Summary
In Spencer, we held that where co-defendants are alleged to be responsible for the same injury to a plaintiff but did not act in concert or engage in the same tortious acts, venue must be satisfied as to both defendants. See 67 P.3d at 7. Spencer reached this conclusion essentially by resolving the conflict between the joinder provisions of C.R.C.P. 20 and the venue provisions of C.R.C.P. 98 in favor of deciding venue before considering joinder where separate torts allegedly are the cause of a plaintiff's injury. See id. at 6-7.
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No. 02SA342.
April 7, 2003 Rehearing Denied April 28, 2003.
Chief Justice MULLARKEY, Justice KOURLIS, and Justice BENDER would grant the petition.
Original Proceeding Pursuant to C.A.R. 21, District Court, City and County of Denver, Case No. 01CV6590, Honorable Frank Martinez, Judge.
RULE MADE ABSOLUTE.
No. 02SA342 In re: Spencer v. Sytsma : Relationship Between Rules of Venue and Joinder — Venue — Joinder. In this original proceeding, the supreme court reconciles the rules of joinder and venue and decides that in cases where defendants did not act in concert, venue requirements must be satisfied for each defendant. The supreme court decides that because the plaintiff's claims against defendants did not arise out of the same tortious conduct, the rule allowing the plaintiff to satisfy venue only as to one defendant eviscerates the privilege of proper venue for the other defendant. The supreme court reasons that in cases where the defendants did not act in concert, the plaintiff must satisfy venue for each defendant even if she brings suit against them together. In this case, plaintiff brought suit against two defendants with whom she was involved in two separate, unrelated accidents. One of the defendants challenged venue, arguing it was proper only as to the other defendant. As the defendants did not act together in allegedly causing plaintiff's injuries, venue must be satisfied for both defendants. Thus, the trial court erred in denying a change of venue. Accordingly, the supreme court makes the rule to show cause absolute.
Fogel Keating Wagner Polidori Shatner Struthers Heron P.C., Alan C. Shafner, Kristin D. Sanko, Denver, Colorado, Attorneys for Plaintiff.
George D. Browning Associates, Matthew J. Hogsett, Westminster, Colorado, Attorneys for Defendant Ralph Kuiper.
No Appearance on or Behalf of Defendant Douglas Sytsma.
We issued a rule to show cause to determine whether claims against two defendants, involved in two separate accidents, can be joined when venue would be improper for one without joinder. We hold that where defendants did not act in concert, venue requirements must be satisfied for each.
I. Facts and Procedure
Lisa Spencer brought this suit to recover damages for injuries that she allegedly suffered as a result of two separate car accidents, each of which occurred in Colorado Springs. In the first accident, Douglas Sytsma, a resident of Denver County, made a U-turn in front of Respondent's car allegedly causing her to collide with him. In the second accident, Ralph Kuiper, a resident of El Paso County, allegedly rear-ended Spencer's car, pushing it into the rear of another vehicle stopped for traffic.
Spencer claimed she suffered virtually identical injuries in the two accidents, including severe headaches and a disc protrusion which resulted in spinal surgery. Spencer filed a complaint against both defendants in Denver County, alleging that each defendant was negligent in the operation of his vehicle, that such negligence caused her injuries, and that as a result of both accidents she suffered mental and emotional pain and suffering, permanent injuries, permanent disabilities, a loss of wages, a loss of earning capacity, and a loss of enjoyment of life.
In response to Spencer's complaint, Kuiper filed a Motion for Change of Venue and Severance of Claims. Kuiper argued that because he is a resident of El Paso County, and the accident occurred there, venue is only proper for him in El Paso County. Further, Kuiper alleged that the claims should be severed as they arose from two entirely separate accidents. Sytsma joined in Kuiper's request for a motion for change of venue, but objected to severance of the claims.
The trial court denied the Motion for Change of Venue and Severance of Claims. The trial court reasoned that because the right to relief asserted against both defendants arises out of the same injury, permissive joinder was proper. Furthermore, the court stated that the claims should not be severed because one finder of fact could better apportion damages than two sitting separately.
Kuiper petitioned this court and we issued a rule to show cause why the trial court should not grant a change of venue. We now make that rule absolute.
