Change of Venue Permitted From County In Which Injury First Occurred

W. Dudley McCarter
Behr, McCarter & Potter
St. Louis

Two medical negligence cases were filed in Audrain County, which was the county in which the alleged negligent acts first occurred. In both cases, the plaintiffs requested a change of venue under Supreme Court Rule 51.03, which permits a change of venue from a county that has a population under 75,000. The trial judge granted the plaintiffs’ motions and ordered the cases transferred to Warren County – a county within the same judicial circuit. The defendants challenged these rulings by filing petitions for writs of prohibition. Defendants contended that such transfer is prohibited under § 508.010.4, RSMo, which requires venue for tort actions to be in the county where the plaintiff was first injured by the wrongful act or negligent conduct. The Supreme Court of Missouri quashed the preliminary writs and found that the change of venue under Rule 51.03 was proper in State ex rel. Audrain Health Care, Inc., et al v. Sutherland.¹

“Section 508.011 only applies when Rule 51.03 contradicts a provision of Chapter 508. The only conflict identified by the relators is that section 508.010.4 specifies that venue for these cases is in the county where the plaintiff was first injured by the wrongful act or negligent conduct alleged in the action. Although application of two different provisions might yield dissimilar results, not all differences are contradictions.”²

“As this Court noted in State ex rel. Lebanon School District R-III v. Winfery, 183 S.W.3d 232, 237 (Mo. banc 2006), statutes providing a convenient, logical and orderly forum for litigation do not purport to address how a court should proceed where the selected venue becomes inappropriate for trial due to the small number of persons in the county or for other reasons. That problem is addressed by Rule 51’s change of venue provisions. Allowing an automatic change of venue upon timely application saves judicial resources that would otherwise be spent in determining whether a party could get a fair trial in the county in light of the prejudice that may have arisen in a particular case due to publicity or familiarity with the parties or the issues involved.”³

“In Lebanon School District, this Court also noted that the legislature is well aware how to prohibit a change of venue. . . . To hold that Chapter 508 and Rule 51.03 contradict each other would require the Court to determine the authority of the legislature to change a procedural rule by the method used in this instance. If a statutory provision can be interpreted in two ways, one constitutional and the other not constitutional, the constitutional construction shall be adopted.”⁴ “Under the facts of these cases, Chapter 508 and Rule 51.03 do not contradict each other.”⁵

In a Tort Case, a Municipality May Be Sued in Another County If That is Where the Injury First Occurred

A police officer for the City of Jennings pursued a suspect in an automobile chase that started in St. Louis County and continued into the City of St. Louis. At an intersection in the City of St. Louis, the suspect collided with another vehicle, killing the driver. The family of the driver filed a wrongful death suit against the City of Jennings in the circuit court of the City of St. Louis. Jennings filed a motion to transfer for improper venue under §508.050, RSMo., which states that all suits against a municipality shall be commenced in the county in which the municipality is situated. The trial court denied the motion and the Supreme Court upheld the trial court’s decision in State of Missouri ex rel. City of Jennings v. Riley.⁶

“[S]ection 508.010.4, RSMo Supp. 2005 states: Notwithstanding any other provision of the law, in all actions in which there is any count alleging a tort and in which the plaintiff was first injured in the state of Missouri, venue shall be in the county where the plaintiff was first injured by the wrongful acts or negligent conduct alleged in the action. (emphasis added). Under Section 508.050, venue against the City of Jennings is only proper in St. Louis County, because that is where the City is located, but under Section 508.010.4, venue against the City of Jennings is only proper in St. Louis City because that is where the plaintiff was first injured. The question, then, is which venue statute trumps the other.”⁷

“[T]he goal of statutory analysis . . . is ‘to ascertain the intent of the legislature as expressed in the words of the statute’ and that goal is achieved by ‘giving the language used its plain and ordinary meaning.’”⁸ “Relator contends that the two statutes are in conflict and that the conflict should be resolved by reference to the principles of statutory construction, stating that the more specific statute controls over the more general.”⁹ Relator’s argument “presupposes that the statutes are in conflict, which is a precondition to the application of the principles of statutory construction.”¹⁰

