State v. Kanatzar
| Decision Date | 29 October 2013 |
| Docket Number | Nos. WD 76371,WD 76374.,s. WD 76371 |
| Citation | 413 S.W.3d 22 |
| Parties | STATE of Missouri ex rel. BANK OF AMERICA N.A. d/b/a U.S. Trust, Carol G. Jones, Laura Jones Reichman, Wendy Jones Magid, Cindy G. Bennett, and David R. Jones, Relators, v. The Honorable James F. KANATZAR, Judge of the Circuit Court of Jackson County, Respondent. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Richard B. Walsh, Jr. and Derick C. Albers, St. Louis, MO, for relators Jones, Reichman, Magid, Bennett and Jones.
Jeffrey S. Russell and Kimberly A. Mohr, St. Louis, MO, for relator Bank of America.
Michael W. Blanton, Evergreen, CO, for respondent.
Before Writ Division: GARY D. WITT, Presiding Judge, JAMES E. WELSH, Chief Judge and KAREN KING MITCHELL, Judge.
This writ arises from a declaratory action regarding the administration of two related trusts. Relator Bank of America, N.A., D/B/A U.S. Trust (“Bank”), and Relators Carol G. Jones (“Jones”), Laura Jones Reichman, Wendy Jones Magid, Cindy G. Bennett, and David R. Jones (collectively, “Individual Defendants”) each filed a petition for a writ of prohibition and/or mandamus to require trial Judge James F. Kanatzar (“Respondent”) to transfer venue in the underlying action. After issuing preliminary orders on each of the two petitions, we consolidated the matter (collectively, petitioners are “Relators”). Because we find no grounds for venue regarding an action on these trusts in Jackson County based solely on the fact that Bank does business in Jackson County, the preliminary order in prohibition is made absolute, thus requiring transfer to the probate division of the Circuit Court of St. Louis City.
On January 13, 2013, Richard H. Goldstein (“Goldstein”) filed an action for declaratory judgment against Relators for construction of two separate but related trusts pursuant to Rule 87.02.1 Bank is the corporate trustee of the Richard H. Goldstein Irrevocable Trust (“RHG Trust”), which was created under the terms of the Samuel R. Goldstein Living Trust (“SRG Trust”). Jones is Goldstein's sister as well as the trustee and beneficiary of the SRG Trust. The remaining Individual Defendants are Jones' children, who are beneficiaries under the SRG Trust, and are contingent remainder beneficiaries under the RHG Trust. Goldstein is a beneficiary of the RHG Trust, and Jones is a remote remainder beneficiary of the RHG Trust.
Goldstein alleged a controversy in the scope and effect of an in terrorem provision in the SRG Trust.2 He petitioned for a “declaration ... to determine whether claims pertaining to construction, interpretation or other administration of the SRG and RHG Trusts would violate the in terrorem provision, thereby forfeiting his interests under the RHG Trust.” He alleged that he is aware of conduct that constitutes “maladministration” of the two trusts.
As the issue is whether venue is proper in Jackson County, we note here where the parties reside and where the trusts are administered. Goldstein resides outside of Missouri. Jones, the trustee of the SRG Trust, resides in St. Louis County, as do two of the other Individual Defendants; the remaining two Individual Defendants reside outside of Missouri. Bank is the trustee of the RHG Trust, and as explained below, the records pertaining to that trust are located in St. Louis City, which is the principal place of the administration of that trust.
On March 18, 2013, Bank timely filed a motion to transfer for improper venue, seeking an order transferring the cause to the probate division of the Circuit Court of St. Louis City or in the alternative to the probate division of the Circuit Court of St. Louis County. On March 28, 2013, Individual Defendants joined Bank's motion to transfer to either of those two venues. Relators alleged that venue was not proper in Jackson County, asserting that under section 456.2–2043 of the Missouri Uniform Trust Code (“MUTC”), the exclusive forum for judicial proceedings involving trust administration is the probate division of the circuit court in the county in which the trust is registered or administered, which, as to the RHG Trust, is the Circuit Court of St. Louis City. As to the SRG Trust, although the record is clear that Jones is the trustee and that she resides in St. Louis County, there is no indication in the record before this court as to where the SRG Trust is administered.
