            SUPREME COURT OF MISSOURI
                                       en banc

STATE EX REL. RONALD PRATER,                )           Opinion issued April 30, 2019
GWENDALYN GONZALES, DEANN                   )
THOMPSON, AND LUCILLE                       )
CURTMAN,                                    )
                                            )
             Relators,                      )
                                            )
v.                                          )           No. SC97429
                                            )
THE HONORABLE JASON R.                      )
BROWN,                                      )
                                            )
              Respondent.                   )

                    ORIGINAL PROCEEDING IN MANDAMUS

       Ronald Prater, Gwendalyn Gonzales, Deann Thompson, and Lucille Curtman

("Relators") filed a petition for a writ of prohibition or mandamus requiring Respondent to

transfer the underlying declaratory judgment action from Greene County to Pulaski

County. This Court issued a preliminary writ of mandamus. Greene County is an improper

venue because none of the defendants in the declaratory judgment action reside in Greene

County. The preliminary writ of mandamus is made permanent.
                                          Factual Background

       A vehicle driven by Dakota Ball collided with a vehicle occupied by Ronald and

Juanita Prater. Mr. Prater ("Prater") was injured, and Mrs. Prater was killed. The accident

occurred in Pulaski County, Missouri. Relators filed a wrongful death action against Ball

in Pulaski County. 1 Prater filed a personal injury action against Ball in Pulaski County.

The parties agreed to transfer the wrongful death and personal injury actions to Greene

County, Missouri.

       Ball’s stepmother, Christina Gruendler, was insured by an auto policy issued by

USAA General Indemnity Company ("USAA"). USAA filed a declaratory judgment

action in Greene County against Prater, Ball, and Gruendler seeking a declaration the

policy did not cover Ball. Prater resided in Miller County, Missouri, Ball resided in

Maryland, and Gruendler resided in Pulaski County. Prater filed a motion to transfer venue

of the declaratory judgment action from Greene County to Pulaski County because none

of the defendants resided in or were served in Greene County and the accident occurred in

Pulaski County. The circuit court overruled Prater's motion and ordered USAA to amend

its petition by adding all wrongful death claimants to the declaratory judgment action. 2 All

of the additional defendants resided in either Miller or Pulaski county.


1
  Lloyd Curtman was a plaintiff in the wrongful death action. Mr. Curtman died prior to the
underlying writ proceeding.
2
  Section 508.012, RSMo Supp. 2005, provides: "At any time prior to the commencement of a
trial, if a plaintiff or defendant, including a third-party plaintiff or defendant, is either added or
removed from a petition filed in any court in the state of Missouri which would have, if originally
added or removed to the initial petition, altered the determination of venue under section 508.010,
then the judge shall upon application of any party transfer the case to a proper forum under section
476.410."

                                                  2
          Relators filed a motion to transfer venue asserting Greene County was an improper

venue because no defendant resided in Greene County. The circuit court overruled the

motion. Relators filed a petition for a writ of mandamus or prohibition. This Court issued

a preliminary writ of mandamus.

                                                Analysis

          This Court has jurisdiction to issue original remedial writs. Mo. Const. art. V, § 4.1.

Venue is determined by rule or statute. State ex rel. Heartland Title Servs., Inc. v. Harrell

500 S.W.3d 239, 241 (Mo. banc 2016). "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." Id. (internal quotation omitted). Mandamus is appropriate if the

circuit court fails to perform its ministerial duty to transfer a case from an improper venue

to a proper venue. State ex rel. DePaul Health Ctr. v. Mummert, 870 S.W.2d 820, 823

(Mo. banc 1994).

          The underlying declaratory judgment action names multiple defendants, seeks a

declaration of USAA's contractual obligations, and does not involve a count alleging a tort.

In cases with no count alleging a tort and involving multiple resident defendants or multiple

resident and non-resident defendants, § 508.010.2, RSMo Supp. 2014, provides venue shall

be in any county where any of the defendants reside. 3 Greene County is an improper venue


3
    Section 508.010.2 provides:
          In all actions in which there is no count alleging a tort, venue shall be determined
          as follows:
                  (1) When the defendant is a resident of the state, either in the county within
          which the defendant resides, or in the county within which the plaintiff resides, and
          the defendant may be found;
                                                    3
pursuant to § 508.010.2 because none of the defendants in the declaratory judgment action

reside in Greene County. 4 The circuit court failed to execute its ministerial duty to transfer

the declaratory judgment action from Greene County to a proper venue.

                                         Conclusion

       The preliminary writ of mandamus is made permanent, and the circuit court is

ordered to transfer the case to Pulaski County.


                                                          ________________________
                                                          Zel M. Fischer, Chief Justice



All concur.




               (2) When there are several defendants, and they reside in different counties,
       the suit may be brought in any such county;
               (3) When there are several defendants, some residents and others
       nonresidents of the state, suit may be brought in any county in this state in which
       any defendant resides;
               (4) When all the defendants are nonresidents of the state, suit may be
       brought in any county in this state.
4
  USAA alleged Ball is a Maryland resident and admits he was served in Maryland. USAA argues
Ball should be "deemed" to reside in Greene County because his guardian ad litem is in Greene
County. This argument fails because § 508.010.2 determines venue according to the defendant's
residence, not a guardian ad litem's residence.
                                              4