II. Analysis
This case presents us with the question of whether we should give primacy to rules of venue or rules of joinder, when deciding where a plaintiff may bring a claim. If we consider venue first, joinder may not be appropriate in cases where it would be otherwise. On the other hand, if we determine joinder first, then venue requirements may not be satisfied for all defendants, even unrelated ones. Thus, our rules seem dissonant in a case such as this one, where plaintiff seeks to file claims against two defendants in a county where venue is not appropriate for each defendant. "The Rules of Civil Procedure should be liberally construed, and, when required, the supreme court has a duty to harmonize the Rules of Civil Procedure which appear dissonant under certain circumstances." Denver Air Center v. Dist. Court, 839 P.2d 1182, 1185 (Colo. 1992). As there is no clear answer to this question, we must turn to the reasoning underlying these rules to determine how best to harmonize them to achieve a fair and just result.
In the following analysis, we examine the plain language of, and the rationale behind, both the rules of venue and joinder. We then apply these rules to the facts at issue to determine that while Spencer may properly join the defendants, she must also satisfy venue requirements for each.
A. Rules on Venue and Joinder
"The purpose of venue requirements is to impose a territorial limitation on the forum in which an action may be commenced."Denver Air Center, 839 P.2d at 1184. Venue requirements are imposed for the convenience of the parties, and are a procedural, not a substantive issue. 77 Am.Jur.2d Venue § 1 (2002). Colorado Rule of Civil Procedure 98, Place of Trial, outlines where venue is proper for various actions. For tort actions, Rule 98 states that "an action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action," or it "may also be tried in the county where the tort was committed." C.R.C.P. 98(c)(1) and (5). Thus, were we looking only at venue, Rule 98 would mandate that trial be held against Kuiper in El Paso County because he lives in El Paso County and that is where the accident occurred. For Sytsma, however, venue would be proper in either Denver or El Paso Counties because Sytsma resides in Denver County and the accident with Spencer occurred in El Paso County. However, venue may also be in the county where "any" of the defendants reside. Thus, whether venue is proper for Kuiper in Denver County depends on whether we look at venue before or after we determine whether parties may be joined.
Our permissive joinder rule allows for a plaintiff to join defendants in an action, "if there is asserted against [the defendants] jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action." C.R.C.P. 20(a). Joinder is encouraged for purposes of judicial economy; "[p]roper apportionment can be more justly accomplished by one jury than by two juries sitting separately, each faced with the argument that the greater portion of the injury was caused by the defendants other than the ones in the case at trial." Sutterfield v. Dist. Court, 165 Colo. 225, 230, 438 P.2d 236, 240 (1968). Thus, the courts are to give the permissive joinder rule its broadest possible reading. Id. Permissive joinder, however, is still discretionary with the trial court. Draper v. School Dist. No. 1, 175 Colo. 216, 218, 486 P.2d 1048, 1049 (1971).
Spencer filed her complaint against both defendants in Denver county, arguing that the right to relief against both defendants arose out the same occurrence-her single permanent injury. An injury caused by more than one event is a "single occurrence" for purposes of joinder under C.R.C.P. 20(a). Sutterfield, 438 P.2d at 239. Absent other considerations, the trial court's denial of Kuiper's motion to sever would be appropriate in this case: it would allow for a more expedient and efficient resolution of the case, as a single jury will be able to more effectively apportion damages between the two defendants than two juries sitting separately. This outcome would benefit both the plaintiff and the defendants because the damages will be considered together, avoiding the possible results of double recovery, or conversely, no recovery at all. However, whether the defendants may be joined also depends on whether venue must be proper for each defendant.
While joinder will increase the efficiency of the resolution of causes of action, our rules also provide for venue to be placed in a location that is convenient for the defendant. This consideration holds no less weight merely because a defendant is joined with another who lives in a different county. Thus, we must weigh these rules in deciding whether the court must honor the venue requirements for each defendant.
