RICHARD A. KOHRING and KERSTIN KOHRING, Plaintiffs-Adverse Parties,
JAMES C. BALLARD, M.D., and OREGON ORTHOPEDIC & SPORTS MEDICINE CLINIC, LLP, Defendants-Relators
Argued and Submitted April 30, 2013.
[Copyrighted Material Omitted]
CC1111-14966. Original proceeding in mandamus.[*]
Janet M. Schroer of Hart Wagner LLP, Portland, argued the cause and filed the brief for defendants-relators. With her on the brief was Marjorie A. Speirs.
Kathryn H. Clarke, Portland, argued the cause and filed the brief for plaintiffs-adverse parties. With her on the brief was Phillip C. Gilbert, Gresham.
Lindsey H. Hughes and Hillary A. Taylor of Keating Jones Hughes, P.C., Portland, filed the brief for amicus curiae Oregon Association of Defense Counsel.
Scott A. Shorr of Stoll Stoll Berne Lokting & Shlachter, P.C., Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.
[355 Or. 299] Peremptory writ of mandamus to issue ordering trial court to grant defendants' motion to change venue.
The issue in this mandamus proceeding is whether the trial court correctly denied defendants' motion to change venue. ORS 14.080(2) provides that venue is proper wherever a defendant engages in " regular, sustained business activity." In this case, plaintiffs, a husband and wife, initiated a medical malpractice action against defendants in Multnomah County. Defendants argue that venue lies in Clackamas County, because that is where the clinic is located, where the doctor who provided the husband's medical services resides, and where the husband received treatment. Plaintiffs argue that venue is proper in Multnomah County, because defendants solicit patients who live in that county, refer patients to imaging facilities in that county, use medical education programs in that county, and " identify" the clinic's location in its website as the " Portland area." The trial court denied defendants' motion, explaining that defendants, by soliciting patients in Multnomah County, " purposely availed themselves of the court's jurisdiction" in that county. We conclude that the trial court mistakenly conflated personal jurisdiction considerations with the statutory requirements for venue and erred in denying defendants' motion. We therefore issue a peremptory writ of mandamus ordering the trial court to grant defendants' motion to change venue.
The relevant facts are few and undisputed. Plaintiff Richard Kohring sustained injuries following hip replacement surgery at a medical facility in Clackamas County. Plaintiff and his wife initiated a medical malpractice action in Multnomah County for those injuries and for loss of consortium. Plaintiffs named as defendants Ballard, the surgeon who performed the hip replacement operation, and the clinic that employs him, Oregon Orthopedic & Sports Medicine Clinic, LLP (" Oregon Orthopedic" or " clinic" ).
Defendants moved to change venue to Clackamas County. In support of that motion, they argued that the medical care that gave rise to the action occurred in Clackamas [355 Or. 300] County; that defendant Ballard lives in Clackamas County; that both of Oregon Orthopedic's two clinics are located in Clackamas County; that all of the clinic's physicians provide medical care in Clackamas County; that neither the clinic nor Ballard reside in Multnomah County; that no authorized agent to receive service for either defendant resides in Multnomah County; that, in fact, plaintiffs served defendants in Clackamas County; and that neither the clinic nor Ballard conduct " regular sustained business activity" within the meaning of ORS 14.080(2) in Multnomah County.
Plaintiffs opposed the motion, arguing that defendants do conduct regular, sustained business activity in Multnomah County. In support of that assertion, they offered evidence that, among other things, approximately 600 of the clinic's 24,000 patients reside in Multnomah County; that Oregon Orthopedic uses " pdxortho.com" as its website; that Oregon Orthopedic refers to its clinics as being located " just outside Portland, Oregon" ; that, over a two-year period, its physicians met with attorneys who practice in Multnomah County; that, over a five-year period, clinic employees have attended more than 100 educational seminars conducted in Multnomah County; that Oregon Orthopedic advertises in a newspaper and a telephone book that are distributed in Multnomah County; that the clinic refers some of its patients to imaging centers located in Multnomah County; and that defendants send chocolates to medical clinics located in Multnomah County, and have provided lunches to another Multnomah County clinic.
At the hearing on defendants' motion to change venue, the trial court noted the lack of Oregon case law discussing the meaning of " regular, sustained business activity" under ORS 14.080(2). It explained that it found guidance, though, in certain federal and Washington state cases concerning what constitutes " transacting business." In particular, the court mentioned a Washington Supreme Court decision, State ex rel. Verd v. Superior Court for King County, 31 Wash.2d 625, 198 P.2d 663 (1948), which the court
read to hold that " solicitation can constitute the regular, continuous and sustained course of business." In light of that case law, the court concluded that " a necessary part of the [355 Or. 301] business of providing medical care is soliciting patients," and that Oregon Orthopedic did just that in advertising in Multnomah County. The court explained that defendants " purposefully availed themselves of the court's jurisdiction" and are therefore " conducting regular sustained business activity in Multnomah County by marketing Multnomah County patients." The trial court denied defendants' motion to change venue.
Defendants petitioned for a writ of mandamus, challenging the trial court's denial of their motion to change venue. This court issued an alternative writ ordering a stay of the trial proceedings until the trial court either granted defendants' motion to change venue or showed cause for not doing so. The trial court did not grant defendants' motion to change venue, and the parties filed their briefs before this court.
ORS 14.110 provides:
" (1) The court or judge thereof may change the place of trial, on the motion of either party to an action or suit, when it appears from the affidavit of such party that the motion is not made for the purpose of delay and:
" (a) That the action or suit has not been commenced in the proper county[.]"
Notwithstanding the permissive wording of ORS 14.110(1)(a), this court has held that defendants have a " right" to insist on proper venue under that statute. Rose v. Etling, 255 Or. 395, 399, 467 P.2d 633 (1970). Thus, when a civil action has not been filed in the proper county, and a party files a timely motion under ORS 14.080(1) to change venue that is not for the purpose of delaying the litigation, the trial court has no discretion to deny the motion; if the trial court denies the motion, a defendant may proceed by mandamus to enforce the right to change venue. Roskop v. Trent, 250 Or. 397, 400, 443 P.2d 174 (1968) (" the remedy for an erroneous refusal to change the venue is by way of mandamus" ); Mack Trucks, Inc. v. Taylor, 227 Or. 376, 382, 362 P.2d 364 (1961) (" [T]he defendant's only remedy is a motion for change of venue. If the court rules against him and he wishes to pursue the [355 Or. 302] matter further, he must then proceed by mandamus in this court to force the trial court to change the venue." ).
The standard for determining the proper place of trial is set out in ORS 14.080, which provides:
" (1) All other actions shall be commenced in the county in which the defendants, or one of them, reside at the commencement of the action or in the county where the cause of action arose. * * *
" (2) For purposes of this section a corporation incorporated under the laws of this state, a limited partnership or a foreign corporation authorized to do business in this state shall be deemed to be a resident of any county where the corporation or limited partnership conducts regular, sustained business activity or has an office for the transaction of business or where any agent authorized to receive process resides. A foreign corporation or foreign limited partnership not authorized to transact business in this state shall be deemed not to be a resident of any county in this state."
(Emphasis added.) The statute thus defines where a corporation " resides" for venue purposes in terms of three possibilities: (1) where the corporation conducts " regular, sustained business activity," (2) where the corporation " has an office for the transaction of business," or (3) where an agent authorized to receive service of process resides. In this case, it is undisputed that defendants do not have an office for the transaction of business in Multnomah County and that defendants have no agent authorized ...