State ex rel. Heartland Title Services, Inc., f/k/a Heartland Title Company, Inc., and James C. Day, Relators v. The Honorable Kevin D. Harrell , 500 S.W.3d 239 ( 2016 )


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  •                          SUPREME COURT OF MISSOURI
    en banc
    STATE OF MISSOURI ex rel.            )                       Opinion issued October 18, 2016
    HEARTLAND TITLE SERVICES, INC.,      )
    f/k/a HEARTLAND TITLE COMPANY, INC., )
    AND JAMES C. DAY,                    )
    )
    Relators,            )
    )
    v.                            )                       No. SC95377
    )
    THE HONORABLE KEVIN D. HARRELL, )
    )
    Respondent.          )
    ORIGINAL PROCEEDING IN MANDAMUS
    This action involves an original proceeding for a writ of prohibition or,
    alternatively, a writ of mandamus filed by Heartland Title Services, Inc., and James C.
    Day (collectively, "Heartland") requesting this Court prohibit Respondent from
    dismissing one of Heartland's claims in the circuit court for lack of venue. This Court
    issued a preliminary writ. Because this Court holds that venue was proper in any county
    in Missouri, including Jackson County, the preliminary writ is made permanent.
    Factual Background
    In March 2015, Heartland filed a two-count petition in the circuit court of Jackson
    County alleging professional malpractice claims against Paul P. Hasty, Jr., and Hasty and
    Associates, LLC (collectively, "Hasty"). Count II of the petition alleges a claim of
    professional malpractice based on Hasty's provision of legal services in a case in which
    Heartland sought to become creditors in a former employee's personal bankruptcy case
    filed in the United States Bankruptcy Court for the District of Kansas. Hasty filed a
    motion to dismiss Count II for lack of venue, arguing that the tort injury alleged in Count
    II occurred outside Missouri. Hasty asserted the applicable venue statute, § 508.010.5, 1
    limited venue to either the county in Missouri where a corporate defendant's registered
    agent is located or the county in Missouri where an individual defendant's principal place
    of residence is located. Hasty further asserted that because the individual defendant did
    not have his principal place of residence in Missouri and because the corporate defendant
    did not have a registered agent in Missouri, no county in Missouri constitutes a proper
    venue, including Jackson County. The circuit court agreed and dismissed Count II for
    lack of venue. 2 Heartland seeks relief in this Court.
    Analysis
    This Court has the authority to "issue and determine original remedial writs." Mo.
    Const. art. V, § 4.1.     "It is well-established that this Court accepts the use of an
    extraordinary writ to correct improper venue decisions of the circuit court before trial and
    judgment." State ex rel. Kan. City S. Ry. Co. v. Nixon, 
    282 S.W.3d 363
    , 365 (Mo. banc
    2009). This Court has determined a writ of mandamus is the "appropriate remedy to
    1
    All statutory references are to RSMo NonCum. Supp. 2014, unless otherwise noted.
    2
    Hasty's motion to dismiss only raised the affirmative defense of lack of venue. When . . . the
    circuit court does not specify reason for dismissing a petition, an appellate court presumes that
    the circuit court's judgment is based on the reason stated in the motion to dismiss. Avery
    Contracting v. Niehaus, 
    492 S.W.3d 159
    , 162 (Mo. banc 2016).
    2
    reinstate a petition erroneously dismissed for improper venue." State ex rel. Rothermich
    v. Gallagher, 
    816 S.W.2d 194
    , 197 (Mo. banc 1991).
    Heartland contends that venue is proper in Jackson County for Count II and that
    the circuit court erred in its interpretation of § 508.010.5. Before addressing the text of
    § 508.010.5, a brief discussion of the distinction between jurisdiction and venue is in
    order. Jurisdiction refers to "the power of a court to try a case[.]" 
    Nixon, 282 S.W.3d at 365
    . Jurisdiction "is based upon constitutional principles." 
    Id. Missouri courts
    recognize two kinds of jurisdiction: subject matter and personal.
    J.C.W. ex rel. Webb v. Wyciskalla, 
    275 S.W.3d 249
    , 252 (Mo. banc. 2009). Subject
    matter jurisdiction refers to a court's authority to render judgment in a particular category
    of cases. 
    Id. at 253.
