                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2005-CA-01875-SCT


KIMBERLY CRUM CREEL

v.

BRIDGESTONE/FIRESTONE
NORTH AMERICAN TIRE, LLC,
AND FORD MOTOR COMPANY

DATE OF JUDGMENT:                        08/15/2005
TRIAL JUDGE:                             HON. WILLIAM E. CHAPMAN, III
COURT FROM WHICH APPEALED:               RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 STEPHEN W. MULLINS
                                         BRANDON C. JONES
ATTORNEYS FOR APPELLEES:                 DAVID L. AYERS
                                         JAMES J. CRONGEYER, JR.
                                         GRAHAM P. CARNER
                                         TIFFANEE WADE-HENDERSON
                                         WALKER W. JONES, III
                                         BARRY W. FORD
                                         JOAN LEIGH LUCAS
NATURE OF THE CASE:                      CIVIL - TORTS - OTHER THAN PERSONAL
                                         INJURY & PROPERTY DAMAGE
DISPOSITION:                             REVERSED AND RENDERED - 03/08/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


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

      WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.   In this appeal we are asked to consider the propriety of the Jefferson County Circuit

Court’s transfer of a suit to Rankin County and the Rankin County Circuit Court’s

subsequent grant of summary judgment to defendants. Because we have mandated that
plaintiffs misjoined under Miss. R. Civ. P. 20 must be dismissed without prejudice and that

judicially articulated rules on severance and transfer will be applied retroactively on appeal,

the Jefferson County Circuit Court erred in transferring the case to Rankin County. Instead,

the circuit court should have dismissed the case without prejudice for failure to meet the

joinder requirements of Rule 20 and because Jefferson County was never an appropriate

venue for the claims raised in the complaint. The Rankin County Circuit Court’s grant of

summary judgment is therefore reversed, and this cause is dismissed without prejudice.

                                           FACTS

¶2.    On January 31, 2001, Kimberly Crum Creel, a resident of Louisiana, filed a product

liability suit in the Jefferson County Circuit Court against Ford Motor Company and

Bridgestone Firestone North America Tire, LLC, for injuries and property damage arising

from a rollover accident in Webster Parish, Louisiana. She claimed the accident was caused

by product defects in her 1991 Ford Explorer and in her Firestone Wilderness AT tires.

Creel acknowledges that no element of her claims had any connection to Mississippi: She

was a resident of Louisiana at the time the suit was filed and remains a resident of Louisiana

today; she purchased her car and tires in Louisiana; her accident occurred in Louisiana; and

her treatment for her injuries occurred in Louisiana. Her claims were originally part of a

mass action suit filed in Jefferson County as Cynthia King, et al. v. Ford Motor Co., et al.,

involving forty-one individual plaintiffs and twenty-seven accidents.

¶3.    After the multi-plaintiff action was filed, Ford and Firestone removed it to the United

States District Court for the Southern District of Mississippi, which then transferred it to the

Ford/Firestone Multi District Litigation (MDL) panel in the United States District Court for


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the Southern District of Indiana. After proceeding in the MDL, the action was remanded to

the Circuit Court of Jefferson County.

¶4.    After the action was remanded, Ford and Firestone filed, and the circuit court granted,

motions to sever the improperly joined plaintiffs and transfer them to appropriate venues.

Creel and the other severed plaintiffs were ordered to provide the court with an order

transferring venue to an appropriate venue of their choice. While there is no indication in

the record that Creel or any of the other misjoined plaintiffs provided the circuit court with

such an order, the plaintiffs filed a motion for a stay of the proceedings, arguing that the court

should require Ford and Firestone to waive any statutes of limitations so that non-resident

plaintiffs could dismiss their claims and refile claims in appropriate venues. The court

denied the motion to stay and transferred Creel’s case, along with several others, to the

Circuit Court of Rankin County, where both Ford and Firestone maintained agents for service

of process. Creel then filed a petition for an interlocutory appeal, which was denied.

¶5.    After the cases were transferred, Ford and Firestone filed a motion for summary

judgment, and Creel responded by filing a motion to dismiss the case under the doctrine of

forum non conveniens. The circuit court granted Ford and Firestone’s motion, finding that

Creel’s claims were time-barred under the Louisiana statute of limitations, which was applied

pursuant to Mississippi’s “borrowing statute,” Miss. Code Ann. § 15-1-65 (Rev. 2003), and

dismissed Creel’s motion as moot. Creel now appeals the grant of summary judgment,

claiming that the Jefferson County Circuit Court erred in transferring her claim to Rankin

County, and that the Rankin County Circuit Court misapplied Louisiana law in finding that

the statute of limitations on her claim had run.


