State ex rel. Green v. Neill

Decision Date24 February 2004
Docket NumberNo. SC 85534.,SC 85534.
Citation127 S.W.3d 677
PartiesSTATE ex rel. James GREEN, M.D., T. Isakson, M.D., and Christina L. Litherland, M.D., Relators, v. The Honorable Margaret M. NEILL, Presiding Judge, Twenty-Second Judicial Circuit of Missouri, Respondent.
CourtMissouri Supreme Court

Michael A. Gross, Mark I. Bronson, St. Louis, for respondent.

RICHARD B. TEITELMAN, Judge.

Relators (defendants in a medical malpractice claim) seek a writ of prohibition barring Respondent from taking any further action other than transferring the underlying case to a proper venue. Relators argue that fellow defendant Malaika Horne, Ph.D., a member of the board of curators of the University of Missouri and resident of the City of St. Louis at the time the petition was filed, was joined pretensively so that plaintiffs could obtain venue in the Circuit Court of the City of St. Louis.

Plaintiffs failed to state a cause of action against Curator Horne. Therefore, the joinder of Curator Horne as a defendant was pretensive. The preliminary writ of prohibition is made absolute.

Background

Melinda Houston gave birth to her son at University Hospital and Clinics in Columbia, Missouri (Boone County). Houston and her son are residents of Columbia. They later filed suit in the City of St. Louis (not in Boone County) alleging medical malpractice against physicians involved in the delivery. Plaintiffs also included as defendants the University of Missouri board of curators (doing business as University Hospital), and nine individual members of the board of curators. One of the members of the board, Curator Horne, was a resident of the City of St. Louis at the time the petition was filed. No other defendant was a resident of the City of St. Louis. Plaintiffs ultimately asserted that venue was proper in the City of St. Louis pursuant to section 508.010(3), RSMo 2000, which provides that when "there are several defendants, some residents and others nonresidents of the state, suit may be brought in any county in this state in which any defendant resides."

Defendants moved to transfer venue and argued that joinder of the curators was pretensive, noting that venue in the City of St. Louis rests solely on the inclusion of Curator Horne as a defendant and arguing that plaintiffs failed to state a claim against Curator Horne. The Circuit Court denied the motion, and three of the physician defendants seek a writ of prohibition from this Court barring the Circuit Court of the City of St. Louis from taking any further action other than transferring the underlying case to a proper venue.

Analysis

A writ of prohibition "will be issued only to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power. Because improper venue is a fundamental defect, a court that acts when venue is improper acts in excess of its jurisdiction. Prohibition lies to bar the trial court from taking any further action, except to transfer the case to a proper venue." State ex rel. SSM Health Care St. Louis v. Neill, 78 S.W.3d 140, 142 (Mo. banc 2002) (citations omitted).

Although plaintiffs may file suit in any statutorily permissible venue, courts will not permit plaintiffs to engage in the pretense of joining defendants for the sole purpose of obtaining venue. State ex rel. Malone v. Mummert, 889 S.W.2d 822, 824 (Mo. banc 1994). Under one test, joinder is pretensive if the petition on its face fails to state a claim against the joined defendant. Id.

Plaintiffs did not allege that Curator Horne participated in any aspect of the medical care. Instead, the claim against Curator Horne was based on the doctrine of respondeat superior. "Under respondeat superior, an employer is...

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14 cases
  • Teasley v. Forler
    • United States
    • U.S. District Court — Eastern District of Missouri
    • March 10, 2008
    ...or has personally co-operated therein." State ex rel. Hill v. Baldridge, 186 S.W.3d 258, 259 (Mo.2006) (citing State ex rel. Green v. Neill, 127 S.W.3d 677, 679 (Mo.2004)). Upon consideration, the Court finds that a reasonable jury could find Torres liable under a theory of respondeat super......
  • State ex rel. Bannister v. Goldman
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    • May 20, 2008
    ...of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power. State ex rel. Green v. Neill, 127 S.W.3d 677, 678 (Mo. banc 2004); Harness, 201 S.W.3d at Section 527.060 RSMo. (2000) provides in pertinent part that: In any civil action, ba......
  • Dibrill v. Normandy Assocs., Inc.
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    ...liable for the misconduct of an employee where that employee is acting within the course and scope of his employment. State ex rel. Green v. Neill, 127 S.W.3d 677, 678–79 (Mo. banc 2004). An act is within the course and scope of employment if: (1) even though not specifically authorized, it......
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    ...an employer is liable for the misconduct of an employee acting within the course and scope of his employment. State ex rel. Green v. Neill, 127 S.W.3d 677, 678-79 (Mo. banc 2004). "An act is within the course and scope of employment if: (1) even though not specifically authorized, it is don......
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6 books & journal articles
  • Counselor, stop everything! Missouri's venue statutes receive an expansive interpretation.
    • United States
    • Missouri Law Review Vol. 75 No. 3, June 2010
    • June 22, 2010
    ...the trial court from taking any further action, except to transfer the case to a proper venue." Id. (citing State ex rel. Green v. Neill, 127 S.W.3d 677,678 (Mo. 2004en banc); State ex rel McDonald's Corp. v. Midkiff, 226 S.W.3d 119, 122 (Mo. 2007en (31.) Nixon, 282 S.W.3d at 364-65. (32.) ......
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    ...of an employee if that employee is acting within the course and scope of the employee’s employment. State ex rel. Green v. Neill, 127 S.W.3d 677, 678–79 (Mo. banc 2004). An act will be considered within the scope of employment if: · it is done to further the business or interests of the emp......
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