In their motions seeking transfer for improper venue, Bank and Individual Defendants noted the distinction between the two trusts but referred to them collectively as the “Trust.” Specifically, Bank described the trusts as follows: “[Bank] is the corporate trustee of the Richard H. Goldstein Irrevocable Trust, created under the terms of the Samuel R. Goldstein Living Trust (the ‘Trust’).” Individual Defendants treated the trusts as follows: “Plaintiff ... seek[s] a declaration regarding the construction and effect of an in terrorem provision that applies to the Richard H. Goldstein Irrevocable Trust, created under the terms of the Samuel R. Goldstein Living Trust (collectively the ‘Trust’).” Although his petition separated the two trusts, in his reply to the motion to transfer in the trial court, Goldstein similarly described the trusts collectively: “This is a declaratory judgment action, filed under Rule 87.02, seeking construction of the Richard H. Goldstein Irrevocable Trust, created under the Samuel R. Goldstein Living Trust (‘Trust’).”
Included in Bank's motion below was an affidavit from John Lynn (“Lynn”), a senior vice president at Bank. Lynn swore that the principal place of administration of the “Trust” is Bank's St. Louis City office and that the records relating to the “Trust” are kept at Bank's St. Louis City office. Lynn's affidavit indicated that as to the “Trust,” he reviews discretionary distribution requests from the beneficiary, manages the discretionary process internally, performs administrative reviews, monitors the accounts for sufficient liquidity, serves as primary point of contact for the beneficiary and/or the beneficiary's advisors and/or agents, and addresses questions and issues at the Bank's St. Louis City office.
On April 5, 2013, Goldstein filed his opposition to the motions. As noted above, in his reply to Relators' motions, Goldstein noted the distinction between the two related trusts, but he too referred to them collectively as the “Trust.” Goldstein argued that he did not move for construction of the Trust under the MUTC but rather under Rule 87.02, which he argued is an alternate method for obtaining relief regarding the construction of a trust. Accordingly, Goldstein argued that venue is determined by the general venue provisions of section 508.010. In support of his argument that venue is proper in Jackson County, Goldstein attached an affidavit from a witness who works in Jackson County and is aware of various offices of Bank located in that county. He made no argument concerning the locations of where the trusts were registered or administered. No additional facts were adduced connecting the trusts or the administration thereof to Jackson County.
Respondent denied transfer without any specific finding that a basis for venue existed in Jackson County. On April 30, 2013, Bank filed in this court a Petition for Writ of Prohibition and/or Mandamus with accompanying Suggestions, and on May 2, 2013, Individual Defendants filed a similar petition, asserting that venue is improper in Jackson County and asking this court to enter an order prohibiting Respondent from proceeding further on this action. As noted above, after having considered Relators' petitions and Respondent's suggestions in opposition, this court consolidated the cases and granted a Preliminary Writ of Prohibition prohibiting the Respondent from proceeding until further order of this court. For reasons set forth below, the preliminary writ is made permanent.
The issue in this case is which venue statute applies to this action. In support of their respective arguments, Relators rely on the specific venue statute from the MUTC, while Respondent relies on the general venue statute, section 508.010.
“The extraordinary remedy of a writ of prohibition is available: (1) to prevent the usurpation of judicial power when the trial 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. Mo. Pub. Defender Comm'n v. Waters, 370 S.W.3d 592, 603 (Mo. banc 2012) (citation omitted). “An appellate court should employ prohibition when a circuit court has erroneously denied transfer....” State ex rel. Mo. Pub. Serv. Comm'n v. Joyce, 258 S.W.3d 58, 60 (Mo. banc 2008). “If venue is improper where an action is brought, prohibition lies to bar the trial court from taking any further action, except to transfer the case to a proper venue.” State ex rel. Etter, Inc. v. Neill, 70 S.W.3d 28, 32 (Mo.App. E.D.2002) (citation omitted).
“When a party moves to dismiss or to transfer the case on the basis of venue, the plaintiff has the burden of showing that venue is proper.” M.R. v. S.R., 238 S.W.3d 205, 207 (Mo.App. W.D.2007) (citation omitted). See also Igoe v. Dep't of Labor and Indus. Relations, 152 S.W.3d 284, 289 (Mo. banc 2005) ( that “[a] plaintiff who faces a challenge to venue must make allegations that bring his claim within an appropriate statutory venue provision”) (emphasis added).4 “Venue in Missouri is determined solely by statute.” State ex rel. McDonald's Corp. v. Midkiff, 226 S.W.3d 119, 122 (Mo. banc 2007) (citation omitted). “Venue is within the province of the legislature, and a court must be guided by what the legislature says.” State ex rel. Bunker Res., Recycling and Reclamation, Inc. v. Dierker, 955 S.W.2d 931, 933 (Mo. banc 1997) (citation...
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