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State ex rel Trans World Airlines3/15/2005
Opinion Vote: WRIT MADE ABSOLUTE AS MODIFIED. Wolff, Stith and Price, JJ., concur; White, C.J., dissents in separate opinion filed; Barney and Newton, Sp.JJ., concur in opinion of White, C.J. Teitelman and Russell, JJ., not participating.
Opinion:
Trans World Airlines, Inc. (TWA), a defendant in the underlying personal injury suit, seeks a writ of prohibition barring the trial court from taking any further action in the case other than to transfer it from the Circuit Court of the City of St. Louis to the Circuit Court of St. Louis County, where venue is proper. The trial court overruled TWA's motion to transfer for improper venue solely because the affidavit originally filed in support of the petition was not notarized. TWA initially filed a petition for writ of prohibition in the Court of Appeals, Eastern District, which was denied, and TWA then refiled the petition in this Court, which issued its preliminary writ. The standard of review is abuse of judicial discretion. State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 856-57 (Mo. banc 2001).
Bobbie Mullins, the plaintiff in the underlying suit, filed a personal injury action in the Circuit Court of the City of St. Louis on November 26, 2001. The suit named TWA and International Total Services (ITS) as defendants. The suit arose from an accident that occurred at Lambert St. Louis Airport, located in St. Louis County.
At the time the suit was filed, TWA and ITS were not permitted to file any responsive pleading because they were operating under Chapter 11 of the United States Bankruptcy Code. In June of 2003, however, the bankruptcy court lifted the automatic stays, and the trial court ordered TWA and ITS to "answer, otherwise respond, or raise any applicable venue motions to Plaintiff's First Amended Petition." On July 7 and July 11, 2003, respectively, TWA and ITS filed motions to transfer for improper venue. In their motions, both alleged Mullins' cause of action accrued in St. Louis County and that neither defendant had offices or agents for the transaction of its usual or customary business in the City of St. Louis. In support of its motion, TWA attached what appeared to be an affidavit from TWA representative Michael J. Lichty, but the "affidavit," though signed by Lichty, was not notarized. Though there was a form for attestation after Lichty's signature, the form had not been filled out. By all accounts, the failure to do so was inadvertent.
At that point, Mullins filed a motion to conduct discovery on the issue of whether TWA maintained an office or agent in the City of St. Louis, but Mullins made no mention of the failure to notarize the affidavit. The record does not show whether Mullins was aware of the defect and chose not to raise the issue, or whether Mullins, like TWA, simply overlooked the problem. In any event, the trial court, itself, appears to have overlooked the problem by specifically tailoring its order granting preliminary discovery "to the issues set forth in the Affidavit of Michael Lichty."
For whatever reason, Mullins did not conduct any additional formal discovery although she was given nearly 10 weeks for that purpose, and she merely waited to file her responses the day before the extended deadline expired. In those responses, Mullins did not deny or even address the allegation that neither TWA nor ITS had any agents or offices in the City of St. Louis. Instead she claimed that TWA and ITS waived any right to challenge venue by filing their bankruptcy notices with the court, by filing their entries of appearance with the court, and by serving the parties with a "Notice of Hearing."
On March 9, 2004, the trial court entered an order overruling
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