Estes v. Lonbaken , 2011 S.D. LEXIS 109 ( 2011 )

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2011 S.D. 52IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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DENISE E. ESTES and
PERCY J. ESTES, Plaintiffs and Appellants,
v.
DAVID R. LONBAKEN, DPM, Defendant and Appellee.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA
* * * *
HONORABLE JOHN L. BROWN
Judge
* * * *
CARLETON R. HOY
SCOTT G. HOY of
Hoy Trial Lawyers, Prof. L.L.C.
Sioux Falls, South Dakota
and
MICHAEL W. STRAIN
Sturgis, South Dakota Attorneys for plaintiffs
and appellants.
GREGORY J. BERNARD of
Thomas Braun Bernard & Burke, LLP
Rapid City, South Dakota Attorneys for defendant
and appellee.
* * * *
CONSIDERED ON BRIEFS
ON MAY 23, 2011
OPINION FILED 08/31/11
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MEIERHENRY, Retired Justice
[¶1.] Denise Estes filed suit against Dr. David Lonbaken, a podiatrist, for
medical malpractice. Estes’ complaint alleged that Dr. Lonbaken negligently
treated a large neuroma on her foot. 1 Estes filed the complaint in Buffalo County,
South Dakota. Dr. Lonbaken moved to change venue to Hughes County, South
Dakota. Dr. Lonbaken claimed that Hughes County was the proper venue because
Estes’ surgery and follow-up treatment took place in Hughes County, not Buffalo
County. The trial court granted Dr. Lonbaken’s motion to change venue to Hughes
County. The issue is whether Buffalo County was a proper venue for this medical
malpractice action. We affirm because Buffalo County was not a proper venue.
Analysis
[¶2.] Proper venue is established by statute. See SDCL ch. 15-5. Because
this case is an action “for the recovery of damages to persons[,]” it “may at the
option of the plaintiff be brought and tried in the county where the damages were
inflicted or the cause of action arose.” SDCL 15-5-8. Proper venue is reviewed de
novo. See State v. Newell, 710 N.W.2d 6, 33 (Iowa 2006) (reviewing a ruling on a
motion for a change of venue de novo); Olson v. N.D. Dist. Court, Richland Cnty.,
Third Judicial Dist., 271 N.W.2d 574, 579 (N.D. 1978) (stating that “where the trial
court’s [venue] determination was not based upon the testimony of live witnesses,
but rather upon the same affidavits and exhibits before [the appellate court] . . . ,
1. The Mayo Clinic’s website describes a neuroma as “a painful condition that
affects the ball of your foot, most commonly the area between your third and
fourth toes.” Definition of Neuroma, Mayo Clinic, http://www.mayoclinic.com/
health/mortons-neuroma/DS00468 (last visited June 9, 2011).
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[the] review, therefore, is in effect de novo.”). Some of our prior cases have stated
that the complaint is the only relevant pleading in determining proper venue. See
SDDS, Inc. v. State, 502 N.W.2d 852, 858 (S.D. 1993) (Henderson, J., dissenting);
Kreager v. Blomstrom Oil Co., 298 N.W.2d 519, 520 (S.D. 1980) (citing Meihak v.
Schreckenghaust, 67 S.D. 603, 297 N.W. 122 (1941)). This view, however, is too
restrictive and does not reflect our general practice in venue cases. Therefore we
now hold that courts making proper venue determinations are not limited to only
examining the complaint.
[¶3.] We reach this conclusion because an artfully drafted complaint could
obfuscate where the action arose. To avoid this, a court may consider other
pleadings and evidence, such as the parties’ motions, affidavits, and other relevant
matters. While there may be cases where proper venue can be determined from the
complaint, in this case the complaint alone does not tell the whole story. As a
result, additional information is relevant and required because proper venue
depends on where the “the damages were inflicted or the cause of action arose.”
[¶4.] Estes alleges in her complaint that Dr. Lonbaken’s negligence
consisted of substandard surgical procedure and follow-up care. Dr. Lonbaken
treated Estes for a large neuroma on her foot. Estes opted to have Dr. Lonbaken
surgically remove the neuroma. The surgery took place in Hughes County. During
the surgery, Dr. Lonbaken attempted to excise the neuroma by accessing it from the
top of her foot. But his attempt was unsuccessful. He then attempted to access the
neuroma from the bottom of her foot. He did this by making an incision in the
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shape of a “seven” or “hockey stick.” He then removed the neuroma and closed the
flap. Dr. Lonbaken reported after the surgery that everything went well.
[¶5.] During Estes’ recovery period, her foot developed an infection. This led
to some drainage from the surgical site, redness, pain, and an odor. It was later
determined that Estes had developed Methicillin-Resistant Staphylococcus
Aureus. 2 This condition was treated through hospitalization and intra-venous
antibiotics. Slowly, Estes’ condition improved, and she was discharged. All of her
follow-up care took place in Hughes County, except for one office visit in a clinic in
Fort Thompson, South Dakota, which is in Buffalo County. Dr. Lonbaken indicated
that he removed the sutures at that visit.
