OF JUDGMENT: 01/10/2017
COUNTY CIRCUIT COURT HON. TOMIE T. GREEN JUDGE
COURT ATTORNEYS: JAMES ASHLEY OGDEN TIMOTHY D. MOORE MELTON
JAMES WEEMS MICHAEL RYAN KELLY TYLER ARTHUR ROYALS JAMES W.
ATTORNEYS FOR APPELLANTS: MICHAEL R. KELLY MELTON JAMES WEEMS
ATTORNEYS FOR APPELLEE: JAMES ASHLEY OGDEN JAMES W. SMITH,
JR. TYLER ARTHUR ROYALS
RANDOLPH, PRESIDING JUSTICE
B&B Management Company, LLC ("B&B") and
Terence McGee ("McGee") appeal the circuit
court's denial of their Motion to Dismiss and Transfer
Venue. Finding that the trial court erred in denying the
relief sought, we reverse the court's order and remand
this case with instructions to dismiss Terence McGee and
transfer venue to the Circuit Court of Madison County.
AND PROCEDURAL HISTORY
Y.X. first filed a premises-liability case in Madison County
against B&B and five John Does, alleging she was injured
on a treadmill in the fitness room of an apartment complex
located in Madison County. Prior to B&B making an
appearance, Y.X. voluntarily dismissed that case and refiled
essentially an identical case in Hinds County, adding McGee,
a former employee of B&B and resident of Hinds County, as
There is no dispute that the alleged incident occurred on
Saturday,  July 18, 2015. On that Saturday, a special
event was held at the complex, where free back-to-school
supplies and food were given away.
Within their answer, B&B and McGee included a Motion to
Dismiss and Transfer, averring that McGee was
"fraudulently joined . . . in an attempt to fix venue in
Hinds County, when the only proper venue for this matter is
Madison County." B&B and McGee submitted that
"[u]nder Mississippi law, there is no viable cause of
action against [McGee] - the employee of a premises manager.
[McGee] should be dismissed with prejudice, and this matter
should be transferred to Madison County, Mississippi."
Later B&B and McGee renewed their pleas by filing a
separate Motion to Dismiss and Transfer Venue, attaching
affidavits of McGee and Brent Yurtkuran, a managing member of
B&B. McGee swore that he was not responsible for creating
or enforcing any safety procedures, placing or installing the
equipment in the fitness room, inspecting or maintaining the
exercise equipment or vending machines in the fitness room,
or supervising or monitoring the equipment. McGee further
swore that he was not working or present at the complex on
July 18, 2015. Yurtkuran swore that McGee was not working on
July 18, 2015, and corroborated McGee's testimony as to
his lack of responsibility for the fitness room and
equipment. B&B and McGee again averred no viable action
existed against McGee and that McGee was added as a defendant
for the sole purpose of attempting to fix venue in Hinds
Y.X. replied with affidavits. She and her mother swore that
they previously had seen McGee in uniform working in and
around the fitness room and that they believed McGee
was responsible for supervising the fitness room, keeping the
door to the fitness room locked, and cleaning the fitness
room. Both swore that it was their understanding that the
door to the fitness room was supposed to be unlocked during
the day. Y.X. swore that, on the occasions when she
previously had seen McGee working at the complex, she had
never seen McGee doing anything in the fitness room other
than cleaning or possibly checking something. Y.X. swore that
she had seen McGee working at the property July 18, 2015.
Y.X. argued that she "had established a reasonable
possibility of recovery against McGee, based on their
[affidavit] testimony that McGee worked in, cleaned, and
inspected the fitness room and locked and unlocked the door
to the fitness room in order to allow residents such as the
Plaintiff to access the vending machine."
B&B and McGee replied that Y.X.'s and her
mother's affidavits were insufficient to demonstrate a
viable cause of action against McGee. B&B and McGee
averred that any actions described by Y.X. related to McGee
on that Saturday did not include acts of negligence for which
he could be held independently liable, even if true. B&B
and McGee reurged that McGee was not a manager or a
"person in charge of the premises" and was not in
charge of making or enforcing any apartment policies. McGee
further testified that he was responsible only for emptying
trash cans and changing filters in the fitness room. McGee
maintained that he was not on the property that Saturday.
