                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2011-IA-01686-SCT

RICKEY WILKERSON AND PHENIX
TRANSPORTATION, INC.

v.

RONNIE GOSS AND PAMELA GOSS


DATE OF JUDGMENT:                         10/21/2011
TRIAL JUDGE:                              HON. DAVID SHOEMAKE
COURT FROM WHICH APPEALED:                SMITH COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS:                 JAMES F. NOBLE, III
                                          ROSS R. BARNETT, JR.
ATTORNEYS FOR APPELLEES:                  S. WAYNE EASTERLING
                                          JOHN RAYMOND TULLOS
NATURE OF THE CASE:                       CIVIL - OTHER
DISPOSITION:                              REVERSED AND REMANDED - 05/16/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    Ronnie and Pamela Goss filed suit against Rickey Wilkerson and Phenix

Transportation, Inc. (“Defendants”), in the Chancery Court of Smith County, Mississippi,

alleging that “Rickey Wilkerson fraudulently induced the plaintiffs to settle their workers’

compensation claims and to release all claims against Phenix Transportation, Inc.” in return

for $65,000. The Gosses further alleged that Wilkerson knew, or should have known, that

the checks would not clear due to insufficient funds. The Gosses did not allege any specific
facts in their complaint nor have they presented any cognizable evidence to establish venue

in Smith County.

¶2.    Defendants timely answered the complaint, including in their answer a motion to

dismiss or, alternatively, to transfer jurisdiction and venue. Defendants argued that the

Gosses’ claims were legal in nature and were improperly brought in chancery court.

Defendants also argued that venue was not proper in Smith County because Wilkerson

resides in Scott County and Phenix has its principal place of business in Scott County.

Defendants further argued that venue was not proper because no substantial act or omission

or substantial event that allegedly caused the injury occurred in Smith County. The Gosses

never filed a response to Defendants’ motion.

¶3.    The chancery court heard oral argument on Defendants’ motion. No transcript exists

of this hearing. The chancery court found that the settlement checks and other documents

were sent to the Gosses in Smith County, and the Gosses attempted to negotiate the checks

in Smith County. Therefore, the chancery court concluded that venue was proper in Smith

County because the “cause of action occurred/accrued in Smith County, Mississippi.” The

chancery court also found that the Gosses’ claims were “more legal than equitable in nature”

and transferred the case to the Circuit Court of Smith County.1

¶4.    After the chancellor entered his order denying Defendants’ motion to transfer venue,

Defendants sought permission to file an interlocutory appeal, which we granted.2 On appeal,


       1
       The parties have not appealed the chancery court’s decision that the Gosses’ claims
are more legal than equitable in nature.
       2
        Although Defendants alternatively had moved the chancellor to dismiss the Gosses’
claims, the chancellor did not address the motion to dismiss in the order appealed from, and

                                             2
Defendants argue that the chancery court erred in denying their motion to transfer venue

because (1) the chancellor relied upon facts to establish venue that the Gosses did not plead

in their complaint; (2) the chancellor relied upon an earlier version of Mississippi’s venue

statute; and (3) venue is proper only in Scott County, as Defendants are residents of and have

their principal place of business in Scott County. The Gosses argue on appeal that the

chancellor was correct in finding that venue is proper in Smith County, because that is where

they received the settlement checks.

                                       DISCUSSION

¶5.    We review “a trial court’s grant or denial of a motion for change of venue for an abuse

of discretion, but questions of law, such as interpretation of the general venue statute, are

reviewed de novo.” 3

¶6.    Mississippi’s general venue statute, Mississippi Code Section 11-11-3, reads in

pertinent part as follows:

       (1)(a)(i) 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.4



the Defendants did not petition for interlocutory appeal on any issue other than venue.
       3
        Laurel Ford Lincoln-Mercury, Inc. v. Blakeney, 81 So. 3d 1123, 1125 (Miss. 2012)
(citations omitted).
       4
           Miss. Code Ann. § 11-11-3(1)(a)(i) (Rev. 2004) (emphasis added). The dissent
would find that a discussion of venue under our general venue statute is premature without
a discussion of whether venue is controlled by our Workers’ Compensation Act (“the Act”).
Dis. Op. at ¶17. We disagree. It is well-settled that claims “based on tortious conduct
subsequent to the work place injury,” such as the Gosses’ claim for fraudulent inducement
to settle Ronnie Goss’s claim, fall within “recognized exceptions” to the exclusivity of the

                                               3
The Mississippi Legislature amended Section 11-11-3 in 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.” 5 There is no dispute that Wilkerson lives in

