Don Sauvage v. Meadowcrest Living Center, LLC.

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2008-CA-02116-SCT

DON SAUVAGE AND GENE SAUVAGE,
INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVES OF THE ESTATE OF
ARANKA ABADIE SAUVAGE, DECEASED

v.

MEADOWCREST LIVING CENTER, LLC., STEVE
YANCOVICH, ADMINISTRATOR OF
MEADOWCREST LIVING CENTER, LLC.,
TRANSITION HEALTH SERVICES OF
LOUISIANA, LLC., ROBERT R. BATES,
CORPORATE PRESIDENT OF TRANSITION
HEALTH SERVICES OF LOUISIANA, LLC., NEW
ORLEANS TOURS, INC., AND JAMES E. SMITH,
JR., REPRESENTATIVE FOR NEW ORLEANS
TOURS, INC., JOHN DOES 1-25

DATE OF JUDGMENT: 11/21/2008
TRIAL JUDGE: HON. WILLIAM F. COLEMAN
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS: STEPHEN W. MULLINS
ATTORNEYS FOR APPELLEES: COREY DONALD HINSHAW
CLIFFORD B. AMMONS
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED - 02/25/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

CHANDLER, JUSTICE, FOR THE COURT:
¶1. Don Sauvage and Gene J. Sauvage (the Sauvages), individually, and as the personal

representatives of the estate of Aranka Abadie Sauvage (Aranka), filed a wrongful-death

lawsuit in the Circuit Court of Hinds County against Meadowcrest Living Center, LLC

(Meadowcrest), Steve Yancovich, Transition Health Services of Louisiana, LLC, Robert

Bates, New Orleans Tours, Inc., James E. Smith, Jr., and John Does 1-25. The complaint

alleged that Meadowcrest was a nursing home in the City of Gretna, Louisiana, and that, on

August 28, 2005, the eve of Hurricane Katrina, Meadowcrest evacuated its elderly residents

to a church camp in Raymond, Mississippi. The complaint alleged that Aranka was one of

the evacuated residents, and that she died on September 1, 2005, as the result of inadequate

medical care at the church camp. The Sauvages filed an almost identical action in Jefferson

Parish, Louisiana. The circuit court dismissed the complaint based on lack of personal

jurisdiction over the defendants, or alternatively, forum non conveniens, and the Sauvages

appeal from the dismissal.

¶2. On appeal, the Sauvages argue that the circuit court erred by dismissing the case for

lack of personal jurisdiction or forum non conveniens. The defendants address these issues

and make the additional argument that dismissal was proper because the pendency of an

action is a bar to a second action involving the same parties and subject matter. We find that

under our wrongful-death statute and interpretive caselaw, the Mississippi action was

properly dismissed due to the pendency of the prior-filed Louisiana wrongful-death action.

Miss. Code Ann. § 11-7-13 (Rev. 2004). Therefore, we affirm.

FACTS

A. The complaint

2
¶3. The Sauvages filed the complaint on October 3, 2007, asserting their status as

Aranka’s grandchildren and the personal representatives of her estate. The complaint

identified the individual defendants as: Meadowcrest Living Center, LLC, a Louisiana

limited-liability company doing business in Gretna in Jefferson Parish, Louisiana; Steve

Yancovich, the signatory and administrator of Meadowcrest; Transition Health Services of

Louisiana, LLC, a Texas limited-liability company that managed Meadowcrest Living

Center; Robert R. Bates, the corporate president of Transition Health Services; New Orleans

Tours, Inc., which transported the elderly residents to the church camp in Raymond,

Mississippi; James E. Smith, a representative of New Orleans Tours, and John Does 1-25.

¶4. The Sauvages averred that Aranka was a Louisiana resident at the time of her death,

and that the Sauvages and all the defendants were Louisiana residents. The Sauvages

claimed that on August 25, 2005, Robert Bates became aware that Hurricane Katrina was

gathering strength over the Gulf of Mexico and it had the ability to impact or destroy

Meadowcrest’s nursing home, yet Meadowcrest made no attempt to evacuate its residents

until August 28, 2005, when the hurricane was less than twenty-four hours from landfall.