B. Reconciling Venue and Joinder 1. Other States
Some states have held that venue requirements must be addressed before joinder. The Missouri Supreme Court addressed this issue in a case with facts almost identical to those involved here. State ex rel. Jinkerson v. Koehr, 826 S.W.2d 346 (Mo. 1992). The plaintiffs in that case were also involved in two separate car accidents. Id. at 346. The first accident occurred in St. Louis County with defendant Jinkerson. Both plaintiffs and Jinkerson were residents of St. Louis County. Id. The second accident occurred in the City of St. Louis with defendant Matthews, a resident of St. Louis County.Id. Plaintiffs brought suit against Matthews in the Circuit Court of the City of St. Louis and then joined Jinkerson in that action. Id. Jinkerson objected to the joinder and filed a motion to dismiss for lack of proper venue, among other things. Id. at 347.
The Missouri Supreme Court first decided that joint liability was not appropriate. Id. at 348. Additionally, the court held that Jinkerson was not liable under the theory that a person who negligently causes an accident is liable for all foreseeable damages caused by that accident. Id. As there was no joint liability, the court held that the plaintiffs should not be allowed to join the two actions. Id. Furthermore, the court stated, "[s]imply joining the two separate causes of action in a single petition does not create venue over both actions." Id.
In deciding Jinkerson, the court relied in large part uponState ex rel. Turnbough v. Gaertner, 589 S.W.2d 290 (Mo. 1979). In that case, the court rejected the contention that "by joining two or more separate causes of action in a single petition . . ., venue as to all is created in any county wherein any one of the several defendants resides even though there would not have been venue as to one (or more) of the counts if filed separately in that county." Id. at 291-92. The court explained that decision by citing to its Rule Civ. Proc. 52.05(a), which states that the Rules of Civil Procedure "shall not be construed to extend or limit the jurisdiction of the Courts of Missouri or the venue of civil actions therein." Id. at 292. Having so decided, the court did not even reach the question of whether joinder was permissible. Id.
The Georgia court of appeals reached a similar conclusion inThomas v. Bobby Stevens Hauling Contractors, Inc., 302 S.E.2d 585, 587 (Ga.Ct.App. 1983). There, the court distinguished between cases where the joined claims are independent of one another, and cases where the claims are connected to the main action, to determine whether venue requirements must be met. Id. at 587. "If the claim asserted against co-defendants or third parties is essentially independent rather than one ancillary to the main action, it must satisfy within itself the Constitutional venue requirements." Id. The court stated that a suit in tort against a common carrier was not ancillary to a suit in contract against the carrier's insurance company. Id. Thus, the court refused to allow joinder of the common carrier and the insurance company where venue was not satisfied for both. Id.
To the contrary, other states have held that issues of proper venue are contingent on whether there is proper joinder. Apache County v. Superior Court, 785 P.2d 1242, 1243 (Ariz.Ct.App. 1989); Fred's Finance Co. v. Fred's of Dyersburg, Inc., 741 S.W.2d 903, 908 (Tenn.Ct.App. 1987). These courts have focused on joinder, reasoning that if joinder is proper, then venue is proper for joined defendants regardless of whether it would have been if they had not been joined. "Therefore, if the joinder is proper, venue is proper. . . . Conversely, if joinder is improper, the motion for change of venue should have been granted." Apache County, 785 P.2d at 1243. Thus, venue is considered for each defendant only if joinder is not acceptable.
2. Federal Law
In general, the federal courts have held that venue requirements must be satisfied for each separate cause of action. Fed.R.Civ.P. 82 ("These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein." (emphasis added)); Beattie v. United States, 756 F.2d 91, 100 (D.C. Cir. 1984), overruled on other grounds by Smith v. United States, 507 U.S. 197 (1993); see also Lamar v. American Basketball Ass'n, 468 F. Supp. 1198, 1205 (S.D.N.Y. 1979).
However, recognizing the importance of judicial economy, fairness to the parties, and the avoidance of piecemeal litigation, the federal courts have crafted a distinction between multiple claims constituting one cause of action, and those that are factually distinct enough to support a separate cause of action. See generally 17 James Wm. Moore et al., Moore's Federal Practice § 110.05 (3d ed. 2002). This distinction allows for factually interrelated claims to be considered as a single cause of action with multiple grounds for relief; as long as venue is proper for one ground, venue is satisfied for the entire claim.Beattie, 756 F.2d at 100; Nine Point Mesa of Nashville, Inc. v. Nine Point Mesa of Lexington, Inc., 769 F. Supp. 259, 263 (M.D.Tenn. 1991) (where separate claims merely allow for separate grounds for relief, but constitute same cause of action, proper venue as to one will satisfy venue requirement for entire action);General Foods Corp. v. Carnation Co., 411 F.2d 528, 532 (7th Cir. 1969) (where multiple claims all involved the same patent, they could be considered as one action and, as such, proper venue for one claim satisfied venue requirements as to all other claims).
