State v. the Honorable Michael B. Calvin, SC83558

• Decision Date: 23 October 2001
• Docket Number: SC83558
• Parties: State ex rel. Harold D. Linthicum and Delmar Giles, d/b/a Bluff City Shows, Relators v. The Honorable Michael B. Calvin, Division I, Circuit Court of the City of St. Louis, Missouri, Respondent. SC83558 Supreme Court of Missouri
• Court: Missouri Supreme Court

State ex rel. Harold D. Linthicum and Delmar Giles, d/b/a Bluff City Shows, Relators v The Honorable Michael B. Calvin, Division I, Circuit Court of the City of St. Louis, Missouri, Respondent

SC83558

Supreme Court of Missouri

10/23/2001

Appeal From: Original Proceeding in Prohibition

Counsel for Appellant: Charles H. Cole, Dolores Ayala, Brent J. Burtin, Vincent Venker and Gerard Noce

Counsel for Respondent: Paul J. Passanante, Jason E. Dodson and John G. Simon

Opinion Summary:

In August 1998, Kathy Penny sued Delmar Giles for negligence in St. Francois County Circuit Court alleging she was injured after falling from the car of a Ferris wheel Giles operated at the St. Francois County Fair. Penny then amended her petition, adding two previous owners of the Ferris wheel as additional defendants. On June 13, 2000, after substantial discovery, Penny voluntarily dismissed the lawsuit without prejudice. Seven days later, she refiled her petition in St. Louis City Circuit Court against a Giles employee, Harold Linthicum, who was an Arkansas resident. Penny claimed Linthicum maintained and operated the Ferris wheel at the time she was injured. She also claimed venue in St. Louis City was proper because Linthicum was a nonresident of Missouri and because he was the sole defendant. The next day, however, Penny requested and was granted leave to amend her petition to add Giles, the two previous Ferris wheel owners and two additional defendants to the case. Linthicum and Giles filed petitions to transfer venue in both the trial court and the court of appeals, but their petitions were denied. They then filed a petition for writ of prohibition in this Court, which issued its preliminary writ.

Court en banc holds: For purposes of section 508.010, RSMo 2000, the state's general venue statute, a suit instituted by summons is "brought" any time a plaintiff brings a defendant into a lawsuit, whether by original petition or by amended petition. The circuit court is ordered to reconsider the propriety of venue as of the day the petition was amended to include Missouri residents.

Opinion concurring in part and dissenting in part by Judge Wolff: This writer contends that much of the Court's case law on the subject of venue have been caused by advocates, such as the plaintiff's attorney in this case, maneuvering to get civil cases before St. Louis City jurors. This writer suggests that venue statutes be changed to merge the jury pools in St. Louis City and St. Louis County, which he argues would produce juries that are more representative of the community as a whole.

Opinion concurring in part and dissenting in part by Judge Stith: This writer agrees that venue does not change when a party is dropped from a suit or when a third-party defendant is added. This writer, however, disagrees that venue should be redetermined every time a plaintiff adds claims against a new defendant by amending the original petition.

Dissenting opinion by Judge White:

This writer disagrees that, for purposes of venue, a civil action is "re-brought" anytime a new defendant is added by amendment. This writer would follow the reasoning of this Court's precedent from State ex rel. DePaul Health Center v. Mummert, 870 S.W.2d 820 (Mo. banc 1994), and its progeny and would hold that venue is determined only at the time the original petition is filed.

Limbaugh, C.J., Holstein, Benton and Price, JJ., concur; Wolff, J., concurs in part and dissents in part in separate opinion filed; Stith, J., concurs in opinion of Wolff, J.; Stith, J., concurs in part and dissents in part in separate opinion filed; Wolff, J., concurs in opinion of Stith, J.; White, J., dissents in separate opinion filed; Wolff and Stith, JJ., concur in opinion of White, J.

PER CURIAM

Relators, Harold D. Linthicum, and Delmar Giles, d/b/a Bluff City Shows, ask this Court for an extraordinary writ prohibiting respondent from proceeding in an underlying tort case brought against them. They contend that the Circuit Court of the City of St. Louis deprived them of their right to proper venue as provided in chapter 508, RSMo 2000. This Court has jurisdiction. Mo. Const. art. V, sec. 4. The preliminary writ is made absolute so that the circuit court is ordered to apply section 508.010, RSMo 2000, in a manner consistent with this opinion. I. FACTS

On August 28, 1998, Plaintiff Kathy Penny filed a one-count petition in negligence against Defendant Delmar Giles, d/b/a Bluff City Shows, in the Circuit Court of St. Francois County, Missouri, alleging that she sustained personal injuries as a result of a fall from the car of a Ferris wheel operated by Defendant Giles at the St. Francois County Fair in Farmington, Missouri. Plaintiff subsequently filed amended petitions in the St. Francois County case, naming Defendants Forsythe and Dowis Rides, Inc., and Reithoffer Shows, Inc., two previous owners of the Ferris wheel, as additional parties. On June 13, 2000, after substantial discovery, Plaintiff voluntarily dismissed the St. Francois County lawsuit without prejudice.

