IN THE SUPREME COURT OF MISSISSIPPI NO. 2016-IA-00452-SCT FORREST GENERAL HOSPITAL, J. KEITH THOMPSON, HATTIESBURG CLINIC, GRIF A. LEEK AND SOUTH MISSISSIPPI EMERGENCY PHY S ICIANS, P.A.

v. STEV EN DALE UPTON

DATE OF JUDGMENT: 03/15/2016 TRIAL JUDGE: HON. W INSTON L. KIDD TRIAL COURT ATTORNEYS: ROBERT D. GHOLSON W A LTER W . DUKES MILDRED M. MORRIS SETH C. LITTLE COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: W A LTER W . DUKES JAMES K. DUKES DRURY S. HOLLAND MICHAEL R. MOORE JOHN A. BANAHAN DAVID B. MILLER ATTORNEYS FOR APPELLEE: DREW M. MARTIN CHUCK McRAE CHRISTOPHER A. BAMBACH NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE DISPOSITION: REVERSED AND REMANDED - 04/19/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:

C ONSOLIDATED WITH NO. 2016-IA-00455-SCTDR. GRIF A. LEEK, SOUTH MISSISSIPPI

EMERGENCY

PHY SICIANS, P.A., DR. J. KEITH THOMPSON AND HATTIESBURG CLINIC, P. A.

v. STEV EN DALE UPTON DATE OF JUDGMENT: 03/15/2016 TRIAL JUDGE: HON. W INSTON L. KIDD COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: W A LTER W . DUKES JAMES K. DUKES DRURY S. HOLLAND MICHAEL R. MOORE JOHN A. BANAHAN DAVID B. MILLER ATTORNEYS FOR APPELLEE: DREW M. MARTIN CHUCK McRAE CHRISTOPHER A. BAMBACH NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE DISPOSITION: REVERSED AND REMANDED - 04/19/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. CHAMBERLIN, JUSTICE, FOR THE COURT: ¶1. This interlocutory a ppeal arises f

rom t h e H i n d s C o u nty C ircuit Court’s denial of a

m otion to transf

er venue. Under Mississippi l aw, venue is determ ined at the t im e the lawsuit originally is f

iled. The re s o lution of this appeal hinges on the a p plication o f this principle
to a n issue of f

irst im pression f or this Court: does an am e nded c om plaint, which nam es a new party to the suit, relate back to the tim e of f iling of t he o riginal com

p laint f or the purposes of determ ining venue? W e f i nd that it does not.

2¶2. Thus, because the suit here was f iled in Hinds County

—nam ing only Forrest County d e f e ndants a nd the am ended com plaint does not relate back to t he tim e of f iling f o r t h e
purposes of determ ining venue—the circuit court abused i ts discretion in deny ing the m otion
t o transf er venue. W e reverse the judgm ent of t he circuit court and rem and the case t o be transf erred to the Circuit Court Forrest County

.

FACTS AND PROCEDURAL HISTORY ¶3. On March 16, 2014, Steven Upton “experienced severe pain and num bness in his lef

t hand.” D ue to the pain, U pton went to the Em ergency Depart me n t a t F o r r est General Hospital (“FGH”). FGH—according to Upton—adm inistered a Doppler Ultr a s o und that revealed a “total blockage of blood f low to the t ested area.” Af ter the test, Dr. Grif A. Leek,

a phy s ician em

ploy ed by South Mis s issippi Em ergency Phy sicians, P.A. (“SMEP”), m et with Upton. A lm ost seven hours af ter Upton’s original test, D r. J. Keith T hom pson, a p hy sician

em ploy e d by the Hattiesburg Clinic, P.A. (“HC”), o perated on Upton’s lef t hand to “relieve the b lockage

. . . [ and] restore blood f low.” Also, Upton claim ed that FGH f ailed to provide him with antibiotics or wraps af ter the surgery

. ¶4. Upton was discharged f rom FGH and alleged that he returned o n A pril 3, 2014, f or

a p ost-operative appointm ent with Thom p son. Upton m aintained that he was suf f ering f rom reperf usion sy ndrom e upon his return to FGH. According t o Upton, Thom p son di d not prescribe any

m edication and told Upton to return in one m onth. ¶5. Nine day s l ater, Upton e xperienced “extrem e p ain” in his hand and sought treatm ent
at the University of M i s s i ssippi Medical Center (“UMMC”). U pton stated that UMMC

3adm inistered antibiotics and inf orm ed h im t h at had h e w aited t hirty day s, as i nstructed by Thom p son, it would have been n ecessary to am putate his hand. U pton also claim ed that he suf f e red f r o m a n u m

ber o f o ther m edical conditions that were not discovered by FGH including: kidney

f ailure, heart f

ailure, and a pericardial cy st. ¶6. Upton was lef

t-handed a nd em

ploy ed previously a s an e lectri c i a n . He claim ed that he was d isabled perm anently i n his lef t h and a nd unable to resum e his em ploy m ent. Upton also m aintained that he was suf f ering f r om kidney and liver d am age due to UMMC having
to “adm inister[ ] extrem ely p o t ent antibiotics to com bat t he dam age already done to his hand.” ¶7. On June 18, 2 0 15, Upton f iled suit in the Hinds County Circuit Court. The com plaint

nam ed Forrest County , Mississippi; FGH , Thom pson; Leek; HC; a nd SMEP (collectively , “Forrest County def

endants”) as d ef

endants. The com

plaint also nam ed John and J ane Does # 1

– 10. All of t he n am ed d e f endants were located and had a cted in Forrest Cou n t y . T h e

com plaint claim ed t hat “v e nue is proper in H inds County , Mississippi, pursuant to Miss. Code A nn. § 11-11-3 as the acts or om issions t hat serve as the b asis o f the Plaintif f ’s claim s continued to occur and, additionally , were discovered in Hinds County , Mississippi.” The

com plaint alleged f

i ve counts: negligence, gross negligence, r espondeat superior, negligent inf liction of em otional distress, a nd breach of f iduciary duty