The Sauvages claimed that, pursuant to Meadowcrest’s evacuation plan, 102 elderly, bed-

ridden residents were transported in three tour buses to the United Pentecostal Church (UPC)

Camp located in Raymond, Mississippi, a location which actually was in the path of

Hurricane Katrina. According to the Sauvages, the UPC Camp consisted of a “large metal

building with a concrete floor.” Hurricane Katrina struck the area early the next day, on

August 29, 2005. The Sauvages claimed that in Hurricane Katrina’s wake, the UPC Camp

lost electrical power, and the building in which Aranka and the others were confined became

3
“very hot, humid[,] and smelled of human waste.” They claimed that Aranka and at least one

other elderly resident died as a result of these conditions.

¶5. The Sauvages asserted negligence claims against all defendants, alleging that

confining Aranka to the metal building without adequate medical care proximately caused

Aranka’s death, and that the defendants knew or should have known that the UPC camp was

unfit housing for the elderly residents. They claimed that the defendants were negligent in

failing to formulate and implement a contingency plan for the evacuation, despite advance

knowledge that the UPC camp was in the path of Hurricane Katrina. They claimed that the

defendants’ actions breached the standard of reasonable care. They further claimed New

Orleans Tours was negligent in failing to ensure the residents were transported to a proper

and safe location. The Sauvages also asserted breach-of-contract claims against

Meadowcrest and New Orleans Tours. The Sauvages asserted that the defendants’ conduct

constituted gross negligence and willful and wanton disregard for Aranka’s welfare, and they

requested compensatory and punitive damages.

B. Subsequent proceedings

¶6. On December 14, 2007, Meadowcrest, Yancovich, Transition, and Bates answered

and moved to dismiss for reasons including lack of personal jurisdiction and forum non

conveniens.1 On January 3, 2008, they filed a separate “Motion to Dismiss for Lack of

1
New Orleans Tours and James E. Smith, Jr., did not file an answer or otherwise
appear in the case. The circuit court issued summonses for all defendants, but it has no
record of summons returns for any defendant. Because a person named in a complaint does
not become a party until served with process, New Orleans Tours and James E. Smith, Jr.,
are not parties remaining before the circuit court. Stanley v. Allstate Ins. Co., 465 So. 2d
1023, 1025 (Miss. 1985). Defendants Meadowcrest, Yancovich, Transition, and Bates

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Personal Jurisdiction or Based on Forum Non Conveniens.” These defendants asserted that

on January 27, 2006, the Sauvages had filed another, similar action that was pending in

Jefferson Parish, Louisiana. They attached a copy of the complaint in the Jefferson Parish

action, in which the Sauvages asserted wrongful-death claims against Meadowcrest and

Transition based upon the same conduct described in the Mississippi complaint. They

requested class-certification status, to include all Meadowcrest residents who were present

on August 28, 2005, who suffered damages, including those who were evacuated and

transported to Mississippi.

¶7. The defendants asserted a lack of personal jurisdiction, noting that no party to this

case is a Mississippi resident and all allegedly negligent decisions concerning the evacuation

occurred in Louisiana. Alternatively, the defendants argued that the case should be dismissed

under the doctrine of forum non conveniens because Mississippi is an inconvenient forum

for trial, and Jefferson Parish is the more appropriate forum.

¶8. The Sauvages filed a response, asserting that personal jurisdiction was proper under

Mississippi’s long-arm statute, and that Mississippi’s assertion of jurisdiction over the

defendants comported with due process. In a response to the defendants’ rebuttal, they

additionally argued that the case should not be dismissed under the doctrine of forum non

conveniens. At the hearing on the motion to dismiss, the Sauvages stated that if the circuit

waived the defenses of insufficiency of service of process and insufficiency of process by
omitting these defenses from their answer and motion to dismiss. Miss. R. Civ. P. 12(h)(1).
Therefore, the order dismissing Meadowcrest, Yancovich, Transition, and Bates fully
adjudicated the case as to all parties and it was a final, appealable judgment. Miss. R. Civ.
P. 54(b), 58.

