Kloos v. Corcoran

• Citation: 643 S.W.2d 94
• Decision Date: 23 November 1982
• Docket Number: No. 46008,46008
• Parties: Elmer KLOOS and Christine Kloos, Relators, v. The Honorable James S. CORCORAN Judge of the Circuit Court of St. Louis, Missouri 22nd Judicial Circuit, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 94

643 S.W.2d 94

Elmer KLOOS and Christine Kloos, Relators, v. The Honorable James S. CORCORAN Judge of the Circuit Court

of St. Louis, Missouri 22nd Judicial Circuit, Respondent.

No. 46008.

Missouri Court of Appeals,

Eastern District,

Division Four.

Nov. 23, 1982.

Reithmann & Soebbing, Ralph K. Soebbing, St. Louis, for relators.

Thomas A. Zotos, Clayton, for respondent.

SMITH, Judge.

Relators sought our writ to prohibit respondent from further proceedings against them in the underlying litigation because of an absence of venue. That litigation involved a suit by a minor child to recover for personal injuries incurred as a result of physical and emotional abuse while in the foster care of relators. The petition alleged that such abuse was "intentionally and/or negligently" inflicted.

In addition to the relators, plaintiff joined a group of employees of the Missouri Department of Social Services/Division of Family Services, and that state agency. Suit was filed in the City of St. Louis and venue premised on the presence of some employees of the state agency in that jurisdiction. Relators are residents of St. Louis County and the actions charged against relators occurred in that county. After service on relators in the County, counsel appeared for relators and requested and obtained additional time in which to plead. Two days later the attorney general, on behalf of the state agency and its employees, filed a motion to dismiss for failure to state a cause of action. Co-counsel entered their appearance for relators and requested and obtained additional time to plead reserving all original defenses. Within the time granted, relators filed their motion to dismiss for improper venue. Several months later the trial court sustained the motion of the "state defendants" to dismiss. The trial court indicated its intention to deny relators' motion to dismiss for improper venue and this writ followed.

We address initially respondent's contention that relators waived their claim of improper venue by their entry of appearance and request for time to plead. It is unquestionably true that prior to 1943 objections to venue or jurisdiction over the person were waived if a defendant made a general appearance or in any way recognized the jurisdiction of the court such as by requesting additional time to plead. Harrison v. Murphy, 106 Mo.App. 465, 80 S.W. 724 (1904); Divilbiss, Special Appearances in Missouri, 27 Mo.L.Rev. 533 (1962). In 1943 the code of civil procedure was radically changed and those changes have evolved into our present Rules of Civil Procedure. As pointed out in the Divilbiss article, the change effected in 1943 appears to eliminate the requirement of "special appearances" but courts, largely in dicta, have continued to utilize the language of the pre-1943 cases. This has created confusion in determining what actions of a defendant create a waiver of venue or personal jurisdiction. See for example Mahan v. Baile, 358 Mo. 625, 216 S.W.2d 92 (1948) [1-4]; Jones v. Church, 252 S.W.2d 647 (Mo.App.1952) [1-3]. We believe the correct approach lies in examining Rule 55.27 which deals with the subject.

Paragraph (a) of that rule provides that certain listed defenses or objections, including improper venue may be raised either in the responsive pleading or by motion. Such a motion is to be made within the time allowed for responding to the opposing party's pleading which time would include any extensions granted by the court for such response. Rule 44.01(b). Paragraph (f) of 55.27 provides that if a party makes a motion raising defenses listed in paragraph (a) and omits any other defense or objection then available to him under that rule he has waived those defenses or objections. Certain exceptions to this waiver are provided, but improper venue is not such an exception. Our reading and analysis of this rule causes us to conclude that "special appearances" are no longer required and that waiver of a defense or objection listed in 55.27(a) occurs (1) when that defense or objection is not raised in a motion raising other defenses or objections or (2) in the event that no such motion is filed then when the defense or objection is not raised in responsive pleading. We find nothing in the rule to indicate that waiver occurs because of the actions occurring here prior to a defensive motion or responsive pleading. See Crouch v. Crouch, 641 S.W.2d 86 (Mo. banc 1982).

Rule 55.27 is nearly identical with Federal Rules of Civil Procedure 12(b) through (h) and decisions of the federal courts are consistent with the interpretation we make here and are persuasive. Orange Theatre Corp. v. Rayherstz Amusement Corp., 139 F.2d 871 (3 Cir.1944) [7-10], cert. denied sub nom., Orange Theatre Corp. v....