692 P.2d 1079 | Colo. | 1984
In each of these cases brought under C.A.R. 21 we issued a rule to show cause why the case transferred from the district court in Denver to the district court in Summit County on a motion for change of venue should not be returned to Denver. Because the cases present similar questions regarding the procedure to be followed to correct an erroneous change of venue, we consider them together; however, because they arise in different factual contexts, the results are different. In Tillery v. District Court, we make the rule absolute in part and discharge it in part. In Cressy v. District Court, we make the rule absolute.
I.
A.
In No. 84SA255, the petitioner Drake Tillery, a Florida resident, filed in Denver district court a negligence action seeking damages for injuries sustained in an accident at a ski shop in Breckenridge, Summit County, Colorado. The petitioner named as defendants the shop, the property manager, and the property owner. The property owner, the Public Employees’ Retirement Association (PERA), a general partnership with its principal place of business in Denver, is the only defendant residing in Denver.
The property manager, Paul E. Hays, filed a motion to change venue to Summit County under C.R.C.P. 98(f).
Before Tillery knew of the venue change, Hays and PERA filed answers to the complaint in Summit County district court. Tillery then moved the Summit County court for leave to dismiss the case without prejudice under C.R.C.P. 41(a)(2).
Meanwhile, we decided Howard v. District Court, 678 P.2d 1020 (Colo.1984), holding that under C.R.C.P. 98(j)
B.
In No. 84SA261, the petitioners Kenneth and Christine Cressy filed in Denver district court a wrongful birth action grounded in negligence and breach of warranty against Dr. Aris M. Sophocles, Dr. James E. Oberheide, Breckenridge Medical Center and Saint Anthony Hospital Systems. Sophocles, Oberheide and Breckenridge Medical Center filed, shortly after they were served with the complaint, a motion to change venue to Summit County. Saint Anthony Hospital Systems filed an answer to the complaint in the Denver district court.
The motion for change of venue suggested that venue in Denver was improper under C.R.C.P. 98(e)(1)
II.
We first address the procedure for a district court to follow in reconsidering an order granting a change of venue. In Ranger Insurance Co. v. District Court, 647 P.2d 1229 (Colo.1982), this court held that a district court may hear a timely motion to vacate its own order changing the venue of a case. The power to rehear its own motion, however, is limited to those cases in which the original grant of the change of venue was discretionary with the
In a case in which the change of venue is discretionary with the original court, the original court should retain the court file for ten days to allow for reconsideration of the order changing venue, Ranger Insurance Co., 647 P.2d at 1231 (eight days was reasonable time to allow original court to reconsider its venue ruling), before forwarding the file to the receiving court. After ten days, the original court loses jurisdiction to reconsider its order changing venue. Therefore, a motion for the original court to reconsider or vacate its initial discretionary order must be filed during the ten days before the original court forwards the case file to the receiving court.
The Denver district court transferred Tillery’s case to Summit County under C.R.C.P. 98(f)(2); transfer under C.R. C.P. 98(f)(2) is discretionary with the court, depending on the convenience of the witnesses and the ends of justice. Tillery claims that, under Howard, because one of the defendants had filed an answer to the complaint in the district court where the case originally was filed, it was not within the court’s discretion to transfer the case. Howard, however, involved a request for a change of venue under C.R.C.P. 98(c)(1), which, under C.R.C.P. 98(j), requires the consent of all the defendants. A discretionary change of venue under C.R.C.P. 98(f)(2) is not restricted by the time of filing or by the necessity for the consent of all parties to the request. The Denver district court’s transfer of venue for Till-ery’s case was within its discretion, and the Summit County district court was not required to remand the case to Denver. See City of Cripple Creek v. Johns, 177 Colo. 443, 494 P.2d 823 (1972).
By contrast, if the original court changes the venue of an action on an improper basis, or without a basis, the receiving court must transfer the case back to the original court upon motion by any party. In Cressy’s case, the Denver district court appears to have been misled by erroneous statements in the affidavit filed by the defendants’ attorneys.
For a change of venue, the burden of proof is on the movant to demonstrate that the present venue is improper under C.R.C.P. 98(c) or that a change of venue is appropriate under C.R.C.P. 98(f)(2). See Cliff v. Gleason, 142 Colo. 500, 351 P.2d 394 (1960). A motion to change venue under C.R.C.P. 98(f)(2) must be supported by evidence indicating “the identity of the witnesses, the nature, materiality and admissibility of their testimony, and how the witnesses would be better accommodated by the requested change in venue.” Sampson v. District Court, 197 Colo. 158, 590 P.2d 958, 959 (1979).
The defendants did not meet their burden in Cressy’s case. They were not entitled to a change of venue under C.R.C.P. 98(c)(1). They made no showing under the standards delineated in Sampson that venue should be changed under C.R.C.P. 98(f)(2). Therefore, venue was improperly transferred to the Summit County district court, and that court is directed to return the action to the Denver district court for trial.
III.
Petitioner Tillery also requests relief from the Summit County district court’s refusal to grant her motion for leave to voluntarily dismiss her case without prejudice. C.R.C.P. 41(a)(1) provides that a voluntary dismissal will be granted automatically if the notice of dismissal is filed by the plaintiff before an adverse party files an answer or motion for summary judgment. In this case, the petitioner filed her motion to dismiss shortly after Hays and PERA filed their answers in Summit County. At that point, the motion to dismiss was governed by C.R.C.P. 41(a)(2), which allows an action to be dismissed “upon order of the court and upon such terms and conditions as the court deems proper.”
