Opinion
No. ED 88881
March 6, 2007
Appeal from Source of Missouri Circuit Court of the St. Louis County; Hon. John J. Riley, Judge.
Writ of Mandamus.
W. Dudley McCarter, St. Louis, MO; Ivan Schraeder, St. Louis, MO, for appellant.
Donald L. Schlapprizzi, St. Louis, MO, for respondent.
AHRENS, P.J., DOWD, J. AND SULLIVAN, J concurring.
Relator, City of Jennings, Missouri ("Jennings"), seeks a permanent writ of mandamus following the denial of its motion to transfer for improper venue. Jennings claims The Honorable John J. Riley ("respondent") should have granted its motion because venue was proper in the Circuit Court of St. Louis County and not the Circuit Court of the City of St. Louis. Our preliminary writ of mandamus is made absolute.
Ruth Ann Harris ("plaintiff") filed suit in the Circuit Court of the City of St. Louis, individually and as the survivor of Maurice Harris ("decedent"), against the Mayor of Jennings, the City of Jennings, and Paul Bachman, a police officer for Jennings (collectively referred to herein as "defendants"). Plaintiff claimed that a high speed pursuit of decedent by Bachman proceeded through Jennings and into the City of St. Louis. A car accident resulted in decedent's death. Plaintiff filed a petition against defendants alleging claims of negligent training and supervision, as well as respondeat superior. Jennings filed a motion to transfer venue, arguing that venue in the City of St. Louis was improper because pursuant to section 508.050 RSMo (2000), as a municipal corporation Jennings could only be sued in the county where it is located. Plaintiff did not reply to the motion. The trial court entered an order, judgment, and memorandum, granting plaintiff additional time to file supplemental cases, and plaintiff did not do so. The trial court entered its order denying Jennings's motion to transfer. The court noted that section 508.010 RSMo (Cum. Supp. 2005), the general venue statute, was amended to include language which made it the exclusive provision governing venue in any tort in Missouri, regardless of the status of defendant. The court concluded that section 508.050 no longer governed tort cases involving a municipal corporation as a defendant after the amendment to section 508.010 was made, and therefore, venue was only proper in the City of St. Louis. Jennings filed its petition for a writ of mandamus or in the alternative, for prohibition in response to the ruling of the court, and a preliminary writ was issued.
"The purpose of the extraordinary writ of mandamus is to compel the performance of a ministerial duty that one charged with the duty has refused to perform." Furlong Companies, Inc. v. City of Kansas City, 189 S.W.3d 157, 166 (Mo. banc 2006). It cannot be used to compel a discretionary act. State ex rel. Sanders v. Kramer, 160 S.W.3d 822, 824 (Mo.App. 2005). A writ of mandamus is used both to compel the court to do what is required by law and to undo what is prohibited by law.Id.
Jennings first argues that the trial court merely had a ministerial duty to grant its motion to transfer because plaintiff failed to file a reply as required by Missouri Supreme Court Rule 51.045. Pursuant to Missouri Supreme Court Rule 51.045(a), "[a]n action brought in a court where venue is improper shall be transferred to a court where venue is proper if a motion for such transfer is timely filed." Moreover, the rule provides that, "if no reply is filed, the court shall order a transfer of venue to a court where venue is proper." Respondent argues that based upon the language of Rule 51.045, there is a threshold requirement that venue be improper in order for the mandatory reply language to apply. Respondent claims in this case, such threshold requirement was not met because venue in the City of St. Louis was proper based upon section 508.010.4. Based upon the language of Rule 51.045, the only consideration is whether there is a court of proper venue to which the case can be transferred. Thus, we must first determine whether venue was proper in St. Louis County before deciding the issue of plaintiff's failure to reply to Jennings's motion to transfer.
