dissenting:
Because no conflict exists between our statutory civil procedure rules of permissive joinder and venue, I respectfully dissent. The plain language of the permissive joinder and venue rules-consistent with their federal law counterparts-grant the trial court broad discretion to use both rules in tandem to choose between different locations to try multiple defendants in one action. Such a flexible interplay between these procedural rules comports with basic notions of efficiency, fairness, and common sense.
By characterizing venue as a "Jjurisdictional requirement," the majority unnecessarily diminishes the permissive joinder rule and thereby reduces the trial court's capability to act efficiently. Neither the language of the civil procedure rules themselves nor our caselaw interpreting those rules supports the majority's holding that venue is inappropriate because the defendants "did not act in concert or engage in the same tortious act." Maj. op. at 7.
Thus, contrary to the majority, I would hold that both permissive joinder and venue requirements do not conflict and are satisfied for all defendants in this case. Accordingly, I would affirm the trial court's order denying the defendants' motion to change venue and discharge the rule to show cause because the trial court did not abuse its discretion when it denied the defendant's motion for a change in venue.
I. Colorado's Statutory Permissive Joinder and Venue Requirements
Before turning to a discussion of how the rules work in tandem, I turn to the language and rationale of both rules.
The permissive joinder rule, found in C.R.C.P. 20(a), provides that a court may join multiple defendants in one action if two requirements are met: (1) there is asserted against them 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 (2) there is any question of law *8or fact common to all defendants that will arise in the action. Historically, common law prevented parties from resolving lawsuits in one economical and efficient proceeding. See 1B Cathy S. Krendl, Colorado Methods of Practice § 30.4 (4th ed.1997). Rule 20(a) departs from this inflexible approach by favoring the efficient joinder of parties so as to economize searce judicial resources. Id.; see also Charles A. Wright, Arthur R. Miller and Mary K. Kane, 7 Federal Practice and Procedure §§ 1651-1660 (8d ed.2001)(discussing the federal permissive joinder rule Fed. R.Civ.P. 20(a))1 . The flexibility of the rule encourages judicial efficiency by permitting courts to hear all reasonably related claims against different defendants in a single proceeding. |
The application of Rule 20(a) is straightforward. It vests the trial court with discretion to order permissive joinder of defendants provided the plaintiff asserts claims that satisfy the rule's two-pronged requirement. Draper v. Sch. Dist. No. 1, 175 Colo. 216, 218, 486 P.2d 1048, 1049 (1971). For instance, we have held that a plaintiff was permitted to join two defendant motorists who allegedly injured her in two car accidents that occurred nine months apart. See Sutterfield v. Dist. Court, 165 Colo. 225, 230-31, 438 P.2d 236, 240 (1968).
In Sutterfield, we held that the trial court properly ordered permissive joinder under the rule's two-pronged requirement. First, the "same occurrence" was deemed to be the plaintiff's single back injury that was caused by the two separate car accidents. Id. at 230, 438 P.2d at 239. Second, the common question of fact was the injury and the extent to which each defendant might be held liable. Id. By so holding, we gave the permissive joinder rule its broadest possible reading. Id. at 231, 438 P.2d at 240.
This broad and liberal construction of permissive joinder is consistent with federal decisions interpreting the federal counterpart to Rule 20(a). Federal courts permit an injured plaintiff to join both the original tort-feasor and a second tortfeasor whose subsequent negligence aggravated plaintiff's original injuries under Fed.R.Civ.P. 20(a). Poster v. Central Gulf S.S. Corp., 25 F.R.D. 18, 20 (E.D.Pa.1960); see also Wright, Miller, Kane, Federal Practice and Procedure § 1653.
Although Colorado's Rule 20(a), like its federal counterpart, should be construed broadly and liberally, other rules of civil procedure must also be satisfied for the action to proceed. One such rule is C.R.C.P. 98, our venue rule.2 Like permissive joinder, Rule 98 is a procedural rule that vests the trial court with broad discretion in choosing venue provided that venue lies within each possible county. Venue is a permissive, procedural requirement unlike jurisdiction, which is a mandatory, substantive requirement. T7 Am.Jur.2d Venue § 1 (2002). Although venue and jurisdiction are closely related, they are not synonymous and should not be confused. Id.; Krendl, Colorado Methods of Practice § 24.18.
Jurisdiction is the power and authority of the court to act. Unquestionably, a district court must have subject-matter jurisdiction over the cause of action. See Colo. Const. art. VI, § 9 ("The district courts shall be trial courts of record with general jurisdiction, and shall have original jurisdiction in all civil, probate, and criminal cases ....") In addition to subject-matter jurisdiction, the court must be able to assert personal *9jurisdiction over the defendants. Personal jurisdiction mandates that there is a proper relationship between the defendant and the forum. See U.S. Const. Amend. XIV; Internat'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Hancock v. Boulder County Pub. Trustee, 920 P.2d 854, 858 (Colo.App.1995).
