State ex rel. Kinsey v. Wilkins

• Decision Date: 26 February 2013
• Docket Number: No. ED 99450.,ED 99450.
• Citation: 394 S.W.3d 446
• Parties: STATE EX REL. Anthony M. KINSEY, Relator, v. The Honorable Robert G. WILKINS, Respondent.
• Court: Missouri Court of Appeals

394 S.W.3d 446

STATE EX REL. Anthony M. KINSEY, Relator,

v.The Honorable Robert G. WILKINS, Respondent.

No. ED 99450.

Missouri Court of Appeals, Eastern District.

Feb. 26, 2013.

Robert D. Curran Jr. Springfield, MO, for Relator.

Jeffrey A. Benoist, St. Louis, MO, for Respondent.

ROY L. RICHTER, Judge.

Relator, Anthony Kinsey (“Kinsey”), seeks a permanent writ in mandamus compelling Respondent, the Honorable Robert Wilkins (“Respondent”), judge of the circuit court of Jefferson County, to re-transfer the underlying action to the circuit court of Greene County. We issued a Preliminary Order in Mandamus and we make our preliminary order permanent, directing Respondent to re-transfer the underlying action back to the circuit court of Greene County.

I. PROCEDURAL BACKGROUND

On February 15, 2010, Kinsey was involved in an automobile accident with a motor vehicle operated by April Bledsoe (“Bledsoe”) in Greene County. As a result of that accident, Kinsey allegedly injured his middle and lower back, and left leg. On November 23, 2010, Kinsey filed a petition in the circuit court of Greene County against Bledsoe seeking damages for the injuries he allegedly sustained in the February 2010 automobile accident.

On January 27, 2011, more than 11 months after the February 2010 accident, Kinsey was involved in a subsequent automobile accident in Jefferson County involving a motor vehicle operated by Tricia Bieser (“Bieser”). In that second automobileaccident, Kinsey again sustained injuries to the same parts of his body as he sustained in the first accident of February 2010.

In April 2011, the circuit court of Greene County permitted Kinsey to amend his original petition to add Bieser as an additional defendant. This amended petition (“Amended Petition”) alleged Kinsey suffered indivisible injuries to his middle and lower back and left leg as a result of both automobile accidents.

After being joined as a defendant, Bieser filed her Motion to Dismiss for Lack of Jurisdiction, or in the Alternative, Motion to Transfer for Improper Venue in the circuit court of Greene County. The circuit court of Greene County granted Bieser's motion and ordered the Amended Petition be severed, and that the counts pertaining to Bieser be transferred to the circuit court of Jefferson County.

In the circuit court of Jefferson County, Kinsey filed a Motion to Re–Transfer Venue Back to Greene County. Respondent denied Kinsey's Motion. On January 7, 2013, Kinsey filed his Petition for Writ of Mandamus in this Court, requesting that we compel Respondent to re-transfer Kinsey's cause of action against Bieser back to Greene County. This Court requested and Respondent filed Suggestions in Opposition to Kinsey's Petition for Writ of Mandamus. We issued a Preliminary Order in Mandamus January 8, 2013.

II. LEGAL PRINCIPLES FOR WRITS OF MANDAMUS

“The function of the writ of mandamus is to enforce, not to establish, a claim of right; the office of the writ is to execute, not to adjudicate.” State ex rel. Kiely v. Schmidli, 583 S.W.2d 236, 237 (Mo.App. W.D.1979). An extraordinary writ is appropriate to correct a trial court's improper venue ruling. State ex rel. Kansas City S. Ry. Co. v. Nixon, 282 S.W.3d 363, 365 (Mo. banc 2009). Specifically, mandamus is the proper writ if the erroneous transfer has been completed. State ex rel. Mo. Pub. Serv. Com'n v. Joyce, 258 S.W.3d 58, 60 (Mo. banc 2008). Generally, a writ of mandamus will be issued only where it is shown that the party requesting the writ has a “clear and unequivocal right to the relief requested and a corresponding present, imperative, unconditional duty imposed on the respondent which the respondent has breached.” Naugher v. Mallory, 631 S.W.2d 370, 374 (Mo.App. W.D.1982).

III. DISCUSSION

At the heart of this writ in mandamus lies the interpretation, relationship and interplay of the recently amended venue statute, Section 508.010,¹ and the Missouri Rule of Civil Procedure regarding permissive joinder, Rule 52.05. We note from the outset, since the 2005 amendment to Section 508.010, Missouri has not squarely addressed this narrow issue regarding the effect that permissive joinder has on venue where a plaintiff suffered injuries from separate and successive tortfeasors, occurring in different counties in the State of Missouri.

A. Rules on Venue and Permissive Joinder

We begin our analysis with an examination of the plain language of, and the rationalebehind both the rules of venue and permissive joinder.