Scott County and that Phenix’s principal place of business is in Scott County; therefore,

venue is proper in Smith County only if that county is “where a substantial alleged act or

omission occurred or where a substantial event that caused the injury occurred.” 6

¶7.    The Gosses’ complaint was filed in May 2010; therefore, the amended version of the

statute clearly governs this case. However, the chancery court denied Defendants’ motion

to transfer venue because the “cause of action occurred/accrued in Smith County.” The

chancery court clearly erred to the extent it based its decision on where the cause of action

accrued, which was permissible only under Mississippi’s former venue statute. As the

chancery court’s order was equally based on its determination that the Gosses’ cause of




Act. Mississippi Power & Light Co. v. Cook, 832 So. 2d 474, 479 (Miss. 2002) (quoting
Peaster v. David New Drilling Co., 642 So. 2d 344, 348 (Miss. 1994)). This is because
“[t]he independent tort is not compensable under our [Act] and to extend immunity to
compensation carriers for separate injury to workers goes far beyond the intent of the [A]ct.”
Southern Farm Bureau Cas. Ins. Co. v. Holland, 469 So. 2d 55, 59 (Miss. 1984). See also
McCain v. Northwestern Nat’l Ins., 484 So. 2d 1001 (Miss. 1986); Miller v. McRae’s, Inc.,
444 So. 2d 368, 371 (Miss. 1984). Furthermore, the Gosses also allege that they were
fraudulently induced to settle Pamela Goss’s claim, which is not compensation related and
clearly is not within the exclusivity provision of the Act. Because the Gosses’ claims are
based on an intentional tort that is an exception to the exclusivity of the Act, we find that the
chancery court properly applied the general venue statute in this case.
       5
      Medical Assurance Co. of Mississippi v. Myers, 956 So. 2d 213, 217 (Miss. 2007)
(emphasis in original).
       6
           Miss. Code Ann. § 11-11-3(1)(a)(i) (emphasis added).

                                               4
action occurred in Smith County, we discuss whether the Gosses have shown that venue is

proper in Smith County under the requirements of the current statute.

¶8.    Mississippi Code Section 11-11-3 is a plain and unambiguous statute that should be

applied according to its plain meaning.7 “Of right, the plaintiff selects among the permissible

venues, and his choice must be sustained unless in the end there is no credible evidence

supporting the factual basis for the claim of venue.” 8 To determine if a plaintiff’s choice of

venue is proper, “[i]t is necessary to begin with the ‘well-pleaded allegations of the

complaint[,]’” which may be supplemented by affidavits or “any ‘other evidence in

cognizable form.’” 9 Our venue statute “lays out four venue options from which plaintiffs can

choose when filing a lawsuit.” 10 While the first two options are based upon where the

defendant resides or, if defendant is a corporation, where it has a principal place of business,

the second two are based upon where the acts or omissions giving rise to the plaintiff’s claim




       7
           Hedgepeth v. Johnson, 975 So. 2d 235, 238 (Miss. 2008).
       8
           Id. (citations omitted).
       9
        Park on Lakeland Drive, Inc. v. Spence, 941 So. 2d 203, 207 (quoting Flight Line,
Inc. v. Tanksley, 608 So. 2d 1149, 1155 (Miss. 1992)). To reiterate, we begin with the
pleaded allegations of the complaint, which may be supplemented by affidavits or other
cognizable evidence. Therefore, a plaintiff may plead facts to support his choice of forum
in his complaint or present other cognizable evidence for the court to consider – we do not
hold that a plaintiff must do both. Furthermore, it is well-settled that a plaintiff’s choice of
venue will be sustained unless there is no credible evidence supporting that choice. A
defendant seeking to transfer venue is not going to produce evidence to support the
plaintiff’s choice. Therefore, if the plaintiff wishes to defeat a motion to transfer venue, it
follows that he or she should be prepared to present some credible evidence supporting his
or her choice of forum.
       10
            Hedgepeth, 975 So. 2d at 238.

                                               5
occurred.11 Thus, in addition to where a defendant resides or has a principal place of

business, the Gosses could have filed suit “where a substantial alleged act or omission

occurred” or “where a substantial event that caused the injury occurred.” 12

¶9.    Furthermore, “even if an act or omission did not cause the injury, it can nevertheless

establish venue if it is both substantial and alleged by the plaintiff.” 13 But, in this case, the

Gosses did not allege in their complaint and the record does not reveal any affidavits or any

other cognizable, credible evidence that would support the chancery court’s finding that the

Gosses received the checks in Smith County or that the checks were dishonored in Smith

County.14 Therefore, we find that the chancery court erred in relying upon facts to support




