State Ex Rel. Bunker Resource, Recycling & Reclamation, Inc. v. Dierker

BENTON, Chief Justice.

On November 10, 1988, in St. Louis County, Genevieve Brune’s car allegedly collided with a tractor-trailer driven by an employee of Bunker Resource, Recycling and Reclamation, Inc. (doing business as Bunker Resources, Inc.). On July 29, 1991, the Secretary of State administratively dissolved Bunker Resources for failure to file a correct annual report, under section 351.484(2) RSMo.¹ The respondent Judge notes “the fact that Bunker Resources ceased to operate after July 29, 1991.”

On May 29, 1996, Bruñe sued Bunker Resources in the Circuit Court of the City of St. Louis. Bruñe alleged venue under section 508.070, the special statute for motor carriers, because at the time of the collision, Bunker Resources operated as a motor carrier in the City of St. Louis.

Bunker Resources moved for a change of venue to St. Louis County, arguing that venue was improper in the City of St. Louis because at the time the suit was brought, it did not operate as a motor carrier. The trial court overruled the motion. After the Court of Appeals denied Bunker Resources’ petition for mandamus, this Court issued an alternative writ to transfer the case to St. Louis County. Mo. Const. art. V, sec. 4. The alternative writ is made peremptory.

I.

In Missouri, venue is determined solely by statute. State ex rel. Rothermich v. Gallagher, 816 S.W.2d 194, 196 (Mo. banc 1991). Section 508.070 is a permissive venue statute that widens the field of venue in suits against motor carriers. State ex rel. O’Keefe v. Brown, 235 S.W.2d 304, 307[2] (Mo.1951). Section 508.070.1 provides four alternative ways to determine venue:

Suit may be brought against any motor carrier which is subject to regulation under chapter 390, RSMo, in any county where the cause of action may arise, in any town or county where the motor carrier operates, or judicial circuit where the cause of action accrued, or where the defendant maintains an office or agent....

The trial court expressly invoked the second alternative, ruling that where a carrier “operates” is determined at the time of the incident.²

The language of the statute indicates otherwise. Where the language of a statute is clear, a court “should regard laws as meaning what they say; the General Assembly is presumed to have intended exactly what it states directly and unambiguously.” In re Estate of Thomas, 743 S.W.2d 74, 76 (Mo. banc 1988).

Three elements are required to support venue under the second alternative of section 508.070.1: (1) bringing suit against (2) a motor carrier which is subject to regulation under chapter 390 RSMo (3) where it operates. The time to measure these three elements is when suit is “brought” because the second alternative is in the present tense. This is analogous to the general venue statute, section 508.010, where venue is determined as the case stands when brought. See State ex rel. DePaul Health Center v. Mummert, 870 S.W.2d 820, 823 (Mo. banc 1994).

The parties agree that when the suit was brought, Bunker Resources did not, as a matter of fact, operate as a motor carrier in the City of St. Louis. Therefore, section 508.070 is not available to authorize venue in the City of St. Louis.

Echoing the respondent, the dissent argues that public policy should give plaintiffs the same rights against dissolved corporations as against active corporations. The General Assembly has, however, declared the contrary public policy. Section 508.070 permits venue where a motor carrier “operates,” not where it operated. Venue is within the province of the legislature, and a court must be guided by what the legislature says. Willman v. McMillen, 779 S.W.2d 583, 585 (Mo. banc 1989).

II.

Bunker Resources may be sued in its corporate name even after administrative dissolution. See sections 351.476.2(5), 351.486.3. When a corporation is the sole defendant, section 508.040 controls. State ex rel. Coca Cola v. Gaertner, 681 S.W.2d 445, 447[1, 2] (Mo. banc 1984). Section 508.040 provides:

Suits 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.

When suit was commenced, Bunker Resources did not keep, in any county, an office or agent for the transaction of its usual and customary business. Because the cause accrued in St. Louis County, Bunker Resources is subject to suit there under section 508.040.

Venue was improper in the City of St. Louis. Respondent has a ministerial duty to transfer the underlying case to a court of proper venue under section 476.410. A writ of mandamus is appropriate to require the performance of a ministerial act. See DePaul, 870 S.W.2d at 823.

The alternative writ of mandamus is made peremptory. Respondent shall transfer the cause to the Circuit Court of St. Louis County-

PRICE, LIMBAUGH, ROBERTSON, COVINGTON and HOLSTEIN, JJ., concur. WHITE, J., dissents in separate opinion filed.

1 . All statutory references are to RSMo 1994.

2 . Only the second alternative in section 508.070.1 could support venue in the City of St. Louis. This Court expresses no opinion on the scope of the other alternatives in section 508.070.