Here, Jennings timely filed its motion to transfer for improper venue. In its motion, Jennings argued that venue was only proper in St. Louis County because pursuant to section 508.050, Jennings could only be sued in the county in which the municipal corporation is located. Section 508.050 provides in relevant part that, "[s]uits against municipal corporations as defendant or codefendant shall be commenced only in the county in which the municipal corporation is situated. . . ." Respondent denied Jennings's motion to transfer, citing the amended language in section 508.010.4. The provision states:
"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 in the State of Missouri, venue shall be in the county where the plaintiff was first injured by the wrongful acts of negligent conduct alleged in the action."
Respondent relied upon the use of the phrase, "[n]otwithstanding any other provision of law," in the statute to conclude that the provision was the exclusive governing venue statute in any tort action in Missouri, regardless of who is being sued. According to respondent, based upon the language in section 508.010.4, the municipal corporation statute no longer governed tort actions.
In this case, we are faced with interpreting and reconciling the language of sections 508.010.4 and 508.050. Our primary objective in interpreting these statutes is to determine the intent of the legislature and, if possible, give effect to that intent. State ex rel. Casey's General Stores, Inc. v. City of West Plains, 9 S.W.3d 712, 716 (Mo.App. 1999) (citation omitted). "In determining the legislature's intent, the provisions of the entire act must be construed together, and if reasonably possible, all the provisions must be harmonized."Id.; (citing Parkville Benefit Assessment v. Platte County, 906 S.W.2d 766, 769 (Mo.App. 1995)). The general principle is that where two statutes which concern the same subject matter are unambiguous standing alone, but conflict when read together, we must attempt to harmonize the statutes and give effect to both. Preston v. State, 33 S.W.3d 574, 579 (Mo.App. 2000) (citations omitted). Where the statutes cannot be reconciled, the more specific statute controls over the more general.Id.
Here, we are faced with two statutes concerning the same subject matter that, read alone, are clear. However, when considered together, the provisions conflict. The municipal corporation statute plainly provides that suits against municipal corporations may only be brought in the county in which the municipal corporation is located. There is no qualification contained in this provision limiting it to certain types of suits against municipal corporations. The amended language of section 508.010.4 states that in any tort action originating in Missouri, venue shall be in the county where the injury occurred. The amendment purports to determine venue in tort actions "[n]otwithstanding any other provision of law." As a result of the conflicting language of the statutes, we must look to rules of statutory construction as set forth in the case law. Two cases are particularly relevant to our analysis of the present case,State ex rel. Casey's General Stores, Inc. v. City of West Plains, 9 S.W.3d 712, (Mo.App. 1999), and State ex rel. City of Bella Villa v. Nicholls, 698 S.W.2d 44 (Mo.App. 1985). First, the court inCasey's General Stores, Inc. was faced with an analogous situation as we are here. Casey's General Stores, Inc. sought a writ to require the City of West Plains to issue it a liquor license. At issue before the court in Casey's General Stores, Inc. was a conflict between the West Plains ordinance concerning liquor licenses, and the provision of the state statute allowing a "resort" license to be issued, both of which were contained in the same chapter. Casey's General Stores, Inc. was granted a "resort" license from the state but denied a license from West Plains. Casey's General Stores, Inc. ultimately filed its petition for a writ, arguing that because the "resort" provision began with the phrase "[n]otwithstanding any other provisions to the contrary," it prevailed over the contrary licensing provisions of West Plains. 9 S.W.3d at 716. The court noted that the term "notwithstanding" does not always mean that a provision is to the "complete exclusion of all other statutory provisions." Id. at 717; (citing See Parkville, 906 S.W.2d at 769). The court noted that a particular section of statute must not be read in isolation, but instead, must be considered in context of the entire act.Id. The court attempted to reconcile the conflicting statutory provisions by applying principles of statutory construction. Specifically, the court noted that specific statutes prevail over general statutes. Id. at 719. Quoting Madden v. Ellspermann, 813 S.W.2d 51, 53 (Mo.App. 1991), the court stated the general proposition that "[w]hen there is a conflict between two statutes, one of which deals with a subject in a general way and the second treats a part of the same subject in a more detailed way, the specific statute will govern."Id. In the context of the dispute between the West Plains statute and the state's "resort" provision, the court noted that the provisions of West Plains were specific and governed over the general "notwithstanding" language contained in the state's statute, even if the legislature's intent in using such language was to supersede the licensing provisions of West Plains. Id.