       11
            Id.
       12
            Id.
       13
            Myers, 956 So. 2d at 218 (emphasis in original).
       14
          The dissent would rely on documents presented to this Court in Defendants’ petition
for interlocutory appeal and on statements allegedly made at the hearing, for which we have
no record. Dis. Op. at ¶¶ 27-29. However, these documents were not filed in the trial court
and the hearing was not transcribed; therefore, they are not part of the record on appeal. See
Miss. R. App. P. 10(a) (“the record shall consist of designated papers and exhibits filed in
the trial court, the transcript of proceedings, if any, and in all cases a certified copy of the
docket entries prepared by the clerk of the trial court”). On appeal, we are limited to a
review of the trial court record, and for good reason. To allow parties to introduce
documents and facts at the appellate level, through petitions for interlocutory appeal or
otherwise, without making a record at the trial-court level would no doubt result in parties
attempting to slip in new evidence through the back door, and would needlessly complicate
the appellate process. Furthermore, our rules provide methods for parties to supplement the
record when no transcript is available and to correct or modify the record; however, these
steps were not taken in this case. See Miss. R. App. P. 10(c), (e). Because the documents
attached to the petition for interlocutory appeal were not made part of the record below, and
no statement in lieu of a transcript from the hearing was filed with the trial court in
accordance with Miss. R. App. P. 10(c), we cannot rely on the documents or statements
allegedly made at the hearing.

                                                6
his ruling which, even if taken as true, were neither alleged in the Gosses’ complaint nor

supported by cognizable evidence.

¶10.   Notwithstanding the fact that there is no record support for the allegations upon which

the chancellor based his order, we find that the allegations would not support a finding of

venue in that county even if properly supported by cognizable, credible evidence. We

recently addressed venue in a case involving facts similar to the instant action.15 In Myers,

the plaintiff, a physician located in Holmes County, argued that his insurer, a Madison

County business, had violated a statutory duty to renew his insurance.16 The plaintiff filed

an action against his insurer in the Chancery Court of Holmes County, and the insurer moved

to transfer venue to Madison County.17

¶11.   The chancellor found that venue was proper in Holmes County in part because the

plaintiff had completed his insurance application in Holmes County, the premiums were

mailed from Holmes County, there were communications between the plaintiff and the

insurer when the plaintiff was in Holmes County, the plaintiff had mailed letters to and

received letters from the insurer in Holmes County, and the insurer had mailed the letter

advising his coverage would not be renewed to the plaintiff in Holmes County.18




       15
            Myers, 956 So. 2d at 218.
       16
            Id. at 214.
       17
            Id. at 215.
       18
            Id. at 218.

                                              7
¶12.   On interlocutory appeal, we noted that the plaintiff’s basis for his cause of action was

the insurer’s decision not to renew his insurance.19 We found little relevance in the plaintiff’s

claims that he had completed an application for insurance in Holmes County or had mailed

letters from that county, concluding that the plaintiff “is suing [his insurer] based on the

company’s own acts or omissions, all of which occurred in Madison County.” 20 We further

found that “the location of the mailbox where [the plaintiff] received his policy, non-renewal

notice, or other communication from [his insurer] is likewise immaterial.” 21 We concluded

that the plaintiff’s “receipt of information in Holmes County is a passive function of his

presence there and not a substantial event causing the damages he claims.” 22

¶13.   We additionally found that, even though the plaintiff claimed he was damaged when

he “experienced” being uninsured in Holmes County, “this could be the result of substantial

acts, omissions, or injury-causing events which occurred in Madison County alone.” 23 We

explained that “the venue statue 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




       19
            Id. at 219.
       20
            Id.
       21
            Id.
       22
            Id.
       23
            Id. (emphasis in original).

                                               8
happened in a particular jurisdiction in order for venue to be proper there.” 24 We ultimately

determined that venue was not proper in Holmes County.25

¶14.   In this case, the Gosses’ basis for their lawsuit is the alleged fraudulent inducement

to settle their claims. They do not argue that fraudulent acts occurred in Smith County, that

they entered into the settlement agreement in Smith County, or that either defendant ever

committed a fraudulent act or omission, or ever was physically present, in Smith County.

Rather, they argue that they received fraudulent documents in Smith County and that they

experienced having a check dishonored in Smith County. We find that, just as in Myers, the

Gosses’ mere receipt of the documents in Smith County was a “passive function” of their

presence there and not a substantial event causing the damages they claim.