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court denied the motion to dismiss and allowed the case to proceed, they would dismiss the

Jefferson Parish action.

¶9. The circuit court dismissed the complaint on July 11, 2008. The circuit court found

that Mississippi’s long-arm jurisdiction did not extend to the defendants because “the torts

alleged, which concerned lack of reasonable care as to planning and/or carrying out

evacuation plans, occurred primarily in the State of Louisiana.” The court further found that,

even if jurisdiction were proper under the long-arm statute, the defendants lacked minimum

contacts with the State of Mississippi and assertion of jurisdiction over them would be

unconstitutional. Alternatively, the circuit court dismissed the action under the doctrine of

forum non conveniens because Louisiana was a more appropriate forum. In support of this

finding, the court noted that the Sauvages previously had commenced the Jefferson Parish

action concerning the same set of facts, that all defendants are nonresidents of Mississippi,

that Meadowcrest is a Louisiana LLC doing business in Louisiana, and that the evacuation

plan was put into effect in Louisiana. The trial court denied the Sauvages’ motion for

reconsideration.

¶10. The Sauvages have timely appealed, arguing that the circuit court erred by dismissing

their complaint.

DISCUSSION

¶11. The parties’ arguments primarily focus upon the circuit court’s alternative grounds

for dismissal, lack of personal jurisdiction and forum non conveniens. The defendants also

argue that, although the circuit court did not find that the prior Louisiana lawsuit was a bar

to this Mississippi lawsuit, the court correctly dismissed this lawsuit because the pendency

6
of a prior action is a bar to a second action involving the same parties and the same subject

matter. Although we adopt a somewhat different analysis than that promulgated by the

defendants, we find this issue to be dispositive of this appeal. Therefore, we do not discuss

the issues raised by the Sauvages.

¶12. The defendants cite Abiaca Drainage District of Leflore, Holmes & Carroll Counties

v. Albert Theis & Sons, Inc., 185 Miss. 110, 187 So. 200, 201 (1939), in which the Court

held: “[t]he pendency of a prior suit between the same litigants and involving the same

subject matter constitutes a bar unless adequate relief is not attainable in the prior suit.”

Abiaca Drainage concerned competing lawsuits involving the same parties and subject

matter that were filed in chancery court and in circuit court, respectively. The case of Smith

v. Holmes, 921 So. 2d 283, 286 (Miss. 2005), states that Abiaca articulated the rule for

priority jurisdiction between courts of concurrent jurisdiction. This rule provides that “a

second action based on the same cause will generally be abated where there is a prior action

pending in a court of competent jurisdiction within the same state or jurisdictional territory,

between the same parties, involving the same or substantially the same subject matter and

cause of action, and in which prior action the rights of the parties may be determined and

adjudged.” Id. (emphasis added) (quoting Long v. McKinney, 897 So. 2d 160, 172 (Miss.

2005)). “It is fundamental that a plaintiff is not authorized simply to ignore a prior action

and bring a second, independent action on the same state of facts while the original action

is pending.” Id. (quoting Lee v. Lee, 232 So. 2d 370, 373 (Miss. 1970)).

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¶13. In Long, this Court discussed the rule of priority jurisdiction in the context of

wrongful-death suits, which are governed by Mississippi Code Section 11-7-13. Long, 897

So. 2d at 171-73; Miss. Code Ann. § 11-7-13 (Rev. 2004). Section 11-7-13 provides:

