Wal-Mart store, Eva fell and

broke her right hip as result of Wal-Mart’s negligence in allowing a slippery surface to exist

on its floor. The Romans alleged that BMH-DeSoto’s personnel and Dr. Crenshaw were guilty

of negligence in providing their medical treatment.    All the alleged acts of medical negligence

against the hospital personnel and Dr. Crenshaw occurred at BMH-DeSoto located in DeSoto

County.

¶4.       All three defendants filed answers to the complaint and executed an agreed scheduling

order in the case.1        BMH-DeSoto filed a motion to vacate deadlines and to stay proceedings

due its insurer, Reciprocal of America, being placed in receivership for rehabilitation or

liquidation.   On September 20, 2003, the trial court entered an agreed order staying the

proceedings in the case.


          1
             Wal-Mart’s answer was not made part of the record submitted on appeal, but the
certified circuit clerk’s docket indicates that an answer was filed.

                                                  2
¶5.    On June 22, 2005, Dr. Crenshaw filed a pre-trial motion for change of venue from

Marshall County to DeSoto County relying on this Court’s opinion in Baptist Memorial

Hospital-DeSoto County v. Bailey, 919 So. 2d 1 (Miss. 2005), which was handed down by this

Court on June 2, 2005.      On July 7, 2005, Dr. Crenshaw further filed a motion to amend his

answer pursuant to M.R.C.P. 15(a) to allow the affirmative defense of improper venue.

¶6.    Likewise, BMH-DeSoto on July 7, 2005, filed its motion to amend its answer and

defenses pursuant to M.R.C.P. 15(a) to include the affirmative defense of improper venue. On

July 19, 2005, the trial court filed the order granting the Romans’ voluntary dismissal of all

claims against BMH-DeSoto with prejudice.2

¶7.    On September 12, 2005, Wal-Mart filed its motion to join into Dr. Crenshaw’s motion

to transfer venue, incorporating the argument advanced by Dr. Crenshaw.         On September 23,

2005, the trial court filed its order denying the defendants’ motion to transfer venue, providing

no explanation in the order for the denial. On January 11, 2006, this Court entered its order

granting Dr. Crenshaw’s petition for interlocutory appeal. See M.R.A.P. 5.

                                              FACTS3

¶8.    On or about August 29, 2001, the Romans were shopping at Wal-Mart, store number

0848, located at 6811 Southcrest Parkway, Southaven, DeSoto County, Mississippi, when Eva




       2
            The record does not indicate that BMH-DeSoto paid any monetary compensation or
settlement to the Romans in exchange for the dismissal with prejudice.
       3
             The factual allegations are largely taken from the Romans’ filed complaint due to the
stage in the proceedings when the interlocutory appeal was granted.

                                                  3
allegedly slipped and fell due to a slippery surface condition of the floor, breaking her right

hip.   Eva was transported by ambulance to BMH-DeSoto for examination and treatment.         Eva

was admitted to BMH-DeSoto, where on August 30, 2001, Dr. Crenshaw performed Eva’s

surgery to repair her right hip.

¶9.     Eva advised BMH-DeSoto that she had certain allergies to latex, vinyl, rubber, codeine,

sulfa, and nickel.        The allergy information was noted in Eva’s hospital adult admission

profile/history/assessment care plan and its discharge summary.   However, during surgery Dr.

Crenshaw implanted a stainless steel “Recon nail,” which was partially made of nickel, to

repair Eva’s hip.     Eva allegedly began to experience a rash which caused redness, swelling,

itching, and pain.     When Eva reported her discomfort to Dr. Crenshaw during her follow-up

visit, he did not take any further action.          Eva then allegedly sought treatment from a

dermatologist for her rash on or about November 30, 2001. According to Eva’s complaint, this

was the first time that she learned that the “Recon nail” implanted in her hip was partially made

of nickel.