Venue, on the other hand, is the territorial place where the power to adjudicate is to be exercised, that is, the place where the suit may or should be heard. Denver Air Cir. v. Dist. Court, 839 P.2d 1182, 1184 (Colo.1992). The requirements of jurisdiction are grounded in the state's inherent judicial power, while the requirements of venue are grounded in convenience to litigants. 77 Am.Jur.2d Venue § 1.
Indeed, as we have consistently held in the past, the right to have the place of trial changed because the action is brought in an improper county is not jurisdictional. Kirby v. Union Pac. Ry. Co., 51 Colo. 509, 541, 119 P. 1042, 1054 (1911); see also Slinkard v. Jordan, 131 Colo. 144, 149, 279 P.2d 1054, 1056 (1955). Venue is a mere personal privilege and generally can be waived. Id.; see also Fletcher v. Stowell, 17 Colo. 94, 96, 28 P. 326, 327 (1891).
Thus, bringing an action in an improper county is not a fatal defect in the case. In such a situation, the particular court lacks power to proceed further with the case other than to order the removal of the case to the proper county. C.R.C.P. 98(f)(1); Cliff v. Gleason, 142 Colo. 500, 504, 351 P.2d 394, 397 (1960); Lamar Alfalfa Milling Co. v. Bishop, 80 Colo. 369, 374, 250 P. 689, 691 (1926); Krendl, Colorado Methods of Practice § 24.22. We have sometimes articulated a court's lack of power to hear the case when venue is improper as divesting the trial court of "jurisdiction." See, eg., Millet v. Dist. Court, 951 P.2d 476, 477 (Colo.1998). However, such language refers to the lack of power to hear the case in a specific county based on venue requirements and should not to be confused with the court's subject-matter or personal jurisdiction.
The requirements of venue, like permissive joinder, are not overly restrictive. Rule 98 grants trial courts discretion to try defendants in a number of different counties depending on the nature of the action, where the underlying transaction occurred, the residence of the parties, and the place where a party is served. C.R.C.P. 98(a),(b),(c).
For tort actions with multiple defendants, venue is proper where the defendants, or any of them, may reside, C.R.C.P. 98(c)(1) (emphasis added), or where the tort was committed. C.R.C.P. 98(c)(5). Thus, when a court tries one defendant in a county where neither that defendant resides nor where the tort occurred, so long as there is a co-defendant that resides in that county, our venue rules are satisfied.3 Rule 98 does not make venue mandatory, as a matter of law, in a particular county. On the contrary, the rule is permissive and it is within the broad discretion of the trial court to choose among proper options. City of Cripple Creek v. Johns, 177 Colo. 443, 448, 494 P.2d 823, 826 (1972). Rule 98 requires a change of venue, as a matter of law, only when the county where suit is brought is improper. Millet, 951 P.2d at 477.
Consistent with our joinder rule and its federal counterpart, the federal system also has a venue rule that permits different locations for venue in multiparty cases. See 28 U.S.C. § 1391. For example, although venue is generally proper in the district where a defendant resides, in an action against multiple defendants, venue is proper in the district of any defendant, if all defendants are residents of the same state. 28 U.S.C. §§ 139l1(a)(1), 1891(b)(1); Wright, Miller, Kane, Federal Practice and Procedure § 1659.
In sum, Colorado rules of permissive join-der and venue, as do their federal counterparts, allow trial courts wide latitude in joining defendants and trying them in numerous, *10proper locations. As a result, the rules promote efficiency by permitting courts to hear all reasonably related claims against different defendants in a single proceeding.
II. The Interplay between Permissive Joinder and Venue
Having described the language and rationale behind our permissive joinder and venue rules, I turn to discuss how both requirements can co-exist.
As pointed out by the majority, this court has not squarely addressed the interplay between Rules 20(a) and 98(c). Indeed, neither Sutterfield nor Millet completely answers this question. In Sutterfield, we held that the trial court did not err in permissively joining two defendants who caused the plaintiff one back injury resulting from two separate car accidents. 165 Colo. at 230, 438 P.2d at 239-40. The issue of whether venue requirements were also satisfied was not before the court.
In Millet, involving three car accidents, we held that venue was not satisfied because the trial court retained the case in El Paso County for determining the question of damages, even though one of the defendants was a resident of Jefferson County and his accident occurred in Douglas County. 951 P.2d 477. Because venue was improper for the Jefferson County defendant, we concluded that for him, a change of venue was required as a matter of law. We did not reach the issue of permissive joinder. Id.
However, based on the factual allegations in Millet, it is unclear whether the permissive joinder requirements would have been satisfied. Although the trial court retained the damages portion of the action, the plaintiff did not claim on appeal that she suffered virtually identical, or even similar, injuries in all three accidents so as to satisfy the "same occurrence" prong of Rule 20(2). Hence, we did not reach the issue of whether venue for the Jefferson County defendant would have been satisfied if he were properly joined with a defendant residing in El Paso County. Thus, given the limited nature of these two cases, I look beyond Sutterfield and Millet to answer the question before us.
As opposed to the majority's rationale, I suggest there exists no need to look to other jurisdictions since our cases provide guidance to resolve this issue. In Twin Lakes Reservoir and Canal Co. v. Bond, 156 Colo. 433, 399 P.2d 793 (1965), and City of Cripple Creek v. Johns, 177 Colo. 443, 494 P.2d 823 (1972), we laid the groundwork for holding, as I urge, that our permissive joinder and venue requirements do not conflict and there exists no need to elevate the requirements of venue over those of permissive joinder.
Twin Lakes involved a plaintiff landowner who filed suit against three defendants in a quiet title action and a breach of contract claim. The landowner sought to remove an alleged cloud upon the title to a track of land that the landowner alleged arose by reason of a trust deed issued by defendant Twin Lakes. 156 Colo. at 435, 399 P.2d at 794. Twin Lakes made the deed of trust to a defendant bank as trustee as security for bonds that Twin Lakes had issued. The third defendant, an insurance company, held the deed of trust. The landowner brought two claims against all three defendants. First, he brought a quiet title action alleging that the property was not subject to the deed of trust. Second, the landowner brought a contract claim and sought damages, alleging that defendant Twin Lakes breached its agreement to procure a release of the trust deed so far as it affected his property. Id. at 435-36, 899 P.2d at 794.
In response to the defendants' appeal claiming that the trial court erred by joining the defendants in a single proceeding and denying defendant Twin Lakes motion for a change of venue on the contract claim, we held that both venue and permissive joinder were satisfied. Id. at 437, 399 P.2d at 795. Notably, we addressed venue first.
We held that venue requirements, pursuant to Rule 98(a) for property claims, were satisfied because the trial was held in the county where the property was located. We explained that "[ulnder such conditions where the venue of one claim for relief is properly laid in the county in which it is brought, a court should not, except under extraordinary cireumstances, change venue *11of another claim properly joined with the first claim." Id.
For permissive joinder of the defendants, we reasoned that the two-pronged requirements of Rule 20(a) were satisfied. Both claims involved the same series of transactions: the breach of the contract gave rise to both the cloud on the landowner's title and his resulting claim of damages. In addition, the two claims involved common questions of law and fact because it was necessary for both claims to determine whether the deed of trust was a valid encumbrance on the landowner's title or a mere cloud. Id.
Similar to our analysis in Twin Lakes, we held that venue was proper for all joined defendants in City of Cripple Creek. There, a concrete company filed suit against the City of Cripple Creek and other defendants for failure to make payments required by contract. The defendants sought a writ of prohibition compelling a change of venue, arguing that venue should be in Teller County because the majority of the defendants resided there, or in the alternative, because the contract was to be performed there. 177 Colo. at 446-47, 494 P.2d at 825. Reiterating the permissive nature of the venue requirements, we disagreed.
Pursuant to the plain language of Rule 98(c) that permits a trial court broad discretion in satisfying venue requirements in the county where any of the defendants reside, we held that venue was proper in Denver because some of the joined defendants resided there. Id. Although venue would have been satisfied in Teller County, Rule 98 did not require the trial court to change the forum as a matter of law since venue was properly satisfied in Denver. Id. We supported our conclusion by noting that venue was also proper in Denver because three of the defendants filed answers and counterclaims in Denver-thus implying that the joined defendants waived venue requirements pursuant to Rule 98(e). However, even with the additional rationale of waiver, we clearly held that the language of Rule 98(c), not Rule 98(e), was "dispositive of the [venue] issue" since some of the joined defendants were residents of Denver. Id.
As demonstrated by our holdings in Twin Lakes and City of Cripple Creek, there exists no inherent conflict between our rules of joinder and venue. The federal courts have reached the same conclusion based on similar rules. In both systems, doctrines of subject-matter and personal jurisdiction occasionally limit the permissive joinder of defendants. Although the federal venue rule provides additional options not relevant here, the pertinent language is virtually identical to our Rule 98 and permits differing venue locations in multiparty cases. See Wright, Miller, Kane, Federal Practice and Procedure § 1659. Venue is generally proper in the federal district where a defendant resides. However, for multiple defendants residing in the same state and joined under Fed.R.Civ.P. 20(a), venue is proper in the federal district of any defendant.4 § 283 U.S.C. §§ 1391(a)(1), 1891(b)(1).
HII. The Trial Court Did Not Abuse its Discretion by Denying the Motion to Sever and Change Venue
Consistent with the statutory requirements found in Rules 20(a) and 98(c), our case law interpreting the rules, and federal law, the permissive joinder and venue requirements are satisfied for defendants Sytsma and Kui-per. The trial court did not abuse its discretion when it denied the motion to sever and change venue. By denying the defendant's motion, the trial court acted consistently with *12and in furtherance of the permissive and flexible authority vested by the rules. Although there is nothing that prevents an application of the venue rules first, see Twin Lakes, 156 Colo. at 437, 399 P.2d at 795, I believe that the rules harmonize better if an application of permissive joinder precedes venue. In other words, before determining where defendants reside for a determination of proper venue, it is useful to determine which defendants are properly joined and thus at issue in the proceeding.
As acknowledged by the majority, the defendants are properly joined pursuant to the two-pronged requirement of Rule 20(a). First, the "same occurrence" is the virtually identical injury from the two car accidents involving Sytsma and Kuiper. See Sutterfield, 165 Colo. at 229-30, 438 P.2d at 239; Twin Lakes, 156 Colo. at 437, 399 P.2d at 795. Second, the common question of fact is the injury and the extent to which each defendant might be held liable. Id.
Having determined that the defendants were properly joined, I turn to venue. Both car accidents occurred in El Paso. Sytsma is a resident of Denver and Kuiper is a resident of El Paso. Spencer filed a negligence claim in Denver against both Sytsma and Kuiper. Under the permissive requirements of Rule 98(c) for tort actions, two counties are proper for purposes of venue: the City and County of Denver and El Paso County.
Under C.R.C.P. 98(c)(5), venue would be proper in El Paso because the defendants allegedly committed the torts there. However, venue would also be proper in either Denver or El Paso under C.R.C.P. 98(0)(1) because one defendant resides in each county. Although venue would have been satisfied in El Paso, Rule 98 does not require the trial court to change the forum as a matter of law since venue was proper in Denver. City of Cripple Creek, 177 Colo. at 448, 494 P.2d at 825.
By allowing the trial court to proceed with these factually inter-related claims in one forum, the rationales behind the rules are fulfilled: scarce judicial resources are maximized in a single judicial proceeding.
IV. Conclusion
For the reasons stated, I would affirm the trial court's order denying the defendants motion to change venue and discharge the rule to show cause. Hence, I respectfully dissent.
I am authorized to say that Chief Justice MULLARKEY and Justice KOURLIS join in this dissent.. Fed.R.Civ.P. 20(a) provides in relevant part: All persons ... may be joined in one action as defendants if there is asserted against them 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.
. Rule 98(c)(1), the pertinent subsection at issue ere, provides: .
[Aln action shall be tried in the county in which the defendants, or any of them, may reside at the commencement of the action, or in the county where the plaintiff resides when service is made on the defendant in such county; or if the defendant is a nonresident of this state, the same may be tried in any county in which the defendant may be found in this state, or in the county designated in the complaint, and if any defendant is about to depart from the state, such action may be tried in any county where plaintiff resides, or where defendant may be found and service had.
C.R.C.P. 98(c)(1)(emphasis added).
. When there are joined defendants that include a Colorado resident and residents of another state, the plaintiff must designate a county in the complaint that is related to either the Colorado defendant's county of residence, the plaintiff's county of residence when the defendant is served there, or the county in which the tort occurred. See Denver Air Ctr., 839 P.2d at 1185. Here, however, all of the parties are Colorado residents.
. One commentator aptly explained the liberal interplay between federal joinder and venue rules as follows:
Generally, when multiple causes of action are joined, venue must be established for each separate cause of action. This rule would appear to create a problem for much modern multi-claim and multi-party litigation. There is no real problem, however, because since the early twentieth century, the courts have interpreted the meaning of a cause of action broadly ... factually interrelated claims have been considered to be one cause of action with two grounds of relief. If venue is proper for one ground, this will support adjudication of the related ground.
17 James Wm. Moore, Moore's Federal Practice § 110.05 (3d ed.2002)(internal citations omitted). As the majority notes, another rationale for allowing venue over joined causes of actions in federal court is the theory of "pendant venue." Id.