Venue in Missouri After Tort Reform

Abstract

Venue matters. Anyone who doubts it need only look to the venue wars waged in the Missouri Supreme Court during the last decades. Understandably, plaintiffs prefer unrestrictive venue rules so that they can file and try their cases in counties with plaintiff-friendly jury pools. Just as understandably, defendants prefer rules that restrict plaintiffs' ability to choose between multiple venues and, to the extent possible, rules that permit the defendant to select the counties in which they can be forced to defend their actions.

The passage of Missouri's 2005 Tort Reform Act represented an important legislative victory for defendants in this struggle. The Act's provisions significantly restrict plaintiffs' venue options and substantially increase defendants' control over the counties in which they can be sued. The wisdom of these changes will be debated vigorously, but this article will not engage in that debate. It has less ambitious goals: to explain the post-tort reform venue provisions, to identify important issues that will face Missouri courts due to ambiguities or gaps in those provisions, and to suggest the most appropriate resolution of those issues based on neutral interpretive principles. The Tort Reform Act has not ended the venue wars, but it has significantly reshaped the territory on which those wars will be fought. This article is a map to the new battlefield.

Part II of the article briefly outlines Missouri venue law as it existed prior to the Tort Reform Act, focusing on those aspects of pre-tort reform doctrine that will help the reader understand the post-tort reform changes. While Part II may be a useful review for all readers, those with substantial background on the issue may wish to begin with Part III.

Part III starts by presenting an overall description of the post-tort reform venue regime. Subpart A explains the new venue rules for non-tort cases, those in which no count alleges a tort. It shows that, as expected, the non-tort rules reduce the venue options for suits against most corporations; but it also reveals the surprising fact that those rules will actually increase the number of counties in which nonprofit corporations can be sued. Subpart B discusses the new venue rules for tort cases. After describing those rules, it discusses and resolves three important interpretive questions: What it does it mean to say that a plaintiff was “first injured” in a particular location? What does the statutory term “principal place of residence” mean when the party in question is not an individual, or is an individual whose main residence is outside Missouri? What is the scope of the Act's requirement that venue must be determined as of the date of first injury?

Part III continues by identifying and attempting to resolve three latent inconsistencies within the post-tort reform venue scheme. Subpart C discusses the multiple-party venue problem. It explains how to determine venue when the otherwise applicable rules, if applied to the various parties separately, prescribe conflicting venues. Subpart D identifies the existence of “venue gaps,” situations in which the Tort Reform Act appears to dictate that certain cases may not be brought in any Missouri county. It concludes that the Court cannot interpret the Act in a manner that fills these gaps and will need to decide whether the existence of these gaps violates the Missouri Constitution. Finally, subpart E explains how to resolve the conflict between the venue provisions of the Tort Reform Act and the apparently incompatible provisions of special venue statutes that apply to particular parties and specific types of civil actions.

Part IV deals with additional issues that stem from provisions of the Act that do not determine venue itself, but instead regulate the way venue can be changed, manipulated, and contested. Subpart A discusses new section 508.011's apparent partial repeal of Supreme Court Rule 51.03, the small county change of venue rule. As a matter of statutory interpretation, Subpart A concludes that the act has not repealed Rule 51.03 because - contrary to the apparent assumption of the legislature - that rule is not inconsistent with the provisions of Chapter 508. Subpart A then analyzes Article V, section 5 of theMissouri Constitution, discussing its text, its enactment history, and case law interpreting it. That analysis demonstrates that, if section 508.011 were interpreted to modify or partially annul Rule 51.03, it would violate Article V, Section 5 because the Tort Reform Act was not a “law limited to the purpose” of making such a change. Finally, Subpart A concludes that, even if section 508.011 were interpreted to repeal Rule 51.03 and to comply with Article V, section 5, it would necessarily violate the “original purpose” requirement of Article III, section 21.

Subpart B of Part IV discusses new section 508.012's requirement that venue be redetermined whenever “a plaintiff or defendant, including a third-party plaintiff or defendant, is either added to or removed from a petition.” It concludes that, contrary to the expectations of many lawyers, section 508.012 will have only a modest effect, requiring venue redetermination only when plaintiffs amend their petitions to add or drop a party. In light of the limited reach of section 508.012, Subpart B argues that the doctrine of pretensive joinder will still be necessary and may need to be expanded. Finally, Subpart B points out that, while section 508.012 deals with a venue tactic - manipulation of parties - that the Tort Reform Act has made less important, it has completely ignored a similar tactic - manipulation of claims - that the act has made much more important. The subpart concludes that the Court should deal with this new tactic by creating a doctrine that requires trial courts to disregard pretensively joined claims on much the same basis that they currently disregard pretensively joined parties.

Finally, Subpart C of Part IV analyzes section 508.010.10's unusual rule requiring that “[a]ll motions to dismiss or to transfer based upon a claim of improper venue shall be deemed granted if not denied within ninety days of filing.” That analysis leads to the surprising conclusion that section 508.010.10's ninety-day rule applies to all motions to dismiss, regardless of the basis of the motion, rather than merely to venue challenges. Subpart C then suggests some practical steps for a plaintiff to take if a trial court's inaction leads to the unintentional “deemed dismissal” of a petition.

Keywords: venue, Missouri, jury, juries, tort reform, Tort Reform Act, first injured, first injury, principal place of residence, multiple party venue, venue gaps, corporations only venue, not-for-profit venue, special venue

JEL Classification: K10, K13, K40, K41