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State ex rel McDonald's Corp. v. Bryant12/7/2004
Opinion Vote: WRIT OF PROHIBITION MADE ABSOLUTE.
Ahrens and Shaw, JJ., concur.
Opinion:
Relator, McDonald's Corporation, filed its petition for a writ of prohibition or, in the alternative, a writ of mandamus. Relator argued that the respondent judge erred in not granting its motion to transfer venue. We issued a preliminary order in prohibition. Because the plaintiff in the underlying action, Martin McQuiller, failed to file a reply to relator's motion to transfer venue, respondent had a duty to transfer the case to a court where venue is proper. The preliminary order in prohibition is made absolute.
In November 2003, McQuiller filed his action against relator in an associate circuit division of the City of St. Louis Circuit Court. McQuiller alleged that he slipped and fell at relator's restaurant located in St. Louis County. The petition is captioned "PERSONAL INJURY UNDER $25,000." Relator was served and the return date of the summons was May 25, 2003. On that date, relator specially appeared and filed a motion to transfer venue with a supporting affidavit. Relator alleged in the motion that venue was improper in the City of St. Louis because it does not "have or usually keep an office or agent for the transaction of their usual and customary business, or operate any restaurant, in the City of St.Louis," and that the cause of action accrued in St. Louis County. Relator further alleged that, under section 508.040, venue is only proper in St. Louis County. Respondent continued the matter and, on June 10, 2004, relator's motion was called, heard, and submitted. McQuiller never filed a reply to relator's motion to transfer venue. On June 16, 2004, respondent denied relator's motion. Relator filed a petition for writ of prohibition or, in the alternative, a writ of mandamus. This court issued a preliminary order in prohibition.
Chapter 517 sets out provisions relating to the practice and procedure in civil cases originally filed in an associate circuit division. Becker Glove International Inc. v. Dubinsky , 41 S.W.3d 885, 887 (Mo. banc 2001). Here, the action was originally filed in an associate circuit division and the sum demanded did not exceed $25,000. Under section 517.011.1(1), the provisions of Chapter 517 apply here.
Section 517.061 states:
Change of venue and change of judge shall be for the same reasons and in the same manner as provided in the rules of civil procedure except that the application shall be filed not later than five days before the return date of the summons. If the cause is not tried on the return date but continued and if all parties are given fifteen days' advance notice of a trial setting before the particular judge, then any application for change of judge or change of venue shall be made not later than five days before the date set for trial.
Respondent argues that relator's motion to transfer was untimely because it was not filed within five days of the return date of the summons. But the motion to transfer must be filed within five days of the return date only when the case is tried on that date. Here, the case was not tried on the return date. The second part of section 517.061 sets forth when a motion to transfer must be filed when the case is not tried on the return date. In the present case, relator filed its motion to transfer on the return date. Under the second part of section 517.061, the motion was timely.
We next address McQuiller's failure to file a reply to relator's motion to transfer. Rule 51.045 provides procedures for replying to a motion to transfer that alleges improper venue. This rule stated in part that " ithin ten days after the filing of a
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