Hang On to Your Venue Selection: The HB393 Winds of Change Won't Uproot You

Hang On to Your Venue Selection: The HB393 Winds of Change Won't Uproot You

Since the enactment of HB393 on August 28, 2005, defense counsel have begun to file motions for transfer of venue when a plaintiff files an amended petition in a case that was pending prior to August 28, 2005 that either adds a party or parties or adds a count with an additional theory of recovery. The argument set forth in such motions is that when a plaintiff files an amended petition, he or she has brought a “new cause of action” subsequent to August 28, 2005. Therefore, pursuant to RSMo § 538.300, the venue rules instituted by HB393 are triggered and apply to any determination of venue. A close examination of the plain language of RSMo § 538.300 and also longstanding Missouri case law reveals that this assertion is fatally flawed.

The purpose of this article is to provide the framework for defeating defense counsel attempts to invoke the new venue rules of HB393 in cases that were pending prior to August 28, 2005. The following discussion is limited to venue rights conferred by RSMo § 508.010, but the arguments contained in the text below can easily be tailored to apply to other repealed venue provisions.

On March 29, 2005, Missouri Governor Matt Blunt signed HB393 into law. HB393 is “An Act [t]o repeal sections 355.176, 408.040, 490.715, 508.010, 508.040, 508.070, 508.120, 510.263, 510.340, 516.105, 537.035, 537.067, 537.090, 538.205, 538.210, 538.220, 538.225, 538.230, and 538.300, RSMo, and to enact in lieu thereof twenty-three new sections relating to claims for damages and the payment thereof.”

Many of these repealed statutory sections contain procedural provisions, including rules relating to venue. In fact, three of the repealed statutes, RSMo §§ 508.010, 508.040, and 508.070 directly govern venue rules in the context of permissible forums in which to bring a suit.

The newly enacted version of RSMo § 538.300 expressly provides, in relevant part, as follows:

Section 2. The provisions of this act [HB393], except for section 512.099, RSMo, shall apply to all causes of action filed after August 28, 2005.

HB393 specifically repeals RSMo § 508.010 (2000), the former general venue statute that conferred venue in any county where a defendant in a case resided, and replaces it with a version that limits venue in tort actions to the county in which the plaintiff was first injured by the wrongful acts or negligent conduct alleged in his or her petition. However, the newly enacted version of RSMo § 538.300 unambiguously limits application of the provisions of HB393, including the newly enacted version of RSMo § 508.010, to “causes of action” filed after August 28, 2005.

The Supreme Court of Missouri has definitively stated that it will limit the retrospective application of a procedural statute when the Missouri legislature has expressed an intention that the courts do so. In State ex rel. LeNave v. Moore, 408 S.W.2d 47 (Mo.banc 1966), the Supreme Court of Missouri was required to construe a 1965 amendment to RSMo § 508.010, which added a completely new subsection providing that “all tort actions may be brought in the county where the cause of action accrued regardless of the residence of the parties, and process therein shall be issued by the court of such county and may be served in any county within the state.” Id. at 47.

The question presented in Moore was whether that statute providing for statewide service beyond the territorial jurisdiction of a circuit court should be applied retrospectively or only prospectively. Id. To answer this question, the Moore court addressed two issues: (1) whether the statute deals only with procedure; and (2) whether its language evidences a clear intention on the part of the Legislature that it shall operate prospectively only. Id. at 49.

With regard to the issue of whether RSMo § 508.010 deals only with procedure, the Moore court cited the decisions in two federal district court cases and summarily concluded that RSMo § 508.010 is a procedural statute. Id. at 48. The Court then noted that because RSMo § 508.010 is a procedural statute, Article I, Section 13 of the Constitution of Missouri, 1945, providing “[t]hat no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted” did not apply. Id.

The Moore court observed that “[t]he mentioned constitutional provision does not apply … to a statute dealing only with procedure or the remedy. In such case the statute applies to all actions falling within its terms, whether commenced before or after the enactment, that is, unless a contrary intention is expressed by the legislature, and a statute affecting only the remedy may apply to a cause of action existing at the time the statute was enacted. Id. (citations omitted).

The Moore court then addressed the matter of legislative intention as to the retrospective or only prospective application of the new version of RSMo § 508.010. In this regard, the Court observed that:

[t]he basic rule of statutory construction is to seek the intention of the lawmakers and, if possible, to effectuate that intention, and the court should ascertain the legislative intent from the words used, if possible, and should ascribe to the language used, its plain and rational meaning. (citations omitted). Our venue statute, as amended, provides that in all tort actions’ * * * the suit may be brought in the county where the cause of action accrued * * *.’ The Legislature could have expressed an intention to look to the future by substituting the word “accrues” for the word “accrued.” It did not do so. We think this evidences a clear intention on the part of the Legislature that the statute may operate retrospectively. Id.