. Also, the com plaint did not

nam e UMMC as a def

endant but stated that UMMC “ p r o mp t l y and properly treated to
attem pt to correct” Upton’s kidney f ailure. ¶8. In r e s p o n s e t o Upton’s com plaint, Thom

pson and HC wrote Upton to explain that, pursuant to Mississippi Code S ection 11-11-3(3) venue was proper o nly in Forrest County

.

4On July 9 , 2015, Upton r esponded: “we have recently discovered a c ts of m edical m a lpractice

which occurred in Hinds County

. Theref ore . . . Hinds County

is a proper venue.” ¶9. On July 13, 2 0 15, Upton f iled his “ F i rst Am ended Com plaint.” For t he f

irst tim e, Upton nam ed UMMC and Dr. Sum ona Sm ith 1 as d ef endants. The am ended com plaint still

nam ed the Forrest County def endants and John and Jane Does # 1–10. ¶10. In t he am ended com plaint, Upton claim ed th a t “ U MMC f ailed to properly

m onitor [ Upton].” Upton claim ed that UMMC perf orm ed only one check o n his international

norm alized r atio throughout his ten-day hospitalization. Further, according to the am ended

com plaint, Sm ith’s decision that “there was no n eed f or vascular i ntervention” resulted in no

a c t ion being t aken by UMMC f or the f irst three d ay s of Upton’s hospitalization. U p t o n

m aintained that this “required the orthopedic surgeon to rem ove m uch m ore o f the m

uscle and t issue within the hand than would have been necessary if the surgery had been ordered by Dr. Sm ith t h ree . . . day s prior.” Also, the am ended com p laint still m entioned U MMC’s
treatm ent of Upton’s kidney f ailure but om i tted the lan g u a g e t h a t the t reatm ent was done “prom ptly and properly .” ¶11. Next, the d ef

endants answered the am ended com plaint. Leek, S MEP and FGH f iled

m otions to dism iss or, i n t he a l t e r n a t i v e , f or severance and transf

er to Forrest County

. Forrest County , Mississippi, and UMMC also requested to be dism issed f rom the suit. 2 Next, Thom p son, Leek, HC, SMEP and FGH n oticed a hearing on the m otions t o dism iss or

1 S m ith w as d ism issed b y

stip u latio n o n O c t o b e r

2 8 , 2 0 1 5

. 2 N eith e r F o rrest C o u n ty , M ississip p i, n o r U M M C n o t iced its req u est f o r d ism issal f o r h earin g . 5transf

er. ¶12. At the hearing, Thom pson, Leek, HC and SMEP argued t hat all of the original causes of action a lleged by Upton occurred in Forrest County

. T hey noted t hat UMMC originally

was not a party and that Upton h a d claim ed that UMMC had “ prom ptly and properly ” treated Upton. Also, they argued that venue was im proper under S ection 1 1

- 1 1

- 3 ( 3 ) and that any claim s against UMMC were severable. FGH m aintained that Mississippi C ode Section 11- 46-13(2)—the venue statute within the Mississippi T ort C laim s Act (“MTCA”)—applied to FGH and m a ndated that Forrest County was the sole venue f

o r the suit. ¶13. In response, Upton stated that he originally had f iled the claim

under the general venue s tatute [3]

. . . being that a substantial event occurred in H i nds County which i s his treatm ent at U M [ M ]C, his d i scovery of what exactly happened to his lef

t -hand a nd the seven or eight surgeries that had to happen to correct the errors of

[ FGH] in his treatm ent. Concerning the argum e nts that Forrest County was the only proper venue, Upton noted that the am ended com

plaint nam ed UMMC and stated: “if y o u f ind that e very

body has been joined correctly and that venue is correct u nder the venue statutes f or one of the d ef

endants, then it applies to all of t hem .” Upton also represented that he h a d s p oken to h is experts concerning possible negligence on the part of UMMC bef ore he had received Thom pson’s and HC’s letter which suggested transf er of venue to Forrest County

. U p t o n , though,

m aintained that h e w a s u nable im m ediately to add UMMC to the suit due to notice requirem ents u nder the MTCA. In closing, Upton advised the trial c ourt t hat if it was to f ind