                                        CONCLUSION

¶15.   For the forgoing reasons, we find that the Chancery Court of Smith County erred in

its interpretation of Mississippi Code Section 11-11-3 and in denying Defendants’ motion

to transfer venue. We reverse and remand this case to chancery court for entry of an order

transferring the case to the Circuit Court of Scott County.26


       24
            Id. See also Hedgepeth v. Johnson, 975 So. 2d 235, 239 (Miss. 2008).
       25
            Myers, 956 So. 2d at 220.
       26
           The dissent finds that venue is proper in either Scott or Hinds County and would
remand this case for the Gosses to select from the two permissible venues. Dis. Op. at ¶34.
It is true that a plaintiff who files a case in an improper venue shall have the right to choose
between permissible venues if the action could have properly been filed in more than one
court. Miss. R. Civ. P. 82(d). However, in this case, the Gosses failed to make any
allegations and the record does not contain any cognizable evidence regarding where the
alleged fraudulent settlement negotiations occurred. Therefore, we cannot say with certainty
where the alleged fraudulent inducement occurred, and Scott County is the only proper
venue based on the allegations and evidence presented to the trial court.

                                               9
¶16.   REVERSED AND REMANDED.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., CHANDLER, PIERCE
AND COLEMAN, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY KING, J.

       KITCHENS, JUSTICE, DISSENTING:

¶17.   While the only proper venue may be Scott County, this decision cannot be made on

the record before us, and I respectfully disagree with the analysis by which the majority

opinion reaches this conclusion. In reversing the trial court and ordering a transfer of venue

to the Scott County Circuit Court, my learned colleagues in the majority disregard the

defendants’ petition for interlocutory appeal and the attached documents, finding that they

are not part of the record. Moreover, I respectfully disagree with the majority’s interpretation

of the law governing motions to transfer venue. Notwithstanding my disagreements with the

analysis, this issue is premature without a determination of whether subject matter

jurisdiction and venue are governed by the Mississippi Workers’ Compensation Act. Thus,

I would remand the case for further proceedings to consider these statutory provisions before

applying the general venue statute, Section 11-11-3 of the Mississippi Code. Should it be

necessary for the trial court to apply Section 11-11-13, the court should apply the current

version of the statute in light of all the relevant facts and allegations, including the

defendants’ contention that venue also may be proper in Hinds County. For these reasons,

I respectfully dissent.

                      Jurisdiction and the Workers’ Compensation Act

¶18.   “It is the first and one of the most important of all the duties of courts to see to it,

before proceeding in any case, that the court has jurisdiction both of the subject matter and


                                              10
of the parties.” Broom v. Bd. of Supervisors of Jefferson Davis County, 171 Miss. 586, 158

So. 344, 345 (1934). Courts are not relieved of this duty if the parties fail to raise the issue;

and like trial courts, we are bound by duty to decide a question of jurisdiction, even if we

must raise the issue sua sponte. Common Cause of Miss. v. Smith, 548 So. 2d 412, 414

(Miss. 1989); Waits v. Black Bayou Drainage District, 186 Miss. 270, 185 So. 577, 578

(1939). This well-established, nondelegable duty is no different when a case is before us on

interlocutory appeal and the parties have failed to raise any jurisdictional error. See Miss.

Mun. Liability Plan v. Jordan, 863 So. 2d 934, 941 (“While we normally limit our review

to specific issues presented by the parties, that limitation is one of expedition and not

jurisdiction. . . . Interlocutory appeals are no different.”)27

¶19.   A challenge to subject matter jurisdiction may be facial or factual. Roman Catholic

Diocese of Jackson v. Morrison, 905 So. 2d 1213, 1220-22 (Miss. 2005).           A facial attack

challenges the court’s jurisdiction as a matter of law, and the allegations in the complaint are

taken as true. Id. at 1220-21. The court looks to the face of the complaint to ascertain the

nature of the controversy and the relief sought. RAS Family Partners, LP v. Onnam Biloxi,

LLC, 968 So. 2d 926, 928 (Miss. 2007). Whatever the particular language employed by the

plaintiffs, the nature of the case is determined by the substance of the claim and not the form.

Trustmark Nat’l Bank v. Johnson, 865 So. 2d 1148, 1151 (Miss. 2004). A factual attack,



       27
         Nevertheless, it is worth noting that the defendants raised the jurisdictional question
in the same pleading which sought a transfer of venue. The notice of hearing filed by the
defendants announced that the hearing would address their motion to dismiss. The hearing
was not transcribed, and the order did not address any of the defendants’ arguments for
dismissing the case. For reasons unknown, the trial court limited its ruling to the motion to
transfer venue.

                                               11
on the other hand, goes beyond the face of the complaint and requires resolution of a disputed

fact, for example, when there is a question regarding diversity jurisdiction in federal court.

