State of Missouri ex rel. Vee-Jay Contracting Co., Relator, v. The Honorable Margaret M. Neill, Presiding Judge, Twenty-Second Judicial Circuit, Respondent.

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

Case Style: State of Missouri ex rel. Vee-Jay Contracting Co., Relator, v. The Honorable Margaret M. Neill, Presiding Judge, Twenty-Second Judicial Circuit, Respondent. Case Number: SC84218 Handdown Date: 11/26/2002 Appeal From: Original Proceeding in Mandamus Counsel for Appellant: Thomas J. Magee, Catherine V. Jochens and Robyn G. Fox Counsel for Respondent: Herman Praszkier, John D. Anderson, John J. Page and Zora Manjencich Opinion Summary: After St. Louis Lambert International Airport driver Flordia Murray was injured while walking across a parking lot at work, she filed a lawsuit in the city against the city and a construction company. After the city invoked worker's compensation law, she dismissed the city and added Vee-Jay Contracting Company as a defendant. Vee-Jay moved to transfer venue, alleging venue was improper. Murray filed no reply. The court overruled the motion, and Vee-Jay seeks relief from this Court. WRIT OF MANDAMUS MADE ABSOLUTE. Court en banc holds: The court is ordered to transfer this case to a proper venue. The plain and ordinary meaning of Rule 51.045 mandates that venue be transferred when the opposing party files no reply to a proper motion to change venue. Citation: Opinion Author: Duane Benton, Judge Opinion Vote: WRIT MADE ABSOLUTE. Limbaugh, C.J., White, Wolff, Stith and Price, JJ., and Kramer, Sp.J., concur. Teitelman, J., not participating. Opinion: Flordia Murray, a driver at Lambert International Airport, slipped and fell while walking across a parking lot at work.

She initially sued the City of St. Louis and a construction company. Murray dismissed the City after it invoked the Workers' Compensation Law. She then amended to add Vee-Jay Contracting Company. All defendants are corporations. Vee-Jay timely moved to transfer venue, alleging that venue was improper in the City. Murray filed no reply. No evidence was presented that any of the corporations had an office or agent in the City. The respondent judge overruled the motion to transfer venue. This Court now issues a writ of mandamus to transfer to another county. Mo. Const. art. V, sec. 4. The procedure to challenge venue is determined by the Supreme Court Rules. Mo. Const. art. V, sec. 5. Rule 51.045 provides (emphasis added): (a)An action filed in the court where venue is improper shall be transferred to a court where venue is proper if a motion for such transfer is timely filed. . . . * * * (b)Within ten days after the filing of a motion to transfer for improper venue, an opposing party may file a reply denying the allegations in the motion to transfer. If a reply is filed, the court shall determine the issue. If the issue is determined in favor of the movant or if no reply is filed, a transfer of venue shall be ordered to a court where venue is proper.... * * * Vee-Jay asserts that since no reply was filed, transfer shall automatically be ordered. The respondent judge counters that venue is transferred only if the movant proves venue improper. Courts interpret Supreme Court Rules by applying principles similar to those used for state statutes. In re A.S.O. v. R.L.O, 75 S.W.3d 905, 910 (Mo. App. W.D. 2002); Hanks v. Rees, 943 S.W.2d 1, 4 (Mo. App. S.D. 1997); Engine Masters, Inc. v. Kirn's, Inc., 872 S.W.2d 644, 646 (Mo. App. E.D. 1994). This Court's intent is determined by considering the plain and ordinary meaning of the words in the Rule. See Jones v. Director of Revenue, 832 S.W.2d 516, 517 (Mo. banc 1992). The plain and ordinary meaning of Rule 51.045 mandates a transfer of venue when no reply is filed by the opposing party, to a motion to transfer venue that alleges venue is improper. The term "shall" is mandatory. See Dreer v. Public School Retirement System of St. Louis, 519 S.W.2d 290, 296 (Mo. 1975); McKittrick v. Wymore, 119 S.W.2d 941, 944 (Mo. banc 1938.) A judge must transfer venue if the opposing party does not reply to a proper motion to transfer. See State ex rel. Schnuck Markets, Inc. v. Koehr, 859 S.W.2d 696, 698 (Mo. banc, 1993). This is but an application of the general rule that failure to file a required answer admits the allegations of the preceding pleading. Rule 55.09. In this case, the respondent judge had a duty to transfer the case to a proper venue. Sec. 476.410 RSMo 2000; State ex rel. SSM Health Care St. Louis v. Neill, 78 S.W.3d 140, 142 (Mo. banc 2002); State ex rel. DePaul Health Center v. Mummert, 870 S.W.2d 820, 823 (Mo. banc 1994). The alternative writ of mandamus is made absolute. Separate Opinion: None

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