3 We p resu m e t h at U p to n w as ref errin g to M ississip p i C o d e S e ctio n 1 1 -1 1 -3 (1 ). H is arg u m en t co n cern in g th e g en eral v en u e statu te w as p r o m p ted b y th e trial co u r

t’s q u estio n : “S o w h at w a s th e b asis o f [ th e su it] b ein g f

iled h ere in itially ? ” 6that venue is not proper i n H inds County , then Upton would argue a gainst severance of any

of the def endants. ¶14. In r ebuttal, Thom

pson a nd HC provided the court w ith their letter to Upton and argued that the suit could not be brought properly under the general venue statute given t he m edical def endants. FGH reiterated that the suit against i t was subject t o Section 11-46-13(2) under the MTCA. At the end of the hear i n g , UMMC i nf orm ed t he court that it would waive its right to trial in Hinds County due to the num

ber of def endants f rom Forrest County

. ¶15. The c ourt entered an order deny ing the def endants’ m otion to transf

er venue o n March 15, 2016. It f

ound that “venue of this action lies a ppropriately in either H i n d s C o u n ty or Forrest C ounty ” and that “the plaintif f ’s choice of H inds County i s a ppropriate.” Pursuant
to this Court’s g rant of i nterlocutory a ppeal , T h o mp son, Leek, HC, SMEP and FGH now appeal the trial court’s denial of the m otion to transf

er. 4
S TATEMENT OF THE ISSUES ¶16. T h o mp s o n, Leek, HC and SMEP raise three issues b ef ore u s : ( 1 ) t h a t v e n u e i s determ ined by the f

iling of the original com

plaint and n ot the am ended com plaint, (2) that Upton f raudulently joined UMMC to e stablish venue in Hinds County , and ( 3) that venue is
p roper only in Forrest C ounty

. FGH raises two issues: ( 1) venue is proper only in Forr e s t County and (2) the allegations against UMMC are unrelated to the claim s against FGH. ¶17. U p o n r e v iew of the brief s, we entered an order, d irecting the p arties t o p r o v i d e sim ultaneous brief

ing on the f

ollowing issues:

4 T h is C o u rt co n so lid ated th e tw o in terlo cu to ry p etitio n s o n ap p eal. 7I. W hether the record bef ore this Court, without the notice letters sent by Steven Upton to each def endant, i s suf

f icient in order to determ ine on what date t he s tatute o f lim itations would have tolled a s t o each def e ndant;
II. W hether the Appellants or the Appellee b ore the burden of producing the necessary evidence to dem o nstrate when the s t a t u te of lim itations would have tolled;
III. W hether Rule 21 of the Mississippi Rules of

Civil Procedure governs the addition of UMMC to t he suit, given the plain language of Rule 21 and this Court’s precedent i n V eal v. J.P. M

organ Tr. Co. , 955 So. 2d 843 (Miss. 2007). Thom p son, Leek, HC, SMEP and FGH jointly f iled a supplem ental b rief

. Bef ore a nswering the abo v e i s s u e s , Upton urged this Court t o address only t he transf e r-of

- venue issue and argued that issues concerning the statute of lim itation were not bef ore the Court. W e agree that statute-of

-lim itation issues are not bef ore us and address only

the denial of the m otion to transf er venue. ¶18. Thus, the question bef ore this Court is whether or not the trial court erred by ref using
to transf er venue f rom Hinds County to Forrest County

. 5 Answering t his question requires

a two-part analy sis. First, we m ust determ ine i f venue i n Hinds C ounty was prope r at the tim e o f f iling of the original com

plaint. Second, we m

ust decide whether Upton’s addition of the Hinds County d ef

endants i n his am ended c om plaint related back to the tim e of f iling of t he original com

plaint f or the purpose of determ ining venue. U ltim ately , we f ind that the trial court abused its discretion by deny ing the m o tion to transf er venue to Forrest County

.

5 T h o m p so n ’s, L eek ’s, H C ’s an d S M E P ’ s arg u m en t th a t th e su it sh o u l d h av e b een d ism issed is p ro ced u rally b arred o n ap p eal. S ee W eb b v. D eS o to C

ty. , 8 4 3 S o . 2 d 6 8 2 , 6 8 5 (M iss. 2 0 0 3 ) (“F ailu r e to cite leg al au th o rity in su p p o rt o f an issu e is a p ro c e d u r a l b a r o n ap p eal.”). 8STANDARD OF REVIEW

¶19. “[ W ]hen reviewing a trial court’s rul i n g o n a mo t i on t o change venue, this Court applies an abuse of d iscretion standard of review.” Park on Lakeland Drive, Inc. v. Spence , 941 So. 2d 203, 206 (M i s s . 2 0 0 6). Further, “[ t]his C o urt applies the de novo standard of review when d eciding issues of law.” Wayne Gen. Hosp. v . H ayes , 868 So. 2d 997, 1000 (Miss. 2004). ANALYSIS
I. Venue ¶20. Thom

pson, Leek, HC and SMEP argue that venue is determ ined at t he tim e of f iling. Upton argues that if

venue is good as to one def endant it is good as to all. ¶21. “Venue is a f

unction o f statute.” Park on L akeland Drive , 941 So. 2d a t 206 (citing Flight Line, Inc. v. Tanksley , 608 So. 2d 1149, 1155 ( Miss. 1992))

. “‘In venue disputes
courts b egin with the w ell-pleaded allegations of t h e com plaint. These, of course, m ay be supplem ented—and contested—by a f f idavits or other evidence in cogn i z a b le f orm .’” Mississippi Dep’t of H

um an Servs. v. S.C. , 119 So. 3d 1011, 1013 ( M i s s . 2013) (quoting Flight Line , 608 So. 2d at 1155). ¶22. It is settled law that “ [ o]f right, the plaintif f selects am o ng the perm i ssible venues, and his c hoice m

ust be sustained unless in the end there is n o credible e vidence s upporting the f actual basis f

or the claim of venue.” Flight Line , 608 So. 2d at 1155 ( f ootnote o m itted). “However, venue is a valuable right to the d e f endant a s well and tim ely o bjections to im p roper venue m

u st be honored.” Park on Lakeland Drive , 941 So. 2d at 207.