Roman Catholic Diocese of Jackson v. Morrison, 905 So. 2d 1213, 1221 n.4 (Miss. 2005);

28 U.S.C. § 1332. When there is a factual attack on jurisdiction, the plaintiff must prove

jurisdiction by a preponderance of the evidence. Schmidt v. Catholic Diocese of Biloxi, 18

So. 3d 814, 822 (Miss. 2009). This case potentially could fall under either category; but that

is a matter to be addressed on remand.

¶20.   As noted in the majority opinion, the plaintiffs alleged in their complaint that they

were fraudulently induced to settle their workers’ compensation claims, contending that

Wilkerson knew, or should have known, that the settlement checks would be issued from an

account that lacked sufficient funds. The plaintiffs prayed for actual damages in the amount

of the settlements, punitive damages, and general relief. From the documents attached to the

plaintiffs’ petition for interlocutory appeal, we learn that the damages claimed by Pamela

Goss were $15,200 more than the compromise settlement approved by the Commission and

that this additional amount represented a settlement for a non-workers’ compensation claim.

The nature of the claim underlying the settlement is unknown. The majority correctly notes

that Pamela’s additional settlement would not be governed by our workers’ compensation

statutes. Maj. Op. n.4. Yet, this would not give a court jurisdiction over this entire case.

The plaintiffs cannot manipulate jurisdiction by adding Pamela’s non-workers’ compensation

claims to the complaint, and any claim related to this settlement is a separate matter. The

complaint gave no indication that the settlement amounts were for anything other than




                                             12
workers’ compensation claims. This is but another issue that should be developed on

remand.

¶21.   Based on the allegations in the complaint and the limited record before us, the nature

of the claim is far from clear. The plaintiffs alleged that they were fraudulently induced into

settling, but the actual damages sought via the complaint do not exceed the settlement

amounts. The complaint did not allege that the plaintiffs suffered any damages beyond the

sum of the dishonored checks; thus there appears to be no basis for punitive damages.

Accordingly, any and all issues regarding the workers’ compensation settlements would be

governed by the provisions of the Workers’ Compensation Act.

¶22.   Considering that the alleged compensatory damages do not exceed the amount of the

award, the relief sought by the plaintiffs is susceptible to two interpretations. If the

plaintiffs’ ultimate goal was to set aside the settlement, the Commission has the power to

reopen a case under limited circumstances, for example, when compromise settlements are

induced by fraud, as alleged here. Miss. Code Ann. § 71-3-53 (Rev. 2004); Bailey Lumber

Co. v. Mason, 401 So. 2d 696 (Miss. 1981); Dixon v. Green, 240 Miss. 204, 127 So. 2d 662

(Miss. 1961).     The parties having submitted to the Commission’s jurisdiction, the

Commission is the only body with the authority to set aside or otherwise disturb the award,

as the Commission has continuing jurisdiction over compromise settlements. Miss. Code

Ann. § 71-3-53.

¶23.   On the other hand, it is reasonable to interpret the complaint as an attempt to enforce

the settlement. If an employer defaults on a payment of workers’ compensation, Mississippi

Code Section 71-3-49 provides a remedy by means of an entry of judgment in circuit court.


                                              13
In that case, a circuit court would have limited jurisdiction, and Section 71-3-49 would

control venue. That section requires that the interested party file a certified copy of the

Commission’s order with the circuit clerk of the county “in which the injury occurred or in

the county in which the employer has his principal place of business.” Id. The record

reveals that the Gosses were injured in California; thus, Scott County, as the employer’s

principal place of business, would be the only proper venue. Of course, to invoke this

statute, the employer’s payment must be thirty days in default, and the record supports the

defendants’ contention that the plaintiffs’ complaint was filed before thirty days had passed.

This presents yet another issue to be considered on remand.

¶24.   The majority says, in a footnote, that the Gosses’ claims are “clearly” excepted from

the Workers’ Compensation Act because the complaint alleged tortious acts occurring after

the workplace injury. Maj. Op. n.4. Undoubtedly, this Court has held that certain claims are

not barred by the exclusivity of the available remedies under the Workers’ Compensation

Act. Miller v. McRae’s, Inc., 444 So. 2d 368, 372 (Miss. 1984). However, the type of

claims alleged in those cases cited by the majority are for intentional tortious conduct causing

damages that are beyond the Commission’s power to award. For example, Mississippi

