State ex rel. Miracle Recreation Equipment Company and Marc Roberts, Relators v. The Honorable John R. O'Malley, Judge, Circuit Court of Jackson County, Missouri, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: State ex rel. Miracle Recreation Equipment Company and Marc Roberts, Relators v. The Honorable John R. O'Malley, Judge, Circuit Court of Jackson County, Missouri, Respondent. Case Number: SC83831 Handdown Date: 12/04/2001 Appeal From: ORIGINAL PROCEEDING IN MANDAMUS Counsel for Appellant: David E. Larson and Jimmy E. Allen, Jr. Counsel for Respondent: J. Kent Emison and James P. Valbracht Opinion Summary: Iowa resident Marc Roberts was involved in a motor vehicle accident in Linn County with a Missouri resident. At the time of the accident, Roberts was operating a vehicle owned by Miracle Recreation Equipment Company, an Iowa corporation with its principal place of business in Monett in Barry County, Missouri. After the Missouri resident sued Roberts in Jackson County, he successfully removed the lawsuit to federal court. Miracle subsequently was added as a defendant. This addition destroyed the federal court's diversity jurisdiction, and the case was remanded to Jackson County. The court overruled Roberts and Miracle's motion for a change of venue, and now they seek a writ of mandamus from this Court. PEREMPTORY WRIT ORDERED TO ISSUE. Court en banc holds: Pursuant to this Court's opinion in State ex rel. Linthicum v. Calvin, ___ S.W.3d ___ (Mo. banc 2001), a suit is "brought" under Rule 55.34(a) against a defendant joined in federal court at the time of remand to state court. Accordingly, this court issues its peremptory writ of mandamus, directing the trial court to determine venue in accord with Linthicum.

that neither this Court's holding in Linthicum nor Rule 55.34(a) require that venue be redetermined upon remand to state court when a party is added in federal court before remand.

Citation: Opinion Author: PER CURIAM Opinion Vote: PEREMPTORY WRIT ORDERED TO ISSUE. Limbaugh, C.J., Holstein, Wolff, Benton, Stith and Price, JJ., concur; White, J., dissents in separate opinion filed. Opinion: A motor vehicle accident occurred in Linn County, Missouri. The current lawsuit was filed in Jackson County by a Missouri resident, naming only Roberts as a defendant. Roberts, who was operating one of the vehicles for Miracle, is an Iowa resident. Miracle is an Iowa corporation whose principal place of business is in Monett, Missouri. In this posture, Jackson County was a county of proper venue. Roberts removed the suit to federal court. While in that court, Miracle was added as an additional defendant. This addition caused the federal court's diversity jurisdiction to be lost. The case was remanded to Jackson County. After the case was remanded, Miracle and Roberts sought a change of venue. They asserted that the addition of Miracle resulted in Jackson County no longer being a county of proper venue. The circuit court overruled the motion for change of venue on its merits. Miracle and Roberts petition this Court for a writ of prohibition or mandamus, alleging that Jackson County is no longer a county of proper venue. At the time the trial court ruled on the motion for transfer, it did not have the benefit of this Court's opinion in State ex rel. Linthicum v. Calvin, ___ S.W.3d ___ (Mo. banc 2001) (No. SC83558, decided October 23, 2001). Linthicum holds that for purposes of section 508.010, a suit instituted by summons is "brought" whenever a plaintiff brings a defendant into a lawsuit, whether by original petition or by amended petition. In determining state court venue, a suit is "brought" against a defendant joined in federal court at the time of remand. See Rule 55.34(a) ("the date of the remand order is deemed the date of service for determining when a pleading shall be filed or an action taken."). A peremptory writ of mandamus is ordered to issue directing the trial court to determine venue in accord with Linthicum. Separate Opinion:

Mandamus lies only when there is a clear, unequivocal, and specific right to the relief requested that is presently

existing; its purpose is to execute, not adjudicate.(FN1) Mandamus is not appropriate to establish a legal right, but only to compel performance of a right that already exists.(FN2) Relators have not petitioned this Court requesting a transfer of venue in light of the recent holding in State ex rel. Linthicum v. Calvin,(FN3) nor does Linthicum decide this case. While Linthicum holds that under state law a suit is "brought" whenever a defendant is added as a party to a lawsuit, there is no authority supporting the proposition that this narrow holding applies when a party is added in federal court under the federal rules. The principal opinion's citation to rule 55.34(a) is not dispositive of this situation. Rule 55.34(a) notes that "the date of the remand order [from federal court] is deemed the date of service for determining when a pleading shall be filed or an action taken." This rule addresses events occurring subsequent to the remand, not prior to it. Miracle Recreation Equipment Company was added as a party to this suit prior to the remand to state court. No pleading was filed after the date of the remand adding a new defendant to the suit in state court, and the majority opinion offers no authority to support the proposition that the lawsuit was "re-brought" against prior included parties upon transfer from the federal court to the state court. Mandamus is the appropriate remedy where a court fails to perform the ministerial duty of ordering the transfer of a case from a court of improper venue to a court of proper venue.(FN4) However, the principal opinion's use of the writ to order a new adjudication of venue to evaluate the effect of an inapplicable case and where the Relator has not demonstrated the existence of present, unequivocal and specific right to the relief requested is improper. Footnotes: FN1.State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 576 (Mo. banc 1994). FN2.Id. FN3.___ S. W.3d ___ (Mo. Banc 2001) (No. SC83558, decided October 23, 2001). FN4.State ex rel. DePaul Health Center v. Mummert, 870 S.W.2d 820, 823 (Mo. banc 1994). This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.