“In fact, there is no conflict because section 508.010.4, by its plain meaning, expressly applies to the exclusion of all laws to the contrary. In other words, to say that a statute applies ‘notwithstanding any other provision of the law,’ is to say that no other provisions of law can be held in conflict with it. Indeed, the ‘notwithstanding’ clause does not create a conflict, but eliminates the conflict that would have occurred in the absence of the clause.”¹¹

Relator also contends that the denial of its “motion to transfer venue is, in effect, a holding that section 508.050 has been repealed by implication, and that the repeal of a statute by implication, as exposed to an express repeal, is ‘rare and disfavored.’ The holding of this Court is simply that section 508.050 does not apply in tort cases.”¹²

Suit for Pre-Condemnation Damages Dismissed Because Not Ripe

The City of Gladstone enacted an ordinance declaring property owned by Clay County Realty Company and Edith Investment Co. to be blighted. Over the next two years, Gladstone solicited proposals for a tax increment financing plan, but never approved a TIF plan or instituted formal condemnation proceedings. Clay County Realty and Edith Investment filed suit against Gladstone alleging that the delay in instituting condemnation proceedings resulted in tenants refusing to renew their leases and that they were unable to attract other tenants because of the delays. The suit further alleged that Gladstone’s actions resulted in a taking of their property without just compensation. The trial court granted Gladstone’s motion for summary judgment, but the Court of Appeals reversed and directed the trial court to dismiss the petition for lack of ripeness in Clay County Realty Company, et al v. City of Gladstone.¹³

“[M]unicipalities have the power to declare an area blighted and in need of redevelopment. Missouri Con-stitution, Article VI, Section 21. . . . A direct condemnation proceeding involves a two-step process in which the circuit court first determines whether the condemnation is authorized by law and, if so, determines the damages resulting from the taking. City of Wentzville v. Dodson, 133 S.W.3d 543, 548 (Mo.App. [E.D.] 2004). If, however, the municipality acts indirectly to take property, depriving the property owner of the safeguards of Chapter 523, the owner can still seek compensation for the taking in an action for inverse condemnation. Wyper v. Camden County, 160 S.W.3d 850, 852-853 (Mo. App. [S.D.] 2005). An inverse condemnation action was developed to provide the landowner a remedy when a condemnor physically accomplished a taking or damaging of private property, but did not institute a formal condemnation proceeding. Id.” “In direct condemnation and in inverse condemnation, ‘the injury is the same; the damage is the same; and the compensation should be the same.’”¹⁴

“Elapse of much time between an area’s being declared blighted and commencement of direct condemnation proceedings is common. Missouri Highway & Transportation Commission v. Edelen, 872 S.W.2d 551, 558 (Mo.App. [E.D.] 1994). Property values during these times typically decrease. Id. When rental property is declared blighted, tenants often vacate the premises without other tenants moving in, sometimes at the redevelopment authority’s urging. Washington University Medical Center Redevelopment Corporation v. Gaertner, 626 S.W.2d 373, 375 (Mo.banc 1982). . . . The law, however, does not provide a procedure for compensating a property owner for such a decline in property value. Id. at 376. Here, Clay County Realty did not state a cause of action for inverse condemnation under Article I, Section 26. The circuit court should have dismissed that portion of [the] petition.”¹⁵

“The Supreme Court has held that a property owner has a cause of action in tort for pre-condemnation damages, including loss of rental income. Washington University, 626 S.W.2d at 377. This cause of action lies in tort because the plaintiff’s damages do not involve any damages to the property itself. Id. at 377-78; 66, Inc. v. Crestwood Commons Redevelopment Corporation, 998 S.W.2d 32, 39 (Mo. banc 1999). The courts have admonished, however, that ‘some delay prior to and during the pendency of condemnation proceedings is unavoidable and that, where it is a natural consequence of the proper exercise of the right of eminent domain, it does not give rise to a cause of action.’”¹⁶ “A property owner can maintain a cause of action in tort for pre-condemnation damages only when the defendant has caused ‘aggravated or untoward activity’ in instituting or continuing condemnation proceedings.”¹⁷

“Although Clay County Realty and Edith Investment could maintain a cause of action in tort against Gladstone, the issue arises whether or not the circuit court should have dismissed the petition on the basis that it was not yet ripe for adjudication.”¹⁸ “To maintain a ripe cause of action for pre-condemnation damages, Clay County Realty and Edith Investment either must wait until Gladstone grants an organization or agency the right to redevelop the land and it condemns the land and officially takes it, or abandons the project.”¹⁹ “Only then will the pre-condemnation damages stop accumulating and permit the circuit court to grant specific relief of a conclusive character.”²⁰

