               IN THE MISSOURI COURT OF APPEALS
                        WESTERN DISTRICT
STATE OF MISSOURI, ex rel.,                          )
PALMER NEVILLE, JAMES W.                             )
NEVILLE, JR., and JENNIFER                           )
NEVILLE,                                             )
                                                     )
                 Relators,                           )
                                                     )
                                                     )
        v.                                           )
                                                     )       WD77342
                                                     )
THE HONORABLE JACK R.                                )       Opinion filed:
GRATE,                                               )
                                                     )
                 Respondent.                         )


                     ORIGINAL PROCEEDING IN WRIT OF PROHIBITION

                     Before Writ Division: Joseph M. Ellis, Presiding, Judge,
                    Victor C. Howard, Judge and Lisa White Hardwick, Judge

        Palmer Neville, James W. Neville, Jr., and Jennifer Neville (collectively,

“Relators”) have petitioned this Court for a writ of prohibition to prohibit the Honorable

Jack R. Grate (“Respondent”) from transferring Relators’ underlying tort action1 from the

Circuit Court of Jackson County to the Circuit Court of Bates County. 2 For the following


1
  At the time Relators filed their writ, their underlying tort action was identified as Neville v. Christie, et al.,
Case No. 1216-CV28023.
2
  Initially, there were two petitions for writs of prohibition filed against Respondent in this Court: State ex
rel. Fredette v. Grate, WD77342 (Mar. 7, 2014), and State ex rel. Neville v. Grate, WD77384 (Mar. 21,
reasons, this Court’s preliminary writ is made permanent.

        In 2012, Relators filed their petition in the Circuit Court of Jackson County

against Michael and Ava Christie and Midland Land and Cattle Company (collectively,

“Defendants”).3 The petition alleges that, on October 29, 2010, Relator Palmer Neville

sustained injuries as a result of an ATV accident that occurred on property owned and

operated by Defendants. Relators further allege that Defendants were negligent in their

entrustment of the ATV to Neville, their failure to supervise Neville, and their failure to

adequately train or instruct Neville. The alleged negligent instruction, supervision, and

entrustment is said to have occurred on Defendants’ property in Bates County, Missouri.

The accident and subsequent resulting injuries, however, are alleged to have occurred

on property owned by Defendants in Linn County, Kansas.4

        At the time of the accident, all Relators were Kansas residents as were

Defendants Michael and Ava Christie. Defendant Midland Land and Cattle Company is

a Kansas corporation that owns property and transacts business in Missouri. Midland

Land and Cattle Company, however, does not have a registered agent in Missouri.

        Defendants subsequently filed a motion to dismiss the underlying action or, in the

2014). We issued preliminary writs of prohibition in both cases and subsequently consolidated the cases
for purposes of argument and disposition. Shortly before oral argument, the Fredettes voluntarily
dismissed their petition for a writ of prohibition after reaching a settlement agreement with Defendants in
the underlying action.
3
  Someday, LLC, a Missouri company with a registered agent in Jackson County, was originally named as
a defendant in this suit. However, when Defendants moved to have Someday, LLC dismissed on the
basis that Someday, LLC was pretensively joined, Relators voluntarily dismissed Someday, LLC from the
case.
4
  The underlying petition alleges, inter alia, that Defendants’ land straddles the Missouri/Kansas border,
that a lodge and garage are located within Bates County, Missouri, and the subject ATV was garaged at
that location, that the negligent training and instruction occurred there, as did the entrustment of the ATV,
and thereafter Relator, while still on the farm, crossed over into the state of Kansas on the ATV, where
the alleged injuries occurred.
                                                     2
alternative, a motion to transfer venue to Bates County, Missouri.                    In their motion,

Defendants contended that the underlying action must be dismissed, without prejudice,

because no Missouri county constitutes a proper venue under the general venue

statute, § 508.010.5 Alternatively, Defendants averred that the case must be transferred

to Bates County because Bates County has the only logical nexus to the case in that

the alleged negligent entrustment, supervision, and instruction occurred on Defendants’

Bates County property. Relators opposed the motion, asserting that venue is proper in

any Missouri county because § 508.010.5 does not prescribe a venue under the

particular facts and circumstances of this case.                 Ultimately, Respondent granted

Defendants’ motion to transfer venue, and the underlying case was transferred to Bates

County.