    The Missouri constitution provides circuit courts with subject matter
    jurisdiction over all civil and criminal cases.      Mo. Const. art. V, § 14.       Personal
    jurisdiction, on the other hand, refers to the power of a court to require a party to respond
    to a legal proceeding affecting the party's rights or interests. 
    Id. at 253.
    The requirement
    that a court have personal jurisdiction flows mostly from the Due Process Clause, either
    in the Fifth or the Fourteenth amendments to the United States Constitution. Ins. Corp. of
    Ireland v. Compagnie des Bauxites de Guinee, 
    456 U.S. 694
    , 702 (1982).
    While subject matter jurisdiction can never be waived, personal jurisdiction is an
    individual right to which a party can consent. 
    Id. at 703.
    It is not alleged that the circuit
    3
    court of Jackson County lacks subject matter jurisdiction over Count II, and the motion to
    dismiss does not allege lack of personal jurisdiction over either defendant. 3
    Venue, on the other hand, assumes jurisdiction and only "relates to the locale
    where the trial is to be held." 
    Nixon, 282 S.W.3d at 365
    . Unlike jurisdiction, venue is
    not determined by constitutional principles but by the applicable rule or statute that
    "determines, among many courts with jurisdiction, the appropriate forum for the trial."
    
    Id. In the
    event a party is injured outside Missouri by allegedly tortious conduct,
    § 508.010.5 provides, in relevant part:
    (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[.]
    The parties agree, and the pleadings confirm, that § 508.010.5 does not prescribe a
    particular venue for the facts alleged in Count II. Heartland argues that, without an
    express provision in § 508.010.5 prescribing a specific venue, venue is proper in any
    3
    At oral argument, counsel for Hasty conceded that Jackson County had personal jurisdiction
    over both defendants.
    4
    Missouri county.     Hasty argues the lack of an express provision in § 508.010.5
    prescribing a specific venue for these parties means that no county in Missouri is a proper
    venue and, therefore, Count II was properly dismissed. 4
    This is an issue of first impression for this Court. The court of appeals, however,
    addressed a similar issue in State ex rel. Neville v. Grate, 
    443 S.W.3d 688
    (Mo. App.
    2014). In Neville, a plaintiff filed an action in Jackson County for a tort claim related to
    an injury that occurred in Kansas. 
    Id. at 690–91.
    The corporate defendant owned
    property and transacted business in Bates County, Missouri, and plaintiffs alleged that
    some of the tortious actions that caused the injury in Kansas occurred on defendant's
    Missouri property. 
    Id. As in
    the present case, the individual defendant did not have his
    principal place of residence in Missouri and the corporate defendant had no registered
    agent in Missouri. 
    Id. at 691.
    The defendants moved to dismiss the case for lack of
    venue or, in the alternative, to transfer the case from Jackson County to Bates County.
    
    Id. The circuit
    court transferred the case to Bates County. 
    Id. The court
    of appeals held
    that venue was proper in Jackson County. 
    Id. at 695.
    The court explained that the
    language of § 508.010.5 "does not reflect an intent to deny Missouri venue in all
    situations not provided for by the statute" and without an express prescription of a
    particular venue, venue was "proper in any Missouri county, including Jackson." 
    Id. at 693,
    695.
    4
    Each count must pass venue muster. See, e.g., State ex rel. Jinkerson v. Koehr, 
    826 S.W.2d 346
    , 348 (Mo. banc 1992).
    5
    Hasty argues that Neville is distinguishable because it is "limited to its facts, which
    involved negligent conduct in Missouri;" "[t]herefore, in the absence of any nexus to
    Missouri, the rule in . . . Neville has no application" to this case. Hasty's argument, in
    essence, is that § 508.010.5 requires a "nexus" to Missouri that would be akin to a
    minimum contacts requirement for personal jurisdiction. This argument confuses the
    requirements for venue with the requirements of jurisdiction. See, e.g., Andra v. Left
    Gate Prop. Holding, 
    453 S.W.3d 216
    , 225 (Mo. banc 2015); 
    Nixon, 282 S.W.3d at 365
    .
