                         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
