#25768-a-JKM

2011 S.D. 52

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                  * * * *

DENISE E. ESTES and
PERCY J. ESTES,                             Plaintiffs and Appellants,

      v.

DAVID R. LONBAKEN, DPM,                     Defendant and Appellee.

                                 * * * *
                   APPEAL FROM THE CIRCUIT COURT OF
                       THE SIXTH JUDICIAL CIRCUIT
                     HUGHES COUNTY, SOUTH DAKOTA

                                * * * *
                        HONORABLE JOHN L. BROWN
                                 Judge

                                  * * * *

CARLETON R. HOY
SCOTT G. HOY of
Hoy Trial Lawyers, Prof. L.L.C.
Sioux Falls, South Dakota

and

MICHAEL W. STRAIN
Sturgis, South Dakota                       Attorneys for plaintiffs
                                            and appellants.

GREGORY J. BERNARD of
Thomas Braun Bernard & Burke, LLP
Rapid City, South Dakota                    Attorneys for defendant
                                            and appellee.

                                  * * * *
                                            CONSIDERED ON BRIEFS
                                            ON MAY 23, 2011

                                            OPINION FILED 08/31/11
#25768

MEIERHENRY, Retired Justice

[¶1.]         Denise Estes filed suit against Dr. David Lonbaken, a podiatrist, for

medical malpractice. Estes’ complaint alleged that Dr. Lonbaken negligently

treated a large neuroma on her foot. 1 Estes filed the complaint in Buffalo County,

South Dakota. Dr. Lonbaken moved to change venue to Hughes County, South

Dakota. Dr. Lonbaken claimed that Hughes County was the proper venue because

Estes’ surgery and follow-up treatment took place in Hughes County, not Buffalo

County. The trial court granted Dr. Lonbaken’s motion to change venue to Hughes

County. The issue is whether Buffalo County was a proper venue for this medical

malpractice action. We affirm because Buffalo County was not a proper venue.

                                       Analysis

[¶2.]         Proper venue is established by statute. See SDCL ch. 15-5. Because

this case is an action “for the recovery of damages to persons[,]” it “may at the

option of the plaintiff be brought and tried in the county where the damages were

inflicted or the cause of action arose.” SDCL 15-5-8. Proper venue is reviewed de

novo. See State v. Newell, 710 N.W.2d 6, 33 (Iowa 2006) (reviewing a ruling on a

motion for a change of venue de novo); Olson v. N.D. Dist. Court, Richland Cnty.,

Third Judicial Dist., 271 N.W.2d 574, 579 (N.D. 1978) (stating that “where the trial

court’s [venue] determination was not based upon the testimony of live witnesses,

but rather upon the same affidavits and exhibits before [the appellate court] . . . ,


1.      The Mayo Clinic’s website describes a neuroma as “a painful condition that
        affects the ball of your foot, most commonly the area between your third and
        fourth toes.” Definition of Neuroma, Mayo Clinic, http://www.mayoclinic.com/
        health/mortons-neuroma/DS00468 (last visited June 9, 2011).

                                          -1-
#25768

[the] review, therefore, is in effect de novo.”). Some of our prior cases have stated

that the complaint is the only relevant pleading in determining proper venue. See

SDDS, Inc. v. State, 502 N.W.2d 852, 858 (S.D. 1993) (Henderson, J., dissenting);

Kreager v. Blomstrom Oil Co., 298 N.W.2d 519, 520 (S.D. 1980) (citing Meihak v.

Schreckenghaust, 67 S.D. 603, 297 N.W. 122 (1941)). This view, however, is too

restrictive and does not reflect our general practice in venue cases. Therefore we

now hold that courts making proper venue determinations are not limited to only

examining the complaint.

[¶3.]        We reach this conclusion because an artfully drafted complaint could

obfuscate where the action arose. To avoid this, a court may consider other

pleadings and evidence, such as the parties’ motions, affidavits, and other relevant

matters. While there may be cases where proper venue can be determined from the

complaint, in this case the complaint alone does not tell the whole story. As a

result, additional information is relevant and required because proper venue

depends on where the “the damages were inflicted or the cause of action arose.”

[¶4.]        Estes alleges in her complaint that Dr. Lonbaken’s negligence

consisted of substandard surgical procedure and follow-up care. Dr. Lonbaken

treated Estes for a large neuroma on her foot. Estes opted to have Dr. Lonbaken

surgically remove the neuroma. The surgery took place in Hughes County. During

the surgery, Dr. Lonbaken attempted to excise the neuroma by accessing it from the

top of her foot. But his attempt was unsuccessful. He then attempted to access the

neuroma from the bottom of her foot. He did this by making an incision in the



                                          -2-
#25768

shape of a “seven” or “hockey stick.” He then removed the neuroma and closed the

flap. Dr. Lonbaken reported after the surgery that everything went well.

[¶5.]         During Estes’ recovery period, her foot developed an infection. This led

to some drainage from the surgical site, redness, pain, and an odor. It was later

determined that Estes had developed Methicillin-Resistant Staphylococcus

Aureus. 2 This condition was treated through hospitalization and intra-venous

antibiotics. Slowly, Estes’ condition improved, and she was discharged. All of her

follow-up care took place in Hughes County, except for one office visit in a clinic in

Fort Thompson, South Dakota, which is in Buffalo County. Dr. Lonbaken indicated

that he removed the sutures at that visit.