C.R.C.P. 41(a)(2) is identical to the corresponding federal rule and the rules adopted by several other states, and both federal and state courts have held that the request for dismissal under 41(a)(2) generally should be granted unless a dismissal would result in legal prejudice to the defendant. Hamilton v. Firestone Tire and Rubber Co., 679 F.2d 143, 145 (9th Cir.1982); LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir.1976); Sox v. Estes Express Lines, 92 F.R.D. 71, 72 (D.S.C.1981); Sherry v. Sherry, 622 P.2d 960, 964 (Alaska 1981); Petritz v. Albertsons, Inc., 608 P.2d 1089, 1092 (Mont.1980); Gideon v. Bo-Mar Homes, Inc., 205 Kan. 321, 469 P.2d 272, 277 (1970); Goodman v. Gordon, 103 Ariz. 538, 447 P.2d 230, 232 (1968). A hearing may be required to determine whether the defendant will be prejudiced by the voluntary dismissal. Gideon, 469 P.2d at 277; Monroe, Ltd. v. Central Telephone Co., 91 Nev. 450, 538 P.2d 152, 154 (1975). As terms and conditions of the dismissal, the trial court may award costs and fees to the defendant. See Le-Compte, 528 F.2d at 603; Petritz, 608 P.2d at 1092; Goodman, 447 P.2d at 232; Hoffman v. Berry, 139 N.W.2d 529, 532 (N.D. 1966). Several courts have held that the mere fact that the plaintiff may bring the same suit against the same defendant later or in another court is not sufficient prejudice to the defendant to warrant denying the motion for dismissal. See Hamilton, 679 F.2d at 145; Sox v. Estes Express Lines, 92 F.R.D. at 73; Lee-Moore Oil Co. v. Union Oil Co., 441 F.Supp. 730, 740 (M.D.N.C.1977), rev’d on other grounds, 599 F.2d 1299 (4th Cir.1979); Gideon, 469 P.2d at 277.
This court has never considered the amount of discretion given to a trial court by C.R.C.P. 41(a)(2). The rule in Colorado prior to the adoption of C.R.C.P. 41(a)(2) allowed a plaintiff to dismiss his ease at any time before trial began. See Reagan v. Dyrenforth, 87 Colo. 126, 285 P.
In Tillery’s case, the Summit County district court did not give reasons for its refusal to allow the petitioner to dismiss the complaint without prejudice. The defendants’ opposition to the motion to dismiss did not indicate any legal prejudice that would result from a voluntary dismissal; the defendants stated only that they had incurred certain expenses in arguing the change of venue and preparing the answers to the complaint. The district court could require the costs and fees to be reimbursed as a condition of granting the motion to dismiss, although consideration should be given to the fact that the defendants may recoup some of the fees if they prepare an answer to the petitioner’s complaint in federal court. The district court’s denial of the petitioner’s motion to dismiss in this case was an abuse of discretion. The court is directed to reconsider the motion to dismiss in light of the proper standard to be applied under Rule 41(a)(2) and to grant the petitioner’s motion if no legal prejudice will result to the defendants.
IV.
The Summit County district court has jurisdiction to reconsider the change of venue granted by the Denver County court in both cases. In Cressy v. District Court, the case should be returned to the Denver district court, as venue was improperly transferred from that court.
. C.R.C.P. 98(f) provides:
The court may, on good cause shown, change the place of trial in the following cases: (1) When the county designated in the complaint is not the proper county; (2) when the convenience of witnesses and the ends of justice would be promoted by the change.
. C.R.C.P. 41(a)(2) provides in relevant part:
Except as provided in subsection (a)(1) of this subdivision of this Rule an action shall not be dismissed at the plaintiffs instance save upon order of the court and upon such terms and conditions as the court deems proper.... Unless otherwise specified in the order, a dismissal under this subsection (2) is without prejudice....
C.R.C.P. 41(a)(1) allows a plaintiff to dismiss an action without order of the court if the adverse party has not filed an answer or a motion for summary judgment.
.C.R.C.P. 98(j) provides:
Where there are two or more plaintiffs or defendants, the place of trial shall not be changed unless the motion is made by or with the consent of all the plaintiffs or defendants as the case may be.
.C.R.C.P. 98(c)(1) provides in relevant part:
... [A tort or contract] action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action, or in the county where the plaintiff resides when service is made on the defendant in such county....
. See supra note 4.
. The affidavit accompanying the erroneous factual statement in the motion was signed by the attorney for Sophocles, Oberheide, and Breckenridge Medical Center.
. In Tillery's case, the Denver district court granted a discretionary change of venue on March 6, 1984. The petitioner did not file a motion for the Denver court to reconsider that ruling until April 24, 1984. The Denver district court correctly declined to rule on that motion, having lost jurisdiction of the case.
. Although the attorney based his motion on C.R.C.P. 98(c)(1), his response to our order to show cause in effect concedes that venue was proper in Denver. He shifts the defendants’ approach to an argument that the affidavit implicitly provided a basis to change venue to Summit County under C.R.C.P. 98(f)(2) for the convenience of witnesses.
.One basis for venue under C.R.C.P. 98(c)(1) provides that “an action shall be tried ... in the county where the plaintiff resides when service is made on the defendant in such county_” There is no question that the plaintiffs reside in Denver, and the record, as mentioned above, reveals that three of the defendants were served
. In Cressy, no motion to change venue back to Denver was filed with the Summit County district court, but our rule is made absolute as to that court to give full relief to the petitioners.