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

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