[¶6.] For assessing proper venue, we look at the following considerations to
determine where a cause of action arose: (1) the right claimed; (2) the wrong
claimed to have been suffered; (3) “[t]he relief sought”; and, (4) “the place where the
facts creating the necessity for bringing the action occur[red].” McDonald v. State,
86 S.D. 570, 199 N.W.2d 583, 586 (S.D. 1972). Here, Estes sought money damages
for Dr. Lonbaken’s negligent surgical procedure and follow-up care. All of this
occurred in Hughes County except for one office visit. And it does not appear that
Estes claimed Dr. Lonbaken was negligent at that one visit when he removed the
2. The Mayo Clinic’s website describes Methicillin-Resistant Staphylococcus
Aureus as an “infection . . . caused by a strain of staph bacteria that’s become
resistant to the antibiotics commonly used to treat ordinary staph infections.
Most MRSA infections occur in people who have been in hospitals or other
health care settings, such as nursing homes and dialysis centers.” Definition
of Methicillin-Resistant Staphylococcus Aureus, Mayo Clinic, http://www.
mayoclinic.com/health/mrsa/DS00735 (last visited June 9, 2011).
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sutures. Thus, the facts creating the necessity for bringing the action took place
exclusively in Hughes County. Consequently, all four considerations center around
acts alleged to have taken place in Hughes County. As such, the proper venue was
Hughes County, not Buffalo County. We conclude that the trial court did not err in
granting Dr. Lonbaken’s motion to change venue to Hughes County.3
[¶7.] We affirm.
[¶8.] GILBERTSON, Chief Justice, and SEVERSON, Justice, and SABERS,
Retired Justice, concur.
[¶9.] KONENKAMP, Justice, concurs in result.
[¶10.] SABERS, Retired Justice, sitting for ZINTER, Justice, disqualified.
[¶11.] WILBUR, Justice, not having been a member of the Court at the time
this action was submitted to the Court, did not participate.
KONENKAMP, Justice (concurring in result).
[¶12.] If we are going to overrule our precedent, we ought to say so explicitly.
In a case plaintiff relies on, Kreager v. Blomstrom Oil Co., this Court held that “the
determination of a venue motion must be made from the allegations of plaintiff’s
complaint; no other pleading is relevant to the issue.” 298 N.W.2d 519, 520 (S.D.
1980) (citation omitted). Today, to thwart artfully drafted complaints, the Court
rules: “we now hold that courts making proper venue determinations are not limited
to only examining the complaint.” I agree.
3. The resolution of this issue is dispositive of the remaining issue of Estes’
appeal.
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[¶13.] This common sense holding comports with rulings in other
jurisdictions. Along with this rule change, though, we should provide restrictions
on what will suffice for proper consideration in venue hearings. The Court includes
“pleadings and evidence, such as the parties’ motions, affidavits, and other relevant
matters.” See majority opinion ¶ 3. But concern with artfully drafted complaints
might well extend to similarly drafted “motions” and “pleadings,” not to mention
“other relevant matters.” For good reason, other states limit ultimate consideration
to competent evidence, such as offered in verified pleadings, sworn testimony, and
affidavits. See, e.g., Mosby v. Superior Court, 117 Cal. Rptr. 588, 593 (Cal. Ct. App.
1974). We should do likewise.
[¶14.] Under SDCL 15-5-10, when a party timely “demands in writing that
the trial be had in the proper county,” the court may change the place of trial where
the county designated in the complaint is not the proper county. SDCL 15-5-11;
Kolb v. Monroe, 1998 S.D. 64, ¶ 11, 581 N.W.2d 149, 151 (untimely demand).
Although we have not established a procedure for how these matters should be
handled, we would do well to borrow the process used in other state courts. See
generally 77 Am. Jur. 2d Venue § 44; 92A C.J.S. Venue § 71. Accordingly, the party
raising the issue has the burden of proving improper venue. For the purposes of
evaluating a claim of improper venue, the allegations in the complaint are taken as
true, at least initially. An objecting party bears the burden of proving by competent
evidence that suit has been brought in the wrong county. Thereafter, the other
party may respond with evidence to counter the objecting party’s offering. In ruling
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on the question of proper venue, the trial court should enter findings of fact and
conclusions of law.
[¶15.] Here, in support of his demand to change venue, defendant submitted
an affidavit with numerous attachments showing the treatment plaintiff received
and where it was administered. Venue was changed to Hughes County. In later
denying plaintiff’s motion for reconsideration, the trial court found that there was
no testimony from plaintiff’s expert to support that negligence occurred or injury
was inflicted at the times plaintiff was treated in Buffalo County. These findings
have not been shown to be erroneous. Thus, the change of venue should be
affirmed.
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