State ex rel. Selimanovic v. Dierker

Decision Date18 March 2008
Docket NumberNo. SC 88697.,SC 88697.
Citation246 S.W.3d 931
PartiesSTATE EX REL. Semsa SELIMANOVIC, et al., Relators, v. The Honorable Robert DIERKER, Jr., Respondent.
CourtMissouri Supreme Court

Ted F. Frapolli, St. Louis, for Relator.

R.C. Wuestling, M. Adina Johnson, St. Louis, for Respondent.

RICHARD B. TEITELMAN, Judge.

Section 508.010, RSMo Supp.2005, provides that the proper venue in tort actions is the county in which the plaintiff was "first injured." The issue in this case is one of first impression and requires a determination of whether proper venue for a legal malpractice case based upon an alleged failure to file a lawsuit prior to the expiration of the statute of limitations lies in the county where the attorney's office is located or in the county in which the lawsuit would have been filed. This Court issued a preliminary order in prohibition barring the circuit court of the City of St. Louis from transferring the case to the circuit court of St. Louis County. The preliminary order is made absolute.

FACTS

Attorney Daniel Finney, Jr., was hired to file a wrongful death action on behalf of the heirs of Serif Selimanovic, who was killed in a workplace accident in St. Louis County. Finney allegedly failed to file the suit prior to expiration of the statute of limitations. Plaintiffs filed the underlying legal malpractice action in the circuit court of the City of St. Louis.

Finney filed a motion for transfer of venue, which was supported by his claim that Plaintiffs were "first injured" in St. Louis County because that is where Finney maintained his law office. The circuit court sustained Finney's motion to transfer venue to St. Louis County, but stayed the transfer to allow Plaintiffs to file a writ petition. In the venue order, the circuit court acknowledged that the underlying wrongful death action could have been filed in the City of St. Louis because the decedent's supervisor resided in St. Louis. Plaintiffs then filed the writ petition now at issue, arguing that they were first injured in the City of St. Louis because Finney's failure to timely file suit deprived them of a judgment that would have been rendered in the City of St. Louis.

ANALYSIS

Prohibition is a discretionary writ that only issues "to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power." State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 857 (Mo. banc 2001). Improper venue is a fundamental defect, and a court that acts when venue is improper acts in excess of its jurisdiction. State ex rel. Green v. Neill, 127 S.W.3d 677, 678 (Mo. banc 2004). Consequently, a writ of prohibition can be issued to prevent the trial court from taking any further action other than to transfer the case to a proper venue. Id. When venue is improper, prohibition lies to bar the trial court from taking any further action, except to transfer the case to a proper venue. State ex rel. McDonald's Corp. v. Midkiff, 226 S.W.3d 119, 122 (Mo. banc 2007).

Venue is determined solely by statute. Linthicum, 57 S.W.3d at 857. When interpreting a statute, the primary rule is to give effect to legislative intent as reflected in the plain language of the statute. State ex rel. Burns v. Whittington, 219 S.W.3d 224, 225 (Mo. banc 2007).

There are two pertinent venue statutes that resolve the issue in this case. The first is section 508.010.4,1 which provides as follows:

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. (Emphasis added).

The second statute is section 508.010.14, which defines the concept of first injury by providing that "[a] plaintiff is considered first injured where the trauma or exposure occurred rather than where symptoms are first manifested."

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7 cases
  • State ex rel. Johnson & Johnson v. Burlison
    • United States
    • Missouri Supreme Court
    • 13 Febrero 2019
    ...City S. Ry. Co. v. Nixon , 282 S.W.3d 363, 367 (Mo. banc 2009) ("There are two correct venues in this case...."); State ex rel. Selimanovic v. Dierker , 246 S.W.3d 931, 933 (Mo. banc 2008) ("That judgment could have been rendered in either the circuit court of the City of St. Louis or in th......
  • State v. Teer
    • United States
    • Missouri Supreme Court
    • 27 Enero 2009
    ...and the primary rule to give effect to the legislative intent as reflected in the plain language of the statute. State ex rel. Selimanovic v. Dierker, 246 S.W.3d 931, 932 (Mo. banc 2008). In determining when it was fair to remove jury sentencing and enhance punishment, the legislature provi......
  • State ex rel. Neville v. Grate
    • United States
    • Missouri Court of Appeals
    • 5 Agosto 2014
    ...Rothermich v. Gallagher, 816 S.W.2d 194, 197 (Mo. banc 1991). Venue in Missouri “is determined solely by statute.” State ex rel. Selimanovic v. Dierker, 246 S.W.3d 931, 932 (Mo. banc 2008). The parties agree that, because this is a tort in which the first injury occurred outside the state o......
  • Salau v. Jones
    • United States
    • U.S. District Court — Western District of Missouri
    • 13 Octubre 2015
    ...but for his attorney's action or inaction. Pool v. Burlison, 736 S.W.2d 485, 486 (Mo. Ct. App. 1987). See also State ex rel. Selimanovic v. Dierker, 246 S.W.3d 931, 933 (Mo. 2008) (plaintiffs must show that "but for this negligence, Plaintiffs would have prevailed on their cause of action")......
  • Request a trial to view additional results
2 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
    • 22 Junio 2010
    ...In State ex rel. Selimanovic v. Dierker, the Supreme Court of Missouri explained how a writ of prohibition relates to rulings on venue. 246 S.W.3d 931 (Mo. 2008en banc). The court wrote that "[prohibition is a discretionary writ that only issues to 'prohibit an abuse of judicial discretion,......
  • Section 3.25 Venue by Nature of Cause of Action
    • United States
    • The Missouri Bar Civil Trial Practice 2015 Supp Chapter 3 Jurisdiction, Venue, and Service
    • Invalid date
    ...Labor & Indus. Relations, 152 S.W.3d 284 (Mo. banc 2005). · Actions Alleging Legal Malpractice. In State ex rel. Selimanovic v. Dierker, 246 S.W.3d 931 (Mo. banc 2008), the Court ruled that in a legal malpractice action involving the failure to file a wrongful death action before the statut......

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