IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-IA-01183-SCT

MICHAEL SALTS, ALICE MARIE SALTS AND SALTS FUNERAL HOME,

INC.

v.

GULF NATIONAL LIFE INSURANCE COMPANY d/b/a SELECTED

FUNERAL INSURANCE COMPANY; CHIEF EXECUTIVE OFFICER

JERRY O'KEEFE, AS PRESIDENT OF GULF NATIONAL LIFE

INSURANCE COMPANY, AND INDIVIDUALLY; JAMES C. MAXEY, AS

PRESIDENT OF GULF NATIONAL LIFE INSURANCE COMPANY, AND

INDIVIDUALLY; PRENTISS FUNERAL DIRECTORS, INC. d/b/a

BOONEVILLE FUNERAL HOME; PHILLIP DUNCAN, INDIVIDUALLY,

AND AS OWNER OF PRENTISS FUNERAL DIRECTORS, INC. d/b/a

BOONEVILLE FUNERAL HOME; STAN HOWELL, AS AN EMPLOYEE

OF PRENTISS FUNERAL DIRECTORS, INC. d/b/a BOONEVILLE

FUNERAL HOME, AND INDIVIDUALLY; WILLIAM McDONALD, AS AN

EMPLOYEE OF PRENTISS FUNERAL DIRECTORS, INC. d/b/a

BOONEVILLE FUNERAL HOME, AND INDIVIDUALLY

09/09/99

DATE OF JUDGMENT: 9/24/97

TRIAL JUDGE: HON. L. BRELAND HILBURN, JR.

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANTS: TALMADGE D. LITTLEJOHN

ATTORNEYS FOR APPELLEES: JOSEPH C. LANGSTON

MICHAEL S. ALLRED

WILLIAM W. BUSHING

DENNIS C. SWEET, III.

MARK H. TYSON

LAURA H. TEDDER

CHRISTI R. McCOY

SAM E. SCOTT

MICHAEL A. HEILMAN

MARC A. BIGGERS
NATURE OF THE CASE: CIVIL - CONTRACT

DISPOSITION: REVERSED AND REMANDED-08/19/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE PITTMAN, P.J., McRAE AND SMITH, JJ.

SMITH, JUSTICE, FOR THE COURT:

¶1. On January 30, 1990, the Appellant-Plaintiffs, Michael Salts, Alice Marie Salts and

Salts Funeral Home, Inc., (hereinafter as the "Salts") and the Appellee-Defendants,

Gulf National Life Insurance Company (hereinafter as "Gulf National"), et al., entered

into an exclusive written agreement. On June 28, 1996, the Salts filed suit in the First

Judicial District of Hinds County for breach of contract alleging that Gulf National Life

Insurance Company, d/b/a Selected Funeral Insurance Company, on or about

November 29, 1994, and December 2, 1994, denied the exclusivity of their agreement

and entered into conflicting contracts with others.

¶2. Subsequent pleadings were filed in this case, but on April 16, 1997, the Appellees

filed an application for hearing on their Motion for Change of Venue. After hearing oral

argument thereon, the trial court, the Honorable L. Breland Hilburn presiding, on

August 11, 1997, entered an order granting change of venue to the Circuit Court of

Prentiss County.

¶3. On September 25, 1997, the trial court entered an order denying the certification

required by this Court for interlocutory appeal under Mississippi Rule of Appellate

Procedure (M.R.A.P.) 5(a). The Salts filed their Petition for Certification for

Interlocutory Appeal by permission of this Court on October 8, 1997. On April 8,

1998, this Court entered its order granting the Petition for Interlocutory Appeal.

¶4. Aggrieved, the Salts now raise an interlocutory appeal of the following issue:

I. DID THE TRIAL COURT ERR IN GRANTING A CHANGE OF

VENUE TRANSFERRING THIS CAUSE FROM THE CIRCUIT

COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY,

MISSISSIPPI TO THE CIRCUIT COURT OF PRENTISS COUNTY,

MISSISSIPPI?
Having considered this very issue in Clark v. Luvel Dairy Products, Inc., 731 So. 2d

1098 (Miss. 1998) we find that this case should be reversed and remanded.

