*1 H9 thоse making of a poison to that it is sources way appropriate In the same of the cost of fair share of pay to the cost contribute sources polluters make public the sludge, ap- of direct hazard to cleanup cleanup of their it seems a of the manufacturers to make propriate health.4 for cost of paint help pay
lead-based respectfully dissent. I helped remеdiating poison have city. throughout the distribute public treats nuisance
If this Court here, principal opinion
cases as have concept public
“the nuisance would underlying no distinction from theories MCDONALD’S ex rel. STATE litigation, pro- to action which serves class and C & S CORPORATION for similar harms individual remedies vide Relators, Marshfield, Inc., individu- large numbers of identifiable v. Industries, v. NL City Milwaukee als.” MIDKIFF, C. The Honorable Sandra Inc., 888, 313, 278 Wis.2d 691 N.W.2d Respondent. is an entire (App.2004). This because just city one sick child—has suffered —not ex rel. State injury Id. injury. and sustained an This Inc., Relаtors, Davison, Kris community-wide and those “is affects even by is compromised whose health lead- Mesle, Respondent. Ann The Honorable paint [c]ity and “the also the poisoning,” is entity reasonably remedy most able to this Nos. SC 87855. SC community-wide injury public health.” Missouri, Supreme Court of Id. En Banc. nothing This nuisance case has public 26, 2007. June particular a identifying paint do with particular injured to a It linking it victim. everything identifying
has to do with jury. city Campbell v. aрpeals question a court of fact for the The also 2004 trial Anderson, (Mo.App. trial court defen- order which the denied 1993). previous summary judg- particular is dants’ motion for nuisance “Whether continuing based on The 'permanent' 'temporary, ment the statute limitations. or or argued city’s claim was baffling defendants most areas of abatable’ is one of the five-year permanent law,” which nuisance has Spain v. Judge Simeone observed Girardeau, The trial court disa- statute limitations. City Cape finding city’s greed, was for that the claim (Mo.App. temporary if it A nuisance is nuisance, ten-year temporary which has a reasonably practically Frank abatable. is city appeals statute of limitations. Management, Sanitation v. Environmental that because the trial court's determination Inc., 687 S.W.2d nuisance, city temporary suing is for a compensаtion costs for the This lawsuit seeks damages. future not allowed to recover is removing, paint in abating, lead-based or suggested that appeal, this defendants correctly de city judge trial residences. The find, ground, an alternative this Court as paint is abatable that the lead-based termined permanent city’s nui- claim is for actual five-year subject to the statute and, consequently, is barred the five- sance said, howevеr, statute of That limitations. year limitations. statute longer limitations defense—even under open to defendants temporary perma period may still be is Whether nuisance — court, case were question not a factual issue if this remanded. is a of law nent *2 business, Brinker, preliminary writs Mandel, Jeffrey J. Aaron I. Paul, are made absolute. Gary Clayton, P. for Relators. Watson, Hagen, M. Henri J.
Kathleen PROCEDURAL BACK- FACTUAL & I. *3 City, Respondent. Kansas GROUND. July child-plaintiffs be- both after ill E. coli infections con- came with
ORIGINAL PROCEEDINGS food, allegedly one child at suming tainted IN PROHIBITION County and the in Webster a McDonald’s STITH, Judge. LAURA DENVIR Taney in child at a McDonald’s other child-plaintiff developed se- County. Each and C Corporation Relators complications potentially deadly and vere Marshfield, Inc., in a & S are defendants Mercy Hos- at Children’s and was treated County. in pending tort suit Jackson Re- County, each later in Jackson where pital Kris Corporation lator and had re- developed kidney failure and Inc., Davison, are defendants in another dialysis. ceive County. tort in Jackson pending suit also in filed multi- parents both cases Marshfield, Inc., Kris Neither & S nor C County in Circuit petitions count Davison, Inc., can be found in Jackson parties Each suit named two Court. County; in operations their offices and are franchisor, national Mc- defendants: Taney Counties, and respectively. Webster Corporation, and the individual Donald’s Relators in both cases filed motions for operates franchisee that change of venue re- that were denied child- particular restaurant where judges. spondent petitions Relators filed case, ate—in one C & S Marsh- plaintiff relief, extraordinary and this Court Davison, Inc., case, field, other Kris in the in preliminary issued its cases. writ both “franchisee-defendants”). (collectively, Inc. This Court these cases for consolidates These two franchisee-defendants Mis- purposes opinion they pres- of its because offices, their corporations with all souri question ent an identical do the law: Ta- agents, and in and operations Webster operated by McDonald’s restaurants fran- Counties, ney respectively. County chisees in Jackson constitute Corporation is Relator MсDonald’s of the office or an for the transaction provides corporation Delaware their usual and business of states, in- in and other chisees Missouri Corpora- relator McDonald’s Mc- cluding the franchisee-defendants and tion, Corporation itself when McDonald’s Webster, in franchisees located Donald’s own products does not sell McDonald’s or Counties, with the Taney and Jackson exclusively in engaged franchises but is logo name to use the McDonald’s and licensing rights franchise entities to sell McDonald’s food other wish to McDonald’s franchisees become agree- to a pursuant products leasing sub-leasing in or real on estate often ment. McDonald’s they which will conduct property on which its or leases owns franchise business. McDonald’s restau- franchisees rants, so the case Jack- this Court finds that the Mc- does Because County County franchisees. McDonald’s Cor- in Jackson son Donald’s “company- itself run poration are not for the transac- offices in Jackson McDonald’s restaurants Corporation’s tion of McDonald’s usual owned” County Respondents or elsewhere.1 A. McDonald’s in Jack- Restaurants both cases nonetheless denied relators’ son Are Not Offices for the change motions for Customary venue to Webster “Usual and Business” оf Mc- Counties, and Taney respectively.2 Rela- Corporation. Donald’s tors now seek prohibition. writs of acknowledge their causes