¶10.    On December 5, 2001, Eva underwent her second surgery to remove the “Recon nail”

composed of nickel.         Dr. Crenshaw performed the second surgery.      Dr. Crenshaw then

implanted a “Trigen tan nail” made of titanium.      However, Dr. Crenshaw allegedly inserted a

titanium nail which an x-ray revealed was too long.       Dr. Crenshaw was called back to the

hospital to perform a third surgery on Eva to remove the incorrect length nail and implant a

new titanium nail of the correct length.




                                                4
¶11.    On interlocutory appeal, Dr. Crenshaw raises the issue of whether the trial court erred

in denying his motion to transfer the case from Marshall County to DeSoto County relying

upon this Court’s holding in Bailey.

                                          ANALYSIS

¶12.    An abuse of discretion standard of review is applied by this Court when reviewing the

trial court’s denial of a motion to change venue. Bailey, 919 So. 2d at 2; see also Wayne Gen.

Hosp. v. Hayes, 868 So. 2d 997, 1002 (Miss. 2004) (citing Guice v. Miss. Life Ins. Co., 836

So. 2d 756, 758 (Miss. 2003)). Accordingly, we 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.” Hayes, 868 So.

2d at 1002 (quoting Guice, 836 So. 2d at 758). Additionally, in Austin v. Wells, 919 So. 2d

961, 964 (Miss. 2006), this Court has clearly held that "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." Austin, 919 So. 2d at 964 (quoting Estate of Jones v.

Quinn, 716 So.2d 624, 628 (Miss. 1998)); see also Blackledge v. Scott, 530 So.2d 1363,

1365 (Miss. 1988).

¶13.    On appeal, Dr. Crenshaw argues that the trial court erred in denying the defendants'

motion to transfer venue to DeSoto County from Marshall County.            Dr. Crenshaw relies




                                               5
heavily upon this Court’s holding in Bailey. The Romans argue that Miss. Code Ann. § 11-11-

11 (2001), as opposed to Miss. Code Ann. § 11-11-3 (2001), controlled.4

¶14.   In Bailey, the plaintiff argued that the “good for one good for all” rule in Senatobia

Community Hospital v. Orr, 607 So. 2d 1224, 1226 (Miss. 1992), applied to allow the

plaintiff’s county of residence to be the proper venue where a non-resident defendant and a

resident defendant were sued. Bailey, 919 So. 2d at 2. As in this case, the venue statutes in

issue in Orr involved the application of the general venue statute, Miss. Code Ann. § 11- 11- 3,

and Miss. Code Ann. § 11-11-11. Orr, 607 So. 2d at 1226.              In Orr, this Court relied upon

M.R.C.P. 82(c) to find the venue proper in the plaintiff’s county of residence.      Orr, 607 So.

2d at 1226. However, this Court expressly overruled Orr and its logic in Capital City Ins. Co.

v. G.B. "Boots" Smith Corp., 889 So. 2d 505, 516-17 (Miss. 2004), and subsequent followed

that holding overruling Orr in deciding Bailey. See Bailey, 919 So. 2d at 3.




       4
            The Romans argue on appeal that Dr. Crenshaw did not have the authority to request
transfer of venue based on BMH-DeSoto being a resident defendant; Wal-Mart joined into Dr.
Crenshaw’s motion for change of venue. However, BMH-DeSoto similarly filed a request to
amend its answer raising the issue of improper venue. The Romans do not provide any legal
authority for their position. This Court has repeatedly held that the Court is under no
obligation to consider an issue concerning which the party has failed to cite authority. Brown
v. State, 534 So. 2d 1019, 1023 (Miss. 1988); see Clark v. State, 503 So. 2d 277 (Miss.
1987); Kelly v. State, 463 So. 2d 1070 (Miss. 1985); Redmond v. State, 457 So. 2d 1344
(Miss. 1984). "An assignment lacking authority lacks persuasion on review." Brown, 534 So.
2d at 1023; Smith v. State, 430 So. 2d 406 (Miss. 1983).