Whenever the death of any person or of any unborn quick child shall be
caused by any real, wrongful or negligent act or omission, or by such unsafe
machinery, way or appliances as would, if death had not ensued, have entitled
the party injured or damaged thereby to maintain an action and recover
damages in respect thereof, or whenever the death of any person or of any
unborn quick child shall be caused by the breach of any warranty, express or
implied, of the purity or fitness of any foods, drugs, medicines, beverages,
tobacco or any and all other articles or commodities intended for human
consumption, as would, had the death not ensued, have entitled the person
injured or made ill or damaged thereby, to maintain an action and recover
damages in respect thereof, and such deceased person shall have left a widow
or children or both, or husband or father or mother, or sister, or brother, the
person or corporation, or both that would have been liable if death had not
ensued, and the representatives of such person shall be liable for damages,
notwithstanding the death, and the fact that death was instantaneous shall in
no case affect the right of recovery. The action for such damages may be
brought in the name of the personal representative of the deceased person or
unborn quick child for the benefit of all persons entitled under the law to
recover, or by widow for the death of her husband, or by the husband for the
death of the wife, or by the parent for the death of a child or unborn quick
child, or in the name of a child, or in the name of a child for the death of a
parent, or by a brother for the death of a sister, or by a sister for the death of
a brother, or by a sister for the death of a sister, or a brother for the death of a
brother, or all parties interested may join in the suit, and there shall be but one
(1) suit for the same death which shall ensue for the benefit of all parties
concerned, but the determination of such suit shall not bar another action
unless it be decided on its merits. Except as otherwise provided in Section
11-1-69, in such action the party or parties suing shall recover such damages
allowable by law as the jury may determine to be just, taking into
consideration all the damages of every kind to the decedent and all damages
of every kind to any and all parties interested in the suit.

Miss. Code Ann. § 11-7-13 (Rev. 2004) (emphasis added). In Long, the Court noted that the

statutory language allows but “one suit” for the same death, for the benefit of all concerned

parties. Id. at 171-72. The Court observed that competing wrongful-death suits usually will

8
involve the same parties and subject matter; therefore, “a logical extension of the principle

of priority jurisdiction requires that all claims for the wrongful death of a person be litigated

in the same suit and in the same court.” Id. at 172. Accordingly, the Court held “that the

first court to properly take jurisdiction of a wrongful-death action in our state courts shall,

so long as that action is pending, have exclusive jurisdiction, and any other

subsequently-filed action for the same death shall be of no effect.” 2 Id. at 173.

¶14. Long applies when two wrongful-death suits are currently pending at the time the trial

court decides a motion to dismiss. Briere v. South Cent. Reg’l Med. Ctr., 3 So. 3d 126, 129

(Miss. 2009). In Briere, the plaintiff filed a wrongful-death action against Cottonwood

Manor nursing home, and then filed a second wrongful-death action against South Central

Regional Medical Center (SCRMC). Id. at 127. SCRMC moved to dismiss on the basis that

the pending action against Cottonwood barred a second wrongful-death lawsuit. Id. at 128.

At the hearing on the motion to dismiss, the plaintiff voluntarily dismissed the suit against

Cottonwood. Id. However, the trial court subsequently granted SCRMC’s motion to dismiss

the second lawsuit because it had been filed while another suit for the same death was

pending. Id. This Court reversed the dismissal of the second suit. Id. at 129. We noted that

under Section 11-7-13, a second wrongful-death suit is not barred if an initial action was

dismissed without a decision on the merits. Id. We clarified Long and held that a second

suit may not be dismissed just because, at some point, it was pending at the same time as a

2
This Court also has held that Section 11-7-13 and Long prohibit the severance of a
wrongful-death lawsuit. Adams v. Baptist Mem’l Hosp.-Desoto, Inc., 965 So. 2d 652 (Miss.
2007).

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previously-filed suit. Id. Because the first suit was dismissed without a decision on the

merits, the second suit was the only wrongful-death suit pending when the trial court

addressed SCRMC’s motion to dismiss, and it was not subject to dismissal. Id.

¶15. As in Long and Briere, in this case, the Court is confronted with two lawsuits for the

same death. But unlike in Long and Briere, the instant lawsuits were filed in two different

states. Arguably, the rule articulated in Long that the court that entertains the first-filed

action “shall have exclusive jurisdiction” applies only if the first-filed action was brought “in

our state courts.” Long, 897 So. 2d at 173. In fact, in Brown v. Brown, 493 So. 2d 961, 963

(Miss. 1986), this Court stated “that there is another action regarding the same subject matter

pending in the courts of a sister state poses no jurisdictional obstacle to a court of this state

of otherwise competent jurisdiction hearing and adjudging the matter in controversy.”