STANDARD OF REVIEW

¶5. "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)). Accord,

Estate of Jones v. Quinn, 716 So.2d 624, 626 (Miss. 1998).

LEGAL ANALYSIS

I. DID THE TRIAL COURT ERR IN GRANTING A CHANGE OF

VENUE TRANSFERRING THIS CAUSE FROM THE CIRCUIT

COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY,

MISSISSIPPI TO THE CIRCUIT COURT OF PRENTISS COUNTY,

MISSISSIPPI?

¶6. The Salts argue that the trial court abused its discretion in transferring venue to the

Circuit of Prentiss County. The Salts offer this Court recent decisions involving venue

and our venue statute (Miss. Code Ann. § 11-11-3 (Supp. 1999)) which hold that the

plaintiff has an inherent right to select among all venues in which the action may be

brought. See Flight Line, Inc. v. Tanksley, 608 So.2d 1149 (Miss. 1992). The Salts

contend that because they have an inherent right to select among all venues available

and the Circuit Court of Hinds County was a proper venue, the trial court erred in

transferring venue.

¶7. Mississippi Rule of Civil Procedure (M.R.C.P.) 82(b) expressly provides "(e)xcept

as provided by the rule, venue of all actions shall be as provided by statute." Venue is

therefore a function of statute. See Pisharodi v. Golden Triangle Reg'l Med. Ctr.,

1999 WL 191847 (Miss. Apr. 8, 1999). The relevant venue statute is Miss. Code Ann. §

11-11-3 (1972), which provides in pertinent part:

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, . . . .

Under Section 11-11-3, the Salts chose to bring their suit in the Circuit Court of Hinds

County. Venue was proper in Hinds County because Gulf National and Selected

Funeral Insurance Company are domestic corporations domiciled in Hinds County,

Mississippi, and may be served with process at their Hinds County addresses.

¶8. Finally, the Salts argue that since venue in Hinds County is good as to Gulf

National, it is good to all the defendants. Blackledge v. Scott, 530 So.2d 1363 (Miss.

1988). The Salts are correct, because in Blackledge, this Court held as follows:

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.

Jefferson v. Magee, 205 So.2d 281 (Miss.1967).

Id. at 1365 (emphasis added); accord Pisharodi, 1999 WL 191847 at *2.

¶9. Gulf National does not deny that venue was technically proper in Hinds County.

However, it argues that under Miss. Code Ann. § 11-11-51 (1972), the change of venue

should be affirmed. Section 11-11-51 allows for grounds for change of venue as

follows:

When either party to any civil action in the circuit court shall desire to change the

venue, he shall present to the court, or the judge of the district, a petition setting

forth under oath that he has good reason to believe, and does believe that, from

the undue influence of the adverse party, prejudice existing in the public mind, or

for some other sufficient cause to be stated in the petition, he cannot obtain a fair

and impartial trial in the county where the action is pending, and that the

application is made as soon as convenient after being advised of such undue

influence, prejudice, or other cause, and not to delay the trial or to vex or harass

the adverse party....

Miss. Code Ann. § 11-11-51 (1972). Gulf National argues that the Salts's selection of

forum created a lack of fairness resulting from unavailable and uncooperative

witnesses. It argues that in Miss. Code Ann. § 11-11-51 (1972), the Legislature created

a mechanism to prevent such problems by transferring venue where it would prevent

an unfair trial.
¶10. In Beech v. Leaf River Forest Prods., Inc., this Court affirmed a change of

venue under Section 11-11-51 where the change was reasonable in light of extensive

pretrial publicity and citizen bias against the defendants. Beech v. Leaf River Forest

Prods., Inc., 691 So.2d 446, 448-50 (Miss. 1997). However, in the instant case, there

has been little, if any, pretrial publicity and no citizen bias against the defendants in the

forum chosen. Therefore, the application of Section 11-11-51 is not supported under

the facts of this case.

