State ex rel. Eldon K. Bugg, Relator v. The Honorable Ellen S. Roper, 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. Eldon K. Bugg, Relator v. The Honorable Ellen S. Roper, Respondent. Case Number: SC86645 Handdown Date: 12/20/2005 Appeal From: Original Proceeding in Mandamus Counsel for Appellant: Eldon K. Bugg Counsel for Respondent: Jason P. Osteen and Robert D. Kingsland Opinion Summary: Boone County resident Eldon Bugg sued Jackson County residents who sold him a motorized home, alleging breach of the sales agreement, negligent representation of the engine, and fraudulent representation of the engine's condition. He filed suit in Boone County, and the defendants moved to dismiss for improper venue. The Boone County court sustained the motion to dismiss and declined to permit Bugg to file an amended petition. Bugg seeks relief from this Court. WRIT MADE PEREMPTORY AS MODIFIED. Court en banc holds: Because the defendants did not file a responsive pleading but merely a motion, the circuit court erred in not permitting Bugg to amend his pleading pursuant to Rule 55.33(a). In addition, even though the defendants incorrectly moved to dismiss the case based on improper venue, the circuit court should have deemed it a motion to transfer the case to a proper venue. The circuit court is mandated to order Bugg's amended petition to be filed and to permit defendants to file an amended motion under Rule 51.045. Citation: Opinion Author: PER CURIAM

Opinion Vote: WRIT MADE PEREMPTORY AS MODIFIED. All concur. Opinion: Eldon Bugg, a resident of Boone County, purchased a motorized home from residents of Jackson County. The home did not perform as Bugg expected and required significant engine repairs. He filed suit in Boone County, alleging breach of the sales agreement, negligent representation of the engine, and fraudulent misrepresentation of the condition of the engine. The defendants, who were served in Jackson County, filed a motion to dismiss on the basis of improper venue. Bugg then served defendants his first amended petition. The respondent held a hearing on the motion to dismiss, declined to permit the filing of the first amended petition, and sustained the motion to dismiss. Bugg sought relief in this Court, contesting the dismissal and the failure to permit the filing of his amended petition. This Court issued its alternative writ, which, as modified, is now made peremptory. Rule 55.33(a) provides, in pertinent part, that a pleading may be amended once as a matter of course at any time before a responsive pleading is served. As defendants did not file a responsive pleading, but merely a motion, Bugg was entitled to amend his pleading as a matter of course. The amended petition should have been filed. Once an amended pleading is filed, any prior pleadings not referred to or incorporated into the new pleading are considered abandoned and receive no further consideration in the case for any purpose. Scott v. Clanton, 113 S.W.3d 207, 213 (Mo. App. 2003). In his amended petition, Bugg does not refer to or incorporate any prior pleading. Therefore, in this case, the issue of venue is to be determined on the basis of the amended petition.(FN1) Moreover, defendants' motion to dismiss is not a correct motion. Section 476.410, RSMo 2000, provides, "The division of a circuit court in which a case is filed laying venue in the wrong division or wrong circuit shall transfer the case to any division or circuit in which it could have been brought." In conjunction with this statute, questions concerning venue are to be raised by motion to transfer to a correct venue under Rule 51.045. Although denominated a "Motion to Dismiss for Improper Venue," the respondent was entitled to treat the motion as one to transfer to a correct venue under the rule. The misleading caption is not fatal where defendants expressly request relief in a motion based upon improper venue. See State ex rel. Heistand v. McGuire, 701 S.W.2d 419, 420 (Mo. banc 1985). A peremptory writ is directed to issue directing respondent to order the amended petition filed. Defendants may be granted leave to file an amended motion under Rule 51.045. All concur.

Footnote: FN1.Such a conclusion is not contrary to State ex rel. DePaul Health Center v. Mummert, 870 S.W.2d 820, 823 (Mo. banc 1994), which holds that "by the terms of the statute, venue is determined as the case stands when brought, not when a motion challenging venue is decided." As explained in State ex rel. Breckenridge v. Sweeney, 920 S.W.2d 901 (Mo. banc 1996), "This passage from DePaul is not on point. The venue statute and, in turn, the Court's reference to the statute in DePaul pertain to the residence of parties defendant to a lawsuit, not the condition of the pleadings." It is noted that the statute on which DePaul is based was amended in the last legislative session to eliminate reference to where suit is brought. See section 508.010, 2005 Mo. Laws 644. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.