State ex rel. Bierman v. Neill , 90 S.W.3d 464 ( 2002 )

STEPHEN N. LIMBAUGH, JR., Chief Justice.

Relators/defendants filed this petition for writ of prohibition in the wake of State ex rel. Linthicum, v. Calvin, 57 S.W.3d 855 (Mo. banc 2001), seeking, on the ground of improper venue, to prohibit respondent from proceeding with an underlying medical malpractice case in St. Louis City.

On April 13, 2001, plaintiff, Patrick W. Diven, brought the malpractice suit in St. Louis City against a single defendant, Dr. Rebecca Bierman, a resident of California. On the date suit was brought, venue was proper under section 508.010(4), RSMo 2000, which provides that if all defendants are non-residents of the state, venue is proper in any county. Five days later, plaintiff added two additional defendants, St. Louis County residents Thomas Chida and United Behavioral Health, Inc. (UBH). Under section 508.010(3), if some defendants are residents and some are nonresidents, venue is proper “in any county in this state in which any defendant resides.” Because neither Chida nor UBH resided in St. Louis City, their addition to the case would have defeated venue in St. Louis City had they been named in the original petition.

The defendants timely filed a motion to transfer venue to St. Louis County on the ground of pretensive non-joinder, and respondent denied the motion on July 9, 2001. Shortly after this Court decided Linthicum, which held that venue should be determined anew on the addition of new defendants, respondent was asked to reconsider her July 9th ruling. However, respondent denied the motion to reconsider because defendants had not submitted evidence at the original pice-Linthicum hearing to determine whether venue in St. Louis City was proper under a different statute, sec. 508.010(6), which provides that venue in a tort action is proper in the county where the cause of action accrues. Although defendants submitted unrebutted affidavits establishing that plaintiffs cause of action accrued not in St. Louis City, but in St. Louis County, respondent again denied the request for reconsideration. Thereafter, this Court issued a preliminary writ of prohibition.

Rule 51.045 provides:

(a) An action filed in the court where venue is improper shall be transferred to a court where venue is proper if a motion for such transfer is timely filed....

(b) Within ten days after the filing of a motion to transfer for improper venue, an opposing party may file a reply denying the allegations in the motion to transfer. If a reply is filed, the court shall determine the issue.

If the issue is determined in favor of the movant or if no reply is filed, a transfer of venue shall be ordered to a court where venue is proper....

Pursuant to Rule 51.045(a), defendants filed a motion to transfer venue alleging that venue in St. Louis City 1) was improper under section 508.010(3) because none of the defendants resided in St. Louis City and 2) was improper under section 508.010(6) because the cause of action did not accrue in St. Louis City. Plaintiff then filed a reply stating: “Defendants’ reliance upon sections 508.010(3) and (6) is misplaced. These subparagraphs of Missouri’s General Venue Statute do not apply in the present case.... ” In the reply, plaintiff instead contended that venue was proper in St. Louis City under section 508.010(4) because at the time the suit was originally filed, the sole defendant, Dr. Bierman, was not a resident of Missouri. By stating expressly that subsections (3) and (6) did not apply, and by predicating venue on subsection (4) exclusively, plaintiff waived any requirement that defendants prove that venue was indeed improper in St. Louis City under subsections (3) and (6). After this Court’s holding in Linthi-cum, and the consequence that venue in St. Louis City could no longer be based on subsection (4), respondent should have granted defendants’ motion to reconsider. St. Louis County is the proper venue because both Missouri residents reside there, and it is now uncontested that the cause of action accrued there.

Accordingly, the preliminary writ of prohibition is made absolute, and respondent is ordered to take no further action in the case except to transfer the case to St. Louis County.

WOLFF, BENTON, STITH and PRICE, JJ., and BRECKENRIDGE, Sp.J., concur. WHITE, J., dissents in separate opinion filed. TEITELMAN, J., not participating.