Power & Light Co. v. Cook, 832 So. 2d 474 (Miss. 2002), and Southern Farm Bureau

Casualty Insurance Co. v. Holland, 469 So. 2d 55 (Miss. 1984), involved claims for bad-

faith refusal to pay legitimate claims. In both cases, the alleged refusals to pay either delayed

the compromise settlements or induced the plaintiff to settle for less than his or her claim was

worth. As a result, the plaintiffs incurred actual damages beyond the amount of the final

workers’ compensation award, damages which the Commission did not have the authority


                                               14
to address. Cook, 832 So. 2d 474 (action in tort permissible when injuries allegedly caused

by insurer’s bad-faith handling of employee’s claim were not compensable under the

Workers’ Compensation Act); Holland, 469 So. 2d 55 (action in tort permissible when

insurance company’s intentional and bad-faith refusal to pay allegedly forced employee to

agree to inadequate settlement). Miller, 444 So. 2d 368, involved a claim against the

employer for false imprisonment, a tortious act for which the Commission could not grant

relief. In McCain v. Northwestern National Insurance Company, 484 So. 2d 1001, 1002

(Miss. 1986), this Court held that an employee’s claim against his employer’s insurer for

intentional and bad-faith breach of a settlement contract was sufficient to survive a motion

to dismiss for failure to state a claim.

¶25.   Lastly, in Peaster v. David New Drilling Co., Inc., 642 So. 2d 344, 346 (Miss. 1994),

the employee filed an action seeking damages based on the employer’s alleged failure to

repair brakes on tractors and trailers operated by employees. On appeal, this Court held that

the claim was barred because the workplace injury was a direct result of the alleged conduct,

and because the employer’s actions were, at most, grossly negligent and not intentional.

Id. at 346. As in Peaster, the defendants in the present case also argued before the trial court

that the conduct alleged in the complaint was merely negligent and not the result of an

intentional act.

¶26.   In sum, the Workers’ Compensation Act does not bar an employee from pursuing a

common law remedy for an injury caused by an intentional act that occurred after the

workplace injury and when the Commission lacks the authority to remedy the alleged wrong.

Cook, 832 So. 2d at 179 (citing Peaster, 642 So. 2d 344 at 348). While the Gosses alleged


                                              15
intentional, tortious conduct, i.e., fraudulent inducement, the particular language used to

describe the defendants’ conduct is not determinative. The nature of the case is determined

by the substance of the claim and not the form. Trustmark, 865 So. 2d at 1151. Because the

complaint does not assert that any injury was caused by the defendants’ alleged tortious

conduct, I cannot agree with the majority’s conclusion that the plaintiffs clearly allege an

independent tort that is excepted from the exclusivity of the Workers’ Compensation Act.

The true nature of the plaintiffs’ claim is uncertain, and the trial court should address the

defendants’ jurisdictional arguments and determine whether the Workers’ Compensation Act

is the only avenue for relief.

                                 Venue under Section 11-11-3

¶27.     To be clear, I fully agree that, as a question of law, venue is not proper in a county

simply because that county is where the plaintiffs received certain documents related to a

fraudulently induced agreement or because the plaintiffs learned that they had been

defrauded while they were present in that county. See e.g., Laurel-Ford Lincoln Mercury,

Inc. v. Blakeney, 81 So. 3d 1123 (Miss. 2012). However, I simply cannot speculate on the

application of our general venue statute without any certainty regarding the nature of the

injury and the relief sought. The plaintiffs’ choice of venue may be disregarded “in the end,”

but we are not yet there. Flight Line, Inc. v. Tanksley, 608 So. 2d 1149, 1155-56 (Miss.

1992).

¶28.     Finding that the plaintiffs’ claims are sufficiently clear to determine that the general

venue statute applies, the majority provides two alternate analyses for its disposition: (1) that

the plaintiffs neither pled nor proved facts to support their choice of venue; or (2) assuming


                                                16
those facts were pled and/or proved, they do not support Smith County as a proper venue

under Section 11-11-13. Regarding the first line of reasoning, I disagree with the majority’s

finding that the chancellor abused his discretion by basing his findings of fact on unpled

allegations that were not supported by “cognizable, credible evidence.” A nonmoving

plaintiff is under no obligation to provide “cognizable, credible evidence” for its choice of

venue to defend against a pretrial motion when the defense has provided this evidence, and

the only matter before the trial court is the application of a statute. When this Court has

applied the concept of “cognizable evidence” to venue transfers, it is in cases involving

motions to transfer for cause. For example, certain evidentiary burdens are placed on

defendants moving to transfer venue for prejudice or for fraudulent joinder of another

defendant. See Miss. Code Ann. § 11-11-15 (procedure for motions to transfer venue because

of prejudice or undue influence that would impair movant’s right to a fair and impartial trial);

Park on Lakeland Drive, Inc. v. Spence, 941 So. 2d 203, 206-08 (Miss. 2006) (transfer of

venue based on fraudulent joinder of defendant warranted when plaintiff failed to assert a

reasonable claim of liability against resident defendant).

