
    Dr. Beverly A. McMILLAN and Mississippi Baptist Medical Center v. Thomas D. PUCKETT and Tamara L. Puckett, Individually and on Behalf of the Wrongful Death Heirs of Sandra L. Puckett, Deceased.
    No. 94-IA-00166.
    Supreme Court of Mississippi.
    July 28, 1994.
    
      AI Nuzzo, Delia Y. Robinson, Markow Walker Reeves & Anderson, Jackson, Cary E. Bufkin, Eugene R. Naylor, Shell Bufford Bufkin Callicutt & Perry, Jackson, for petitioners.
    Crymes G. Pittman, Robert G. Germany, C. Victor Welsh, Pittman Germany Roberts & Welsh, Jackson, for respondents.
   SMITH, Justice,

for the Court:

This wrongful death cause of action was filed in Leake County, Mississippi, the county in which Sandra L. Puckett died. Dr. Beverly A. McMillan and Mississippi Baptist Medical Center (MBMC) filed a motion for a change of venue in the lower court. The trial judge denied the motion finding that the wrongful death action accrued in Leake County, Mississippi.

McMillan filed a motion requesting certification for an interlocutory appeal of the trial judge’s order and a motion to stay further proceedings. MBMC joined McMillan’s motion. The trial judge denied certification and the motion to stay.

Dr. Beverly A. McMillan filed a petition for interlocutory appeal and stay of all proceedings in the circuit court with the clerk of this Court. Mississippi Baptist Medical Center filed a motion to join McMillan’s petition. The Pucketts filed a brief in opposition to the petition.

On March 11, 1994, the petitioners provided the Court with supplemental authority by letter pursuant to Miss.Sup.Ct.R. 28(j). The petitioners noted that this Court granted an interlocutory appeal and a stay based on the same question at issue in the case at hand. See Burgess v. Lucky, No. 92-IA-0262 (Order entered June 3, 1992).

The case is set for trial on May 4, 1994.

STATEMENT OF FACTS

On June 29, 1991, Tamara L. Puckett went into labor and was admitted to MBMC where she was examined and treated by Dr. McMillan. While Dr. McMillan was off the premises, Tamara developed fetal distress which continued through the delivery of her child, Sandra L. Puckett. The Pucketts claim that Sandra was born with cerebral palsy as a result of the fetal distress.

On December 31, 1991, approximately 6 months after her birth, Sandra died in Leake County, Mississippi. Thomas and Tamara Puckett brought this wrongful death claim on behalf of the wrongful death beneficiaries of Sandra L. Puckett. The Pucketts brought suit in Leake County based on Miss.Code Ann. § 11-11-3.

In the lower court, the Petitioners filed a motion for a change of venue on the basis that the acts complained of did not occur or accrue in Leake County. On August 20, 1993, the lower court entered an order denying the Petitioners’ motion. On October 7, 1993, the Petitioners requested that the lower court certify the issue for interlocutory appeal and stay any further proceedings pending appeal. On February 7, 1994, the lower court denied both requests and Dr. McMillan filed a petition for interlocutory appeal and stay with this Court on February 18, 1994. MBMC filed a motion to join the petition and motion for stay on February 22, 1994.

DISCUSSION

The general venue statute, Section 11-11-3 of the Mississippi Code Annotated, provides, “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 ... except where otherwise provided.... ” (emphasis added) The petitioners contend that venue in this case is only proper in Hinds County because Dr. McMillan is an adult resident of Hinds County, MBMC is a corporation domiciled in Hinds County, and the cause of action occurred and accrued in Hinds County.

The Petitioners contend that there is a distinction between when an action accrues and where an action accrues. Although a cause of action for wrongful death accrues on the date of death for statute of limitations purposes, Gentry v. Wallace, 606 So.2d 1117, 1123 (Miss.1992), this Court has not determined whether a wrongful death action accrues for venue purposes in the county where the person actually dies. A review of other jurisdictions in which a general venue statute applies in wrongful death cases reveals that there is no consistent treatment of this issue. See R.D. Hursh, Annotation, Venue of Wrongful Death Action, 36 A.L.R.2d 1146 (1954).

The Petitioners have presented this Court a question of law about which there is a substantial basis for a difference of opinion. This Court has accepted venue questions on interlocutory appeal. See Forrest County General Hospital v. Conway, No. 93-M-639 (Order entered March 17, 1994); Missouri Pacific R. Co. v. Tircuit, 554 So.2d 878 (Miss. 1989). As noted above, this Court has already granted an interlocutory appeal in Burgess v. Lucky, No. 92-IA-262 (Order entered June 3, 1992), on the exact same issué. In order to “[rjesolve an issue of general importance in the administration of justice[,]” Miss.Sup.Ct.R. 5(a)(3), “resolve conflicts among trial courts in such cases,” and “pro-motet ] uniformity and fairness to litigants[,]” Comment, Miss.Sup.Ct.R. 5, this Court finds that the petition for interlocutory appeal and stay of lower court proceedings should be granted. The Court further finds that the interlocutory appeal should be expedited for consideration on the merits.

HAWKINS, C.J., PRATHER, P.J., and SULLIVAN, PITTMAN, BANKS and JAMES L. ROBERTS, Jr., JJ., concur.

DAN M. LEE, P.J., dissents with separate written opinion.

McRAE, J., dissents with separate written opinion joined in part by DAN M. LEE, P.J.

DAN M. LEE, Presiding Justice,

dissenting:

I do not agree that this Court should grant an interlocutory appeal pursuant to Miss. S.Ct.R. 5, as there is no irreparable injury shown and I join in that part only of my brother, Justice McRae’s, dissent. However, I do not believe it is necessary at this stage for this Court to pass upon the refusal of the trial court to grant a change of venue.

McRAE, Justice

dissenting:

This matter'came before the Court sitting en banc on the petitioners’ request for an interlocutory appeal and a stay of all trial court proceedings pursuant to Miss.S.Ct.R. 5. This Court found the petition meritorious and granted the interlocutory appeal, thus staying all lower court proceedings until the interlocutory appeal is decided.

I, however, would deny this petition since it does not meet the irreparable injury requirement of Miss.S.Ct.R. 5 as alleged by the defendants. This case involves a wrongful death action where the claim accrued in Leake County and since Miss.Code Ann. § 11-11-3 (Supp.1993) allows one to bring a cause of action in the county where the cause of action accrues, the plaintiffs choice of venue, Leake County, was correct. Accordingly, I dissent.

Sandra L. Puckett was born in Hinds County, Mississippi. She suffered fetal distress during her delivery at the Mississippi Baptist Medical Center, and, as a result, procured cerebral palsy. On December 31, 1991, approximately six months later, Sandra died in Leake County, Mississippi. Sandra’s parents commenced a wrongful death suit against Sandra’s doctor and the Mississippi Baptist Medical Center in Leake County pursuant to Miss.Code Ann. § 11-11-3 (Supp. 1993). The defendants filed a motion for a change of venue in the lower court requesting that the suit be brought in Hinds County, Mississippi. The trial court, however, denied the motion finding that the cause of action accrued in Leake County, the place where Sandra died. The defendants filed a petition for interlocutory appeal and a stay of all proceedings in the circuit court arguing that venue was not proper in Leake County but was proper in Hinds County where the alleged medical negligence occurred.

In their motions, defendants alleged that irreparable injury would exist if they had to retry the case in another county. Today’s order which grants an interlocutory appeal opens the floodgates for all parties who desire such action, and, as for now, this Court, in effect, cannot deny interlocutory appeals based on irreparable injury since any party can claim irreparable injury based on the necessity of a retrial.

Rule 5 of the Mississippi Supreme Court Rules provides in pertinent part:

An appeal from an interlocutory order may be sought if the order grants or denies certification by the trial court that a substantial basis exists for a difference of opinion on a question of law as to which appellate resolution may:
(1) Materially advance the termination of the litigation and avoid exceptional expense to the parties; or
(2) Protect a party from substantial and irreparable injury; or
(3) Resolve an issue of general importance in the administration of justice.

The petitioners claimed that irreparable injury existed because the case would be tried in the wrong venue, and, unfortunately, this Court bought into their argument. To. assert that retrying a case constitutes irreparable harm is ludicrous. The majority reasons that this interlocutory appeal is meritorious since we have before on occasion entertained venue questions on interlocutory appeal. However, two wrongs do not make a right, and the Comment to Miss.S.Ct.R. 5 provides:

The standards for granting interlocutory appeal are based on existing law. Appeal will not be permitted except to resolve a question of law, and this includes the application of law to fact. There must be a substantial basis for a difference of opinion with the trial court.

The majority claims that there is a substantial basis for a difference of opinion as to where proper venues lies because we have not determined where wrongful death actions accrue for purposes of venue. Having reviewed the applicable law, there is no question of law that needs resolving or any basis for a difference in opinion between this Court and the trial court. It is quite obvious that the trial court’s decision will not be reversed in light of the plain reading of Miss.Code Ann. § 11-11-3 which provides that venue is appropriate where an action may occur or accrue. Miss.Code Ann. § 11-11-3 (1993).

In the recent case of Gentry v. Wallace, 606 So.2d 1117 (Miss.1992), we found, for purposes of statute of limitations, that a plaintiffs wrongful death action accrues at the date of the death of the decedent. Gentry, 606 So.2d at 1123. No distinction can be drawn between when an action accrues and where an action accrues. Sandra’s heirs’ claims accrued on the date of Sandra’s death, and on the date of Sandra’ death, she was in Leake County. This Court’s underlying purpose for determining the definition of accrue in wrongful death actions is of no importance. What is important is that we have plainly held that a wrongful death action, which the majority admits this cause of action is, accrues at the date of the decedent’s death. The cause of action may be brought in Leake County, and, therefore, it is not proper for this Court to grant an interlocutory appeal.

Moreover, it is of interest that when a criminal defendant’s liberty interest in involved, this Court has virtually abolished interlocutory appeals. In Beckwith v. State, 615 So.2d 1134 (Miss.1992), we refused to entertain an interlocutory appeal in the criminal setting and provided:

It is simply carrying Rule 5 too far to hold that a majority of this Court has the authority to intervene and interpose ourselves into a circuit court criminal trial, stop all proceedings, and order the discharge of a criminal defendant to protect an alleged violation of a right that can be addressed, and if violated, fully vindicated on appeal.

Beckwith, 615 So.2d at 1144.

It is obtuse for this Court to find irreparable injury where a party merely claims that venue is incorrect but also find no existence of irreparable harm where a criminal defendant’s constitutional due process rights are in question. I would deny the petition for interlocutory appeal because the irreparable injury element has not been met. Secondly, the plain reading of Mississippi’s venue statute, Miss.Code Ann § 11-11-3 (Supp.1993), and case law allows the cause of action to be filed in Leake County.

DAN M. LEE, P.J., joins this opinion in part.  