    As explained by the court in Neville, such a construction of § 508.010.5(1) and (2)
    is not in accord with the purpose of the venue statutes, which is to "provide a convenient,
    logical and orderly forum for the resolution of disputes, not to limit or control the types
    of parties and actions that can appear before Missouri 
    courts." 443 S.W.3d at 693
    (internal citation omitted); see also State ex rel. McDonald's Corp. v. Midkiff, 
    226 S.W.3d 119
    , 123 (Mo. banc 2007). Moreover, this Court has held that when venue is
    improper, the circuit court has a "ministerial duty" to transfer the case to a county where
    venue is proper.       See 
    Nixon, 282 S.W.3d at 365
    ; § 476.410, RSMo 2000.                       The
    requirement to transfer a case to the proper venue when it is filed in an improper venue
    supports the interpretation that § 508.010.5 is not intended to bar litigation when a circuit
    court in Missouri has jurisdiction. 5 To interpret § 508.010's silence as barring venue in
    any Missouri county in which the circuit court's jurisdiction is not contested would lead
    5
    Similarly, the federal analog for venue provides, in relevant part, that "if there is no district in
    which an action may otherwise be brought as provided in this section, [a civil action may be
    brought in] any judicial district in which any defendant is subject to the court's personal
    jurisdiction with respect to such action." 28 U.S.C. § 1391(b)(3) (emphasis added).
    6
    to the absurd result of precluding a forum to a party in which a Missouri court has subject
    matter jurisdiction of the case and personal jurisdiction over the defendant. See, e.g.,
    State ex rel. Jackson v. Dolan, 
    398 S.W.3d 472
    , 479 (Mo. banc 2013); 801 Skinker
    Boulevard Corp. v. Dir. of Revenue, 
    395 S.W.3d 1
    , 5 (Mo. banc 2013).
    Hasty argues that interpreting § 508.010.5 to allow venue in any Missouri county
    where the circuit court has jurisdiction will encourage forum shopping, which could
    inundate the circuit courts, particularly those located in larger metropolitan areas, with
    cases from outside Missouri. First, this argument neglects the reality that both subject
    matter jurisdiction and personal jurisdiction are prerequisites to proceeding in Missouri
    courts. Second, this argument neglects that the General Assembly requires both limited
    liability companies and corporations, whether foreign or domestic, to register an agent in
    Missouri if conducting business in the state, see § 347.030.1(2) (Missouri limited liability
    companies); § 347.0153 (foreign limited liability companies); § 351.370.1(2) (Missouri
    corporations); § 351.586(2) (foreign corporations), and provides venue for those entities.
    See § 347.069.2 (Missouri limited liability companies); § 347.167 (foreign limited
    liability companies); § 508.010 (Missouri and foreign corporations). It is unreasonable to
    interpret the venue statute in a manner that would encourage limited liability companies
    and corporations to not follow the law and appoint a registered agent. Third, the General
    Assembly is presumed to know this Court has not abolished the doctrine of interstate 6
    forum non conveniens, State ex rel. Howard Elec. Co-op. v. Riney, 
    490 S.W.2d 1
    , 9 (Mo.
    6
    Missouri does not recognize intrastate forum non conveniens, which would permit a circuit
    court to transfer venue from one proper county under the venue statute to another proper county
    under the venue statute. State ex rel. Sharp v. Romines, 
    984 S.W.2d 500
    , 500 (Mo. banc 1999).
    7
    1973) (noting that the General Assembly is presumed to know the law, including this
    Court's prior decisions, in enacting statutes), which would permit a circuit court to
    dismiss the rare case in which jurisdiction and venue are present but defending in the
    forum would be such a hardship on the defendant that it warrants dismissal and refiling
    the case in another jurisdiction. See, e.g., State ex rel. Wyeth v. Grady, 
    262 S.W.3d 216
    ,
    220 (Mo. banc 2008); State ex rel. K-Mart Corp. v. Holliger, 
    986 S.W.2d 165
    , 169 (Mo.
    banc 1999).
    Conclusion
    In conclusion, if personal and subject matter jurisdiction are established, venue is
    proper in any county in Missouri in the absence of an express provision by the General
    Assembly restricting venue. 7 The preliminary writ of mandamus is made permanent.
    ___________________________
    Zel M. Fischer, Judge
    All concur.
    7
    Because venue was proper in Jackson County, this Court need not reach Heartland's
    constitutional challenge to § 508.010.5. See, e.g., Lang v. Goldsworthy, 
    470 S.W.3d 748
    , 751
    (Mo. banc 2015).
    8