Venue

“Venue refers to the place of trial or the locality where an action may be properly brought.” K.M.J. v. M.A.J., 363 S.W.3d 172, 176 (Mo.App. E.D.2012); see also State ex rel. Rothermich v. Gallagher, 816 S.W.2d 194, 196 (Mo. banc 1991) (“Venue is a designation of the location or geographical situs where the court has jurisdiction to act in a particular lawsuit.”). In Missouri, venue is determined solely by statute. State ex rel. BJC Health Sys. v. Neill, 121 S.W.3d 528, 529 (Mo. banc 2003). The primary purpose of Missouri's venue statutes is to provide an orderly forum that is convenient and logical for the resolution of disputes. State ex rel. Elson v. Koehr, 856 S.W.2d 57, 59 (Mo. banc 1993).

Prior to the 2005 amendment to Section 508.010, the basic rule in Missouri was that an action could be brought in any Missouri county in which any defendant resided, or, in any tort case, the action could also be brought in the county where the cause of action accrued.²SeeSections 508.010(2), 508.010(6), RSMo 2000. However, the enactment of Tort Reform altered how venue in tort cases is determined in Missouri. Section 508.010.4 reads:

Notwithstanding any other provision of law, in all actions in which there is any count alleging a tort and in which the plaintiff was first injured in the state of Missouri, venue shall be in the county where the plaintiff was first injured by the wrongful acts or negligent conduct alleged in the action.

See Section 508.010.4 (emphasis added). Accordingly, instead of venue being in the county were any defendant resided (Section 508.010(2), RSMo 2000) or in the county where the action accrued (Section 508.010(6), RSMo, 2000), venue is now appropriate only in the county of first injury.

Permissive Joinder

Permissive joinder, Rule 52.05(a), permits joinder, as defendants, of all parties against whom (1) is asserted any right to relief jointly, severally, or in the alternative “arising out of the same transaction, occurrences, or series of transactions or occurrences [,]” and (2) if any question of law or fact common to all of them will arise in the action. SeeRule 52.05(a) (emphasis added); see also Section 507.040.³ This rule is liberally construed to allow for a more expedient resolution of the case, as a single jury is able to more effectively apportion damages between two defendants than two juries sitting separately; furthermore, joinder benefits both the plaintiff and the defendants because the damages will be considered together, avoiding the possible results of double recovery, or conversely, no recovery at all. Hager v. McGlynn, 518 S.W.2d 173, 178 (Mo.App.1974); see also State ex rel. McCubbin v. McMillian, 349 S.W.2d 453, 463 (Mo.App.1961) (“The purpose of this section [507.040] has been said to be to extend to all civil actions the liberal rules of permissive joinder prevalent in equity.”); see also Bhagvandoss v. Beiersdorf, Inc., 723 S.W.2d 392, 395 (Mo. banc. 1987) (“The policy of the law is to try all issues arising out of the same occurrence or series of occurrences together.”).

However, the liberal interpretation of the permissive joinder rule must be reconciled with Rule 51.01, which explicitly prohibits Missouri Rules of Civil Procedure from a construction that extends or limits venue. SeeRule 51.01; see also State ex rel. Turnbough v. Gaertner, 589 S.W.2d 290, 292 (Mo. banc 1979). For example, simply joining two separate causes of action in a single petition does not create venue over both actions. Turnbough, 589 S.W.2d at 292;see also State ex rel. Jinkerson v. Koehr, 826 S.W.2d 346, 348 (Mo. banc 1992) (“must establish venue for each cause of action independently”).

B. History of the Interplay Between Venue and Permissive Joinder

Permissive joinder and venue statutes in Missouri have an inconsistent past. Nevertheless, cases which have confronted similar issues as the case at bar offer insight and guidance for our disposition.

Hager v. McGlynn

Almost four decades ago, the Missouri Court of Appeals, addressed “the question of permissive joinder by the plaintiff of two defendants who collided with the plaintiff at different times and places.” Hager v. McGlynn. 518 S.W.2d 173, 174 (Mo.App.1974). In Hager, the injured-plaintiff filed suit in Jackson County where both accidents occurred, albeit four months apart. Id. The Hager court permitted joinder of the two separate accidents, which involved injuries to the same parts of the same plaintiff. Id. at 177–78. Finding that Rule 52.05(a) was identical to Federal Rule of Civil Procedure 20, the Hager court held that when the injuries to a plaintiff are said to be indivisible, or to have been aggravated in another accident, then joinder is permissible. Id. The Hager court reasoned that justice is far more likely to be served with all parties present and the issues being fully presented to one jury, and that jury being charged with the responsibility of finding both the question of negligence and the amount of damages, if any. Id. at 178.

State ex rel. Turnbough v. Gaertner

Not more than five years later, the Missouri Supreme Court was directly confronted with the relationship between permissive joinder and venue (under the former Missouri venue statutes). See State ex rel. Turnbough v. Gaertner, 589 S.W.2d 290 (Mo. banc 1979). In Turnbough, the plaintiff, a resident of Cape Girardeau County, was injured in an automobile accident while employed by St. Louis–San Francisco Railway Company (“Frisco”), a...