        Relators then filed a petition for a writ of prohibition with this Court requesting

that we prohibit Respondent from transferring the underlying action to Bates County. 6

After receiving Defendants’ suggestions in opposition to Relators’ writ petition, we

entered a preliminary writ ordering the underlying case be transferred back to Jackson

County and prohibiting Respondent from taking any further action to enforce his order

transferring the underlying action to Bates County.7


5
  Unless otherwise noted, all statutory citations are to RSMo 2000 as updated through RSMo Cum. Supp.
2012.
6
  After Relators’ petition for a writ of prohibition was filed, Defendants’ filed a petition for a writ of
mandamus against Respondent generally seeking an order directing Respondent to vacate his previous
order denying Defendants’ motion to dismiss the underlying action for lack of proper venue, and further
directing that he sustain that motion. This Court denied Defendants’ mandamus petition on April 16,
2014. See State ex rel. Christie v. Grate, WD 77405 (Apr. 16, 2014).
7
  Following the issuance of our preliminary writ, the Circuit Court of Bates County transferred the
underlying case back to the Circuit Court of Jackson County. The case was then renumbered as Neville
                                                    3
        Relators now contend that the writ of prohibition is appropriate and should be

made permanent because Respondent has no authority to disturb a proper venue

selection based upon a belief that another Missouri county has a more “logical nexus” to

the facts and circumstances of the case. Writs of prohibition are appropriate under the

following circumstances: “(1) to prevent the usurpation of judicial power when a lower

court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or

abuse of discretion where the lower court lacks the power to act as intended; or (3)

where a party may suffer irreparable harm if relief is not granted.”         State ex rel.

Strauser v. Martinez, 416 S.W.3d 798, 801 (Mo. banc 2014).

        Respondent transferred venue on the basis that Bates County had the only

“logical nexus” to the facts of this case. Thus, Respondent’s transfer of the underlying

action essentially amounted to an intrastate application of the doctrine of forum non

conveniens. Missouri courts, however, have routinely found that the intrastate transfer

of venue on the basis that one forum is more convenient than another has no

application in this state. See State ex rel. Sharp v. Romines, 984 S.W.2d 500, 500

(Mo. banc 1999) (“Missouri’s venue statutes do not permit an intrastate application of

the doctrine of inconvenient forum.”); Willman v. McMillen, 779 S.W.2d 583, 586 (Mo.

banc 1989) (same); State ex rel. Palmer v. Goeke, 8 S.W.3d 193, 196 (Mo. App. E.D.

1999) (same); State ex rel. Watts v. Hanna, 868 S.W.2d 549, 552 (Mo. App. S.D.

1994) (same); Jones v. Overstreet, 865 S.W.2d 717, 718 (Mo. App. E.D. 1993)

(same). In fact, Missouri limits the application of forum non conveniens to situations in

v. Christie, et al., Case No. 1214-CV09142.
                                              4
which “the courts of one state . . . in the exercise of discretion, refuse to entertain an

action more appropriately heard in another state.” Friberg v. Chrysler Motors Corp.,

786 S.W.2d 923, 925 (Mo. App. S.D. 1990). Thus, Missouri courts may not use the

doctrine of forum non conveniens in order to subject venue within the state to judicial

discretion. Id.

       Since Respondent could not rely on forum non conveniens to justify the transfer

of venue to Bates County, the only legal basis for such transfer would be if in fact venue

was improper in Jackson County and proper in Bates County. § 476.410; State ex rel.