[¶6.]         For assessing proper venue, we look at the following considerations to

determine where a cause of action arose: (1) the right claimed; (2) the wrong

claimed to have been suffered; (3) “[t]he relief sought”; and, (4) “the place where the

facts creating the necessity for bringing the action occur[red].” McDonald v. State,

86 S.D. 570, 199 N.W.2d 583, 586 (S.D. 1972). Here, Estes sought money damages

for Dr. Lonbaken’s negligent surgical procedure and follow-up care. All of this

occurred in Hughes County except for one office visit. And it does not appear that

Estes claimed Dr. Lonbaken was negligent at that one visit when he removed the



2.      The Mayo Clinic’s website describes Methicillin-Resistant Staphylococcus
        Aureus as an “infection . . . caused by a strain of staph bacteria that’s become
        resistant to the antibiotics commonly used to treat ordinary staph infections.
        Most MRSA infections occur in people who have been in hospitals or other
        health care settings, such as nursing homes and dialysis centers.” Definition
        of Methicillin-Resistant Staphylococcus Aureus, Mayo Clinic, http://www.
        mayoclinic.com/health/mrsa/DS00735 (last visited June 9, 2011).

                                           -3-
#25768

sutures. Thus, the facts creating the necessity for bringing the action took place

exclusively in Hughes County. Consequently, all four considerations center around

acts alleged to have taken place in Hughes County. As such, the proper venue was

Hughes County, not Buffalo County. We conclude that the trial court did not err in

granting Dr. Lonbaken’s motion to change venue to Hughes County.3

[¶7.]          We affirm.

[¶8.]          GILBERTSON, Chief Justice, and SEVERSON, Justice, and SABERS,

Retired Justice, concur.

[¶9.]          KONENKAMP, Justice, concurs in result.

[¶10.]         SABERS, Retired Justice, sitting for ZINTER, Justice, disqualified.

[¶11.]         WILBUR, Justice, not having been a member of the Court at the time

this action was submitted to the Court, did not participate.



KONENKAMP, Justice (concurring in result).

[¶12.]         If we are going to overrule our precedent, we ought to say so explicitly.

In a case plaintiff relies on, Kreager v. Blomstrom Oil Co., this Court held that “the

determination of a venue motion must be made from the allegations of plaintiff’s

complaint; no other pleading is relevant to the issue.” 298 N.W.2d 519, 520 (S.D.

1980) (citation omitted). Today, to thwart artfully drafted complaints, the Court

rules: “we now hold that courts making proper venue determinations are not limited

to only examining the complaint.” I agree.



3.       The resolution of this issue is dispositive of the remaining issue of Estes’
         appeal.
                                             -4-
#25768

[¶13.]       This common sense holding comports with rulings in other

jurisdictions. Along with this rule change, though, we should provide restrictions

on what will suffice for proper consideration in venue hearings. The Court includes

“pleadings and evidence, such as the parties’ motions, affidavits, and other relevant

matters.” See majority opinion ¶ 3. But concern with artfully drafted complaints

might well extend to similarly drafted “motions” and “pleadings,” not to mention

“other relevant matters.” For good reason, other states limit ultimate consideration

to competent evidence, such as offered in verified pleadings, sworn testimony, and

affidavits. See, e.g., Mosby v. Superior Court, 117 Cal. Rptr. 588, 593 (Cal. Ct. App.

1974). We should do likewise.

[¶14.]       Under SDCL 15-5-10, when a party timely “demands in writing that

the trial be had in the proper county,” the court may change the place of trial where

the county designated in the complaint is not the proper county. SDCL 15-5-11;

Kolb v. Monroe, 1998 S.D. 64, ¶ 11, 581 N.W.2d 149, 151 (untimely demand).

Although we have not established a procedure for how these matters should be

handled, we would do well to borrow the process used in other state courts. See

generally 77 Am. Jur. 2d Venue § 44; 92A C.J.S. Venue § 71. Accordingly, the party

raising the issue has the burden of proving improper venue. For the purposes of

evaluating a claim of improper venue, the allegations in the complaint are taken as

true, at least initially. An objecting party bears the burden of proving by competent

evidence that suit has been brought in the wrong county. Thereafter, the other

party may respond with evidence to counter the objecting party’s offering. In ruling



                                          -5-
#25768

on the question of proper venue, the trial court should enter findings of fact and

conclusions of law.

[¶15.]       Here, in support of his demand to change venue, defendant submitted

an affidavit with numerous attachments showing the treatment plaintiff received

and where it was administered. Venue was changed to Hughes County. In later

denying plaintiff’s motion for reconsideration, the trial court found that there was

no testimony from plaintiff’s expert to support that negligence occurred or injury

was inflicted at the times plaintiff was treated in Buffalo County. These findings

have not been shown to be erroneous. Thus, the change of venue should be

affirmed.




                                          -6-