9¶23. Several venue statutes are im plicated in th i s s u i t

. S u b section one of Mississippi’s general venue statute provides f or venue in general c ivil litigation. Miss. C ode Ann. § 11-11- 3(1) (Rev. 2004). Subsection three governs venue in suits brought against m edical def endants. Miss. Code Ann. § 11-11-3(3). It provides: (3) Notwithstanding subsection (1) of this section, any action a g ainst a licensed phy sician, o steopath, dentist, nurse, nurse-practitioner, p hy sician assistant, p sy chologist, pharm aci s t , podiatrist, optom etrist, chiropractor, institution f

or the aged or inf

irm , hospital or licensed p harm acy , including any legal entity which m ay be liable f or their acts or om issions, f or m alpractice, n e gligence, error, om ission, m istake, breach of standard of care or the unauthorized rendering of prof essional services sha l l b e b rought only in the county in which the alleged act or omission occurred. Id

. ( em phasis added). Lastly , Section 11-46-13(2) governs the venue of a suit against the
state or a political subdivision u n de r t h e M T CA. 6 Miss. C ode Ann. § 11-46-13(2) (Rev. 2012). It reads: (2) The venue f

or any suit f

iled under the provisions of this c h apter a gainst the state or its em

ploy ees shall be in the c o unty in which the act, om ission or event on which the liability phase of the action is based, occurred or took place. The venue f or all o ther suits f

i led u nder the provision s o f t h i s c h apter shall be in the county or judicial district thereof in which the p r i n c ipal of f ices of the governing body of the p o litical subdivision are located. The venue specif ied in this subsection shall control in all a ctions f iled against g o v e r n m ental entities, notwithstanding that other def e n d a n ts w hich are not governm ental entities m ay be j oined in t h e s u i t , and notwithstanding the provisions of any other venue statute that otherwise would apply

. Id

. ¶24. Venue is determ ined at the tim e that the lawsuit is f iled. Austin v. Wells , 9 19 So. 2d

6 F o r r e s t C o u n ty , M ississip p i, an d F G H a r e “p o litical su b d iv sio n [ s] ” u n d er th e M T C A

. S

ee M iss. C o d e A n n . § § 4 1 -1 3 -1 0 (c) (R ev . 2 0 1 3 ) , 1 1 -4 6 -1 ( i). F u rth er, U M M C is w i th in th e d ef

in itio n o f “[ s] t ate” u n d er th e M T C A

. S ee M iss. C o d e A n n . § 1 1 -4 6 -1 (j ). 1 0961, 964 ( Miss. 2006). “ [ W ]e have held that ‘proper venue is determ ine d a t t h e t i me the

lawsuit is originally f

iled, and subsequent di s mi s s a l of the def endant upon whom venue is based does n ot d estroy proper venue.’” Id

. (quoting Est a t e of Jones v. Quinn , 716 So. 2d 624, 628 (Miss. 1998)). Further, “‘[ i]n suits involving m ultiple def

endants, where venue is good as to one def

e ndant, it is g ood as to a ll def endants.’” E

state of Jones , 716 So. 2d at 627 (quoting Blackledge v. Scott , 530 So. 2d 1363, 1365 (Miss. 1988)). ¶25. Also, Rule 82(c) a d d r e s s e s s u its with m ultiple claim s and parties. M.R.C.P. 82(c).
It reads, i n part: “W here s everal claim s or parties have been properly joined, the suit may be brought in any county in which any one of the c l a i ms c o u ld properly have been brought .” M.R.C.P. 82(c) (em

phasis a dded). In t he next subsection, R u le 82 addresses im

proper venue: “W hen a n action i s filed lay ing venue in the w rong county , the action s hall n ot be dism issed, but the court, on tim ely m otion, shall transf er the action to the court in which it m ight properly have been f

iled and the case shall proceed as though o r i g i n a l l y f iled therein.” M.R.C.P. 82(d) (em

phasis added). ¶26. H e re, v enue was not p roper in Hinds County a t the t i me o f f i l i n g . T h e i n i t i a l

com plaint nam ed only the Forrest County def e n d a n ts and the John a nd Jane Does # 1–10. Concerning venue, the com plaint pleaded: [ V]enue i s proper in Hinds County , Mississippi, pursuant to Miss. Code Ann. § 1 1-11-3 as the a cts o r om issions that serve as the basis of the Plaintif f ’s claim s continued to occur and, a dditionally , were discovered in Hinds County , Mississippi. The i nadequate treatm ent by the Def endants comme n c e d in Forrest County bu t c ontinued to inf lict d am ages upon the Plaintif f while in Hinds County , Specif

icall y , the Plaintif

f was f o rced to undergo extensive treatm ent, c osts, and f

urther pain and s u f

f ering i n Hinds County as a result of the Def endants’ continuing tortious actions against the Plaintif f

.
1 1Upton’s com plaint d id not allege that any of the f ictitious John or Jane D oes r esided or acted in Hinds County

. Moreover, none of the nam e d def endants in the o riginal c om plaint was a resident of Hinds County

. Also, the Forrest County def endants treated Upton only in Forrest County , not Hinds County

. ¶27. It is undisputed that the Forrest County def e n dants did not c o mmi t a ny act within Hinds County to e stablish venue against them

. W hen conf r onted by T hom

pson’s a nd HC’s letter requesting transf

er of the suit to Forrest County , Upton r esponded: “[ W ]e have recently d i s c o v e r e d a c t s o f m edical m alpractice which occurred in Hinds County