However, Brown involved competing state-court divorce proceedings, not competing

wrongful-death suits. Id. at 962.

¶16. At the time the Sauvages filed their wrongful-death suit in Hinds County, another suit

for the same death was pending in Louisiana. The Louisiana action remained pending at the

time the trial court determined the motion to dismiss. Under Section 11-7-13, there shall be

one suit for the same death; under Long, all claims must be joined in that single action.

Long, 897 So. 2d at 174; Miss. R. Civ. P. 19; Miss. Code Ann. § 11-7-13 (Rev. 2004). These

fundamental procedural rules for wrongful-death litigation in this state would be thwarted

if our courts entertained a wrongful-death action in Mississippi, while a previously-filed suit

for the same death was pending in another state. We hold that a wrongful-death suit filed in

10
Mississippi is subject to dismissal during the pendency of a suit for the same wrongful death

in a sister state.3 Accordingly, we affirm the dismissal of the Sauvage’s complaint.

¶17. AFFIRMED.

CARLSON, P.J., DICKINSON, RANDOLPH AND PIERCE, JJ., CONCUR.
LAMAR, J., CONCURS IN RESULT ONLY. DICKINSON, J., SPECIALLY
CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J.
KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
WALLER, C.J.; GRAVES, P.J., JOINS IN PART.

DICKINSON, JUSTICE, SPECIALLY CONCURRING:

¶18. I concur with the majority opinion. The majority correctly concludes that the

Sauvages’ previously filed wrongful-death suit in Louisiana requires dismissal of the suit in

Mississippi. Our wrongful-death statute provides that “there shall be but one (1) suit for the

same death . . . .” Miss. Code Ann. § 11-7-13 (Rev. 2004). See Long v. McKinney, 897 So.

2d 160, 171-73 (Miss. 2005)). The fact that the plaintiffs brought the two suits in different

states is of no moment.

¶19. I write separately to provide a salve to assuage the dissent’s concern that – because

the plaintiffs may “be unable to recover punitive damages in Louisiana – ‘adequate relief’ 4

may not be obtainable by them in that state’s courts . . . .” In Mississippi, punitive damages

are not considered “relief” to which a plaintiff is entitled. In fact, our trial courts consistently

inform juries that

3
Our holding today rests upon the wrongful-death statute’s one-suit requirement and
the procedural rules this Court has developed to manage wrongful-death litigation consistent
with that requirement. This decision does not erode the general rule that a previously-filed
action in a sister state is no bar to an action in Mississippi.
4
See generally Abiaca Drainage Dist. of Leflore, Holmes & Carroll Counties v.
Albert Theis & Sons, Inc., 187 So. 200, 201 (Miss. 1939).

11
 punitive damages are added damages awarded for the social value in bringing
a wrongful party to account for his/her/its actions and to discourage others
from acting in a similar manner. Such damages are not awarded as a matter of
right and are not based on the idea of benefitting an injured party, but are
instead founded on the premise of punishing the wrongdoer. The paramount
purpose in awarding punitive damages is to punish the wrongdoer and deter
similar misconduct in the future by the defendant and others, while the purpose
of compensatory damages is to make the plaintiff whole.

Miss. Model Jury Instr. Civil § 11:15 (2009-10). Furthermore, the Mississippi Code
provides:

The trier of fact shall be instructed that the primary purpose of punitive
damages is to punish the wrongdoer and deter similar misconduct in the future
by the defendant and others while the purpose of compensatory damages is to
make the plaintiff whole.

Miss. Code Ann. § 11-1-65 (1)(e)(Rev. 2002).

¶20. Thus, the absence of punitive damages in Louisiana may facilitate defendants’ escape

from civil punishment, but it in no way deprives plaintiffs of a remedy to which they are

entitled. If it did, one would wonder why the plaintiffs chose to file suit there in the first

place.