Rothermich v. Gallagher, 816 S.W.2d 194, 197 (Mo. banc 1991). Venue in Missouri

“is determined solely by statute.” State ex rel. Selimanovic v. Dierker, 246 S.W.3d

931, 932 (Mo. banc 2008). The parties agree that, because this is a tort in which the

first injury occurred outside the state of Missouri, § 508.010.5 applies.             Section

508.010.5 provides:

       Notwithstanding any other provision of law, in all actions in which there is
       any count alleging a tort and in which the plaintiff was first injured outside
       the state of Missouri, venue shall be determined as follows:

       (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.
                                                 5
Therefore, when a tort action involves an out-of-state injury, venue shall be appropriate

in the Missouri county in which either the corporate defendant has a registered agent,

the individual defendant has his or her principal place of residence, or the plaintiff, at the

time of the injury, had his or her principal place of residence. § 508.010.5(1)-(2).

       This case involves both individual and corporate defendants.                However,

Defendants Michael and Ava Christie do not have a principal place of residence in

Missouri; nor does Defendant Midland Land and Cattle Company have a registered

agent in the state of Missouri.       Furthermore, on the date of the injury, Relators

(plaintiffs) were not Missouri residents. Thus, § 508.010.5 does not prescribe a venue

under the particular circumstances of this case.

       Relators aver that because § 508.010.5 does not prescribe a venue in this case,

venue is proper in any Missouri county. Conversely, Defendants contend that because

the legislature did not prescribe an applicable venue under § 508.010.5, there is no

Missouri county in which venue is proper.

       In support of their position, Defendants point out that the legislature adopted the

current venue statute in order to restrict venue options for plaintiffs so as to reduce

forum-shopping. See McCoy v. The Hershewe Law Firm, P.C., 366 S.W.3d 586, 592

(Mo. App. W.D. 2012). While Defendants’ contention regarding the reason for adoption

of the statute is correct, it does not follow that the legislature also intended to prevent

plaintiffs from asserting venue anywhere in the state of Missouri.

       First, it must be recognized that venue and jurisdiction are distinct concepts.

                                              6
Jurisdiction pertains to “the power of a court to try a case, while venue relates to the

locale where the trial is to be held.” State ex rel. Kansas City. S. Ry. Co. v. Nixon,

282 S.W.3d 363, 365 (Mo. banc 2009). “Venue assumes the existence of jurisdiction

and determines, among many courts with jurisdiction, the appropriate forum for the

trial.” Id. Accordingly, Missouri venue statutes do not affect the jurisdiction of Missouri

courts.

       Second, “[t]he primary rule of statutory construction is to ascertain the intent of

the legislature from the language used, to give effect to that intent if possible, and to

consider the words used in their plain and ordinary meaning.” State ex rel. Linthicum

v. Calvin, 57 S.W.3d 855, 857-58 (Mo. banc 2001) (internal quotation omitted). While §

508.010.5 does state that it determines venue “in all actions in which there is any count

alleging a tort and in which the plaintiff was first injured outside the state of Missouri,”

such language does not reflect an intent to deny Missouri venue in all situations not

provided for by the statute. See State ex rel. Rothermich v. Gallagher, 816 S.W.2d

194, 200 (Mo. banc 1991) (stating that “it is readily apparent that [the venue statutes] do

not in express terms cover all possible situations likely to arise”) (internal quotation

omitted).   Rather, “[t]he primary purpose of Missouri’s venue statutes is to provide a

convenient, logical and orderly forum for the resolution of disputes,” State ex rel.

DePaul Health Ctr. v. Mummert, 870 S.W.2d 820, 822 (Mo. banc 1994), not to limit or

control the types of parties and actions that can appear before Missouri courts.

       Moreover,    Defendants’    interpretation   of   §   508.010.5   carries   possible

constitutional implications. “As a principle of statutory construction, this court should
                                            7
reject an interpretation of a statute that would render it unconstitutional, when the

statute is open to another plausible interpretation by which it would be valid.” State ex

rel. Kansas City Symphony v. State, 311 S.W.3d 272, 278 (Mo. App. W.D. 2010).