Sovereign Immunity May Be Waived Through Purchase of Liability Insurance

Evelyn Topps filed suit against the City of Country Club Hills (Country Club Hills), alleging she was wrongfully discharged in retaliation for her reporting of financial irregularities and other improper practices by the city. The city filed a motion for summary judgment contending that it was entitled to immunity pursuant to § 537.600, RSMo. The trial court granted summary judgment to the city, finding that Topps’ claim as a whistle blower was barred by sovereign immunity and that the city did not waive sovereign immunity through its purchase of a MOPERM policy. In the MOPERM policy issued to the city, the term “whistle blower” was not listed in the exclusions from coverage. The Court of Appeals reversed and remanded the summary judgment for the city in Topps v. City of Country Club Hills.²¹

Here, “whether sovereign immunity is waived or not is a matter of contract interpretation of the insurance policy between MOPERM and Country Club Hills.”²² “Municipal corporations traditionally have had immunity for those actions they undertake as part of the municipality’s governmental functions – actions benefiting the general public.²³ The “[m]unicipalities have no immunity for torts while performing proprietary functions – actions benefiting or profiting the municipality in its corporate capacity.²⁴ Personnel decisions and the internal administration of operating a municipal department are governmental. As such, [a] city is protected by governmental immunity unless some exception applies.”²⁵

In Kunzie v. City of Olivette, “the only exception to sovereign immunity [was the] municipality’s procurement of liability insurance.”²⁶ This case is factually similar to Kunzie. Topps was “a city employee who filed what the parties describe as a whistle blower claim against her employer.”²⁷ “Topps has alleged that the [city] maintained insurance which covered ‘employment practices liability.’ In Kunzie, the court reversed and remanded because, in part, it was unclear whether the City . . . maintained insurance covering Kunzie’s claim. Here, as in Kunzie, there is an insufficient factual record regarding coverage”²⁸ preventing a determination as a matter of law that Country Club Hills is entitled to judgment in its favor. The summary judgment against Country Club Hills is reversed and the case is remanded to the trial court for a factual determination as to the effect of the MOPERM policy.

Medical Malpractice Claim, Based Solely On Res Ipsa Loquitor, Cannot Proceed Without Expert Testimony

Janice Sides underwent spinal surgery at St. Anthony’s Medical Center. Following the surgery, she suffered an E.coli infection at the surgical site. She sued the physician and St. Anthony’s for malpractice. In her malpractice claim, she asserted liability solely on res ipsa loquitor; no act of specific negligence was alleged. The defendants filed a motion to dismiss on the grounds that Sides could not prove her case without the use of expert testimony and, therefore, could not proceed under res ipsa loquitor because it is not within the common knowledge of lay persons that infection with E. coli during surgery does not ordinarily occur in the absence of negligence. The trial court granted the motion to dismiss and the Court of Appeals affirmed in Sides v. St. Anthony’s Medical Center.²⁹

“In Missouri, a plaintiff can assert a medical malpractice claim under a theory of res ipsa in two limited circumstances: (1) where a patient received treatment for one problem and incurred an unusual injury to an unrelated portion of the body, or (2) where a surgeon left a foreign object in an operative cavity.”³⁰ “While the majority of states allow expert witness testimony in support of a medical malpractice claim premised on res ipsa,³¹ Missouri precedent precludes a plaintiff from asserting medical malpractice under a res ipsa theory if expert testimony is necessary to prove negligence.”³² Hasemeier, 361 S.W.2d at 700-01. “In so limiting the use of res ipsa in the medical malpractice context, Missouri courts have stated that res ipsa is incompatible with pleading or proof of specific negligence.”³³

“In Missouri, it is firmly established that a plaintiff cannot pursue a medical malpractice claim premised on res ipsa where expert testimony is needed to prove negligence. In order to establish her malpractice claim against [d]efendants, [p]laintiff needed the aid of expert testimony to show that infection with E.coli during surgery does not ordinarily occur in the absence of negligence. Under current Missouri law, plaintiff could not proceed under a res ipsa theory and the trial court had no choice but to dismiss the petition.”³⁴