On June 20, 2000, plaintiff refiled her petition in the Circuit Court of the City of St. Louis, naming only one defendant, Harold Linthicum, an employee of Defendant Giles. Linthicum is a citizen and resident of Arkansas. Giles resides in Butler County, Missouri. The allegations against Linthicum were that he operated the Ferris wheel and maintained it on or about the time Plaintiff allegedly was hurt. Plaintiff claimed that venue in the City was proper under section 508.010, RSMo 2000, because Linthicum was a nonresident of Missouri and because he was the sole defendant.

The following day, June 21, 2000, Plaintiff requested and was granted leave to amend her petition to add as defendants Relator Giles and the other defendants from the St. Francois County case, as well as two additional defendants.

Thereafter, Relators Linthicum and Giles timely filed a motion to transfer venue, which was denied on February 1, 2001. Relators then filed a petition for writ of prohibition in the Missouri Court of Appeals, Eastern District, which also was denied. The writ petition was refiled in this Court, which issued its preliminary writ.II. ANALYSIS

A.

Prohibition is a discretionary writ, and there is no right to have the writ issued. State ex rel. K-Mart Corp. v. Hollinger, 986 S.W.2d 165, 169 (Mo. banc 1999). Prohibition will lie only 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. York v. Daugherty, 969 S.W.2d 223, 224 (Mo. banc 1998). Nevertheless, prohibition may be appropriate to prevent unnecessary, inconvenient, and expensive litigation. See State ex rel. Police Ret. Sys. of St. Louis v. Mummert, 875 S.W.2d 553, 555 (Mo. banc 1994). B.

"Venue in Missouri is determined solely by statute." State ex rel. Rothermich v. Gallagher, 816 S.W.2d 194, 196 (Mo. banc 1991). "The purpose of the venue statutes is to provide a convenient, logical, and orderly forum for litigation." Id. The general venue statute in Missouri is section 508.010, RSMo 2000. It states:

Suits instituted by summons shall, except as otherwise provided by law, be brought:

(1) When the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides, and the defendant may be found;

(2) When there are several defendants, and they reside in different counties, the suit may be brought in any such county;

(3) 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;

(4) When all the defendants are nonresidents of the state, suit may be brought in any county in this state;

(5) Any action, local or transitory, in which any county shall be plaintiff, may be commenced and prosecuted to final judgment in the county in which the defendant or defendants reside, or in the county suing and where the defendants, or one of them, may be found;

(6) In all tort actions the suit may be brought in the county where the cause of action accrued regardless of the residence of the parties, and process therein shall be issued by the court of such county and may be served in any county within the state; provided, however, that in any action for defamation or for invasion of privacy the cause of action shall be deemed to have accrued in the county in which the defamation or invasion was first published.

Section 508.010, RSMo 2000.

In State ex rel. DePaul Health Ctr. v. Mummert, 870 S.W.2d 820 (Mo. banc 1994), this Court held that "venue is determined as the case stands when brought." DePaul Health Ctr., 870 S.W.2d at 823.¹ Relying on DePaul, the circuit court in this case concluded that if venue was proper when the petition was originally brought, a subsequent amendment to the petition to add parties was irrelevant for purposes of venue. Under this interpretation, a plaintiff could sue a Missouri resident in any of over one hundred venues by simply suing a non-resident under section 508.010(4), and then amending the original petition to include the Missouri resident.

"The primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning." Wolff Shoe Co. v. Dir. of Revenue, 762 S.W.2d 29, 31 (Mo. banc 1988). The word "brought" in the legal context means "to advance or set forth in a court." American Heritage Dictionary 209 (2d Collegiate ed. 1991). Although a suit is "brought" against the original defendants when the petition is initially filed, in like manner, it is also "brought" against subsequent defendants when they are added to the lawsuit by amendment. Cf. Bailey v. Innovative Mgmt. & Inv., Inc., 890 S.W.2d 648, 650-51 (Mo. banc 1995) (dis...