                                                  6
¶15.   In Bailey, this Court determined that the mandatory language “shall” in the general

venue statute, Miss. Code Ann. § 11-11-3, controlled, holding:

       [T]he [Mississippi] 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.

Bailey, 919 So. 2d at 3. Miss. Code Ann. § 11-11-3 (2001) was amended in 2002. See 2002

Miss. Laws, 3rd Ex. Sess., ch. 2, § 1, eff. January 1, 2003; 2002 Miss. Laws, 3rd Ex. Sess., ch.

4, § 1, eff. January 1, 2003.5    At the time this lawsuit was commenced in 2001, Miss. Code

Ann. § 11-11-3 (2001) stated:

       Civil actions of which the circuit court has original jurisdiction shall 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 and, if the
       defendant is a domestic corporation, in the county in which said corporation is
       domiciled or in the county where the cause of action may occur or accrue, . . .


       5
             Miss. Code Ann. § 11-11-3 (2003) was revised and omitted the language, “accrue,”
providing:

       (1) 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. Civil actions alleging
       a defective product may also be commenced in the county where the plaintiff
       obtained the product.

       (2) If a civil action is brought in an improper county, such action may be
       transferred to the proper county pursuant to Section 11-11-17.

(Emphasis added). In this case, the revision to remove the language, “accrue,” does not affect
the analysis as there is no distinction between accrue and occur raised by the parties.

                                                  7
        If a civil action is brought in an improper county, such action may be transferred
        to the proper county pursuant to Section 11-11-17.

(Emphasis added). Miss. Code Ann. § 11-11-11 (2001), in effect at the time the case was

filed, provided:

        All civil actions for the recovery of damages brought against a nonresident or
        the representative of the nonresident in the state of Mississippi may be
        commenced in the county in which the action accrued or where the plaintiff then
        resides or is domiciled, except as otherwise provided by law.

(Emphasis added).

¶16.    In Capital City Ins., 889 So. 2d at 516-17, this Court held:

        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. . . . In Orr this Court
        incorrectly presumed that there was no ranking of the statutes and thus did not
        discuss the possibility. We find today that the reasoning in Orr is flawed; and
        therefore, it is overruled.

(Emphasis added).

¶17.    This Court made it clear in Capital City Ins. that the logic applied in Orr, holding that

statutes are not ranked, was flawed and expressly overruled. Capital City Ins., 889 So. 2d at

516-17.      In Capital City Ins., the mandatory language, “shall,” in the general venue statute,

Miss. Code Ann. § 11-11-3, controlled over the permissive language, “may,” found in Miss.

Code Ann. § 11-11-7.6 Id. The Court ranked the general venue statute above the other venue

statutes that may have applied. Id.



        6
            Miss. Code Ann. § 11-11-7 was repealed during the 2002 legislative session.

                                                   8
¶18.      “[S]tatutory construction gives preference to one statute over the other,” therefore,

[h]ad the Legislature intended for each statute to have equal footing or equal force then both

statutes should have had the mandatory ‘shall’ language.” Id. at 515. Accordingly, we find that

mandatory language, “shall,” in the general venue statute, Miss. Code Ann. § 11-11-3, controls

in this case over the permissive language, “may,” found in Miss. Code Ann. § 11-11-11.

Bailey, 919 So. 2d at 3; Capital City Ins., 889 So. 2d at 516-17.

