Willman v. McMillen , 1989 Mo. LEXIS 105 ( 1989 )

HIGGINS, Judge.

The appellant, a doctor living in St. Joseph, Missouri, sued two other St. Joseph doctors for tortious interference with a contract. He filed the action in Jackson County alleging that the tortious interference occurred in Jackson County and that he was damaged in Jackson County. The Circuit Court of Jackson County dismissed the suit for improper venue. By a writ of mandamus, this Court ordered the dismissal vacated. State ex rel. Willman v. Marsh, 720 S.W.2d 939 (Mo. banc 1986). Dr. Willman subsequently amended his petition to plead monopoly of trade and added twenty-three additional defendants. None of them resided in Jackson County; sixteen lived in Buchanan County. The Circuit Court of Jackson County again dismissed the action, this time on the ground of forum non conveniens.

On appeal of the second dismissal, the Western District declined to follow the holding of the Eastern District in Blankenship v. Saitz, 682 S.W.2d 116 (Mo.App. 1984), which extended the doctrine of forum non conveniens as a matter of discretion to cases involving Missouri residents on causes of action arising in Missouri. Reasoning that the doctrine of “inconvenient forum” should not be extended to create a rule of “inconvenient venue” as a judicial gloss on the Missouri venue statute, the Western District set aside the dismissal, remanded the cause to reinstate the petition in Jackson County, and transferred the case to this Court. This Court agrees with the Western District and reverses the judgment of dismissal.

The doctrine of inconvenient forum was recognized as applicable in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), where' the Court affirmed that a federal district court can dismiss an action at law for forum non conveniens in cases where its jurisdiction is based on diversity and the subject state court has that power.

In Missouri, the doctrine has been recognized in actions that accrue outside Missouri between parties who are not Missouri residents. See discussion, Besse v. Missouri-Pacific Railroad Co., 721 S.W.2d 740 (Mo. banc 1986). In those situations this Court has held that a court may, in its discretion, refuse to adjudicate a nonresident’s claim although it has jurisdiction and venue is proper. The rationale purports avoidance of an unfair burden on a community of holding a trial for strangers and the duty of courts to prevent the abuse of their process. Loftus v. Lee, 308 S.W.2d 654 (Mo.1958).

The doctrine was first considered in Missouri in Federal Employers’ Liability Act cases, beginning with State ex rel. Southern Railway Co. v. Mayfield, 359 Mo. 827, 224 S.W.2d 105 (1949). 45 U.S.C. §§ 51-60 (1982). Mayfield held that a Missouri court in which a nonresident had brought a FELA action might not dismiss the action solely for forum non conveniens. State ex rel. Chicago, Rock Island and Pacific Railroad Co. v. Riederer, 454 S.W.2d 36 (Mo. banc 1970), overruled May-field and held the doctrine of forum non conveniens is available in FELA cases in Missouri. Riederer set forth factors for the trial court on remand to consider in deciding whether the case should be dismissed: the place where the cause of action accrued, the location of the witnesses, the residence of the parties, the nexus with the place of suit, the convenience to and burden on the court, and the availability to the plaintiff of another court with jurisdiction over the cause. Besse, 721 S.W.2d at 741.

In Elliott v. Johnston, 292 S.W.2d 589 (Mo.1956), this Court permitted application of the doctrine to a transitory nonstatutory tort action between nonresidents of Missouri accruing outside Missouri. All parties were Kansas residents and the action arose from a Kansas automobile accident; apparently the plaintiff hoped to find some tactical advantage in the Missouri court. In those unusual circumstances, this Court stated, “There is no absolute compulsion in the privileges and immunities clause of the Constitution of the United States, Art. IV, Section 2, upon the courts of Missouri to accept jurisdiction of foreign transitory nonstatutory tort actions_ An arbitrary denial to a citizen of another state of the right to maintain an action in Missouri would not be permitted, but in the circumstances ... a distinction or denial based in part not upon citizenship but upon residence has some basis and validity and is not wholly unreasonable.” Elliott 292 S.W.2d at 595.