Inconsistent Verdict Was a Nullity and Required New Trial

Linda Braboy filed a personal injury suit against Federal Express Corporation for injuries she sustained in a collision between her car and a FedEx truck. At trial, the case was submitted to the jury with the instructions and verdict for use in comparative-fault cases. After nearly a day of deliberations, the jury returned its verdict, signed by nine jurors. On the verdict form, the jury assessed zero percentage of fault to both Braboy and Federal Express, but contrary to the directions on the form, then assessed damages of $150,000. The trial court immediately noted that the verdict was not proper and announced that it was not accepting the verdict. After conducting research and discussing the issue with counsel for both parties, the trial court decided to poll the jury. After doing so, during which the jury confirmed that it was its verdict, the court accepted it and then entered judgment in favor of FedEx. Plaintiff appealed, and the Court of Appeals reversed and remanded for a new trial in Braboy v. Federal Express Corporation.³⁵

“’Jury verdicts are inconsistent when they are so contradictory that they cannot be construed with certainty or when they cannot fairly be resolved as a definite finding in favor of either party.’”³⁶ “Verdicts should be construed to give them effect if it can reasonably be done.”³⁷ “A verdict must be clear and unambiguous so that a judgment may be written upon it without resorting to inference or construction.”³⁸ “To reconcile the verdict in this case would relegate [the] Court to determining the intent of the jury based upon inference, conjecture and speculation. This the Court cannot do.”³⁹ “The verdict, as received, cannot fairly be resolved as a definite finding in favor of either party. Thus, the verdict is inconsistent and cannot support the entry of any judgment.”⁴⁰

“Here, . . . the jury found zero percent fault on the part of defendant FedEx, but then went on to assess damages, an assessment that was only to occur if it had found the defendant liable for damages. Therein lies the inconsistency.”⁴¹ FedEx argues that the damage finding was surplusage and meaningless, citing Heitner v. Gill, 973 S.W.2d 98 (Mo. App. S.D. 1998). The circumstances in Heitner can be distinguished from those in this case. “It appears the Heitner court impermissably relied upon inferences, conjecture and speculation in concluding the jury’s findings as to liability were meaningful, but its findings as to damage was ‘surplusage.’ This case is more analogous to those cases where a jury finds for the plaintiff on liability, but fails to award damages. As here, there is an inherent contradiction between the portion of the verdict addressed to liability and the portion as to assessment of damages. Courts in those instances have held that such a verdict is inconsistent and incapable of supporting entry of any judgment.”⁴² “Parties are entitled to the unconditional judgment of the jury, rather than a court’s interpretation of its finding.”⁴³ “’A court may not speculate as to what the jury meant; and a verdict that requires speculation to determine its meaning cannot stand and cannot support a judgment entered thereon.’”⁴⁴ Here, the verdict was “so contradictory that it cannot fairly be resolved as a definite finding in favor of either party. Thus, [the verdict was] a nullity, incapable of supporting the entry of any judgment.”⁴⁵ The dissent, following Heitner, stated that the trial judge acted appropriately when he accepted the verdict, found the damage assessment to be surplusage and entered judgment in favor of FedEx.

Where Mistrial Granted at the State’s Request, Retrial Was Barred by Double Jeopardy Clause of the United States Constitution

Sedrick Wrice was charged with first degree robbery and armed criminal action. Several days before the trial on these charges, he was assigned a new public defender to represent him. Wrice did not meet his new attorney until the morning of trial. During that meeting, Wrice advised his counsel of an alibi witness. After numerous attempts, defense counsel reached the witness, who agreed to appear in court. Because Wrice had not disclosed his intention to rely on the defense of alibi, the trial court allowed defense counsel to make an offer of proof through testimony of the witness. The testimony given by the alibi witness was in direct contradiction to the state’s case and to the victim’s identification of Wrice. The trial court determined that there was no bad faith on the part of Wrice or his defense counsel and that it would be unfair to Wrice to exclude the testimony of the alibi witness. The state asked the court to declare a mistrial; counsel for the state advised the court that he had no idea how long it would take to prepare for the alibi witness. Defense counsel stated that he did not consent to the mistrial. The trial court ordered a mistrial. When the case came to trial months later, defense counsel moved to dismiss the case with prejudice on the grounds that double jeopardy had attached in the earlier proceeding, thus precluding a retrial. The trial court dismissed the case with prejudice, which was affirmed by the Court of Appeals in State of Missouri v. Wrice.⁴⁶