¶29.   Curiously, the majority states that the record does not contain “evidence that would

support the chancery court’s finding that the Gosses received the checks in Smith County.”

Maj. Op. ¶ 9. My review of the record indicates otherwise. Attached to the defendants’

petition for interlocutory appeal are briefs and exhibits from the parties to the trial court.

These documents are specifically referenced in the trial court’s order denying transfer. In

these documents, the parties allege and offer proof of various matters, but most importantly,

the defendants affirmatively state that they mailed the settlement checks and release


                                              17
documents to the plaintiffs’ attorney in Smith County. In fact, the defendants themselves

provided the trial court a copy of the cover letter showing that the documents were mailed

to the city of Raleigh in Smith County, Mississippi. The plaintiffs’ submitting the same

documents would have served no purpose.

¶30.   As for where the checks were dishonored, the defendants’ petition for interlocutory

appeal acknowledged the plaintiffs’ argument at the hearing that the checks were presented

to a bank in Smith County. The hearing was not transcribed, but there is no reason to

question that the argument was made. In addition, the defendants’ brief to the trial court

stated that the plaintiffs “appeared at a Regions Bank to cash [the checks] and were informed

at the time that Phenix’s account had non-sufficient funds.” While the parties seemingly

dispute the location of the particular branch bank to which the checks were presented, it

cannot be said that this allegation does not appear in the record.

¶31.   The majority finds that anything not “filed in the trial court” that was submitted to this

Court with the defendants’ petition for interlocutory appeal cannot be considered part of the

record and cannot be considered. Maj. Op. n.14 (quoting M.R.A.P. 10(a)). However, Rule

10(a) is not a limitation on the contents of the record; rather, it merely sets forth required

contents. As recognized by Rule 10 and the comment, not all papers relevant to an issue on

appeal are filed with the trial court. For example, Rule 10(b)(3) lists “matters excluded

absent designation,” and the comment states, “[b]ecause counsel customarily do not file trial

court briefs with the clerk, briefs are not included in the (b)(3) list. Briefs do not normally

belong in a record on appeal, unless necessary to show that an issue was presented to the trial

court.” In this case, briefs and supporting exhibits were given to the trial judge, and these


                                              18
documents were filed with this Court as attachments to the defendants’ petition for

interlocutory appeal. It seems unreasonable to consider these documents for purposes of

granting the petition for interlocutory appeal, yet ignore their existence when deciding the

merits of the issue before us.

¶32.   The majority opinion faults the chancellor for finding facts based on arguments that

were not transcribed and on documents that did not pass through the court clerk. This

position conflicts with the well-established rule that “[i]t must be presumed that the rulings

of the trial court were correct, and such presumption will prevail, unless the actual record

supports the contrary view.” Shelton v. Kindred, 279 So. 2d 642, 644 (Miss. 1973).

Moreover, the defendants have the duty to ensure “that the record contain[s] all data essential

to an understanding and presentation of matters relied upon for reversal on appeal.” Pratt

v. Sessums, 989 So. 2d 308, 309-10 (Miss. 2008) (quoting Shelton, 279 So. 2d at 644). Long

ago we applied this rule to a venue dispute on appeal:

       If any default attaches to the failure of the record herein to set forth the
       evidence on which the change of venue was granted, it must be attributed to
       the appellant, for the appellee was not concerned therewith, as he, of course,
       is satisfied with the order entered thereon. Moreover, the evidence not
       appearing in the record, we must assume that it supports the allegations of the
       petition.

Humphreys County v. Cashin, 128 Miss. 236, 90 So. 888, 891 (Miss. 1922).

¶33.   As for the majority’s second line of reasoning, the majority notes that the plaintiffs

did not specify where they received the settlement checks and where the checks were

dishonored. The majority cites Medical Assurance Company of Mississippi v. Myers, 956

So. 2d 213, 218 (Miss. 2007); but I read that case to say that venue could not be established



                                              19
on acts, omissions, or events not alleged in the complaint, not that a complaint must allege

where such acts, omissions, or events took place. Id. (“Dr. Myers’s complaint does not

allege that his decision not to give [the defendant’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.”).

¶34.   In the present case, the complaint alleged that the plaintiffs were fraudulently induced

into settling a case when the defendants knew the settlement checks would be dishonored.