. Theref ore, pursuant
to M iss

. C o d e Ann. § 11-11-3(3), Hinds County is a proper venue in this action[ ,] and we will soon be am ending our com plaint to ref

lect that f

i nding.” Given that the ori g i n a l

c o mp laint was f

iled a lm ost a m o n th bef

ore this letter, U pton s eem s to concede t h a t v e n u e

was n ot established by the o r iginal com plaint. He a l so conceded at the hearing that the basis f or f iling t he suit in Hinds County initially was “under the g eneral venue statute.” Further,

on appeal, Upton does not a rgue that the original com p l a i n t e stablished venue. Instead, Upton argues th a t t h e a me nded com plaint properly joined UMMC and relates back to the tim e of f iling the suit. Regardless, the Forrest County def endants all resided and acted within Forrest County

. ¶28. Thus, venue was im p roper in Hinds County when the suit was f i led. S uits against HC, SMEP, Thom

p son and Leek all are governed by Section 11-11-3(3), w hich requires that they be sued “ only in the county in which the alleged act or om ission occurred.” Miss. Code Ann. § 11-11-3(3); see Adam s v. Baptist Mem ’l Hosp.-DeSoto, Inc. , 965 So. 2d 6 52, 6 56 (Miss.

1 22007) (“[ T]he only proper venue f or a suit a gainst m edical providers is the c ounty in which the alleged act or om ission occurred.”). Likewise, FGH, a com m unity hospital, shall be sued only “in the county o r judicial district thereof in which the principal of f ices of the governing body of the political subdivision are located.” Miss. Code Ann. § 11-46-13(2); see Wayne Gen . H o s p . v . H a yes , 868 So. 2d 9 97, 1003–05 (Miss. 2004) (holding that v enue f or a

com m unity hospital under the M TCA i s proper only i n the c ounty in which the principal of f ices of the hospital are located). No a llegations in the record support a f inding that venue in Hinds County

was proper under the original com plaint. ¶29. Explaining the decision to f ile t h e s u i t f

i rst in H inds County against only Forrest County def

endants and l ater a dd UMMC a n d S mith, Upton argued at t he hearing that he could not im m ediately add UMMC or S m ith to th e c o mp l a i n t due to notice requirem ents under the MTCA. See Miss. Code Ann. § 11-46-11. This argum ent, though, only distracts f rom th e issue at hand. It does not m atter w hy Upton could or could not sue UMMC or Sm ith at the tim e of f

iling t he com

plaint. The issue is that U pton com m enced a s u it against def endants in an im

p roper venue. At the t i me o f f iling, venue was im

proper as to all def endants in the suit.
II. Relation Back to the Tim e of Filing ¶30. W e now turn to t he s econd issue in our analy sis: whether Upton’s addition of UMMC in the am ended com

plaint relates b ack to t he tim e o f f iling of t he original suit f

or the purpose of determ ining venue. U pton a rgues that it does, but Thom pson, Leek, HC, SMEP, and FGH contend that the original com plaint should govern this Court’s analy sis.

1 3¶31. Mississippi R ule of C ivil Procedure 1 5(c), which governs M ississippi’s r elation-back doctrine, provides: (c) Relation Back o f Am endm ents. W henever t he claim or def ense asserted in the am ended pleading arose out of the conduct, transaction, or occurrence set f o rth or attem

pted to be set f

o rth in the original pleading, the am endm ent relates back to the date of the original pleading. An am e ndm ent changing the party against whom a claim is asserted r elates back if the f oregoing provision is satisf ied and, wit h i n t he period provided by Rule 4(h) f or service of the sum m ons and com

p laint, the party

to be brought in by am endm ent: (1) has received such notice of the institution of

the action that the party will not be prejudiced in m a intaining the party ’s def ense on the m erits, and (2) knew or should h ave known that, but f or a m i stake concerning t he identity of t he proper party , the action would have b een brought against the party

. An a m endm e nt pursuant to Rule 9(h) is not a n am endm e nt c hanging t he p arty against whom a claim is asserted and s uch am e ndm e nt relates back to the date of the original pleading. M.R.C.P. 15(a), (c)(2). Rule 9(h) reads: (h) Fictitious Parties. W hen a party is ignorant of t h e n am e of an opposing party and so alleges in his pleading, the opposing party m ay be designated by any nam e, and when his t rue nam e is discovered the process and all pleadings and proceedings in the action m a y be am ended by

substituting the true nam e and giving proper notice to the opposing party

. M.R.C.P. 9(h). As noted above, Rule 82(d) states: “W hen an action i s filed lay ing venue in
t h e w r o n g county , the a ction s hall not be dism issed, but the court, on tim ely m otion, sh a l l transf er the action to t he court in which i t m ight properly h ave been filed and the case shall proceed as though originally filed therein.” M.R.C.P. 82(d). Also, Rule 21 provides in part: “Parties m ay be dropped or added by order of the court on m otion of any party or of its own i n i t i a tive at any stage of the a ction and o n such term s as are j ust.” M.R

. C

. P

. 2 1

. “Furtherm ore, this C ourt is bound to f ollow the plain and ordinary m eanings of the Rules of

