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State ex rel. Zellers v. Stacey

Supreme Court of Missouri, En Banc

October 1, 2019

STATE EX REL. KENNETH ZELLERS, ACTING DIRECTOR, MISSOURI DEPARTMENT OF REVENUE, Relator,
v.
THE HONORABLE BRENDA STACEY, Respondent.

          ORIGINAL PROCEEDING IN PROHIBITION

          PER CURIAM.

         Jefferson County 9-1-1 Dispatch filed a declaratory judgment action against the director of the Missouri Department of Revenue[1] in the Jefferson County circuit court. The Director subsequently filed a motion to change venue to the Cole County circuit court. The circuit court overruled the Director's motion. The Director now seeks a writ of prohibition ordering the circuit court to take no further action other than transferring venue to Cole County.

         Statement of Facts

         In November 2018, Dispatch filed an action in the Jefferson County circuit court seeking a declaration as to the meaning of subsections 5 and 6 of section 190.460[2] and to enjoin the Director from applying section 190.460 to Dispatch. Section 190.460 pertains to the collection and calculation of a prepaid wireless emergency service charge.

         The Director moved for change of venue, alleging Cole County was the proper venue pursuant to section 508.010.2, the general venue statute. Dispatch opposed the motion, arguing venue was proper in Jefferson County under section 536.050, a specific venue statute for declaratory judgment actions. Following a hearing, the circuit court overruled the Director's motion, finding section 536.050 applied and made venue proper in Jefferson County.

         The Director filed a petition for a writ of prohibition in the court of appeals. The court of appeals initially issued a preliminary writ but ultimately denied the writ petition without opinion. The Director then sought a writ of prohibition from this Court. This Court issued a preliminary writ, which is now made permanent.

         Standard of Review

         This Court has the authority to issue and determine original remedial writs. Mo. Const. art. V, § 4.1. This Court may issue a writ of prohibition:

(1) to prevent the usurpation of judicial power when the trial 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. Missouri Pub. Def. Comm'n v. Pratte, 298 S.W.3d 870, 880 (Mo. banc 2009). "The relator has the burden of establishing the circuit court acted in excess of its authority." State ex rel. Cullen v. Harrell, 567 S.W.3d 633, 637 (Mo. banc 2019). "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).

         Analysis

         The Director asserts the preliminary writ of prohibition should be made permanent because venue is proper only in Cole County. Venue is controlled by statute. State ex rel. BJC Health Sys. v. Neill, 121 S.W.3d 528, 529 (Mo. banc 2003). Section 508.010.2 provides, when "there is no count alleging a tort" and "the defendant is a resident of the state," venue is proper "either in the county within which the defendant resides, or in the county within which the plaintiff resides, and the defendant may be found[.]" In interpreting section 508.010, this Court has held state executive department heads reside "in the county where their offices are located and their principal official duties are performed." Edwards v. Gerstein, 237 S.W.3d 580, 583-84 (Mo. banc 2007).

         This action does not involve a tort. Section 508.010.2, therefore, applies and requires venue to be in the county within which the Director - a state executive department head - resides. The Director's office is in Cole County, where he performs his principal official duties, see ยง 32.040 ("The board of public buildings shall provide the director of revenue and the department of revenue with suitable quarters in the City of Jefferson."), and ...


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