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                                       DISCUSSION

¶6.    Creel raises three issues on appeal, arguing that (1) the Jefferson County Circuit Court

erred in transferring her claim to Rankin County; (2) the Rankin County Circuit Court erred

in denying her motion to dismiss for forum non conveniens; and (3) the Rankin County

Circuit Court misapplied Louisiana law in finding that the statute of limitations on her claim

had run. Because the first issue is dispositive, the second and third issues will not be

considered in detail.

       Whether the Jefferson County Circuit Court Erred in Transferring
       Creel’s Suit to Rankin County

¶7.    The issue of the transfer of Creel’s case concerns the procedural implications of

Janssen Pharmaceutica v. Armond, 866 So. 2d 1092 (Miss. 2004), in which we held that

plaintiffs may not be joined unless their claims are connected by a distinct, litigable event.

Armond, 866 So. 2d at 1099. If a plaintiff fails to meet the requirements for joinder and

venue is not proper before the forum court, the trial judge must determine an appropriate

venue and transfer the case. Id. at 1102. However, because Armond did not provide

guidelines to the lower courts for determining venue and transferring severed cases, we found

it necessary to revisit these matters in Canadian National/Illinois Cent. R.R. v. Smith, 926

So. 2d 839 (Miss. 2006).

¶8.    In Canadian National, we recognized that requiring trial courts to determine the

appropriate venue for misjoined plaintiffs created a number of procedural difficulties and

restricted the plaintiffs’ traditional right to choose a venue. In light of these problems, we

adopted an amended rule for severance and transfer:



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       Where plaintiffs are misjoined and severance is required, we hold that the
       better rule – and the one we adopt today – is for the trial court to (1) allow a
       plaintiff whose case is properly before the court (if any), and all properly
       joined plaintiffs, to proceed in the filed action, (2) allow misjoined plaintiffs
       who are properly before the trial court to proceed with separate actions in the
       forum court, and (3) sever and dismiss all misjoined plaintiffs who lack proper
       venue in the forum court, allowing each severed plaintiff to file a new
       complaint in an appropriate venue selected by that plaintiff.

Canadian National, 926 So. 2d at 845. This rule adheres to the general principle that

misjoined plaintiffs whose claims were not appropriate in the forum court should be

dismissed without prejudice. See Amchem Prods., Inc. v. Rogers, 912 So. 2d 853, 859

(Miss. 2005) (“The out-of-state Plaintiffs with no connection to the State of Mississippi and

whose causes of action accrued out of state should be dismissed without prejudice based

upon forum non-conveniens.”); Harold's Auto Parts, Inc. v. Mangialardi, 889 So. 2d 493,

495 (Miss. 2004) (ordering dismissal without prejudice of plaintiff’s claim for failure to meet

joinder requirements). On appeal, Creel argues that Canadian National, which was decided

nearly two years after her case was transferred, should be applied retroactively to the

Jefferson County Circuit Court’s decision to transfer her case to Rankin County.

¶9.    As an interlocutory order, the transfer of venue merges with the final judgment of the

transferee court, and may be considered on direct appeal. See, e.g., Hendler v. United States,

952 F.2d 1364, 1368 (Fed. Cir. 1991) (“As a general proposition, when a trial court disposes

finally of a case, any interlocutory rulings 'merge' with the final judgment.”); Kimball,

Raymond & Co. v. Alcorn & Fisher, 45 Miss. 145, 149 (1871) (“An appeal from the final

decree opens for consideration all prior interlocutory orders, any way connected with the

merits of the final decree.”); J. Michael Fincher, P.C. v. Wright, 141 S.W.3d 255, 260 (Tex.



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App. 2004) (“A trial court's ruling transferring venue is interlocutory as to the parties, but

final as to the transferring court.”).

¶10.   We apply a deferential standard in our review of joinder and venue determinations and

will not reverse unless we find the trial court has abused its discretion. Miss. Farm Bureau

Fed'n v. Roberts, 927 So. 2d 739, 741 (Miss. 2006). The retroactive application of judicially

enunciated rules is governed by the United States Supreme Court’s decision in Teague v.

Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). See Manning v. State, 929

So. 2d 885, 900 (Miss. 2006) (“We hold today that the limited retroactive standard set forth

in the United States Supreme Court case of Teague v. Lane should be applied to all issues

relating to the retroactive application of judicially enunciated rules.”). Teague restricted the

retroactive application of judicially enunciated rules on collateral review, but affirmed the

necessity of applying such rules retroactively to cases on direct appeal. Teague, 489 U.S.

at 304. This approach is consistent with our retroactive application of rules on direct appeal.

