State ex rel. Audrain Healthcare, Inc., d/b/a Audrain Medical Center, Kurt M. Bracke, M.D., and Mexico Family Health Care, Relators, v. The Honorable Keith Sutherland, Respondent. (consolidated with) State ex rel. David Bowne, M.D., Relator, v. The Honorable Keith Sutherland, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: State ex rel. Audrain Healthcare, Inc., d/b/a Audrain Medical Center, Kurt M. Bracke, M.D., and Mexico Family Health Care, Relators, v. The Honorable Keith Sutherland, Respondent. (consolidated with) State ex rel. David Bowne, M.D., Relator, v. The Honorable Keith Sutherland, Respondent. Case Number: SC88527 and SC88528 Handdown Date: 09/11/2007 Appeal From: Original Proceedings in Prohibition Counsel for Appellant: Edward C. Clausen and John L. Wood Counsel for Respondent: Maurice B. Graham, Thomas K. Neill, Patrick J. Hagerty, M. Graham Dobbs, Louis J. Leonatti, Brian J. Fellows and Mariam Decker Opinion Summary: Plaintiffs sued various health care organizations and doctors in Audrain County. The suit against Audrain Healthcare Inc., Dr. Kurt Bracke and Mexico Family Health Care alleged wrongful death from medical negligence. The suit against Dr. David Bowne alleged medical malpractice and loss of consortium. All the parties agree that any negligence first occurred in Audrain County. In both suits, plaintiffs requested a change of venue under Rule 51.03, which requires that a timely request for such a change be granted from a county of fewer than 75,000 inhabitants. The 2000 census indicates Audrain County has fewer than 25,900 inhabitants. In both cases, the circuit court ordered the cases transferred to Warren County, in the same judicial circuit. The health care organizations and doctors seek a writ prohibiting the cases from being transferred. PRELIMINARY WRITS QUASHED. Court en banc holds: The change of venue from Audrain County is permitted. Section 508.011, RSMo Supp. 2006, prevents a venue change under Rule 51.03 when the rule contradicts chapter 508, RSMo Supp. 2006. Under these facts, however, no such contradiction exists. The only conflict the health care organizations and doctors allege is that section 508.010.4 specifies that venue is in the county where the plaintiff first was injured by the alleged

wrongful acts or negligent conduct. Although applying the different provisions might yield different results, that difference is not a contradiction. Section 508.010.4 does not prohibit a change of venue, nor does it purport to address how a court should proceed where the selected trial venue becomes inappropriate due to the small number of persons in the county. Rule 51.03 address this problem by avoiding any potential unfairness in trying a case in a small county while protecting the parties by requiring the new venue to be convenient and by giving the parties input into the new location. Citation: Opinion Author: PER CURIAM Opinion Vote: PRELIMINARY WRITS QUASHED. Stith, C.J., Price, Teitelman, Limbaugh, Russell and Wolff, JJ., concur. Opinion: Relators in these cases are defendants in tort lawsuits originally filed in Audrain County. The plaintiffs in those suits sought a change of venue of right under Rule 51.03 because Audrain County has a population of fewer than 75,000 inhabitants.(FN1) The relators contend that section 508.011(FN2) prohibits application of Rule 51.03. Under the facts of these cases, chapter 508 does not contradict Rule 51.03. The preliminary writs are quashed. FACTS In the Audrain Healthcare case, suit was filed alleging wrongful death from medical negligence. The parties agree that negligence, if any, first occurred in Audrain County. Similarly, in the David Bowne case, suit was filed alleging medical malpractice and loss of consortium. Again, the parties agree that negligence, if any, first occurred in Audrain County. In both cases, the plaintiffs requested a change of venue under Rule 51.03. Under that rule, a change of venue shall be granted from a county of under 75,000 population upon the filing of a timely application therefor. The parties do not contest the timeliness of the motion. The application need not be verified and may be signed by any party. After the filing of the applications under Rule 51.03, the respondent judge ordered the cases transferred to Warren County - a county within the same judicial circuit. The relators incorrectly contend that section 508.011 prevents such

a transfer because section 508.010.4 requires that venue for such a suit is where the plaintiff was first injured by the wrongful acts or negligent conduct alleged in the action. DISCUSSION 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 acts or negligent conduct alleged in the action. Although application of two different provisions might yield dissimilar results, not all differences are contradictions. See State ex rel. State v. Riley, 992 S.W.2d 195, 196 (Mo. banc 1999) (local court rule is inconsistent with the rules of this Court, and thus invalid, if the local court rule specifically prohibits something this Court's rules permit or if the local court rule specifically permits something that this Court's rules prohibit). As this Court noted in State ex rel. Lebanon School Dist. R-III v. Winfrey, 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. This avoids any potential unfairness yet protects the convenience of the remaining parties by expressly providing that the new venue must be convenient and by giving the parties input into the new location for trial. In Lebanon School District, the Court also noted that the legislature

is well aware how to prohibit a change of venue, for it did so in the case of condemnation in certain instances in section 88.067, RSMo 2000, and with respect to certain suits involving drainage or levy districts in sections 242.650 and 245.255, RSMo 2000. Id. at 236. As in Lebanon School District, no similar prohibition appears with respect to changes of venue in tort cases. 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.(FN3) If a statutory provision can be interpreted in two ways, one constitutional and the other not constitutional, the constitutional construction shall be

adopted. Murrell v. State, 215 S.W.3d 96, 102 (Mo. banc 2007). Under the facts of these cases, chapter 508 and Rule 51.03 do not contradict each other. The preliminary writs are quashed. Footnotes: FN1. The 2000 census indicates Audrain County has a population of 25,853. U. S. Census Bureau State & County QuickFacts.http://quickfacts.census.gov/qfd/states/29/29007.html. FN2. All statutory references are to RSMo Supp. 2006. Section 508.011 provides: "To the extent that rule 51.03 of the Missouri rules of civil procedure contradicts any provision of this chapter, the provisions of this chapter shall prevail regarding any tort claim." FN3. For an excellent discussion of this topic, see David Jacks Achtenberg, Venue in Missouri After Tort Reform, 75 UMKC L. Rev. 595, 645-79. In particular, the author notes that a "law" for purposes of article V, section 5 of the Missouri Constitution is a bill that has been duly enacted by both houses of the General Assembly and either signed by the Governor or passed over a veto; a section of a bill is not such a law. Id. at 660-62. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.