State v. the Honorable Jay a. Daugherty, WD59343

• Decision Date: 27 November 2001
• Docket Number: WD59343
• Citation: State v. the Honorable Jay a. Daugherty, 62 S.W.3d 102 (Mo. App. 2001)
• Parties: State of Missouri ex rel. Keith Heaton, Relator v. The Honorable Jay A. Daugherty, Judge, Circuit Court of Jackson County, Division 13, Respondent. WD59343 Missouri Court of Appeals Western District
• Court: Missouri Court of Appeals

State of Missouri ex rel. Keith Heaton, Relator

v.

The Honorable Jay A. Daugherty, Judge, Circuit Court of Jackson County, Division 13, Respondent.

WD59343

Missouri Court of Appeals Western District

11/27/2001

Appeal From: Original Writ in Prohibition

Counsel for Appellant: Glenn R. Gulick

Counsel for Respondent: Rebecca Tenbrook

Opinion Summary:

Keith Heaton brought suit for medical negligence in Jackson County against several individual and corporate defendants. At the time of filing, none of the individual defendants resided in Jackson County, and only one of the corporate defendants maintained a registered agent in Jackson County. Prior to service of the petition, however, that corporate defendant changed its registered agent to one in another county, leaving no defendant a "resident" of Jackson County as of the time of service.

The defendants sought dismissal or transfer of the case due to improper venue, and the court granted the defendants' alternative motion to transfer the cause to Jasper County. At Heaton's request, a preliminary writ in prohibition was issued by this Court. Heaton now seeks the issuance of a permanent writ barring the transfer of the cause to the Circuit Court of Jasper County, Missouri.

Division holds: While the transfer of the case to Jasper County appears to be improper under the recent case of State ex rel. Linthcum v. Calvin, SC83558 (Mo. Oct 23, 2001), this Court is without authority to grant the requested relief. Upon entry of the order transferring the case to Jasper County, the Jackson County court lost jurisdiction over the cause and jurisdiction lodged in the Circuit Court of Jasper County. The alternative remedy of mandamus, requiring the receiving circuit court to retransfer the case, cannot be granted because the receiving court lies within the Southern District. This Court is without jurisdiction to grant mandamus relief directed to a court within another appellate district.

Smart, Jr., J., and Howard, J., concur.

Ronald R. Holliger, Judge

This court entered a preliminary order in prohibition on February 7, 2001, staying a November 1, 2000, order by Respondent transferring this cause, based on venue, to the Circuit Court of Jasper County, Missouri. Because we find that we lacked jurisdiction to issue our preliminary writ, that order is vacated and a permanent writ is denied.

Relator filed an action for medical negligence in Jackson County, Missouri, against several individual defendants and several corporate defendants. At the time of filing of the petition, one of the corporate defendants maintained a registered agent in Jackson County, Missouri, and venue was admittedly proper under section 508.010, RSMo 2000.¹ Before service of summons, however, that corporate defendant changed its registered agent to one in another county so that as of the date of service, no defendant resided in Jackson County. Motions to dismiss and or transfer for improper venue were filed with defendants arguing that proper venue should be decided as of the date of service and not as of the date of filing of the petition. Defendants claimed that a suit was "brought," under section 508.010, RSMo, and State ex rel. DePaul Health Center v. Mummert, 870 S.W.2d 820, 823 (Mo. banc 1994), not as of the date of filing but as of the date of service. There were numerous allegations by Relator that the change of registered agent was pretensive and for no...