The open courts provision of the Missouri Constitution provides: “That the courts of

justice shall be open to every person, and certain remedy afforded for every injury to

person, property or character, and that right and justice shall be administered without

sale, denial or delay.” Mo. Const. art. I, § 14. “An open courts violation is established

on a showing that: (1) a party has a recognized cause of action; (2) that the cause of

action is being restricted; and (3) the restriction is arbitrary or unreasonable.” Weigand

v. Edwards, 296 S.W.3d 453, 461 (Mo. banc 2009) (internal quotation omitted). Thus,

“statutes that impose procedural bars to access of the courts are unconstitutional . . .

and any law that arbitrarily or unreasonably bars individuals or classes of individuals

from accessing our courts in order to enforce recognized causes of action for personal

injury violates the open courts provisions.”      Id. (internal quotation, citation, and

emphasis omitted).

      Under Defendants’ construction of § 508.010.5, there is no available venue in

Missouri for nonresident plaintiffs asserting recognized tort claims against defendants

that happen not to fall within the categories enumerated in the statute. Thus, § 508.010

would effectively prevent entire groups of plaintiffs from asserting otherwise viable tort

claims in a Missouri court for negligent conduct that occurred in Missouri. Therefore, if

we were to accept Defendants’ interpretation of § 508.010.5, we would be forced to

conclude that the legislature intended § 508.010.5 to bar some, but not all, plaintiffs
                                          8
from accessing Missouri courts despite the fact that Missouri courts possessed both

subject matter and personal jurisdiction over the alleged cause of action.8

        Defendants assert that such an interpretation does not offend Missouri’s open

courts provision because the legislature’s ability to deny Missouri venue under §

508.010.5 is no different than the legislature’s ability to eliminate a cause of action

within the state of Missouri. The legislature can eliminate a cause of action without

violating the open courts provision. See Blaske v. Smith & Entzeroth, 821 S.W.2d

822, 833 (Mo. banc 1991). Defendants’ construction of § 508.010.5, however, does not

equate to the elimination of a cause of action.

        By eliminating a cause of action, the legislature is effectuating a substantive

change in Missouri law that removes a cause of action that previously existed and, thus,

prevents all plaintiffs from asserting that particular cause of action in the state of

Missouri in the future. See id. Defendants’ proposed interpretation of § 508.010.5

involves no such substantive change.                Instead, § 508.010.5 would function as a

procedural bar, allowing some plaintiffs to bring a tort claim in Missouri while

simultaneously preventing other plaintiffs from asserting that same viable claim in a

Missouri court.

        To put things in perspective, under Defendants’ interpretation of § 508.010.5,


8
  It is undisputed that Missouri courts have subject matter and personal jurisdiction in this case. Missouri
courts have subject matter jurisdiction over civil cases, including negligent entrustment and negligent
instruction or supervision causes of action. See Mo. Const. art. V, § 14 (“The Circuit courts shall have
original jurisdiction over all cases and matters, civil and criminal.”). Moreover, Missouri courts have
personal jurisdiction over Defendants in that Defendants are alleged to have committed tortious acts
within the state of Missouri and Defendant Midland Land and Cattle Company owns real estate and
transacts business within the state of Missouri. See § 506.500.1.
                                                     9
there is no available Missouri venue for Relators because there is no prescribed venue

under § 508.010.5 that pertains to the facts of this case; thus, Relators, and all other

similarly situated plaintiffs, would be precluded from asserting this otherwise viable

cause of action for negligent acts committed in Missouri. However, if we had a situation

involving these same parties asserting this same exact cause of action save for the fact

that Defendant Midland Land and Cattle Company had a registered agent in the state of

Missouri, Relators would undeniably have venue and, therefore, would be able to assert

this very cause of action in a Missouri court. Such an arbitrary distinction as to which

group of plaintiffs would have access to Missouri courts is certainly unreasonable

especially given the fact they would all be asserting the same cause of action for

negligent acts committed in Missouri.

