Mitchell Manor Convalescent Home, Inc. v. Oklahoma Health Planning Commission

BRIGHTMIRE, Judge.

Challenged here is the trial court’s order dismissing the plaintiffs’ petition — for review of an agency order granting a certificate of need for new nursing home — on the ground of improper venue.

I

On March 21, 1988, appellee Beare’s Co., Inc., filed an application with appellee Oklahoma Health Planning Commission (OHPC), requesting that a certificate of need be issued to permit the construction of a facility containing a forty-bed intermediate care unit and a twenty-bed nursing care unit in Hartshorne, Oklahoma. This application was approved by OHPC on June 23, 1988.

The appellants, Mitchell Manor Convalescent Home, Inc., and Eastern Oklahoma Nursing Homes, Inc., filed requests with OHPC for reconsideration of its action approving the application. OHPC denied the requests August 23, 1988.

On September 21, 1988, the appellants timely filed an appeal in the District Court of Oklahoma County, alleging that OHPC’s decision was contrary to law, arbitrary, capricious, based on insufficient evidence, and clearly erroneous. The appellants requested that the trial court reverse the decision of OHPC and remand the matter with instructions to deny the requested certificate of need.

On October 6, 1988, Beare’s filed a motion to dismiss the action on the ground of improper venue, contending that 75 O.S. 1981 § 318 requires that this action be commenced in Pittsburg County — the site of the proposed nursing home and the location of the appellants’ nursing home facilities. OHPC did not respond to the motion to dismiss but announced to the trial court that it wished to join in the motion.

The trial court entered an order finding that the appellants were residents of Pitts-burg County, that the petition for review had been improperly filed in Oklahoma County and that it should have been filed in Pittsburg County. The court sustained the motion to dismiss and correspondingly the petition was dismissed with prejudice.

From this final order an appeal was commenced.

II

We cannot agree that 75 O.S.1981 § 318 limits venue of a petition for judicial review of an OHPC order to the district court of Pittsburg County, which is the county where the appellants reside and where the opposed nursing facility is proposed to be built. It appears that the venue proviso in § 318(2) was aimed at accommodating the aggrieved party and was not intended to prescribe an exclusive venue for district court review of OHPC orders even though the term “shall” is used.

The basis for our conclusion is this: First, in § 318(2) the legislature was concerned with allocating review jurisdiction of certain reviewable final orders between the Supreme Court and the district courts. Second, § 318(1) specifies that any person aggrieved by an agency order is entitled to a speedy and complete judicial review “under this act, but” continues the statute, “nothing in this section [§ 318] shall prevent resort to other means of review, redress, relief or trial de novo, available because of constitutional provisions.”

We believe the foregoing statute is intended to open widely the various procedural doors in order to provide a “means” for an aggrieved party to obtain judicial review. After all, venue is not a jurisdictional matter. Objection to it may be waived. City of Cleveland v. Cheatham, 285 P.2d 205 (Okl.1955).

The means of obtaining review by the aggrieved parties in this instance was to invoke one of our venue statutes authorizing the filing of their petition for judicial review in Oklahoma County. The law set out in the first such statute, 12 O.S.1981 § 143, is as follows:

“All venue statutes are cumulative wherever they appear and any action brought under any such statute may be maintained where brought. No court shall apply one venue statute in preference to another whether considered general or special.” (Emphasis added.)

The venue statutes in Title 12 authorize an action such as this to be brought, indeed, one says “must be brought in the county in which ... one of the defendants resides or may be summoned.” ¹ There is no question that one of the defendants in this case, OHPC, resides in Oklahoma County.²

When an action is against a “public officer for an act done by him in virtue, or under color, of his office” then another applicable venue statute provides that the action “must be brought in the county where the cause, or some part thereof arose.” 12 O.S.1981 § 133. And there exists yet a third statute stating that an action “against a corporation created by the laws of this state, may be brought in the county in which it is situated ... or in the county where the cause of action or some part thereof arose.” 12 O.S.1981 § 134.

The defending appellees rely on four appellate decisions none of which involves an issue pertaining to venue.

The first, Beidleman v. Belford, 525 P.2d 649 (Okl.1974), deals with an attempt by a judgment creditor to revive a dormant judgment after the effective date of a revi-vor statute’s repeal. Among other things, the court invoked the general common-law rule of statutory construction that a special statute which makes a specific requirement controls over a general statute. Such rule is not applicable in this case because, as has already been pointed out, there is a specific statute governing the construction of various general and special venue statutes.

The second case cited by the appellees, Citizens’ Action for Safe Energy, Inc. v. Oklahoma Water Resources Board, 598 P.2d 271 (Okl.App.1979), is offered as having approved the Beidleman common-law rule of statutory construction by holding that a party aggrieved by an administrative order must comply with the procedural requirements prescribed by a special statute authorizing judicial review. The Citizens’ court also enlisted for support the holding in the third case cited by the appellees, namely, Edmondson v. Siegfried Insurance Agency, Inc., 577 P.2d 72 (Okl.1978), in which the aggrieved party failed to establish jurisdiction for district court judicial review because he did not timely name all parties made necessary by the special act involved.

Assuming that the selection of venue is a “procedural” matter within the broader connotation of that term,³ venue is a subject statutorily treated separately and in some detail as we have seen. This fact coupled with the applicational command of § 143 prohibits invocation of the judicial rule of construction applied in the last ease cited by the appellees, which holds that “[wjhere two statutes are inconsistent and repugnant, the latest expression of legislative will is held to prevail and to repeal the repugnant provision of the earlier statute.” Kohler v. Clark, 525 P.2d 1401, 1403 (Okl.App.1973).

Ill

The dismissal order is therefore vacated and the cause is remanded for further proceedings.

REIF, P.J., concurs. MEANS, J., dissents.

1 . Title 12 O.S.1981 § 139.

2 . See State Bd. of Educ. v. District Ct. of Bryan County, 290 P.2d 413 (Okl.1955).

3 . Procedure is generally thought of as including the "machinery for carrying on suit including pleading, process, evidence and practice, whether in trial court or appellate court." Black’s Law Dictionary, 1083 (5th ed. 1979).