State Ex Rel. DePaul Health Center v. Mummert, 870 S.W.2d 820

State Ex Rel. DePaul Health Center v. Mummert

870 S.W.2d 820

Mo.

1994

Check Treatment

*1 HEALTH ex rel. DePAUL STATE

CENTER, Relator,

Honorable Thomas C. MUMMERT Court,

III, Judge, Circuit City, Respondent.

No. 76270. Missouri,

Supreme Court

En Banc. 22,

Feb. 22, 1994.

Rehearing Denied March Brostron, Brostron, Judith C. C.

Kenneth Hackworth, for relator. K. Sarah *2 9, Prаszkier, Mummert, Anderson, deposition April for ordered the John D. Herman Louis, Legal representatives of each of respondent. 1993. on that defendants attended date. ROBERTSON, Judge. аp- Attorneys their for DePaul entered original This action in mandamus is anoth- 20, 1993, contempora- pearance April on seemingly unending er in a series of extraor- neously quаsh filed a motion dinary -writ actions which civil tort motion venue. The protracted proce- tiffs and defendants enter corpo- the individual nor claimed that neither plotting gener- dural embrace avoid City rate defendants resided within juries City ous of St. Louis. Our did not plaintiffs’ cause of action V,

jurisdiction founded on Article accrue there and that venue wаs of the Missouri Constitution. Relying Oney, quash service. DePaul asked In this case we consider whether the initially arguments on Respondent heard 506.110, 1989 amendment to Sections RSMo 11, May 1993. DePaul’s motion to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍dismiss on Cum.Supp.1998, adoption of 476.- Dr. Hazen not filed an As defendant had 410, Cum.Supp.1993, long RSMo overrule a residence, respondent sustained affidavit of culminating Oney line of Missouri case law plaintiffs’ further action in the Pattison, motion to hold 1988), v. 747 S.W.2d 187 plaintiffs abeyance case in until after could proper in which Missouri courts held that Subsequently, deposition. take Dr. Hazen’s precedent venue is a condition to the is stating an that he Dr. Hazen filed affidavit suance of service and that a trial court with County, a fact he confirmed livеd St. Louis out venue over action could not obtain 8, July of his jurisdiction personal over a defendant. We proper longer prereq hold that venue is no a 1993, 21, July plaintiffs dismissed Dr. On jurisdiction and, personal uisite to on the prejudice. Hazen as a defendant without 506.110 Sections reargued quash its motion to service contrary judicial decisions. 28, argued July 1993. Plaintiffs that ven- in the Louis in ue was now Nevertheless, we hold that the court plaintiffs’ dismissal of Dr. Hazen. failed to exercise a ministerial to trans- 1986,plaintiffs Under Section RSMo county fer this case to a in which venue was urged properly laid proper. The alternative writ of mandamus Group Health transacted business peremptory. issued is made there. Respondent overruled DePaul’s motion to I. mandamus service of summons. This action, underlying In the filed action followed. malpractice against Joseph medical Dr. (DePaul) Hazen, DePaul Health Center II. Group Health Plan in the Court of Circuit plaintiffs’ Louis. The cause of A. County action accrued in St. Louis and each Oney v. of the defendants is resident of St. 1988), quirk in law tracеd a Missouri County meaning within the of Section 508.- melding venue and general RSMo venue statute. conclude that where a led courts to wrong in the Plaintiffs filed their cause of action оn filed an action acquire personal together a motion for could not March with RSMo setting deposition of DePaul’s defendant. Section an order that, be instituted upоn custodian of records ser- “Suits service n courtsof record [b]y in the office Following all vice of the defendants. petition court a set- respondent, Judge Thomas the clerk of the Smarr, (1940); ting forth the cause or Mo. causes Aronson, [Emphasis action.” rea- rel. Minihan added.] cases Mo. (1942); process soned that service of issue could not Brown, except court. A court O’Keefe Queen, rel. Bartlett which venue did not lie was *3 (banc 1951); court. 361 Mo. 238 393 S.W.2d Weinstein, rel. Boll v. 365 Mo. A summons on a the served defendant as (banc 1956); 62 State S.W.2d of an in result action filed a court in which Schroeder, (Mo. Wasson v. 646 S.W.2d ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍improper provides no venue 1983); Bottling banc rel. Coca-Cola defendant, over the has the court Gaertner, Co. Mid-America v. 681 S.W.2d authority no the statute the to issue (Mo. 1984); Sullenger v. Cooke banc summons. (Mo. Co., & Service banc Sales 141. Oney legislature Id. at invited the to 1983); Oney and S.W.2d 137 unduly amend the statute to avoid the harsh (Mo. 1988). banc application pro- result of Missouri law often duced. B. Assembly the General removed Notwithstanding our determination that 506.110.1(1) the word from Section process properly service of issued expressly courts authorized to transfer that DePaul contends improper filed in actions venue to circuits ue is still and that having venue. 