“Missouri law protecting against double jeopardy applies only to retrial after an acquittal and, thus, does not apply here.”⁴⁷ “Wrice relies on the Fifth Amendment to the United States Constitution, under which double jeopardy attaches when the jury is impaneled and sworn.”⁴⁸ “Double jeopardy, however, will not preclude a retrial if a defendant requests or consents to a mistrial.”⁴⁹ “Where, as here, the defendant did not consent to a mistrial, . . . [the court must review] the trial court’s decision in the initial proceeding to grant a mistrial is reviewed for an abuse of discretion in order to determine whether double jeopardy precludes retrial.”⁵⁰ “Double jeopardy will bar a retrial unless there was a manifest necessity to declare a mistrial in the first proceeding.”⁵¹

Manifest necessity to declare a mistrial in the first case did not exist. The surprise to the state that resulted from the presentation of the alibi witness “could have been tempered by a continuance rather than a mistrial. Instead of postponing the case to allow time for the State to attempt to determine the accuracy and truthfulness of the alibi witness’s testimony, the court chose to grant the State’s motion for a mistrial. The State, having originally requested the mistrial, not only declined the opportunity for a continuance, but also declined to offer assistance by estimating how much time it might need. Under these facts, the State should not be allowed to avoid the application of double jeopardy.”⁵² “[B]ecause a less drastic remedy was available to the Court in the form of a continuance, there was no manifest necessity to declare a mistrial, and thus the trial court’s decision to declare a mistrial was an abuse of discretion.”⁵³ “Therefore, double jeopardy, having attached when the jury was sworn in the initial trial, precludes the State from retrying Wrice on the same charges.”⁵⁴

Amendment by Municipality to Its Comprehensive Plan Was Not Arbitrary

The City of Manchester initiated a redevelopment process and requested proposals for the development of an area known as the Manchester Highlands Project. As part of the project, an extension of commercial zoning beyond the existing commercial zoning district was required, necessitating an amendment to the city’s comprehensive plan. The planning & zoning commission of the city held public hearings and gathered substantial information and materials about the propriety of amending the city’s comprehensive plan. The P&Z commission approved a resolution recommending the amendment to the city’s comprehensive plan. The board of aldermen then met and adopted the ordinances necessary for the Manchester Highlands Project to move forward. Three citizens filed a declaratory judgment action against the city alleging that the P&Z commission failed to make careful and comprehensive studies in violation of § 89.350, RSMo., and that the amendment to the city’s comprehensive plan was arbitrary and unreasonable. The trial court granted summary judgment to the city and the Court of Appeals affirmed in Adams v. City of Manchester.⁵⁵

“A Planning & Zoning Commission is required pursuant to Section 89.350 to ‘make comprehensive surveys and studies of the existing conditions and probable future growth of the municipality’ when preparing a city’s plan.”⁵⁶ “Section 89.350 further mandates the City’s plan ‘shall be made with the general purpose of guiding and accomplishing a coordinated development of the municipality which will, in accordance with the existing and future needs, best promote the general welfare, as well as efficiency and economy in the process of development.’ According to affidavits submitted by the P&Z Commission members, . . . the members received input from City staff members, the Board, the City’s TIF Commission, and the public. Specifically, they averred they had the opportunity to examine and consider plans, drawings, comments”⁵⁷ from the public, newspaper articles, and general public discussions for several months. “Each member’s affidavit further averred that he or she considered ‘ample information relative to the appropriateness’ of the amendment and the personal decision to vote on the issue was thoughtful and well-considered.”⁵⁸ The plaintiffs failed to refute the averments in these affidavits and presented no evidence to demonstrate that the actions by the city constituted a violation of § 89.350, RSMo.