In another related case, City of Bella Villa, this court was faced with reconciling the same statutes at issue here. While this case considered section 508.010 prior to the amended language at issue in our case, the reasoning supporting the court's conclusion still applies. The court in Bella Villa noted that section 508.050 is a special venue statute while section 508.010 is a general venue statute. 698 S.W.2d at 45. In determining which statute governed, the court recited the rule of statutory construction that when a general and special statute deal with the same subject matter, the specific statute controls over the general one. Id. The court also cited the purpose of section 508.050 to prevent local government from being forced to defend suits in courts across the state and concluded that the legislative intent was clear from the unambiguous language of the statute. Id. As a result of the principles of statutory construction and consideration of legislative intent, the court concluded that section 508.050 controlled. Id.
Applying the principles of statutory construction set forth inCasey's General Stores, Inc., and Bella Villa, the specific municipal corporation statute, section 508.050 prevails over the general venue provisions contained in section 508.010. As the court concluded inCasey's General Stores, Inc., this is true whatever may have been the potential intent of the legislature in using the "notwithstanding" language in its amendment to section 508.010.
We believe House Bill 393, which contains the amendment of section 508.010 evidences an intent by the legislature that section 508.050 remain in effect to govern venue in suits against municipal corporations regardless of the type of claim. As Jennings notes, section 508.050 was not expressly repealed by Missouri House Bill 393, which contained the amendment to section 508.010. While House Bill 393 did expressly repeal other special venue statutes, it did not explicitly repeal the specific venue statue concerning municipal corporations which is at issue here. In particular, the legislature repealed section 508.040, the statue governing venue in suits against corporations, as well as section 508.070, the statute governing venue in suits against motor carriers. However, while these special venue statutes were repealed by the legislature, House Bill 393 did not repeal section 508.060, the statute governing venue in suits against counties, nor did it repeal section 508.050, the municipal corporation venue statute at issue here. This serves as evidence to support a conclusion that the legislature intended section 508.050 to remain in effect, even after the addition of 508.010.4.
As a result of the evidence of legislative intent and the principles of statutory construction, the trial court erroneously concluded that the language of 508.010.4 is the exclusive provision governing venue in any tort action in the state, regardless of the status of the defendant as a municipal corporation. Pursuant to section 508.050, Jennings, as a municipal corporation, could only be sued in the county in which it is located. Therefore, venue in St. Louis County was proper.
Given our conclusion that venue in St. Louis County was proper, we return to the issue of plaintiff's failure to reply to Jennings's motion to transfer. Rule 51.045(b) states that an opposing party may file a reply within thirty days of the filing of a motion to transfer for improper venue. Pursuant to Rule 51.045(c), "if no reply is filed, the court shall order a transfer of venue to a court where venue is proper." In State ex rel. Vee-Jay Contracting Co. v. Neill, 89 S.W.3d 470, 472 (Mo. banc 2002), the Missouri Supreme Court determined that the language of Rule 51.045 mandates transfer of venue when an opposing party fails to file a reply to a motion to transfer. The court noted that "[t]he term `shall' is mandatory." Id. If a reply is filed after the time allowed by Rule 51.045, the court does not have discretion to deny the motion to transfer, and the duty to grant the motion is "purely ministerial." Id.; (citation omitted).
Here, as previously discussed, pursuant to section 508.050, venue in St. Louis County was proper. Plaintiff undisputedly failed to file a reply to Jennings's motion. As a result, the trial court was without discretion to deny Jennings's motion to transfer.
Based upon the foregoing, the trial court improperly denied Jennings's motion to transfer for improper venue. The preliminary writ of mandamus is made absolute, and the trial court shall transfer the case to St. Louis County.
Robert G. Dowd Jr., J., concurs. Sherri B. Sullivan, J., concurs.