Mitchell Manor Convalescent Home, Inc. v. Oklahoma Health Planning Commission

MEANS, Judge,

dissenting

Plaintiffs Mitchell Manor Convalescent Home, Inc., and Eastern Oklahoma Nursing Homes, Inc., brought this action in the District Court of Oklahoma County for judicial review of an order of defendant Oklahoma Health Planning Commission. The trial court dismissed the action for lack of proper venue. I would affirm the trial court’s order.

In June 1988 defendant Beare’s Co., Inc., received from the Commission a certificate of need allowing Beare’s to construct and operate a forty-bed intermediate care and twenty-bed skilled nursing facility in Pitts-burg County. Plaintiffs, which are nursing homes located in Pittsburg County, opposed the certificate and sought reconsideration of the decision, which was denied.

Plaintiffs then filed their petition for judicial review of the order in Oklahoma County. Beare’s moved to dismiss the ac*1001tion, alleging that, under 75 O.S.1981 § 318(2) an action for judicial review of a Commission order must be brought either “in the district court of the county in which the party seeking review resides or at the option of such party where the property interest affected is situated.” Beare’s concluded that venue was thus mandatory in Pittsburg County. The Commission joined in the motion to dismiss. After hearing arguments of counsel, the trial court granted the motion and dismissed Plaintiffs’ petition. From this order, Plaintiffs have appealed.

Plaintiffs argue that the venue provisions of the then-effective Oklahoma Administrative Procedures Act, 75 O.S.Supp. 1987 §§ 250.1-257 and 309-323, are not exclusive. They base their reasoning on the language of 12 O.S.1981 § 143: “All venue statutes are cumulative wherever they appear and any action brought under any such statute may be maintained where brought. No court shall apply one venue statute in preference to another whether considered general or special.” Plaintiffs contend that section 318 of the APA supplements the general venue provision for transitory actions found in 12 O.S.1981 § 139, which allows suit to be brought “in the county in which the defendant or some one of the defendants resides or may be summoned.” Plaintiffs also cite 12 O.S. 1981 §§ 133 (Second) and 134, providing venue for actions against both public officials and against corporations in the county where the cause of action arose. As the Commission’s “residence” is in Oklahoma County, and as the cause of action arose there, i.e., the Commission order was rendered there, Plaintiffs conclude that they should have been allowed to proceed in Oklahoma County, and that the trial court thus erred in dismissing their action for improper venue.

Plaintiffs’ argument is unpersuasive. General statutes relating to venue and jurisdiction are inapplicable to the specific, statutorily-mandated means of judicial review of agency decisions. At the time Beare’s sought its certificate, the legislature had specified that decisions of the Health Planning Commission were to be appealed under the APA. 63 O.S.Supp. 1987 § 1-854.1. Absent review provided by constitutional provisions, section 318 prescribes the “exclusive means of judicial review” of agencies controlled by the APA. Conoco, Inc. v. State Dep’t of Health, 651 P.2d 125, 128-29 (Okl.1982).

Further, prior to 1977, section 318 provided venue “in the district or superior court of the county in which the agency or institution is located in which the property interest affected is situated or in the district court of the county in which the agency or institution is located_” 75 O.S.1971 § 318. The Legislature specifically abolished this venue scheme when it amended the statute, effective October 1, 1977, to provide venue at the convenience of the party seeking review rather than of the agency. 1977 Okla.Sess.Laws, ch. 114, § 2.

The trial court was not in error in dismissing Plaintiffs’ petition. I would affirm the order.