See, e.g., Thompson v. City of Vicksburg, 813 So. 2d 717, 721 (Miss. 2002) (“Newly

enunciated rules of law are applied retroactively to cases that are pending trial or that are on

appeal, and not final at the time of the enunciation.”); Ales v. Ales, 650 So. 2d 482, 486

(Miss. 1995) (decision issued while another case was pending review applied retroactively).

¶11.   Judicially articulated rules regarding severance and transfer will be applied

retroactively on appeal. Albert v. Allied Glove Corp., 944 So. 2d 1 (Miss. 2006). There, we

considered the claims of 102 plaintiffs who challenged the dismissal without prejudice of

their claims through the retroactive application of the joinder requirements articulated in

Armond. The plaintiffs had filed suit in 2000, seeking tort and product liability damages for

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exposure to asbestos. In 2004, a number of the defendants filed a motion for relief in light

our decision in Mangialardi. The trial court granted the defendants’ motion and dismissed

the plaintiff’s claims because the plaintiff was not a resident of this state and did not allege

exposure in this state.     We affirmed, finding that the rules articulated in Armond,

Mangialardi, and subsequent cases applied retroactively, and that the trial court was

therefore correct in dismissing without prejudice misjoined plaintiffs who did not have

proper venue in the forum court.

¶12.   Creel’s case is analogous to Albert. Her claim was filed in 2001, and her case was

transferred in 2004, before this Court’s ruling in Armond. Although the Jefferson County

trial judge did not have the benefit of Armond and Canadian National when he ordered

Creel’s severance and transfer, under Albert, the rule articulated in Canadian National

applies to cases on review. See also Amchem Prods., Inc., 912 So. 2d at 858 (finding that

while trial judge did not have the benefit of Armond and Mangialardi when he denied

defendant’s motion, those decisions applied on review). Although the Jefferson County trial

judge was not at fault in his ruling, his order transferring venue was error, and Creel’s claim

must therefore be dismissed without prejudice in accordance with Canadian National.

¶13.   Given the importance of our decisions on severance and transfer in the wake of

Armond, a short discussion regarding the basis of Creel’s dismissal is warranted. Creel

argues that both the Jefferson County Circuit Court and the Rankin County Circuit Court

should have allowed her to dismiss her claim and refile under the equitable doctrine of forum

non conveniens.     However, claims of out-of-state plaintiffs with no connections to

Mississippi whose claims accrued outside of the state and who do not meet the joinder

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requirements of Rule 20 must be dismissed without prejudice as a jurisdictional matter. This

distinction between jurisdiction and venue is pivotal. While jurisdiction is the power and

authority of the court to act, venue is the place where the power to adjudicate is to be

exercised, that is, the place where the suit may or should be heard. 77 Am. Jur. 2d Venue § 2

(2006). Thus, at common law, the plea of forum non conveniens “was sustained in cases

where the jurisdiction seemed clear but the parties were nonresidents and [a given venue]

would have been inconvenient.” Clark v. Luvel Dairy Prods., Inc., 731 So. 2d 1098, 1099

(Miss. 1998) (citing Edward L. Barrett, Jr., The Doctrine of Forum Non Conveniens, 35 Cal.

L. Rev. 380, 387 n.35 (1947) (emphasis added)).

¶14.   By contrast, in cases such as Canadian National and Albert, we have declined to

exercise jurisdiction over claims that have no relation to this state. Because Mississippi was

never a proper jurisdiction for plaintiffs such as Creel and those in Canadian National and

Albert, the equitable doctrine of forum non conveniens, which presupposes two valid

jurisdictions, is inapplicable. The legal principle at issue is not whether one valid jurisdiction

or the other is the appropriate venue, but whether this state was ever a valid venue in the first

place. The issue is therefore jurisdictional, not equitable.

¶15.   Because the trial court should have dismissed Creel’s case without prejudice, it

necessarily follows that the trial court should not have granted summary judgment.

                                       CONCLUSION

¶16.   Because our decisions in Canadian National and Albert must be applied retroactively,

the trial court’s order transferring Creel’s case and its summary judgment are reversed and

Creel’s complaint and this case are dismissed without prejudice.

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¶17.   REVERSED AND RENDERED.

      SMITH, C.J., COBB, P.J., EASLEY, CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. GRAVES,
J., NOT PARTICIPATING.




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