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State ex rel Turnbow v. Schroeder12/23/2003
Appeal From: Writ of Mandamus
Opinion Vote: WRIT MADE ABSOLUTE.
Knaup Crane and Crahan, JJ., concur.
Opinion:
James M. Turnbow (Turnbow) and Gloria N. Bratcher (Bratcher ) (collectively Relators) filed a Petition for Writ of Mandamus, along with suggestions in support and exhibits, in which they allege that Respondent erred in denying their Motion to Transfer Venue for a cause of action brought by Mark Lichtenfeld (Lichtenfeld) against Relators and pending before Respondent in the Circuit Court of St. Louis County. Respondent filed Suggestions in Opposition to the petition, along with exhibits. We issued a Preliminary Order in Mandamus. We dispense with further briefing and oral arguments, as permitted by Supreme Court Rule 84.24, and we make our preliminary order absolute.
The record reveals the following. Turnbow, an attorney, entered into a contract with Lichtenfeld, a medical doctor, for Lichtenfeld to examine Bratcher, Turnbow's client, for her workers' compensation claim filed by Turnbow. Subsequently, Lichtenfeld filed a three-count Amended Petition in the Circuit Court of St. Louis County against Relators claiming that a balance is due and owing for his services performed under the contract. Count I of the Amended Petition alleges breach of contract.
Count II is an action on account for professional services performed against Turnbow. Count III is an alternative claim on account for professional services performed against Bratcher. The Amended Petition (and the original petition) states that Bratcher "is and was at all times herein mentioned a resident of the County of Dunklin, State of Missouri...."
The Circuit Court of St. Louis County issued summons for service on Relators individually. Turnbow received service of summons at his office in Pemiscot County. Bratcher's service was returned "Non-Est" because of an incorrect address in Dunklin County.
Subsequently, Turnbow entered his appearance on Bratcher's behalf. At the same time, Relators filed a Motion to Dismiss or, in the alternative, Motion to Transfer Venue from St. Louis County to Dunklin County. Relators attached to the motions an affidavit of Turnbow, which stated that both he and Bratcher have resided in Dunklin County for many years. Lichtenfeld filed a response to Relators' motions. After a hearing, Respondent denied Relators' motions. Relators then filed their Petition for Writ of Mandamus challenging Respondent's order denying their Motion to Transfer Venue.
Venue refers to the situs in which a court of competent jurisdiction may adjudicate an action. State ex rel. Elson v. Koehr , 856 S.W.2d 57, 59 (Mo. banc 1993). Venue is determined solely by statute. Id.
Section 508.010 provides in relevant part that suits instituted by summons shall be brought in the county within which the defendant resides. The record shows that both defendants in this cause of action reside in Dunklin County. Therefore, proper venue is in Dunklin County, not St. Louis County. Respondent is required to transfer the case to a proper circuit. Section 476.410.
Respondent argues that Counts II and III in the Amended Petition allege tort claims, and thus, under Section 508.010, venue is proper in the county where the cause of action accrued. Respondent's characterization of Counts II and III is mistaken. An action on account is an action based on contract. St. Luke's Episcopal-Presbyterian Hosp. v. Underwood , 957 S.W.2d 496, 498 (Mo. App. E.D. 1997). Accordingly, an action on account, like a contract action, must be filed in the county within which the defendant resides, as required by Section 508.010. See State ex rel. D
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