1 4Civil Procedure.” V eal v. J.P. Morgan Tr. Co. , 955 So. 2d 843, 845 (Miss. 2007). ¶32. W h ether an a ddition of a p arty relates back under Mississippi Rule of Civil Procedure 15 f or the determ ination o f venue is an issue of f irst im pression f or this Court. “In a case of f irst im p ression Mississippi Courts look to other jurisdictions i n de term ining the m atter.” Sheppard v. Mississippi State Highway Patrol , 693 So. 2d 1326, 1329 (Miss. 1997). ¶33. The Alabam a S uprem e Court ha s d e t e r mi n e d t h a t “ ‘ [ l ] a t e r am e n dm ents to the

com plaint to add parties or claim s . . . are not [ t o b e ] c o nsidered in determ ining whether

venue is im

proper a t t he com m encem ent of the action.’” Ex parte Ham pton Ins. Agency , 85 So. 3d 347, 352 (Ala. 2011) (alteration in original) (quoting Ex parte Lugo de V ega , 65 S o . 3 d 886, 892 (Ala. 2010)). In Ham p ton , Mary P atton f

iled suit in Hale County agains t Ham pton Insurance A gency and f ictitiously nam ed “Def

endants A, B, and C.” Id

. a t 3 4 8

. Ham pton m oved to dism iss the suit or transf er, arguing t hat Hale County const i t u t e d an im p roper venue. Id

. at 3 49. It alleged that Ham pton was a sol e p r o p r i e t orship with one of f ice located in Tuscaloosa County

. Id

. In response, Patton am ended her com plaint to add additional counts and nam e Ginger Spencer, Acceptance Indem nity Insurance Com pany and Ashland General Agency , Inc.—all Hale County d ef endants. Id

. The trial court d enied the def endants’ m otion to transf

er “based on its conclusion t hat venue in Hale County was proper
at the t im e Patton o riginally f iled her actio n a g ainst H am pton.” Id

. The def

endants petitioned the Alabam a Suprem e Court f or m andam

us r elief , requesting that the court direct the trial court to transf

er the case to Tuscaloosa County

. Id

. at 348. ¶34. Granting the def

endants’s petition, the Ham pton c o u r t f i r s t d e t e r m i n e d that venue was

1 5im

p roper when t he s uit originally was f iled against only Ham

pton. Id

. at 350–51. In m aking this determ ination, the court noted the governing law: “As this [ c ]ourt has f r equently held,
proper v enue f

or an action is determ ined at the commencement o f the action. If venue is not
proper at the com m encem ent of a n action, then, upon m otion of the def e n dant, the action

m ust be transf

erred to a c ourt w h e r e v enue would be proper.” Id

. at 351 (em phasis in original) (citations om itted). Af t er determ ining that venue was im proper at the tim e of f

iling, the court f

ound that t he addition of the l ater-na me d d e f endants did not relate b ack to the

com m encem ent date of the action. Id

. at 352. One of the Ham pton court’s prim ary reasons f o r n o t allowing the am endm ents to relate back was that Patton added the parties af t e r Ham pton had sought to change v enue. Id

. at 353. Further, the Ham pton court f

oun d Patton’s claim

that she was ignorant of

the identity

of the new parties “untenable.” Id

. ¶35. Much of the Ham

p t on court’s rationale applies directly to the f acts at hand. The law that undergirded H

am pton is s im i lar to Mississippi law. A s noted above, this Court “ha[ s] held that ‘proper venue is determ ined at the tim e the l awsuit is original l y f iled, and subsequent dism issal of the def endant upon whom venue is based does not d e s t r o y p roper venue.’” Austin , 919 So. 2d at 964. ¶36. The claim s against UMMC in the second com plaint did not arise “out of the conduct, transaction, or o ccurrence set f orth or att e mp t e d t o be s et f orth in the original pleading.” Upton d isagrees and a rgues that “it is c lear t hat the claim s asserted in the am ended pleading

arose o u t o f Mr. Upton’s treatm ent at UMMC, w hich was described in t he original

com plaint.” The am ended co mp l a i n t , t hough, added two new def endants (UMMC and

1 6Sm ith) and described new conduct (delay in treatm ent) that was not m entioned o r i ntim ated

in the original com

plaint. ¶37. The am ended com plaint’s allegations concerning delay of t r e a t me n t on the part of UMMC do not arise out of any “conduct, transaction, or occurrence” described i n the original

com plaint. In f

a ct, the original com

plaint’s allegations are quite the opposite. The original

com plaint cites UMMC’s “num erous procedures and treatm ents

. . . t o save Mr. Upton’s hand.” The origi n a l com plaint also notes that UMMC “prom ptly and p roperly ” treated Upton’s kidney f

a ilure. In contrast, t he am ended com plaint f or the f i r st t im e ref

erenced Sm ith’s decision to d elay treatm ent and o m itted the ref erence to a ny “prom

pt[ ] and proper[ ]”
treatm ent by UMMC. W hile the original com plaint partially described Upton’s treatm ent at UMMC, no allegations, claim s or f acts were pleaded against UMMC. ¶38. These f

acts a r e s t r o nger than those in Ham pton , as Upton did not attem pt to add UMMC as a f

i ctitious party u nder Rule 9(h). Clearly , Upton knew of UMMC and U MMC’s
treatm ent bef

ore the f iling of the original com

plaint. See Davenport v. Hertz E quip. Rental Corp. , 187 So. 3d 194, 202 (Miss. Ct. App. 2 0 1 6 ) ( “ I n sum m ary , we f ind that Davenport f ailed to prove that he lacked knowledge of Hertz’s i dentity prior to the f iling of his original

c o mp l aint, b ut even if he did, he f ailed the reasonable-diligence requirem ent to ascertai n Hertz’s identity .”) ¶39. Also, the am endm ent to the com plaint does not m erely “chang[ e] the part y a gainst whom a c laim is asserted.” See M.R.C.P. 15(c). Upton does not argue that this is the case, and a review of the original com plaint s h o w s t h a t UMMC and Sm ith originally were not

1 7included as def endants. All of the claim s m ade in Upton’s original com plaint rem ain against the sam e pa r t i e s . The am e nded com plaint sim

ply a d ded parties and claim s against those parties. ¶40. F urther, a plain-language interpretation of the o rdinary m e a ning of the Mississ i p p i Rules of Civil Procedure su p p orts the conclusion that the addition of a party t o a suit does
not relate back under Rule 15 f or the p urposes of determ ining venue. The purpose of Rule 15’s relation-back doctrine, when read in c onjunc t i o n with all the r ules, is n ot to rem edy im p roper venue where the suit could have been f iled in t he correct venue in the f i rst place. Upton could have f

iled h i s suit in F orrest County , where v enue would have been proper against t h e F o r r est County def endants. In f

act, g iven the venue statutes discussed above, Rule 82 is clear that, at the tim e of f iling, the only p roper venue f or the suit was in Forrest County , as Upton nam ed only the Forrest County

def endants. 7 ¶41. In addition, R

ule 21 governs the addition of parties to a s uit and requires perm ission f rom the court any

tim e a party is added to a suit. See V e a l , 955 So. 2d at 8 45 ( “W here, as here, the am endm ent sought is to add new def endants, Mississippi Rule o f Civil Procedure
21 is applicable, and requires an o rder f rom the court t o add a new def endant.”). W hile we
agree with Upton that the a ppellants have waived any objection under Rule 2 1 and V eal , this Court is not b a r r e d f

rom considering Rule 21 in i nterpreting this i ssue of f irst im pression under R ule 15. The f

act that Rule 21 requires a court order to a dd an additional party to the suit lends credence t o the interpretation that an am ended com plaint adding a party under Rule

7 U p to n d id n o t rely o n th e f ictitio u s p arties at all in p lead in g v en u e . 1 815 does not relate back to the tim e of f iling. Rule 15’s relation-back doctrine is not intended to apply where a new def

endant is brought into the suit in an attem p t to perf ect venue. ¶42. Other than his pref erred choice of venue, Upton would h ave lost no right s by f iling his suit against the Forrest C ounty def endants in F

orrest County

. M oreover, Upton will lose

no rights as a result of ou r c o n clusion. Upton can pursue the sam e claim s a f ter transf er to Forrest County

. ¶43. Last, Upton alleges no m istake bef ore this Court in f

ailing to join UMMC. Instead, Upton ignored settled interpretations of this S tate’s venue s tatutes, b rought a m e d ical claim and a M TCA claim under the “general venu e s t a t u t e” and—only a f ter t he initial f iling—attem

pted to use Rule 15 later to perf ect venue. ¶44. As the a m e ndm e nt of UMMC does not relate back to t he date of t he original f iling, the trial court abused i ts d i s c r e t i o n i n deny ing the m o tions to transf e r v enue. 8 Upton f

iled suit against the Forrest County def endants in Hinds County , an im proper venue. W e reverse the decision of the trial court a n d r e ma n d the c ase with instructions f or the trial court to transf er the case to Forrest County

. 9

8 We d eclin e to ad d ress F G H ’s arg u m en t co n cern in g its v en u e statu te as v en u e w as n o t p ro p er ag ain st an y d ef en d an t in H in d s C o u n ty

. F u rth er, w e d o n o t an sw er th e q u estio n o f w h e th er th e se claim s co u ld h av e b een j o in ed ag ain st th ese d e f e n d an ts h a d t h e claim s all b een raised i n th e o rig in al co m p lain t ag a in st th e F o rrest C o u n ty an d H in d s C o u n ty d ef en d a n t s, as th e issu e b ef

o re u s to d a y

is ap p ro p riately

n arro w er.
9 We a lso d e clin e to ad d ress th e issu e o f sev e r an ce o f

th e claim s ag a in st U M M C , as U M M C ex p ressly w aiv ed its rig h t to v en u e in H in d s C o u n ty , a n d U p to n ag reed to th e tran sf er o f th e e n tire case if th e trial co u rt d ecid ed th at tran sf er w a s m erited

. “U n d er M ississip p i law , it i s a ‘b asic p rem ise th at v en u e m a y b e w aiv ed .’” L e w i s v. P a g el , 2 0 1 7 WL 2 3 7 7 6 9 0 , at * 6 (M i ss. Ju n e 1 , 2 0 1 7 ) (q u o t in g B elk v. S ta te D ep ’t o

f P u b . W elfa re , 4 7 3 S o .2 d 4 4 7 , 4 5 1 (M iss. 1 9 8 5 )). A lso , S m ith w as d ism i ssed f ro m th e su it b y

stip u latio n . 1 9CONCLUSION

¶45. At the com m encem ent of the suit, Hinds County was the im proper venue. Venue is determ ined a s of the t im e t he lawsuit originally is f iled. The addition of UMMC and Sm ith does n ot relate b ack to the d ate of the f ilin g o f t h e o r i g i nal com

plaint f or t he purposes of determ ining v enue. Thus, t he trial c o u r t a b u s e d its discretion in deny ing the m otion to
t r ansf er v e nue, as v enue was proper only in Forrest County