476.410. DePaul Section have the case to St. Louis should transferred legislative that claims these actions did not Re- change the law in Missouri the spondent response: two in arguments offers Circuit Court for the of St. Louis had no First, respondent claims that waived authority to in this Re- issue summons case. any objection it had to its venue when attor- view, spondent opposite contending takes the neys attended the of the records authority that the of a circuit court to issue days April prior custodian on eleven longer no summоns is a function of attorneys timely entry DePaul’s following legislature’s venue the action. appearance and motion to primary purpose “The of Missouri’s Second, venue. re- summons convenient, provide statutes venue spondent urges that not transfer the he need logical orderly the forum for resolution the case venue was at time he Koehr, disputes.” State ex rel. Elson v. in overruled DePaul’s motion 1993). (Mo. banc Personal tiffs’ of Dr. from the case. Hazen however, jurisdiction, is about the cannot waive venue judgment рarticu of a court to render Sullenger until he or she is before the court. lar defendant. Co., & Service Cooke Sales ad Venue and 1983). Here, DePaul chal entirely cоncerns, the cou dress different lenged propriety the of venue pling product of the use of of which was the its when before court and at first it came the By 506.110.1. the word opportunity so. This was the available to do removing “proper” from Section challenge proper place and time to legislature concepts. A ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the severed the two appearance at a taken DePaul’s can from a court summons now issue coming to a before court did proper. Assuming which venue not a waiver of venue. constitute is not itself defective some oth summons reason, propriety of venue proper service of that summons er prescribed by statute. ex rel. Elson persоnal jurisdiction over the de results Koehr, they extent hold 856 S.W.2d at 59 fendant served. To the statute, otherwise, Casteel, pro applicable we Yates v. part: v. vides in Hankins shall, provisiоn, express no by except The statute contains Suits instituted law, majority’s conclu- by brought implied, supports otherwise as challenges to venue must be deter- there are sevеral sion that [w]hen counties, originally the suit is they the mined as of the date reside different county. filed. any such statute, By is deter- the terms venue statute, controlling In the absence of а brought, not mined as the case stands when view, rule, my propriety is that the better when a motion venue is decided. “ministerial to transfer of venue and the brought, When suit was none the defen- according to should be determined case” dants resided of St. Louis. Un- at the presence and status improper in der Section rules on the merits of the time *4 Respon- Louis at that time. challenge. This rule affords duty dent had a ministerial to transfer the party opportunity to dismiss the defendant underlying case to St. Louis gives im- presence in the suit rise to whose to Section 476.410. proceed proper venue and allows the case to proce- expeditiously. It avoids the awkward III. bring ultimately plaintiff allows dure require perfоr lies to Mandamus only if it the suit in the but . a ministerial act ex rel. mance of first dismissed and then refiled without (Mo. Kirkpatrick, Lane v. joinder question. 'defendant said, previously respon As we have dent bore a ministerial to transfer this reasons, majori- For at least two other case to the venue. The alternative ty approach inappropriate. the cu- writ of mandamus issued in this rative dismissal of a defendant is not peremptory. Respondent case made significant plaintiff cost to without ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ordered to transfer this cause of аction to the expectation recovery plaintiff loses its County. Circuit Court of St. Louis from that defendant. This alone is sufficient penalty bringing the case in an COVINGTON, C.J., HOLSTEIN, causes no dismissal BENTON, THOMAS, JJ., сoncur. remaining harm to the defendants who would subject to the same venue had LIMBAUGH, J., separate dissents joining originally filed the suit without opinion filed. my opinion, party who defeatеd venue. PRICE, J., opinion concurs in that cause LIMBAUGH, J. encouraged, penalized. ue should be LIMBAUGH, Judge, dissenting. plaintiffs dismissal of Dr. Hazen Because judge’s ruling occurred to the respeсtfully I dissent. the motion defect Although wholly agree majori- I with the I the writ. venue was cured. would ty’s jurisdiction- conclusion that venue is not al, disagree I that the case must nevertheless County.

be transferred to St. Louis More

particularly, disagree I that venue is deter- brought.”

mined “as the case stands when import holding preclude

The is to curing from defects in venue. key to this case is to ascertain challenges

date from which to venue are

be determined. The statute which relies,

majority § does not address issue, only shall provides ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍but that suits designated in certain venues.