State v. Honorable Margaret M. Neill, ED80150

• Decision Date: 05 February 2002
• Docket Number: ED80150
• Citation: 70 S.W.3d 28
• Parties: State of Missouri, ex rel., Etter, Inc., Relator, v. Honorable Margaret M. Neill, Judge of the Circuit Court of the City of St. Louis, Missouri, Division 1, Respondent. ED80150 Missouri Court of Appeals Eastern District 0
• Court: Missouri Court of Appeals

State of Missouri, ex rel., Etter, Inc., Relator,

v.

Honorable Margaret M. Neill, Judge of the Circuit Court of the City of St. Louis, Missouri, Division 1, Respondent.

ED80150

Missouri Court of Appeals Eastern District

02/05/2002

Appeal From: Writ of Prohibition

Counsel for Appellant: A. Stephen Pernoud and Elizabeth A. Finkelstein

Counsel for Respondent: John S. Wallach and Michael A. Gross

Opinion Summary:

Etter, Inc., has petitioned for a writ of prohibition to require the circuit court judge to transfer venue.

Writ Division Three holds: Because there are no grounds for St. Louis City venue based merely on the residence of a defendant ad litem and there has been no waiver of venue, we enter our order in prohibition requiring transfer to a proper venue.

Simon and Russell, JJ., concur.

Lawrence E. Mooney, Presiding Judge

Relator, Etter, Inc., filed a petition for a writ of prohibition to require respondent to transfer venue. We issued a preliminary order. Because we find no grounds for St. Louis City venue based merely on the residence of a defendant ad litem and no waiver of venue, the preliminary order in prohibition is made absolute, thus requiring transfer.

In 2001, plaintiffs brought the underlying dram-shop action against two St. Louis County bar-owners. In their suit, they claim the St. Louis County bars served drinks to an obviously drunk patron who then assaulted plaintiff husband. Plaintiff husband seeks recompense from the bar-owners for his injuries, plaintiff wife for her loss of consortium. The two bar-owners are both corporations; one of the corporations, Etter, Inc., has been administratively dissolved. To assert their claim and achieve service of process against Etter, plaintiffs petitioned that the court appoint Randall S. Parker, a resident of St. Louis City, as defendant ad litem. Though filed in St. Louis City, Plaintiffs' petition makes no claim that their cause of action accrued in the city, or that either corporation ever maintained an office or agent in the city for transaction of their usual and customary businesses. Rather, the sole allegation in the petition that might provide some nexus to the city is the allegation that the defendant ad litem is a city resident.

The bar-owners moved to transfer venue from the city, claiming that the residence of the defendant ad litem provided no basis for city venue. Respondent judge denied the transfer. In denying the transfer, respondent did not find that the defendant ad litem's residence provided a basis for city venue. Rather, she found that bar-owners had failed to adduce evidence that Etter, the dissolved corporation, had ceased doing business or that it did not maintain an office or agent in the city for its usual and customary business. Etter then asked for reconsideration and provided respondent with an affidavit that indeed, at the time of the suit's filing, it had ceased doing business and that further, it had never maintained an office or agent in the city for the transaction of its business. Respondent again denied transfer. And again, she did not make any finding that a basis for city venue existed. Rather, she now held that there was no basis for a motion to reconsider her prior ruling, and that Etter had waived the issue by failing to adduce the evidence at the earlier hearing. Relator Etter seeks our writ of prohibition compelling transfer of venue.

ANALYSIS

We find no basis for city venue based merely on the residence of the defendant ad litem. "Venue in Missouri is determined solely by statute." State ex rel. Rothermich v. Gallagher, 816 S.W.2d. 194, 196 (Mo. banc 1991). "Venue is within the province of the legislature" and courts called upon to adjudicate venue challenges "must be guided by what the legislature says." Willman v. McMillen, 779 S.W.2d 583, 585-86 (Mo. banc 1989). "The 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." Wolff Shoe Company v. Director of Revenue, 762 S.W.2d 29, 31 (Mo. banc 1988). There is no room for construction where a statute's language is clear and unambiguous. Id.

Section 508.040 RSMo 2000 is the corporate venue statute and applies where all defendants are corporations.¹ State ex rel. Webb v. Satz, 56l S.W.2d 113, 114-15 (Mo. banc 1978) (corrected 606 S.W.2d 176, (Mo. banc 1980)); State ex rel. Baker v. Goodman, 274 S.W.2d 293, 297 (Mo. banc 1954). It applies even if the defendant corporation is dissolved. See State ex rel. Bunker Resource v. Dierker, 955 S.W.2d 931, 933 (Mo. banc 1997). Thus, venue in this case is governed by section 508.040. Under this section, venue is proper "in the county where the cause of action accrued . . . or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business." Section 508.040. The language of section 508.040 is clear and unambiguous

It is well established that the residence of a defendant ad litem does not control for venue purposes. State ex rel. Hune v. Ryan, 771 S.W.2d 831, 832-33 (Mo. banc 1989); Barr v. Plastic Surgery Consultants, Ltd., 760 S.W.2d 585, 591 (Mo. App. E.D. 1988); State ex rel. Gannon v. Gaertner, 592 S.W.2d 214, 216 (Mo.App.1979); State ex rel. Picker v. Gaertner, 599 S.W.2d 45, 46 (Mo.App. E.D. 1980). As in other circumstances, the defendant ad litem is merely a nominal defendant, and has no personal interest in or liability for the litigation. See Picker, 599 S.W.2d at 46; Gannon, 592 S.W.2d at 216.

"The purpose of the venue statutes is to provide a convenient, logical and orderly forum for litigation." Rothermich, 816 S.W.2d. at 196. As explained in Gannon, that purpose would be thwarted if plaintiffs could create venue of their choice by selecting a defendant ad litem who resides in a forum utterly foreign to the parties and their cause of action. Gannon, 592 S.W.2d at 216. Were we to uphold plaintiffs' attempt to establish city venue merely by virtue of the defendant ad litem's residence, then by the same token plaintiffs could establish venue in any one of the other counties of Missouri. Id. As in Gannon, we decline to adopt such an incongruous conclusion or to allow such forum shopping. Id. Accordingly, venue in this case cannot be based on the defendant ad litem's city residence.

Nor can we find any fault with relator's challenge to venue. It is true that the party challenging venue bears the burden of persuasion and proof, if proof is necessary, that venue is improper. Coale v. Grady Brothers Siding and Remodeling, Inc., 865 S.W.2d 887, 889 (...