¶19.      The Romans argue that this Court’s holding in Bailey does not apply retroactively to

this case. However, the Romans’ position is without merit. In Thompson v. City of Vicksburg,

813 So. 2d 717, 721 (Miss. 2002), this Court held:

          The law is quite clear regarding retroactive application of judicially articulated
          rulings.    Retroactive application is not limited to pending appeals, as stated by
          City, but also applies to cases awaiting trial. We have held consistently that
          "judicially enunciated rules are applied retroactively." Anderson v. Anderson,
          692 So. 2d 65, 70 (Miss. 1997) (citing Ales v. Ales, 650 So. 2d 482, 484 (Miss.
          1995); Hall v. Hilbun, 466 So. 2d 856, 875 (Miss. 1985)). These cases were
          all pending review on appeal when a change in the law occurred, which change
          was applied retroactively. In Cain v. McKinnon, 552 So. 2d 91, 93 (Miss.
          1989), we stated that a new rule enunciated in a case while Cain was pending
          was to be "enforceable in all actions pending on [that date], and not then
          final." See also Mullen [v. Green Tree Fin. Corporation, 730 So. 2d 9, 12
          (Miss. 1998)] (citing Griffin v. Tall Timbers Dev., Inc., 681 So. 2d 546, 552
          (Miss. 1996)).

(Emphasis added).

¶20.      The Romans further argue that M.R.C.P. 82(c) allows venue to remain in Marshall

County.     However, M.R.C.P. 82(c) does not support a plaintiff establishing venue in his own




                                                  9
county of residence when a resident defendant is a party to the suit.7 Capital City Ins., 889 So.

2d at 517.     In Capital City Ins., we expressly overruled any contrary language in Boston v.

Hartford Acc. & Indem. Co., 822 So. 2d 239 (Miss. 2004); Ill. Cent. R.R. v. Travis, 808 So.

2d 928 (Miss. 2002); American Bankers Ins. Co. of Florida v. Alexander, 818 So. 2d 1073

(Miss. 2001); and McDonald v. Holmes, 595 So. 2d 434 (Miss. 1992), which supported Rule

82(c) establishing venue in the plaintiff’s county of residence when a resident defendant is a

party to the suit. Capital City Ins., 889 So. 2d at 517; see also Bailey, 919 So. 2d at 4.

¶21.    Here, BMH- DeSoto, a Mississippi corporation with its principal place of business in

DeSoto County, was a named defendant.           The Romans did not voluntarily dismiss BMH-

DeSoto until the Defendants’ raised the issue of improper joinder.          The Romans improperly

argue that the dismissal of BMH-DeSoto cured or corrected the improper venue by dismissing

BMH-DeSoto, the resident defendant, from the case.         See Austin, 919 So. 2d at 964 (venue

is determined from the original filing).

¶22.    Further, Eva was treated at BMH-DeSoto in DeSoto County when she received the

alleged negligent care and treatment from BMH-DeSoto and Dr. Crenshaw.                 Dr. Crenshaw

provided all medical treatment Eva received from him in DeSoto County. Eva’s three surgeries

were performed at BMH-DeSoto, therefore, the Romans’ allegations of medical malpractice



        7
           As previously discussed, this Court in Capital City Ins., rejected the holding in Orr,
which applied M.R.C.P. 82(c) to find the venue proper in the plaintiff’s county of residence,
expressly overruling Orr and its logic. Capital City Ins., 889 So. 2d at 516-17; see also
Bailey, 919 So. 2d at 3 (The Court followed its holding in Capital City Ins. regarding the
application of M.R.C.P. 82(c).).

                                                 10
occurred in DeSoto County.       Likewise, Eva’s alleged slip and fall occurred in DeSoto County.

In this case, venue is proper in DeSoto County.        Thus, the trial court abused its discretion in

denying a change of venue from Marshall County to DeSoto County.

                                           CONCLUSION

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

Crenshaw’s motion to transfer venue to DeSoto County from Marshall County and remand the

case to the Marshall County Circuit Court with directions that it transfer venue in this case to

the Circuit Court of DeSoto County consistent with this opinion.

¶24.    REVERSED AND REMANDED.

     SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ.,
CONCUR. COBB, P.J., CONCURS IN RESULT ONLY. DIAZ AND GRAVES, JJ.,
DISSENT WITHOUT SEPARATE WRITTEN OPINION.




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