Section 508.010(6), RSMo 1986, the Missouri general venue statute, reads:

In all tort actions the suit may be brought in the county where the cause of action accrued regardless of the residence of the parties, and process therein shall be issued by the court of such county and may be served in any county within the state; provided, however, that in any action for defamation or for invasion of privacy the cause of action shall be deemed to have accrued in the county in which the defamation or invasion was first published.

The legislature’s language is specific, definite, and certain in its provision for a plaintiff’s determination of proper venue for his suit. Under the statute, Dr. Will-man properly brought his suit in the Jackson County venue as the county where the cause of action accrued. Marsh, 720 S.W.2d 939.

The respondents raise several policy questions in their argument that the Missouri courts ought to limit the venue statute by engrafting upon it an intrastate forum non conveniens device. They ask whether the plaintiff should have an unlimited right to select the forum. Section 508.010(6) is the legislature’s limitation on a party in deciding where to initiate an action. Venue is within the province of the legislature, and a court must be guided by what the legislature says. The court may not engraft upon a statute provisions that do not appear explicitly or by implication from other words in the statute. Metro Auto Auction v. Director of Revenue, 707 S.W.2d 397 (Mo. banc 1986).

The respondents ask rhetorically whether Missouri courts should be empowered to prevent abuse of their process even when jurisdiction is conferred under the general venue statutes. This begs the question. Where the legislature has provided that venue is proper in a particular county, it is not the court’s role to frustrate it as suggested. An aggrieved, defendant has the right of a separate action for abuse of process. Hayes v. Hatfield, 758 S.W.2d 470 (Mo.App.1988). Section 508.010(6) gives certainty and guards against successive shifting of the location of an action by defendants who assert they are inconvenienced by the plaintiffs statutorily-provided venue.

The respondents also ask whether the convenience of defendants who are Missouri residents should be ignored when the convenience of nonresident defendants is considered by Missouri courts by the doctrine of forum non conveniens — a quasi-equal protection argument. Within the geographical confines of Missouri, transfer from one proper venue to another proper venue for inconvenient forum is not required. The statutory designation of proper venue as the site where the cause of action accrued presupposes legislative determination that it cannot be overly inconvenient for a defendant to appear in that location.

Respondents cite several Missouri cases which do not persuade a contrary view. In Riederer, 454 S.W.2d at 39, this Court stated “the doctrine is to be applied uniformly on the basis of the applicable criteria irrespective of whether the case involves citizens of Missouri or citizens of other states.” Respondents suggest that this passage indicates this Court intended that the doctrine of inconvenient forum be applied to intrastate actions. The quoted passage, however, deals with whether a distinction should be made between interstate FELA and non-FELA actions. There is no suggestion of a possible intrastate application of the doctrine.

Respondents cite Blankenship, 682 S.W.2d 116, as well as Besse, 721 S.W.2d 740. Blankenship is not the law of the state, however, and the discussion in Besse is not germane to this case.

Respondents also suggest that because Missouri has adopted the common law of England, which has recognized the doctrine of forum non conveniens vis-a-vis its counties, an intrastate doctrine of inconvenient forum should exist in Missouri. Robertson v. Jones, 136 S.W.2d 278 (Mo.1940); Section 1.010, RSMo 1986; Holmes v. Wainright, 102 Eng.Rep. 624 (K.B.1803). That part of English common law which Missouri has adopted, however, is the common law of England prior to the fourth year of the reign of James I, or 1607. See id. Research has not found any English cases dealing with the doctrine earlier than the 1803 case cited above, and such eases would not be dispositive because travel between English counties prior to 1607 would be more analogous to travel between American states than between Missouri counties.

Because this Court holds that Missouri’s venue statute does not admit a doctrine of inconvenient forum in a case involving Missouri parties and a Missouri cause of action, it is not necessary to address whether the trial court abused its discretion.

The judgment of dismissal is reversed, and the cause is remanded for further proceedings.

RENDLEN and BILLINGS, JJ., and CRIST, Special Judge, concur. ROBERTSON, J., concurs in separate opinion filed. BLACKMAR, C.J., dissents in separate opinion filed. MORGAN, Senior Judge, dissents and concurs in dissenting opinion of BLACKMAR, C.J. COVINGTON, J., not sitting.