        Accordingly, Defendants’ interpretation of § 508.010.5 would produce an arbitrary

and unreasonable procedural bar that would prevent classes of individuals from

accessing Missouri courts to assert otherwise viable causes of action for personal

injuries. Thus, we perceive that our Supreme Court would find that it violates Missouri’s

open courts provision,9 and we will not presume the legislature intended to adopt an


9
   Defendants also assert that their interpretation of § 508.010.5 does not conflict with the Missouri
Constitution because Missouri courts have previously held that the use of the doctrine of forum non
conveniens to prevent a particular action from being heard within the state of Missouri does not violate
the open courts provision. See Loftus v. Lee, 308 S.W.2d 654, 660 (Mo. 1958); Elliot v. Johnston, 292
S.W.2d 589, 595 (Mo. 1956). In both Loftus and Elliot, however, the Missouri Supreme Court did not
categorically exclude a class of plaintiffs from accessing Missouri courts. Instead, the Court reviewed the
trial court’s dismissal of the plaintiffs’ causes of action on the basis of forum non conveniens. More
importantly, in recognizing the doctrine of forum non conveniens is applicable in Missouri, the Court
warned that “the doctrine of forum non conveniens is an arm of the courts of this State to be applied with
caution and only upon clear showing of inconvenience of forum and when the ends of justice require it.”
Loftus, 308 S.W.2d at 661. Accordingly, neither Loftus nor Lee support Defendants’ position that a
statute prohibiting a class of plaintiffs from asserting venue in the state of Missouri would not violate the
                                                    10

                                                         0
unconstitutional statute unless it clearly appears otherwise. Spradlin v. City of Fulton,

924 S.W.2d 259, 262-63 (Mo. banc 1996) (“[T]he legislature's acts are presumed

constitutional. When a constitutional and an unconstitutional reading of a statute are

equally possible, this Court must choose the constitutional one.”) (internal citation

omitted).

        Consequently, we are left to the conclusion that the legislature did not intend to

prescribe a particular venue under the present set of circumstances. Thus, it follows

that, under the facts of this case, venue is proper in any Missouri county, including

Jackson. Respondent, therefore, was without discretion to disturb Relators’ choice of

venue by transferring the underlying case to Bates County. See Dierker, 246 S.W.3d at

933 (“A trial court is without discretion to disturb a plaintiff’s choice of proper venue.”).

        Alternatively, Defendants assert that we should quash our preliminary writ

because Relators waived any argument that venue was improper in Bates County.

Defendants base their assertion on the fact that, by arguing venue is proper in any

Missouri county under § 508.010.5, Relators are necessarily conceding that Bates

County is a proper venue under the circumstances of this case. While it is true that

Relators aver venue is proper in any Missouri county, including Bates, that does not

constitute an affirmative waiver of their argument that Respondent lacked the authority

to transfer this case from Jackson County to Bates County. Rather, “[w]hen a party

moves to dismiss or to transfer the case on the basis of venue, the plaintiff has the

burden of showing that venue is proper.” State ex rel. Bank of Am. N.A. v. Kanatzar,

open courts provision of the Missouri Constitution.
                                                      11

                                                           1
413 S.W.3d 22, 26 (Mo. App. W.D. 2013) (internal quotation omitted). Relators made

their argument that venue was proper in any Missouri county, including Bates, in order

to establish Jackson County as a proper venue and, thus, defeat Defendants’ motion to

transfer venue. At no point did Relators acquiesce in Respondent’s transfer of this case

to Bates County. Accordingly, Defendants’ waiver argument is without merit.

       For the foregoing reasons, our preliminary writ of prohibition is hereby made

permanent.




                                                   ________________________________
                                                   Joseph M. Ellis, Presiding Judge
                                                   WRIT DIVISION
All concur.




                                          12

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