The Moore court then held as follows: “We are of the opinion that a venue statute, as a general rule, is procedural or remedial in character and may apply to a cause of action existing at the time it was enacted, unless the Legislature has expressed a contrary intention.” Id.

The current Missouri Legislature clearly expressed its intention that the provisions of the newly enacted version of RSMo § 508.010 apply only prospectively. Section 2 of the new RSMo § 538.300 unequivocally states that the provisions of HB393, including the provisions of the new version of RSMo § 508.010, shall apply only to causes of action filed after August 28, 2005.

When examining the meaning of a statute, the primary role of a court is to ascertain the intent of the legislature from language used and to give effect to that intent if possible. Trailiner Corp. v. Director of Revenue, 783 S.W.2d 917, 920[1] (Mo.banc 1990); Thomas v. Missouri Dept. of Social Services, 805 S.W.2d 286, 288[4] (Mo.App.1991).

The term “cause of action” is not defined by RSMo § 538.300. To determine legislative intent, the court must consider undefined words used in the statute according to their plain and ordinary meaning as derived from a dictionary. Racherbaumer v. Racherbaumer, 844 S.W.2d 502, 504 (Mo.App. 1992) (citing Abrams v. Ohio Pacific Express, 819 S.W.2d 338, 340[2] (Mo.banc 1991)); see also Laws v. Secretary of State, 895 S.W.2d 43, 46 (Mo.App. 1995)(Undefined words are given their plain and ordinary meaning as found in the dictionary in order to ascertain the intent of lawmakers) (citing Asbury v. Lombardi, 846 S.W.2d 196 (Mo. 1993)).

The Missouri Supreme Court has had occasion to define the term “cause of action.” The definition of a cause of action is “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) (citing Black’s Law Dictionary 214 (7th ed.1999)). In this regard, a cause of action is “the fact or combination of facts which give rise to or entitle a party to sustain an action.” Miller v. Munzer, 251 S.W.2d 966, 970 (Mo.App. 1952) (quoting 1 C.J.S., Actions, § 8(c), p. 982)). Stated differently, a cause of action is “the entire set or state of facts that give rise to an enforceable claim.” Id.

When referring to a “cause of action,” the definition centers on “facts” that form or could form the bases of a claim. Chesterfield Village, Inc., 64 S.W.3d at 319 (citing State ex rel. Farmers Ins. Co. v. Murphy, 518 S.W.2d 655, 660 (Mo.banc 1975)). In this regard, a cause of action does not change even though additional or different evidence or legal theories might be advanced to support it. Id. at 319-20 (citing Fleming James Jr., Geoffrey C. Hazard, Jr. & John Leubsdorf, Civil Procedure section 11.8 (5th ed. 2001)).

A cause of action includes all rights of a plaintiff to remedies with respect to all or any part of the transaction, or series of connected transactions, out of which the cause of action arose. Id. at 320 (citing Restatement (Second) of Judgments, Section 24)). The term “transaction” has a broad meaning. Id. at 319. Missouri courts define a “transaction” as including “the aggregate of all the circumstances which constitute the foundation for a claim, counterclaim, etc.” Fleming v. Mercantile Bank Company, 796 S.W.2d 931, 934 (Mo.App. 1990).

What factual grouping constitutes a “transaction,” and what groupings constitute a “series,” are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations. Chesterfield Village, Inc., 64 S.W.3d at 319 (citing Restatement (Second) of Judgments, Section 24)).

Pursuant to the plain language of RSMo § 538.300 and also well-established Missouri case law cited above, the mere addition of a defendant or defendants to a case or the advancement of an additional theory of recovery against a named defendant does not trigger application of the newly enacted version of RSMo § 508.010 or the other venue provisions enacted by HB393. The key in responding to defense counsel attempts to bring your case within the purview of HB393 is to establish that the group of operative facts giving rise to your case have not changed under such circumstances. Do not allow defense counsel to argue that the phrase “causes of action filed after August 28, 2005,” as contemplated by RSMo § 538.300, is synonymous and interchangeable with the phrase “add a party or parties by amendment” or the phrase “add an additional legal theory by amendment.”

Categories: