State ex rel. Neville v. Grate

• Decision Date: 05 August 2014
• Docket Number: No. WD 77342.,WD 77342.
• Citation: State ex rel. Neville v. Grate, 443 S.W.3d 688 (Mo. App. 2014)
• Parties: STATE of Missouri, ex rel., Palmer NEVILLE, James W. Neville, Jr., and Jennifer Neville, Relators, v. The Honorable Jack R. GRATE, Respondent.
• Court: Missouri Court of Appeals

443 S.W.3d 688

STATE of Missouri, ex rel., Palmer NEVILLE, James W. Neville, Jr., and Jennifer Neville, Relators

v.The Honorable Jack R. GRATE, Respondent.

No. WD 77342.

Missouri Court of Appeals, Western District.

Aug. 5, 2014.

Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 2, 2014.

Application for Transfer Denied Oct. 28, 2014.

David C. DeGreef, for Relators Palmer Neville, James W. Neville, Jr., and Jennifer Neville.

Charles H. Stitt, Kansas City, for respondents.

Before Writ Division: JOSEPH M. ELLIS, Presiding, Judge, VICTOR C. HOWARD, Judge and LISA WHITE HARDWICK, Judge.

Opinion

JOSEPH M. ELLIS, Presiding Judge.

Palmer Neville, James W. Neville, Jr., and Jennifer Neville(collectively, “Relators”) have petitioned this Court for a writ of prohibition to prohibit the Honorable Jack R. Grate(“Respondent”) from transferring Relators' underlying tort action¹ from the Circuit Court of Jackson County to the Circuit Court of Bates County.²For the following reasons, this Court's preliminary writ is made permanent.

In 2012, Relators filed their petition in the Circuit Court of Jackson County against Michael and Ava Christie and Midland Land and Cattle Company(collectively, “Defendants”).³The petition alleges that, on October 29, 2010, Relator Palmer Neville sustained injuries as a result of an ATV accident that occurred on property owned and operated by Defendants.Relators further allege that Defendants were negligent in their entrustment of the ATV to Neville, their failure to supervise Neville, and their failure to adequately train or instruct Neville.The alleged negligent instruction, supervision, and entrustment is said to have occurred on Defendants' property in Bates County, Missouri.The accident and subsequent resulting injuries, however, are alleged to have occurred on property owned by Defendants in Linn County, Kansas.⁴

At the time of the accident, all Relators were Kansas residents as were Defendants Michael and Ava Christie.DefendantMidland Land and Cattle Company is a Kansas corporation that owns property and transacts business in Missouri.Midland Land and Cattle Company, however, does not have a registered agent in Missouri.

Defendants subsequently filed a motion to dismiss the underlying action or, in the alternative, a motion to transfer venue to Bates County, Missouri.In their motion, Defendants contended that the underlying action must be dismissed, without prejudice, because no Missouri county constitutes a proper venue under the general venue statute, § 508.010.⁵Alternatively, Defendants averred that the case must be transferred to Bates County because Bates County has the only logical nexus to the case in that the alleged negligent entrustment, supervision, and instruction occurred on Defendants' Bates County property.Relators opposed the motion, asserting that venue is proper in any Missouri county because § 508.010.5 does not prescribe a venue under the particular facts and circumstances of this case.Ultimately, Respondent granted Defendants' motion to transfer venue, and the underlying case was transferred to Bates County.

Relators then filed a petition for a writ of prohibition with this Court requesting that we prohibit Respondent from transferring the underlying action to Bates County.⁶After receiving Defendants' suggestions in opposition to Relators' writ petition, we entered a preliminary writ ordering the underlying case be transferred back to Jackson County and prohibiting Respondent from taking any further action to enforce his order transferring the underlying action to Bates County.⁷

Relators now contend that the writ of prohibition is appropriate and should be made permanent because Respondent has no authority to disturb a proper venue selection based upon a belief that another Missouri county has a more “logical nexus” to the facts and circumstances of the case.Writs of prohibition are appropriate under the following circumstances: “(1) to prevent the usurpation of judicial power when a lower court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not granted.”State ex rel. Strauser v. Martinez,416 S.W.3d 798, 801(Mo. banc 2014).

Respondent transferred venue on the basis that Bates County had the only “logical nexus” to the facts of this case.Thus, Respondent's transfer of the underlying action essentially amounted to an intrastate application of the doctrine of forum non conveniens.Missouri courts, however, have routinely found that the intrastate transfer of venue on the basis that one forum is more convenient than another has no application in this state.SeeState ex rel. Sharp v. Romines,984 S.W.2d 500, 500(Mo. banc 1999)(“Missouri's venue statutes do not permit an intrastate application of the doctrine of inconvenient forum.”);Willman v. McMillen,779 S.W.2d 583, 586(Mo. banc 1989)(same);State ex rel. Palmer v. Goeke,8 S.W.3d 193, 196(Mo.App.E.D.1999)(same);State ex rel. Watts v. Hanna,868 S.W.2d 549, 552(Mo.App.S.D.1994)(same);Jones v. Overstreet,865 S.W.2d 717, 718(Mo.App.E.D.1993)(same).In fact, Missouri limits the application of forum non conveniens to situations in which “the courts of one state ... in the exercise of discretion, refuse to entertain an action more appropriately heard in another state.”Friberg v. Chrysler Motors Corp.,786 S.W.2d 923, 925(Mo.App.S.D.1990).Thus, Missouri courts may not use the doctrine of forum non conveniens in order to subject venue within the state to judicial discretion.Id.

Since Respondent could not rely on forum non conveniens to justify the transfer of venue to Bates County, the only legal basis for such transfer would be if in fact venue was improper in Jackson County and proper in Bates County.§ 476.410;State ex rel. Rothermich v. Gallagher,816 S.W.2d 194, 197(Mo. banc 1991).Venue in Missouri “is determined solely by statute.”State ex rel. Selimanovic v. Dierker,246 S.W.3d 931, 932(Mo. banc 2008).The parties agree that, because this is a tort in which the first injury occurred outside the state of Missouri, § 508.010.5 applies.Section 508.010.5 provides:

Notwithstanding any other provision of law, in all actions in which there is any count alleging a tort and in which the plaintiff was first injured outside the state of Missouri, venue shall be determined as follows:

(1) If the defendant is a corporation, then venue shall be in any county where a defendant corporation's registered agent is located or, if the plaintiff's principal place of residence was in the state of Missouri on the date the plaintiff was first injured, then venue may be in the county of the plaintiff's principal place of residence on the date the plaintiff was first injured;

(2) If the defendant is an individual, then venue shall be in any county of the individual defendant's principal place of residence in the state of Missouri or, if the plaintiff's principal place of residence was in the state of Missouri on the date the plaintiff was first injured, then venue may be in the county containing the plaintiff's principal place of residence on the date the plaintiff was first injured.

Therefore, when a tort action involves an out-of-state injury, venue shall be appropriate in the Missouri county in which either the corporate defendant has a registered agent, the individual defendant has his or her principal place of residence, or the plaintiff, at the time of the injury, had his or her principal place of residence.§ 508.010.5(1)-(2).

This case involves both individual and corporate defendants.However, Defendants Michael and Ava Christie do not have a principal place of residence in Missouri; nor does DefendantMidland Land and Cattle Company have a registered agent in the state of Missouri.Furthermore, on the date of the injury, Relators (plaintiffs) were not Missouri residents.Thus, § 508.010.5 does not prescribe a venue under the particular circumstances of this case.

Relators aver that because § 508.010.5 does not prescribe a venue in this case, venue is proper in any Missouri county.Conversely, Defendants contend that because the legislature did not prescribe an applicable venue under § 508.010.5, there is no Missouri county in which venue is proper.

In support of their position, Defendants point out that the legislature adopted the current venue statute in order to restrict venue options for plaintiffs so as to reduce forum-shopping.SeeMcCoy v. The Hershewe Law Firm, P.C.,366 S.W.3d 586, 592(Mo.App.W.D.2012).While Defendants' contention regarding the reason for adoption of the statute is correct, it does not follow that the legislature also intended to prevent plaintiffs from asserting venue anywhere in the state of Missouri.

First, it must be recognized that venue and jurisdiction are distinct concepts.Jurisdiction pertains to “the power of a court to try a case, while venue relates to the locale where the trial is to be held.”State ex rel. Kansas City. S. Ry. Co. v. Nixon,282 S.W.3d 363, 365(Mo. banc 2009).“Venue assumes the existence of jurisdiction and determines, among many courts with jurisdiction, the appropriate forum for the trial.”Id.Accordingly, Missouri venue statutes do not affect the jurisdiction of Missouri courts.

Second, “[t]he primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning.”State ex rel. Linthicum v. Calvin,57 S.W.3d 855, 857–58(Mo. banc 2001)(internal quotation omitted).While § 508.010.5 does state that it determines venue “in all actions in which there is any count alleging a tort and in which the plaintiff was first injured outside the state of Missouri,” such language does not reflect an intent to deny Missouri...