. W e reverse t he trial court’s denial of the m otion to transf er venue and rem a nd the c ase to the trial court with instructions to transf er it to Forrest County

. ¶46. REVERSED AND REMANDED. WALLER, C .J., RANDOLPH AND K ITCHENS, P.JJ., K ING, M AX WELL, BEAM AND ISHEE, J J., CONCUR. COLEMAN, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J. COLEMAN, JUSTICE, SPECIALLY CONCURRING: ¶47. I concur with the r esult reached and the core reasoning em ploy e d by the m ajority

. I write separately only to sug g e s t respectf ully that, in l ight of statutory changes, the Court should reexam ine its continued adherence to and citation of the concept that where venue is
proper as to one def

endant it is proper to all. (Maj. Op. at ¶ 24). Venue is s et by statute. At

one point, the applicable venue statute indeed provided t hat w hen v enue is proper as to one def endant it is proper to all. However, the Legislature am end e d t h e venue statute and

rem oved the l a nguage. Accordingly , i t is n o longer t he law in Mississippi, and the Court should stop treating it as though it were. ¶48. “The determ ination f o r p r o per venue is governed by statute.” Miss. Crim e Lab. v.

2 0Douglas , 70 So. 3d 196, 202 (¶ 1 6 ) (Miss. 2011); s e e also P ark on Lakeland Drive, Inc. v. Spence , 941 So. 2d 203, 206 ( ¶ 8) (Miss. 2006) (“Venue is a f unction of statute.”) (quoting Flight Line, Inc. v. Tanksley , 608 So. 2d 1149, 1155 (Miss. 1 992)); G uice v. Miss. Life Ins. Co. , 836 So. 2d 756, 759 (¶ 11) (Miss. 2003) (“The venue of a suit in equity in our state is governed entirely by statute.”); S alts v. Gulf Life Ins. Co. , 743 So. 2d 3 71, 373 ( ¶ 7) (Miss. 1999) (“Venue is theref

ore a f unction of

statute.”) ¶49. Mississippi C ode Section 11-11-3 once r ead, in pertinent part, “Civil actions of which the circuit court h as original jurisdiction s hall be c o m m enced in t he c o u n t y in which the def endant or any

of them m a y be f ound. . . .” Miss. Code Ann. 11-11-3 (1984). In a 2002 special session, the Legislature am ended Section 11-11-3 twice. As S ection 11-11-3 went into ef f ect o n January 1, 2003, the above-quo t e d l anguage f rom the 1984 version was

am ended to read, in pertinent p art, “Civil actions of which the circu i t c o u r t h a s original jurisdiction shall be com m enced in the county w here the def endant resides.

. . .” Gone f rom the statute were the words “or any of them .” The January 2003 version evinced a rejection by the Legislature that d ef endants not f

o und in a c ounty could be sued in a county where one other def endant could be f

o und. I n any event, the January 2003 version proved t o be shortl i v e d , as in a 2004 s pecial session, the L egislature again am ended Section 11-11-3, givin g it the wording it retains today . Presently , Section11-11-3(1) provides as f ollows: (1)(a)(i) Civil actions of which the circuit court has o riginal j urisdiction shall be com m enced in the county where the d ef endant resides, o r, if a corporation, in the county of its principa l p l a c e of business, o r i n t he c ounty where a substantial alleged a ct o r om ission occurred or w h ere a substantial event t hat caused the injury

occurred.

2 1(ii) C i v i l actions alleging a def ective product m ay also be com m enced in th e c o u n ty where the plaintif f obtained the product. (b) If venue in a civil a ction against a nonresident def endant cannot be asserted under paragraph (a) of t his subsection (1), a civil action against a nonresident m ay be com m enced in the county where the plaintif

f resides or is dom iciled. Miss. Code Ann. § 11-11-3 (Rev. 2004). The a bove recitation of the history of Section 11- 11-3 since 1984 adm i ttedly is tedious, but the point is that the Legislature chose to rem ove the old l anguage w hich allowed m ultiple d ef

endants to b e s u e d in a county where any one def endant resided. ¶50. W e appear to have grounded our pronouncem ent that “where venue is g ood as to one def endant, it is good a s to a ll def endants,” see, e.g., Wayne General H ospital v. Hayes , 868 So. 2 d 997, 1002 (¶ 23) (Miss. 2004), in the pre-2003 version of the venue stat u t e . For

exam ple, in Hayes , the m ajority quoted the old Section 11-11-3 language i ncluding “or any of them m ay be f

ound” bef ore continuing to cite an e arlier case f o r the proposition t hat where venue is good as to one def e ndant it is good as to all. Id. To be sure, the principle that all def endants m ay be sued in a county w here one r esides predates the 1 984 version of Section 11-11-3, see Jefferson v. Magee , 205 So. 2d 281, 284 ( Miss. 1967), but s o d oes the statutory language supporting the principle. See Miss. Code of 1930 § 495 (1940). ¶51. Venue is a f

unction of s tatute. For decades, t he venue statute provided t hat venue as
to a ll def endants is proper where one of the def endants resid e s . H owever, as of 2003, the Legislature changed the statute and rem oved the l a n g u a ge that so provided. I respectf ully suggest that the C ourt should r ecognize the c h ange in the statute and cease i ts r eliance on the

2 2principle that where venue is proper as to one def endant, it i s proper as to all, a s the principle is no longer f

ound in the general venue statute. WALLER, C.J., JOINS THIS OPINION.

2 3