CHANDLER, J., JOINS THIS OPINION.

KITCHENS, JUSTICE, DISSENTING:

¶21. I do not agree with the reasoning or the conclusion of the majority opinion, which

holds that a wrongful death complaint filed in a court of competent jurisdiction in this state

must be dismissed if a similar action is pending in a sister state, a holding that is at odds with

this Court’s prior interpretation and application of priority jurisdiction.

¶22. Each of the cases relied upon by the majority stands for the proposition that the first

suit filed takes priority over any other case based on the same cause of action that is filed in

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the same jurisdiction. See, e.g. Abiaca Drainage Dist. of Leflore, Holmes & Carroll

Counties v. Albert Theis & Sons, Inc., 187 So. 200 (Miss. 1939); Long v. McKinney, 897

So. 2d 160 (Miss. 2005); Smith v. Holmes, 921 So. 2d 283 (Miss. 2005). However, the

majority has failed to cite authority in support of its conclusion that priority jurisdiction

operates to terminate a Mississippi case which was filed subsequent to a similar or related

action in another state that involves the same litigants.

¶23. Other problems with the majority opinion’s reasoning are manifest. First, the rule

articulated in Abiaca Drainage – that “the pendency of a prior suit between the same litigants

and involving the same subject matter constitutes a bar unless adequate relief is not

obtainable in the prior suit” – does not support the majority’s logic, because, in the case at

bar, it has not been – and, at this point, cannot be – determined whether “adequate relief is

obtainable [in the Louisiana action].” Abiaca Drainage, 187 So. at 201. Given the potential

that the plaintiffs will be unable to recover punitive damages in Louisiana, “adequate relief”

may not be obtainable by them in that state’s courts, depending, of course, on the proof that

ultimately is adduced.5 Id. The plaintiffs have sued for punitive damages in their Mississippi

5
Article 3546 of the Civil Code of Louisiana provides,

Punitive damages may not be awarded by a court of this state
unless authorized: (1) by the law of the state where the injurious
conduct occurred and by either the law of the state where the
resulting injury occurred or the law of the place where the
person whose conduct caused the injury was domiciled; or (2)
By the law of the state in which the injury occurred and by the
law of the state where the person whose conduct caused the
injury was domiciled.

La. Civ. Code Ann. art. 3546 (1994).

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action. To be sure, they are a very long way from collecting punitive damages; nevertheless,

Mississippi’s law affords them a far better opportunity of doing so than does Louisiana’s,

whose law makes that possibility exceedingly remote.6

¶24. Second, the rule in Abiaca Drainage applies only to actions involving “the same

litigants and involving the same subject matter.” Id. Here, this Court is unable to determine

who the parties in the Louisiana action will be at trial, because there is no indication in the

record that the Louisiana court has decided whether to certify the case filed there as a class

action, which, from the limited information before us, appears to be the main thrust of the

Louisiana case. Of course, this constitutes a major difference in the two cases: class actions

are permitted in the state courts of Louisiana, but are nonexistent in Mississippi’s state

courts. Thus, the parties who filed the Louisiana case eventually could become class

members there, along with a multitude of other people, and not individual plaintiffs, as they

will always be in the Mississippi case. It also is possible that the Louisiana court could

certify a class that excludes the Sauvage plaintiffs. However, as it stands, the question of

whether the parties at a Mississippi trial and the parties at a Louisiana trial will be the same

6
While the “salve” offered by my valued friend and colleague, Justice Dickinson,
does not go unappreciated, it is nevertheless incomplete in its attempted instruction, as it
stops short of mentioning one of the long-established reasons that Mississippi has allowed
punitive damages as a deterrent measure: “Punitive damages are punishing damages, and are
awarded to the injured party as a reward for his public service in bringing the wrongdoer
to account.” Neal v. Newburger Co., 123 So. 861, 863 (Miss. 1929); see also Bankers Life
and Cas. Co. v. Crenshaw, 483 So. 2d 254, 269 (Miss. 1985) (“The basis for awarding
[punitive] damages is to reward a plaintiff for public service in bringing the wrongdoer to
account.”). That said, the writer does understand that punitive damages are not meant to be
compensation to a plaintiff.