Other federal courts have reached the same result using a theory of "pendant venue," analogous to the pendant jurisdiction doctrine. See, e.g., Solow Bldg. Co. v. ATC Assocs. Inc., 175 F. Supp.2d 465, 469-70 (S.D.N.Y. 2001); Travis v. Anthes Imperial Ltd., 473 F.2d 515, 528-29 (8th Cir. 1973). Under this theory, factually related state or federal claims can be brought under the venue of the main claim in the action. Thus, venue must only be satisfied for the original cause of action.
The federal courts' adoption of these approaches, which prioritize joinder over venue in cases where the claims are tied together in the same action, illustrates the importance of joinder for factually interrelated claims. This concession is particularly telling in the federal context where the potential inconvenience of joinder to the parties may be much greater than for state claims. On the other hand, their approach recognizes that when claims are not closely tied, venue must be satisfied for all claims. See Sadighi v. Daghighfekr, 36 F. Supp.2d 267, 277 (D.S.C. 1999).
3. Colorado
Having considered the reasoning of other courts, we turn to our own analysis. We have not squarely addressed the interplay between venue and joinder. Nonetheless, the parties both argue that one of our cases resolves the issue, although of course they point to different cases with different outcomes.
Spencer claims that Sutterfield v. District Court definitively states that claims such as hers can be joined. In that case, the plaintiff Sutterfield sued four defendants for similar injuries sustained in two separate car accidents.Sutterfield v. Dist. Court, 165 Colo. 225, 227, 438 P.2d 236, 238 (1968). The two defendants in the second accident filed a motion for change of venue and a motion to sever. Id. The court granted the motion to sever, but did not act on the motion for change of venue. Id. at 238. Consequently, we analyzed the case by asking whether joinder was proper in that case. Id. at 239. We decided that a single injury can be the common "occurrence" for purposes of joinder under Rule 20. Id. Thus, we held that joinder was proper. Id. at 240. While we recognized that such joinder is discretionary with the trial court, we noted that the court had made no findings that would have supported a decision allowing severance. Id. Thus, while we allowed joinder in that case, we never addressed whether venue requirements had to be met as well.
Kuiper, on the other hand, argues that Millet v. District Court should control our decision. Millet v. Dist. Court, 951 P.2d 476 (Colo. 1998). In that case, plaintiff filed a complaint against three defendants, including Millet, alleging injuries and seeking damages arising out of three different car accidents. Id. Millet filed a motion for severance and change of venue. Id. at 477. The trial court concluded that Rule 98 did not allow venue over Millet in that action, but that the plaintiff was entitled to present all of her damage claims to one fact-finder. Id. Thus, the court ordered a change of venue to determine liability, but retained venue for determination of the damages. Id. We held, summarily, that "[i]f a change of venue is required by law because the suit was originally brought in an improper county, the trial court has no jurisdiction over the case except to grant the change of venue." Id. However, we never discussed whether the district court was correct in deciding that venue was not appropriate.
In sum, neither of these cases arrives at the issue in this case: must venue be satisfied as to each defendant when plaintiff files claims against multiple defendants? Sutterfield addresses joinder independently of venue, and Millet decides only that a court's jurisdiction is limited to granting a change of venue when venue is improper. Thus, we must look beyond these cases to resolve the issue presented in this case.
More generally, some of our cases show that we have leaned toward a broad interpretation of joinder. We have generally focused on the language of Rule 98, which allows suit to be brought in a county where any of the defendants reside. City of Cripple Creek v. Johns, 177 Colo. 443, 494 P.2d 823 (1972). InCripple Creek, the plaintiff brought suit in Denver County because some of the defendants were residents of that county. Id. at 825. The defendants sought a change of venue arguing that the claim should be brought in Teller County since a majority of the defendants were residents of Teller County. Id. We agreed with the district court's denial of the motion for change of venue.Id. Our decision, however, was based in part on the fact that two of the defendants had already filed answers and counterclaims in the Denver County court. Id. We stated: The defendants "have filed answers and counterclaims in the civil action. This being so, the Motion for Change of Venue was properly denied." Id. As venue is a waivable privilege, by filing answers and counterclaims in the Denver court, the defendants effectively waived their rights for a change of venue. C.R.C.P. 98(e); Slinkard v. Jordan, 131 Colo. 144, 149, 279 P.2d 1054, 1056 (1955). As such, our decision in Cripple Creek is not dispositive of the issue before us today.
