State Ex Rel. Linthicum v. Calvin , 57 S.W.3d 855 ( 2001 )

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. Holliger, 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) (distinguishing amendments that commence civil actions from those that merely correct misnomers in original petition).²

The circuit court’s analysis of the word “brought” assumed a temporal distinction that conferred different venue rights on Missouri defendants depending on whether the plaintiff initially named or subsequently added them to the lawsuit. This construction is contrary to both the plain language of the statute and to the legislature’s purpose in delineating the six venue scenarios found in section 508.010. Nothing in that section limits its applicability only to defendants against whom suit is brought in the initial petition. Instead, the word “brought” is subject to a number of specific subdivisions all describing the various situations that might arise regarding the residency of all defendants included in the lawsuit.

For purposes of section 508.010, a suit instituted by summons is “brought” whenever a plaintiff brings a defendant into a lawsuit, whether by original petition or by amended petition.³ This interpretation protects all party defendants equally and gives effect to the intent of the legislature in enacting section 508.010(3). State ex rel. DePaul Health Ctr. v. Mummert does not hold to the contrary and still applies whenever a defendant is dismissed from a lawsuit rather than added to it.

III. CONCLUSION

An absolute writ shall issue ordering the circuit court to reconsider the propriety of venue as of the day the underlying petition was amended to include Missouri residents.

LIMBAUGH, C.J, HOLSTEIN, BENTON and PRICE, JJ., concur; WOLFF, J., concurs in part and dissents in part in separate opinion filed; LAURA DENVIR STITH, J., concurs in opinion of WOLFF, J.; LAURA DENVIR STITH, J., concurs in part and dissents in part in separate opinion filed; WOLFF, J., concurs in opinion of LAURA DENVIR STITH, J.; WHITE, J., dissents in separate opinion filed; WOLFF and LAURA DENVIR STITH, JJ., concur in opinion of WHITE, J.

1 . In DePaul, this Court denied a petition for a writ of mandamus directing the Circuit Court of the City of St. Louis to dismiss an underly-tag tort case for improper venue even though the plaintiff dropped a party necessary to establish venue in St. Louis City.

2 . The statute at issue in Bailey mandates that, "Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections.” Section 516.100, RSMo 2000 (emphasis added). As Respondent suggests, however, the terms "commenced” and "brought” are commonly deemed to be synonymous. Black's Law Dictionary 192 (6th ed. 1990).

3 . The various venue statutes make no provision for intervenors, third party defendants, etc. The Court addressed the third party situation in State ex rel. Garrison Wagner Co. v. Schaaf, 528 S.W.2d 438, 442 (Mo. banc 1975), stating, "[I]n third-party practice it need not be shown that venue requirements have been independently complied with but that such may rest on venue properly shown in the original case.”