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is an unanswered question that must be answered before any court can determine whether the

“same litigants” element is present. Id.

¶25. The majority cites but one case pertaining to priority jurisdiction in the interstate

setting, Brown v. Brown, 493 So. 2d 961, 963 (Miss. 1986), and concludes that because

“Brown involved competing divorce proceedings, not competing wrongful-death suits,”

Brown is distinguishable and does not govern this case. Maj. Op. at ¶ 15. With respect, this

logic is beyond my comprehension; I am unable to fathom any reason why it is valid. The

holding in Brown – “. . . another action regarding the same subject matter pending in the

courts of a sister state poses no jurisdictional obstacle to a court of this state of otherwise

competent jurisdiction hearing and adjudging the matter in controversy . . .” – provides the

only on-point precedent in Mississippi jurisprudence, and, thus, should be followed. Id. at

963 (citing Kline v. Burke Constr. Co., 260 U.S. 226, 232, 43 S. Ct. 79, 81, 67 L. Ed. 226,

231 (1922); Cuevas v. Cuevas, 191 So. 2d 843, 847-48 (Miss. 1966); Cox v. Cox, 108 So.

2d 422, 424 (1959); Ex Parte Buck, 291 Ala. 689, 691 (1973); Streckfus Steamers, Inc. v.

Kiersky, 163 So. 830, 835 (1935)).

¶26. In Crawford v. Morris Transportation, Inc., 990 So. 2d 162 (Miss. 2008), this Court

noted,

For priority jurisdiction to apply, the second action “should be between the
same parties, seeking on the one hand, and opposing on the other, the same
remedy, and should relate to the same questions.” As a general rule, the
principle of priority jurisdiction does not apply where like suits are pending in
both state and federal courts. Because federal and state courts are separate
jurisdictional sovereigns, “the pendency of an action in a federal court is no
ground for abatement of a like suit in a state court.”

15
Id. at 169 (internal citation omitted). In Crawford, a self-proclaimed “procedural quagmire”

of a case, this Court held that, because the respective actions pending in the federal district

court for the Northern District of Mississippi and the Circuit Court of Coahoma County

“were not separate causes of actions,” the principle of priority jurisdiction was inapplicable.

Id. at 174. Thus, Crawford is distinguishable from the case at hand. Yet, if a federal court

and a state court in the same state are not precluded by priority jurisdiction from going

forward independently, it logically follows that priority jurisdiction should not bar a

Mississippi trial of this case merely because a similar (though certainly not identical) action

is pending in a sister state. Id. at 169.

¶27. Moreover, Mississippi is not alone in this interpretation of priority jurisdiction. The

Ohio Court of Appeals, Second District, Miami County, has observed,

The fact that an action is pending in another state does not constitute a defense
to an action between the same parties over the same cause of action in Ohio.
An Ohio court’s options, in this situation, are to grant a stay pending the
resolution of the earlier action outside Ohio, or to maintain the action in the
state. In other words, dismissal is not an option at this stage of the
proceedings.

Commercial Union Ins. Co. v. Wheeling Pittsburgh Corp., 106 Ohio App. 3d 477 (1995);

See also, Buck, 291 Ala. at 691. The Restatement of Conflicts also speaks to the general

acceptance of this rule among jurisdictions. “A state may entertain an action even though

an action on the same claim is pending in another state.” Restatement (Second) of Conflicts

§ 86 (1971). “While the pendency of a foreign action is not a bar to the maintenance of an

action in the state of the forum, it may induce the court to grant a stay of the latter action.”

Id. (Emphasis added.) This rule applies “whether the two actions are both instituted in State

16
courts or in federal courts or one in a State court and the other in a federal court,” and the

rule “does not result in the imposition of double liability on the defendant, since the judgment

first handed down effectively bars further prosecution of the second action,” whether through

comity or full faith and credit. Id.