Footnotes

1 No. SC 88527 and SC 88528 (Mo. banc 2007).

2 Id., citing State ex. rel. State v. Riley, 992 S.W.2d 195, 196 (Mo. banc 1999).

3 No. SC 88527 and SC 88528 (Mo. banc 2007).

4 Id., citing Murrell v. State, 215 S.W. 96, 102 (Mo. banc 2007).

5 No. SC 88527 and SC 88528 (Mo. banc 2007).

6 No. SC 88464 (Mo. banc 2007).

7 Id.

8 Id., quoting United Pharmacal Co. of Missouri, Inc. v. Missouri Board of Pharmacy, 208 S.W.3d 907, 909-10 (Mo. banc 2006).

9 Id., citing Casey’s General Stores, Inc. v. City of West Plains, 9 S.W.3d 712 (Mo. App. S.D. 1999).

10 Id., citing United Pharmacol, 203 S.W.3d at 909-10.

11 Id.

12 No. SC 88464 (Mo. banc 2007).

13 No. WD 67534 (Mo. App. W.D. 2007).

14 Id., citing Stewart v. City of Marshfield, 431 S.W.2d 819, 822 (Mo. App. S.D. 1968).

15 No. WD 67534 (Mo. App. W.D. 2007).

16 Id., quoting Roth v. State Highway Commission of Missouri, 688 S.W.2d 775, 777 (Mo. App. E.D. 1984).

17 Id.

18 No. WD 67534 (Mo. App. W.D. 2007).

19 Id., citing Tierney v. Planned Industrial Expansion Authority of Kansas City, 742 S.W.2d 146, 155-56 (Mo. banc 1988).

20 No. WD 67534 (Mo. App. W.D. 2007).

21 No. ED 89356 (Mo. App. E.D. 2007).

22 Id.

23 Id., citing Junior College District of St. Louis v. City of St. Louis, 149 S.W.3d 442, 447 (Mo. banc 2004).

24 No. ED 89356 (Mo. App. E.D. 2007).

25 Id., citing Kunzie v. City of Olivette, 184 S.W.3d 570, 571 (Mo. banc 2006).

26 Id.

27 No. ED 89356 (Mo. App. E.D. 2007).

28 Id.

29 No. ED 89388 (Mo. App. E.D. 2007).

30 Id., citing Hasemeier v. Smith, 361 S.W.2d 697, 700 (Mo. banc 1962).

31 Id., citing Spears v. Capital Region Medical Center, Inc., 86 S.W.3d 58, 61 (Mo. App. W.D. 2002).

32 Id., citing Hasemeier, 361 S.W.2d at 700-01 (Mo. banc 1962).

33 Id., citing Bonnot v. City of Jefferson City, 791 S.W.2d 766, 769 (Mo. App. W.D. 1990).

34 No. ED 89388 (Mo. App. E.D. 2007).

35 No. ED 88398 (Mo. App. E.D. 2007).

36 Id., quoting Downey v. University Internists of St. Louis, Inc., 154 S.W.3d 339, 342 (Mo. App. E.D. 2004).

37 Id., citing Morse v. Johnson, 594 S.W.2d 610, 616 (Mo. banc 1980).

38 Id. at 616.

39 Id., citing Franklin v. Allstate Ins. Co., 985 S.W.2d 893, 896 (Mo. App. W.D. 1999).

40 No. ED 88398 (Mo. App. E.D. 2007).

41 Id.

42 Id., citing Downy v. University Internists of St. Louis, Inc., 154 S.W.3d 339 (Mo. App. E.D. 2004).

43 Id., citing Boone v. Richardson, 388 S.W.2d 68, 76 (Mo. App. S.D. 1965).

44 Id., quoting Kansas City Power & Light Co. v. Bibb & Associates, Inc., 197 S.W.3d 147, 155 (Mo. App. W.D. 2006).

45 No. ED 88398 (Mo. App. E.D. 2007).

46 No. ED 88727 (Mo. App. E.D. 2007).

47 Id., citing Missouri Constitution, Article I, Section 19; State v. Tolliver, 839 S.W.2d 296, 298-99 (Mo. banc 1992).

48 Id., citing United States v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977).

49 Id., citing State v. Fitzpatrick, 672 S.W.2d 831, 835 (Mo. banc 1984).

50 Id., citing Kemper v. Vincent, 191 S.W.3d 45, 51 (Mo. banc 2006).

51 Id. at 51.

52 No. ED 88727 (Mo. App. E.D. 2007).

53 Id.

54 Id.

55 No. ED 89154 (Mo. App. E.D. 2007).

56 Id.

57 Id.

58 Id.