State ex rel. Rowe Burns, Relator, v. The Honorable Carolyn C. Whittington, 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. Rowe Burns, Relator, v. The Honorable Carolyn C. Whittington, Respondent. Case Number: SC87962 Handdown Date: 04/17/2007 Appeal From: Original Proceeding in Mandamus Counsel for Appellant: Thomas E. Schwartz Counsel for Respondent: Reed W. Sugg, Jason D. McKnight, Timothy C. Sansone, John F. Cowling and Matthew S. Shorey Opinion Summary: This summary is not part of the opinion of the Court. It has been prepared by the Communications Counsel for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court and should not be quoted or cited. The opinion of the Court, which may be quoted, follows the summary. In August 2005, Alfred Burns filed a personal injury suit in the city of St. Louis, alleging his exposure to the defendants' benzene-containing products caused him to develop leukemia. Six days later, section 508.010, RSMo Supp. 2005, an amended venue statute enacted by the legislature, went into effect. This statute provides that tort cases must be filed in the county where the plaintiff first is injured. Another statute that became effective at the same time – section 538.305, RSMo Supp. 2005 – provides that the new venue statutes would apply to all "causes of action" filed after August 28, 2005. Alfred Burns died in January 2006. Two months later, Rowe Burns did not add any defendants but amended the petition, alleging wrongful death due to the benzene exposure. The defendants moved to transfer the case to St. Louis County, arguing the amended petition constituted a new "cause of action" and, therefore, was subject to the new venue statutes. The circuit court agreed and transferred the case to St. Louis County. Rowe Burns seeks relief in this Court. WRIT MADE PEREMPTORY.

Court en banc holds: Rowe Burns is entitled to a writ of mandamus directing the St. Louis County circuit court to transfer her suit back to the city of St. Louis. Although the legislature did not define "cause of action" in section 538.305, this Court previously has defined it as "a group of operative facts giving rise to one or more bases for suing." Chesterfield Village, Inc. v. City of Chesterfield, 64 S.W.3d 315, 318 (Mo. banc 2002). Although it added a wrongful death allegation, the amended petition here still was based on the original operative facts of Alfred Burns' alleged harmful exposure to the defendants' benzene-containing products. As such, the amended petition did not constitute a new cause of action and, therefore, the new venue statutes do not apply. Citation: Opinion Author: Richard B. Teitelman, Judge Opinion Vote: WRIT MADE PEREMPTORY. All concur. Opinion: This slip opinion is subject to modification until the Court has ruled on the parties' motions for rehearing, if any, and will become final only after the Court issues its mandate. To see when the Court issues its mandate, please check the docket entries for the case on Case.net. Relator Rowe Burns seeks a writ of mandamus requiring the Circuit Court of St. Louis County to transfer her wrongful death case to the Circuit Court of the City of St. Louis. This Court issued an alternative writ, and that writ is now made peremptory. FACTS On August 22, 2005, Alfred Burns filed a petition in the circuit court of the City of St. Louis alleging that he sustained personal injury and developed leukemia because of exposure to the Defendants' benzene-containing products. The alleged exposure occurred in St. Louis County. On August 28, 2005, the General Assembly amended the venue statutes. The amended statutes provide, inter alia, that tort cases be must be filed in the county where the plaintiff is "first injured." Section 508.010 RSMo Supp. 2005.(FN1) The new venue statutes were made applicable to all "causes of action" filed after August 28, 2005. Section 538.305.

Alfred Burns died in January 2006. In March 2006, Relator filed an amended petition alleging wrongful death due to the benzene exposure. The amended petition did not add any defendants. Defendants filed a motion to transfer the case to St. Louis County arguing that the amended petition alleging wrongful death constituted a new "cause of action" and was, therefore, subject to the new venue statutes. The circuit court found that Relator's amended petition constituted a new cause of action and, pursuant to the new venue statutes, transferred the case to St. Louis County. The issue is whether Relator's amended petition asserting a wrongful death claim constituted a new cause of action requiring transfer to St. Louis County. ANALYSIS Section 538.305 provides that the new venue statutes "shall apply to all causes of action filed after August 28, 2005." The statute does not define the term "cause of action." The primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute. State v. Grubb, 120 S.W.3d 737, 739 (Mo. banc 2003); Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 449 (Mo. banc 1998). In the absence of statutory definitions, the plain and ordinary meaning of a term may be derived from a dictionary, American Healthcare Management, Inc. v. Director or Revenue, 984 S.W.2d 496, 498 (Mo. banc 1999), and by considering the context of the entire statute in which it appears. Butler v. Mitchell-Hugeback, Inc., 895 S.W.2d 15, 19 (Mo. banc 1995). In the new version of section 508.010, the legislature employs the terms "suit," "claim," "civil action," and "cause of action." These terms are not defined and are not otherwise distinguished from one another. However, this Court has defined the term "cause of action" as "a group of operative facts giving rise to one or more bases for suing." Chesterfield Village, Inc. v. City of Chesterfield, 64 S.W.3d 315, 318 (Mo. banc 2002). A cause of action remains the same even though additional or different theories of evidence or law might be advanced to support it. Id. The term "cause of action" thus refers to the negligent act or omission, as opposed to the injury which flows from the tortious conduct. Although death is the necessary final event in a wrongful death claim, the cause of action is derivative of the underlying tortious acts that caused the fatal injury. Therefore, even though Relator filed an amended petition alleging wrongful death, her cause of action did not change because the lawsuit had been and still is based upon the same operative facts; namely, Mr. Burns' harmful exposure to the Defendants' benzene-containing products.

Relator's amended petition did not constitute a new cause of action. The new venue statutes are inapplicable. Consequently, Relator is entitled to writ of mandamus directing the circuit court of St. Louis County to transfer her lawsuit back to the circuit court of the City of St. Louis. All concur. Footnotes: FN1. All statutory citations are to RSMo Supp. 2005 unless otherwise indicated. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.