¶28. The foregoing authorities make it clear that the doctrine of priority jurisdiction does

not preclude a Mississippi court’s proceeding with this matter, as Louisiana and Mississippi

are “separate jurisdictional sovereigns.” Crawford, 990 So. 2d at 169; Brown, 493 So. 2d

at 963. Moreover, it is evident that there are fundamental differences in the two cases.

¶29. As for the argument that the “but one (1) suit” language in the first paragraph of our

wrongful death statute deprives Mississippi’s courts of their right to proceed with a

traditional wrongful death case when a class action involving the same parties and facts is

pending in the courts of a separate jurisdictional sovereign, be it a U.S. state or a foreign

country, this ignores other pertinent language in the same statute, as well as the obvious

purpose of the “one (1) suit” limitation. Clearly, that language is intended to prevent

multiple wrongful death beneficiaries from filing separate suits in Mississippi courts – the

only courts over which we can exercise control – for the same decedent’s alleged wrongful

death.

¶30. During most of Mississippi’s legal history, plaintiffs could file civil actions in the

county of their residence. Thus, if a wrongful death claim occurred or accrued, in whole or

in part, anywhere in Mississippi, a Mississippi resident with standing to pursue a wrongful

death claim in such case could file suit in the county of his or her residence, without regard

to whether the cause of action occurred or accrued in that same county, or elsewhere in the

17
state. So, if multiple siblings, living in various Mississippi counties, wished to file separate

wrongful death actions for the alleged wrongful death of their mother or father in each of the

siblings’ respective counties of residence, as well as in a county where an alleged tortfeasor

resided, and also in the county where the cause of action occurred or accrued, they could

have done so, but for the “but one (1) suit” restriction.

¶31. However, if one or more of those prospective beneficiaries filed his or her suit in

another sovereign jurisdiction, our wrongful death statute did not, and still does not, prohibit

his filing and prosecuting an identical cause of action in Mississippi, in light of all the

authorities cited above.

¶32. The “but one (1) suit” language clearly applies to Mississippi’s legitimate and

practical interest in providing for the filing of “but one (1) suit” here, not in places where we

have no say-so, such as Louisiana, China, and other sovereign jurisdictions.

¶33. The “but one (1) suit” measure in our statute continues that the suit “. . . shall ensue

for the benefit of all parties concerned. . . ,” and is not a restriction on the number of suits

that can be pursued in other sovereign jurisdictions, especially when such other suits seek

different relief than the related or similar Mississippi wrongful death action, as here, where

a class action has been filed in a jurisdiction that allows state-court class actions, which

Mississippi does not.

¶34. Finally, the same lengthy sentence concludes, “. . . but the determination of such suit

shall not bar another action unless it be decided on its merits.” Miss. Code Ann. § 11-7-13

(Rev. 2004). In the circumstances sub judice, the Mississippi and Louisiana cases may

coexist; and, if the Louisiana case should be “determined” by dismissal on procedural

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grounds, or, if it should be dismissed voluntarily by the plaintiffs, or concluded in any other

manner short of an adjudication on its merits, it is no bar to the somewhat-similar case that

may proceed apace in the Circuit Court of the Second Judicial District of Hinds County,

Mississippi. Since there has been no adjudication on the merits of the Louisiana action,

Section 11-7-13, when read in full, provides that the Louisiana action does not preclude the

case at bar from going forward in a court of this state.

¶35. The logic of the majority seemingly would prohibit a case initially filed in a court of

this state, and subsequently filed in a court of another state, from going forward in a

Mississippi court, relying on the “but one (1) suit” language and disregarding the fact that

there is “but one (1) suit” existing within the boundaries of this state. Because I disagree

with this interpretation of the wrongful death statute and the majority’s application of this

interpretation to the facts before us, I dissent, and would remand this matter to the Circuit

Court of the Second Judicial District of Hinds County for trial on the merits.

WALLER, C.J., JOINS THIS OPINION. GRAVES, P.J., JOINS THIS
OPINION IN PART.

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