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B&B Management Company, LLC v. Y.X.

Supreme Court of Mississippi, En Banc

June 21, 2018

B&B MANAGEMENT COMPANY, LLC AND TERENCE McGEE, INDIVIDUALLY
v.
Y.X., A MINOR BY AND THROUGH HER MOTHER AND NEXT FRIEND, HE SHAO

          DATE OF JUDGMENT: 01/10/2017

          HINDS COUNTY CIRCUIT COURT HON. TOMIE T. GREEN JUDGE

          TRIAL COURT ATTORNEYS: JAMES ASHLEY OGDEN TIMOTHY D. MOORE MELTON JAMES WEEMS MICHAEL RYAN KELLY TYLER ARTHUR ROYALS JAMES W. SMITH, JR.

          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

         ¶1. 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.

         FACTUAL AND PROCEDURAL HISTORY

         ¶2. 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 a defendant.[1]

         ¶3. There is no dispute that the alleged incident occurred on Saturday, [2] 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.

         ¶4. 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."

         ¶5. 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 County.

         ¶6. 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.

         ¶7. 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."

         ¶8. 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.

         ¶9. 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 maintenance employee."

         ¶10. 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. . . .

         The 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."

         ¶11. 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.

         ¶12. 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.

         ¶13. 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.

         ¶14. Without addressing any facts or applicable law, the trial court denied Defendants' Motion to Dismiss and Transfer Venue:

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.

         ¶15. 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.

         STATEMENT OF THE ISSUE

         ¶16. 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 ...

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