State v. The Honorable Henry W. Westbrooke

• Decision Date: 29 February 2000
• Citation: 12 S.W.3d 386
• Parties: (Mo.App. S.D. 2000) State of Missouri ex rel. Ford Motor Company, Relator, v. The Honorable Henry W. Westbrooke, Jr., Circuit Court of Greene County, Missouri, Respondent. 23055 0
• Court: Missouri Court of Appeals

12 S.W.3d 386 (Mo.App. S.D. 2000)

State of Missouri ex rel. Ford Motor Company, Relator, v. The Honorable Henry W. Westbrooke, Jr., Circuit Court of Greene County, Missouri, Respondent.

23055

Missouri Court of Appeals Southern District

02/29/2000

Appeal From: Original Proceeding in Prohibition

Counsel for Appellant: John Murphy, Steven Soden and Douglas Robinson

Counsel for Respondent: James Endicott and Venus Harry

Opinion Summary: None

Before Montgomery, P.J., Prewitt, J., and Garrison, C.J. Prewitt, J., concurs in result.

PER CURIAM

This is an original proceeding in prohibition which seeks to compel respondent judge to take no further action in this matter other than to dismiss it for improper venue or because of the doctrine of forum non conveniens. We issued our preliminary order in prohibition, which we now quash.

Hal Eltiste, Frances Eltiste, Rebecca Bremer and Leah Eltiste (collectively referred to as "Plaintiffs"), all residents of Nebraska, were involved in an automobile accident near Peru, Nebraska on May 22, 1994 while traveling in a 1991 Ford Aerostar van. They filed suit in the circuit court of Greene County, Missouri against Ford Motor Company ("Ford") and Heritage Ford, Inc. ("Heritage Ford") (now known as "Auburn Ford"), the dealer in Auburn, Nebraska which sold the van, alleging personal injuries and loss of consortium on theories of strict liability and negligence. In their petition, Plaintiffs alleged that Ford was a Delaware corporation authorized to do business in Missouri, and that Heritage Ford was a Nebraska corporation which "engages in business in the state of Missouri by advertising and selling vehicles to residents of this state."

Ford filed a motion to dismiss under the theories of improper venue and the doctrine of forum non conveniens, alleging that Auburn Ford is a Nebraska corporation with its principal place of business in that state, and that there was no allegation that it had any offices or agents in Greene County, Missouri or in the state as a whole. Ford also alleged that it is a Delaware corporation with its principal place of business in Dearborn, Michigan, and that it has no offices or agents in Greene County, Missouri. In support of its motion, Ford attached an affidavit from one of its engineers stating that the Ford van in question was manufactured at its assembly plant in St. Louis County, Missouri, and was purchased from a Ford dealership in Dearborn, Michigan; that it has no offices or agents in Greene County, Missouri for the transaction of its usual and customary business; and that its principal place of business is in Dearborn, Michigan. Although it is not part of the record before us in this case, it appears that Heritage Ford also filed a motion to dismiss.

Plaintiffs responded to the motion to dismiss by contending that Ford has assembly plants in St. Louis County, Missouri and Jackson County, Missouri, maintains a "governmental office" in Missouri, and that the Ford van involved in the subject accident was manufactured at Ford's assembly plant in St. Louis. Plaintiffs also contended that Ford Motor Credit Company ("Ford Credit") is a wholly owned subsidiary of Ford with an office for the conduct of its business in Springfield, Greene County, Missouri; that both Ford and Ford Credit list their principal business address as "The American Road" in Dearborn, Michigan; that Ford Credit provides wholesale financing and capital loans to Ford retail dealerships; that a substantial majority of all new vehicles financed by Ford Credit are manufactured by Ford; that Ford Credit and Ford have numerous agreements for their own mutual support and existence; and the two companies have an "intercompany tax sharing agreement." Both motions were overruled. Ford then filed the instant petition for writ of prohibition. ¹

In its first point relied on, Ford contends that under Section 508.040² venue is improper in Greene County, Missouri because the cause of action accrued in Nebraska, Ford is a Delaware corporation with its principal place of business in Dearborn, Michigan, Ford does not have or usually keep an office or agent for the transaction of its usual or customary business in Greene County, Missouri, and Auburn Ford is a Nebraska corporation with its principal place of business in Auburn, Nebraska. It challenges Plaintiffs' contention that venue is established by a Ford Credit office in Greene County, Missouri as incorrect and not supported by Missouri law.

