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Kolb v. Monroe6/24/1998
Kolb v. Monroe, 1998 SD 64
South Dakota Supreme Court Appeal from the Second Judicial Circuit, Minnehaha County, SD Hon. Glen A. Severson, Judge
#20289
Affirmed
Considered on Briefs Jun 3, 1998;
[ ] Defendants, Todd R. Monroe, M.D. and Northern Plains Family Foot Clinic (collectively referred to as Monroe), appeal from an order denying their motion for a change of venue. We affirm.
FACTS
[ ] Dr. Monroe, a podiatrist in Aberdeen, Brown County, South Dakota, performed surgery on Plaintiff Herbert Kolb's right heel at the Northern Plains Family Foot Clinic in Aberdeen on December 28, 1994. As a result of complications arising from this surgery and post-operative care, Kolb, a resident of Brown County, filed a medical malpractice action against Monroe in Minnehaha County.
[ ] Kolb filed his action on October 3, 1996. Monroe admitted service of the summons and complaint on October 9, 1996. Two days later, Monroe sent Kolb a demand for change of venue to Brown County by consent pursuant to SDCL 15-5-10. This demand was filed with the trial court on October 15, 1996. The final two paragraphs of the demand read:
Pursuant to SDCL 15-5-10, defendant hereby demands that the trial in this action be held in the proper county, to wit, Brown County, South Dakota, and hereby makes demand upon the plaintiff for a change of venue by consent of the parties which is provided by SDCL 15-5-10.
In the event plaintiff wrongfully withholds such consent to a transfer of venue, then defendant will thereafter seek the change of venue by order of the Court on such terms as may be ordered pursuant to SDCL 15-5-13.
[ ] By stipulation, the parties extended the time for Monroe's answer to Kolb's complaint after expiration of the thirty-day period provided by SDCL 15-6-12(a). On January 17, 1997, Monroe served Kolb with a motion to dismiss the action and answer to the complaint. Monroe filed this document with the trial court five months later, on June 20, 1997.
[ ] On June 16, 1997, Monroe filed a notice of hearing on their demand for a change of venue, notifying Kolb that a hearing on the matter would be held August 8, 1997. This notice provided, in relevant part:
Defendants, by and through their counsel of record, hereby move the Court for transfer of venue pursuant to SDCL 15-5-6 or 15-5-8. This motion is based upon the pleadings, and upon all of the file materials, entitling these Defendants to a transfer of venue.
Following the hearing, the trial court denied Monroe's motion for venue change on grounds that it was not filed within the statutory period allowing a change of venue as a matter of right. Monroe petitioned this Court for intermediate appeal of the trial court's order, which we granted.
ANALYSIS AND DECISION
[ ] SDCL 15-5-10 provides:
If the county designated for that purpose in the complaint is not the proper county, the action may, notwithstanding, be tried therein unless the defendant, before the time for answering expires, demands in writing that the trial be had in the proper county, and the place of trial thereupon changed by the consent of the parties or by order of the court, as provided in Sec 15-5-11.
(emphasis added). SDCL 15-5-11 permits a trial court to change the place of trial where the county designated in the complaint is not the proper county, where there is reason to believe an impartial trial cannot be had in the designated county, or where the convenience of witnesses and ends of justice would be promoted by such a change. "Upon a timely motion ... courts pos
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