B&B and McGee further argued that, even if one assumed
McGee was at the complex on that Saturday, such a fact alone
did not establish a viable cause of action. All parties
agreed an event at which school supplies and food were given
away took place at the complex on Saturday.
Yurtkuran submitted a second affidavit, stating that B&B
had no policy requiring the door to the fitness room be
locked at all times, nor was McGee responsible for keeping
the fitness-room door locked. "Any negligence associated
with the decision to unlock the fitness room door-which is
denied-would have been negligence of the company, not its
During the hearing on the Defendants' Motion to Dismiss
and Transfer Venue, Y.X. moved, ore tenus, to expand
the proceedings further by conducting limited discovery
"on the issue of the viability of a claim for
independent liability against Defendant Terrence McGee prior
to the Court issuing [its] ruling on the Defendants'
Motion to Dismiss and Transfer Venue. . . ." The trial
court granted Y.X.'s ore tenus motion, finding
that limited discovery would aid in deciding the issues.
[T]he parties are permitted to engage in discovery strictly
limited in scope to the specific issue of the viability of a
claim of independent liability against Terence McGee. The
discovery permitted shall be limited to requests for
production and depositions of the Plaintiffs, the manager for
Defendant B&B Management Group, LLC, B&B member Brent
Yurtkuran, and Defendant Terence McGee. . . .
court authorized the parties to submit supplemental briefs
"to apprise the Court of any new information gained
during this limited phase of discovery relevant to the issues
raised by the Defendants [in] their Motion to Dismiss and
Transfer Venue. . . ." The trial court ordered that
discovery was to be completed by October 28, 2016. The trial
court granted the parties an additional month to file
supplemental briefs (by November 30, 2016). The order
provided notice to all parties that the trial court would not
rule on the "Motion to Dismiss and Transfer Venue until
such time as the parties' time for submitting
supplemental briefs as permitted herein has expired."
During discovery, Y.X. testified that she had seen McGee in
street clothes on Saturday, July 18, 2016, "hanging out
there, and I don't know what he was doing. . . . I just
saw him pass by. I didn't really pay attention." She
testified McGee was near the front of the complex and
appeared to be leaving. She further testified that she and
her friends "got something to eat first, and we were
waiting for the supplies. That's why we went to the
fitness room. . . . [W]e went there because we wanted to buy
some drinks, but we ended up playing." The door to the
fitness room was open, and other children were in the fitness
room but left when Y.X. and her friends entered. Y.X. also
testified that she never saw McGee in the fitness room,
opening the door to the fitness room, or locking or unlocking
the door to the fitness room on Saturday, July 18, 2015. Y.X.
also testified that her mother, He Shao, was at work at the
time of the incident. Y.X.'s deposition testimony
contradicted her affidavit in which she said she saw McGee
working at the property on Saturday, July 18, 2016.
All parties filed supplemental briefs on November 30, 2016,
as directed by the trial court's order. In support of
their Motion to Dismiss and Transfer Venue, B&B and McGee
averred that discovery had not revealed any facts to support
an independent claim against McGee, or that McGee was a
"person in charge" or a manager of the complex,
such that he owed a legal duty separate from the
premises-liability claim urged by Y.X. against B&B.
In her supplemental brief, Y.X. acknowledged that she had not
seen McGee working that Saturday. She admitted that she
neither saw McGee the day she claimed injury nor offered any
independent evidence that McGee was in, near, or about the
fitness room that day. Y.X. maintained that she had seen
McGee that Saturday, but never in or at the fitness
room that day.
Without addressing any facts or applicable law, the trial
court denied Defendants' Motion to Dismiss and Transfer
Having reviewed the submissions of the parties, heard oral
arguments and reviewed supplemental discovery, the Court is
of the opinion that there are genuine issues regarding
Terence McGee's liability, both individually and in the
course of his employment which must be resolved by a jury,
rather than by this Court, as a matter of law.
B&B and McGee filed a petition for interlocutory appeal.
This Court granted the petition and stayed all trial-court
proceedings pending the resolution of the appeal.
OF THE ISSUE
The issue as presented by B&B and McGee is stated
verbatim et literatim:
Whether the trial court erred in denying defendants'
motion to dismiss Terence McGee and transfer the case to
Madison County where there is no reasonable claim of
liability against McGee, and no other ...