"Prohibition is a 'proper proceeding to test whether a judge is acting in excess of his jurisdiction because of improper venue.'" State ex rel. Reedcraft Mfg., Inc. v. Kays, 967 S.W.2d 703, 704 (Mo.App. S.D. 1998) (quoting from State ex rel. Missouri Prop. & Cas. Ins. Gty. Ass'n v. Brown, 900 S.W.2d 268, 271 (Mo.App. W.D. 1995). If venue is improper in the county where the action is brought, prohibition lies to bar the trial court from taking any further action, except to transfer the case to the county of proper venue. State ex rel. Quest Commun. v. Baldridge, 913 S.W.2d 366, 368 (Mo.App. S.D. 1996).

Venue refers to the situs in which a court of competent jurisdiction may adjudicate an action. Reedcraft, 967 S.W.2d at 704. Venue is determined solely by statutes, and the primary purpose of such statutes is to provide a convenient, logical and orderly forum for the resolution of disputes. Id. Section 508.040 provides that "[s]uits against corporations shall be commenced either 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.

It is undisputed that the cause of action did not arise in Greene County, Missouri, and that Ford does not have or usually keep an office or agent for the transaction of its usual and customary business in Greene County, other than the possibility, as argued by Respondent, that Ford Credit satisfies the latter portion of the section 508.040 test. The real issue is whether the relationship between Ford and Ford Credit is such that Ford Credit's office for the transaction of its usual and customary business in Greene County amounts to Ford's presence for venue purposes.

In State ex rel. Elson v. Koehr, 856 S.W.2d 57, 60 (Mo. banc 1993), the Court cited section 1 of the Restatement (Second) of Agency for the definition of agency: "[Agency is] the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." The Court explained that under the Restatement the essential characteristics of the agency relation are:

1) that an agent holds a power to alter legal relations between the principal and a third party; Restatement (Second) of Agency section 12;

2) that an agent is a fiduciary with respect to matters within the scope of the agency; Restatement (Second) of Agency section 13;

3) that a principal has the right to control the conduct of the agent with respect to matters entrusted to the agent; Restatement (Second) of Agency section14.

Id.

Another leading case in this area is State ex rel. Bunting v. Koehr, 865 S.W.2d 351, 353 (Mo. banc 1993), where the Supreme Court cited with approval Koehr for the principal that traditional rules of agency articulated in the Restatement (Second) of Agency determine the existence of agency for venue purposes, and that the absence of any one of the three elements of agency under that definition defeats a claim that agency exists.

Here, Ford argues that even though Ford Credit is its wholly owned indirect subsidiary, it is not its agent for venue purposes because, under the Restatement definition of agency, it had no power to alter legal relations between Ford and purchasers of Ford vehicles, and Ford Credit is not Ford's fiduciary. ³

Although Ford argues facts in its brief which, it contends, support its conclusion that the trial court erred in denying its motion to dismiss, those facts are not supported with citations to the record. The only citation to the record in support of a factual statement is a citation to an affidavit of Ford's design analysis engineer which stated that the vehicle in question was assembled at the Ford plant in St. Louis County and purchased from a Ford dealership in Dearborn, Michigan; that Ford's principal place of business is located in Dearborn, Michigan; and that "Ford does not have or keep any offices or agents within Greene County, Missouri for the transaction of its usual and customary business." All but the last statement is undisputed by the parties. In fact, whether Ford Credit's presence in Greene County is a viable basis for venue as to Ford is the real issue here. Ford's statement of facts in its brief, however, consists of merely a procedural history of the case, and the argument section of its brief contains no citations to the record supporting the statements of Ford in its brief.

"In a prohibition proceeding the burden is on the petitioning party to show that the trial court exceeded its jurisdiction, and that burden includes overcoming the presumption of right action in favor of the trial court's ruling." State ex rel. Dixon v. Darnold, 939 S.W.2d 66, 69 (Mo.App. S.D. 1997). Briefs filed in prohibition proceedings in this court must comply with the requirements of Rule 84.04. Rule 84.24(i); State v. Gordon, 842 S.W.2d 577, 578 (Mo.App. S.D. 1992). Rule 84.04(c) provides that the statement of facts in a brief "shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument." A statement of facts which provides nothing more than a procedural history of the case is deficient. Murray v. Missouri Real Estate Comm'n, 858 S.W.2d 238, 239 (Mo.App. S.D. 1993). Rule 84.04(i) requires that the statement of facts and argument portion of the brief "shall have...