Yet, the plaintiffs were not required to justify their choice of venue by affirmatively pleading

where every alleged act, omission, or event occurred. See e.g., M.R.C.P. 8(a) (A complaint

shall contain “(1) a short and plain statement of the claim showing that the pleader is entitled

to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.”);

M.R.C.P. App. A Forms 2-21 (providing suggested forms for complaints, none of which

includes a specific averment for venue). See also Estate of Stevens v. Wetzel, 762 So. 2d

293, 295 (Miss. 2000) (noting that under Rule 8, “it is only necessary that the pleadings

provide sufficient notice to the defendant of the claims and grounds upon which relief which

is sought”) (citation omitted)). Indeed, before this Court adopted Rule 8 of the Mississippi

Rules of Civil Procedure, which abolished various technical requirements of pleadings, we

recognized that “[v]enue need not be stated in the body of the declaration.” Hayes Produce

Co. v. Taylor, 213 Miss. 217, 219, 56 So. 2d 503, 504 (1952) (citing Miss. Code § 1465

(1942)).

¶35.   Rule 9(f) is the only rule of civil procedure requiring a complaint to allege a particular

place, but this rule is limited to those cases where time and place are material to the


                                              20
sufficiency of a pleading. M.R.C.P. 9(f) (“For the purpose of testing the sufficiency of a

pleading, averments of time and place are material and shall be considered like all other

averments of material matter.”) For example, the location of the alleged harm is material in

cases involving motions to sever multiple plaintiffs under Rule 20 of the Mississippi Rules

of Civil Procedure. See Harold’s Auto Parts, Inc. v. Mangialardi, 889 So. 2d 493, 495

(Miss. 2004) (to defend a motion to sever in a mass-tort asbestos litigation, plaintiffs are

required to provide “the name of the defendant or defendants against whom each plaintiff

makes a claim, and the time period and location of exposure”). Place is also material when

the cause of action is based on fraud, as fraud must be pled with particularity. M.R.C.P. 9(b);

Allen v. Mac Tools, Inc., 671 So. 2d 636, 642 (Miss. 1996) (“The circumstances of the

alleged fraud such as the time, place and contents of any false representations or conduct

must be stated.”) (quoting Brabham v. Brabham, 483 So. 2d 341, 342 (Miss. 1986)). While

this case involves allegations of fraud, the majority does not address, and the defendants have

not argued that the complaint for fraudulent inducement failed to plead the alleged fraud with

sufficient particularity.

¶36.   Finally, the majority finds that Scott County is the only proper venue, ignoring the

defendants’ concession that, because the settlements were approved by the Commission in

Jackson, Hinds County, Mississippi, venue also would be proper in the First Judicial District

of Hinds County. Rule 82 of the Mississippi Rules of Civil Procedure is simple and clear:

“The plaintiff shall have the right to select the court to which the action shall be transferred

in the event the action might properly have been filed in more than one court.” M.R.C.P. 82

(d). Because the plaintiffs have a right to select among the permissible venues, Hedgepeth


                                              21
v. Johnson, 975 So. 2d 235, 238 (Miss. 2008), the plaintiffs should have the opportunity to

opt for transfer to Hinds County, if it is found to be a permissible venue. As for evidentiary

support in the record, we have the Commission’s orders approving the settlements signed by

two commissioners, the Gosses’ attorney, and Phenix’s attorney, and duly attested by the

secretary of the Workers’ Compensation Commission. Even if we did not have these orders,

this Court can take judicial notice that the Worker’s Compensation Commission is located

in Jackson, Mississippi, Hinds County, and that it was the Commission which approved the

settlement, oversaw the proceedings leading up to the settlement, and to which the plaintiffs

had submitted their claims. See M.R.E. 201. On remand, the trial court should consider all

appropriate venues, rather than defaulting to the defendants’ preferred choice.

                                          Conclusion

¶37.   “[A]ll courts must be constantly aware of questions of their jurisdiction to proceed and

must be prepared to decide a question pertaining to jurisdiction at any time, even if the court

must raise the issue on its own motion.” Dunaway v. Dunaway, 749 So. 2d 1112, 1120

(Miss. Ct. App. 1999) (citing Waits, 185 So. at 578). Based on the record before us, it is

questionable whether a court has subject matter jurisdiction over the plaintiffs’ claims; and

even if jurisdiction is proper, the next question is whether venue is governed by the Workers’

Compensation Act, specifically Mississippi Code Section 71-3-49. Unless and until it is

these questions are answered, application of the general venue statute, Section 11-11-3, is

premature. For these reasons, I respectfully dissent and would remand the case with

instructions to address these preliminary issues before considering the current general venue

statute’s application to this cause of action.


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KING, J., JOINS THIS OPINION.




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