Furthermore, we have expressed our reluctance to change venue for properly joined claims which arise out of the same set of circumstances. Twin Lakes Reservoir and Canal Co. v. Bond, 156 Colo. 433, 399 P.2d 793 (1965). In Twin Lakes, the plaintiff made two claims: First, he sought to quiet title to a property, arguing that it was not subject to a deed of trust issued by Twin Lakes; Second, he sought damages against Twin Lakes, the Bank to which Twin Lakes had issued the deed, and the Insurance Company that held the deed of trust, contending that Twin Lakes had breached its agreement to obtain a release of the deed. Id. at 794. Twin Lakes argued that its motion to change venue for the second claim was erroneously denied. Id. at 795. We held that venue was proper in the county in which the property at issue was located.Id. As the second claim "arose out of the same set of circumstances which gave rise to the first," venue was proper for both. Id. (emphasis added). Thus, we stated: "Under such conditions, where the venue of one claim for relief is proper in the county in which it is brought, a court should not, except under extraordinary circumstances, change the venue of another claim properly joined with the first claim." Id. (emphasis added).
More recently, however, we have stated that venue requirements cannot be ignored altogether merely because claims are joined. Denver Air Center v. Dist. Court, 839 P.2d 1182, 1185 (Colo. 1992). In Denver Air Center, we held that where the joined defendants include both Colorado residents and residents of another state, venue must at least be satisfied for the resident defendant. Id.
In short, our cases illustrate our recognition of the importance of both joinder and venue, and our conflict in resolving the two policies. Consequently, we must harmonize those cases to achieve a fair result.
We agree with the federal courts that generally, it makes more sense to decide questions of joinder first. Joinder of claims increases judicial efficiency and allows for all parties to resolve their disputes in one sitting. However, these considerations do not always outweigh the justifications for proper venue. Where the defendants in an action did not act in concert, or engage in the same tortious act, there is no reason why venue should not have to be satisfied as to both defendants. While Colorado does not have a rule explicitly forbidding an interpretation which would allow a Rule of Civil Procedure to expand venue, the considerations behind the venue requirements should not be ignored as a result. Compare C.R.C.P. 82, ("These rules shall not be construed to extend or limit the jurisdiction of any court.") with Fed.R.Civ.P. 82 ("These rules shall not be construed to extend or limit the jurisdiction of the United States district courts or the venue of actions therein." (emphasis added)).
Venue requirements are imposed in order to insure that a trial is fair and convenient for the parties. These considerations are of no less importance for each defendant merely because he has been joined with another unrelated defendant. In contrast to a situation where the defendants acted together, an unrelated defendant may have no connection to the county where venue is appropriate for the other defendant. Trial for the unrelated defendant in such a county could be extremely inconvenient and difficult. Thus, we hold that venue requirements must be satisfied for each defendant when the common occurrence joining the acts was not the defendants' actions together, but was instead merely a result of separate incidents. This distinction allows for a consistent reading of our rules of civil procedure and it agrees with basic notions of fairness and common sense.
In this case, the defendants' cases are not so closely tied so as to support the notion of venue for one, venue for all. Their actions are connected only by the plaintiff's common injury, allegedly caused by their separate accidents. As such, we refuse to defer to plaintiff's choice of venue to the extent that we eviscerate one of the defendant's venue rights. In sum, as defendants did not act in concert, plaintiff must satisfy venue requirements for each defendant.
III. Conclusion
In order to harmonize these rules, which conflict in this case, we hold that venue requirements must be satisfied for all defendants where the defendants did not act in concert or engage in the same tortious act. As such, the trial court erred in denying Kuiper's request for a change of venue. We therefore make the rule to show cause absolute.