¶11. Gulf National asks this Court to overrule Clark v. Luvel Dairy Prods., Inc., 731

So. 2d 1098 (Miss. 1998), where this Court held the doctrine of forum non

conveniens to be inapplicable when the trial court is faced with a choice of venue

between two Mississippi counties. Gulf National contends that the factors considered

in a forum non conveniens analysis are relevant to a fairness and partiality

determination under Miss. Code Ann. § 11-11-51 (1972). Gulf National strenuously

urges this Court to reconsider the importance of intrastate forum non conveniens in

that it alleviates forum-shopping, allows trial judges to effectively and efficiently

administer lawsuits, and advances justice and promotes the ideals embodied in the

Mississippi Rules of Civil Procedure.

¶12. Gulf National asserts that the unique facts in this case justify transferring venue to

Prentiss County. They assert that the Plaintiff-Appellants are all residents of Prentiss

County, that every act or omission alleged occurred or accrued in Prentiss County,

that almost all of the 200-300 witnesses having relevant knowledge reside in Prentiss

County or the surrounding counties, and that the majority of Defendant-Appellees

reside in Prentiss County. Based on similar arguments, the trial court transferred venue

to the Circuit Court of Prentiss County.

¶13. In Clark, this Court specifically held as follows:

 Our research on the doctrine of forum non conveniens, the common law, and

the development of venue conclusively establishes the following:

1) The history of the doctrine of forum non conveniens reveals no support

for intrastate forum non conveniens.

2) Venue is a function of statute, and reference to common law can only be

had where the venue statutes are silent.

3) By enacting a general venue statute which limited venue to the residence of

the defendant or the place where the defendant could be found, the legislature

effectively repealed the common law with regard to changing venue for the
sake of convenience.

4) Venue is a matter of convenience, and the legislative directive with regard

to convenience in this state is that counties meeting certain criteria will

generally be more convenient to the parties.

5) The issue is one of legislative prerogative, and the Court today does not

invade that prerogative.

Clark, 731 So. 2d at 1107 (emphasis added). Gulf National asks this Court to allow

the change of venue for convenience at the trial court's discretion. There are no more

compelling a set of facts here than there were in Clark. Hence, Clark should be

followed.

¶14. Moreover, in Pisharodi, this Court followed Clark and stated as follows:

 In the case sub judice, the Defendants/Appellees supported their change of

venue argument with the fact that medical care in the Lowndes County area would

be crippled if they were forced to defend in Hinds County and that they would be

required to incur higher costs of obtaining the attendance of unwilling witnesses to

testify.

 They have not, however, shown bias under the statute (Section 11-11-51) and

have failed to prove Pisharodi's choice of venue would have denied them a fair

and impartial trial, which the statute requires. While defending in Hinds County

may have been more burdensome on them than defending in Lowndes County,

the statute clearly provides mere inconvenience is insufficient grounds for a

change of venue from an obviously proper forum.

Pisharodi, 1999 WL 191847 at *2. The same is true here. While defending in Hinds

County may be more burdensome for Gulf National, mere inconvenience is not a

sufficient ground for a change of venue from a proper forum.

CONCLUSION

¶15. This Court declines the invitation to overrule Clark v. Luvel Dairy Prods., Inc.,

cited supra, and its progeny. The application of intrastate forum non conveniens

remains invalid where the trial court is faced with a choice of venue between two

Mississippi counties as is the case here. Thus, the Circuit Court of Hinds County

abused its discretion by improperly transferring venue to the Circuit Court of Prentiss

County. Because venue was proper in Hinds County and the Defendants-Appellees

have failed to meet the requirements for transfer in Section 11-11-51, we reverse the
order granting a change of venue, and we remand for further proceedings consistent

with his opinion.

¶16. REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT

WITH THIS OPINION.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE,

MILLS, WALLER AND COBB, JJ., CONCUR.