II. STANDARD of action Taney OF accrued Webster and REVIEW. Counties, respectively, pur an original pro Prohibition is chased McDonald’s food and became ill. ceeding brought to confine a lower court to They were customers of Mc the proper jurisdiction. exercise of its *4 County. Donald’s franchise in Jackson Calvin, State ex rel. Linthicum v. acknowledge Plaintiffs further that (Mo. 2001). 856-57 banc It is franchisee-defendants a discretionary writ that issues “to only in their home counties and have nei prevent judicial discretion, an abuse of ther an office in agent nor an Jackson irreparable avoid party, harm to a or to County. prevent extra-jurisdictional exercise of power.” Id. at 857. im When venue is County Plaintiffs base vеnue in Jackson proper, prohibition lies to bar the trial franchisor, on their contention that action, taking any court from further ex Corporation, has an office or cept to transfer the to a proper case ven agent for the transaction of its usual and Neill, ue. State ex rel. Green v. 127 customary support, business there. In (Mo. banc they note that each McDonald’s restaurant in County operates Jackson a pursuant to III. DISCUSSION with McDonald’s Cor- poration and that the land on each which The sole presented issue is whether ven- McDonald’s restaurant in County Jackson proper County. ue is in Jackson “Venue operates is either owned or Mc- leased in Missouri is solely by determined stat- Donald’s Corporation. Plaintiffs contend ute.” State ex rel. Rothermich v. Galla- that ownership, coupled such with the con- gher, 816 S.W.2d Corporation, trol that McDonald’s as applicable solely The statute for suits chisor, franchisees, against a exercises over its corporate defendant or defen- makes each McDonald’s restaurant provides permissible dants two venues— County separate either Jackson where cause of action accrued or “office” for customary where defendant has an office or transaction of the usual and transaction of its usual and of McDonald’s Corporation business even 508.040, business. Sec. though RSMo 2000.3 the franchisees that sold the food wholly-owned subsidiary, 1. Its County McDonald's the Jackson McDonald’s restaurants Missouri, Corporation. Restaurants of a few were offices of McDonald’s SC87855, County. respondent McDonald’s restaurants in Jackson No. denied the motion attempt pierce explanation. No has beеn made to the cor- to transfer without veil, however, porate so as to show that it is legislature 3.The amended the venue statutes operates itself that August repealed section 508.040 effective any McDonald's restaurant in Jackson Coun- 28, 2005, but since this case was filed before ty- date, pre-amendment governs. that statute SC87856, respondent subsequent In No. entered an or- All references are to RSMo denying expressly der trаnsfer that that unless noted. found otherwise with the be inconsistent in a result would not do business child-plaintiffs to the do determinat venue County. logic adheres Jackson where Ownership of real estate ions.4 authority propo- no for the cite Plaintiffs does not con conducts business franchisee leasing owning proper- real sition that into “office” of the that real estate vert community piece each ty in a makes franchisor. purposes land an “office” for owned venue, to so hold. and this Court declines in Jack- B. McDonald’s Restaurants did make the owner- legislature The County Agents Not son in tort ship of estate basis for venue real Customary Mc- Business” “Usual cases, knew although it demonstrated Corporation. Donald’s cases provided so when it how do be title of real estate should involving the that, alternatively argue be brought the real estate can if the McDonald’s restau even individual legislature found. Sec. 508.030. are not them rants similarly to designate failed real estate Mc selves offices ownership grounds against for venue Corporation, individual Donald’s *5 corporate under section 508.040. defendant their agents the of fran franchisees are accept plaintiffs’ argument To ex rel. Ford Motor Co. chisor. State any corporate would mean that landlord (Mo. Bacon, 641, v. 63 S.W.3d 642 banc any subject Missouri be to would venue 2002), that this reaffirmed Mis Court county regardless it land of owns three-part for applies a clear test souri relationship the of land to case. the the is an determining party agent whether any sim Corporation, For McDonald’s First, must principal another. the of subject ilar this to would them of the to control the conduct right have county suit each in which agent respect to matters en the with if even the suit has no relation franchisee Second, an agent. to the Id. trusted ship pro to forum. This would not that the fiduciary princi must of agent be “convenient, orderly logical, vide Third, agent Id. must be able pal. of disputes,” forum for resolution relationships alter between legal to Mis “primary purpose which is the Id. ab party. a third principal and El souri’s venue statutes.” State ex rel. ele one of these three sence Koehr, (Mo. 57, son v. 856 59 banc S.W.2d agency a claim that exists. ments defeats 1993). rejecting As stated in a similar Koehr, Bunting ex v. 865 State rel. pizza fran regarding claim a Domino’s (Mo. banc 353 S.W.2d chise, purpose is to find that difficult “[i]t assume, deciding, The Court without will allowing by served with no connec suits that, could as a fran- plaintiffs show tion with the forum or the residents chisor, Corporation has a brought forum in the forum.” State to be Pizza, Dowd, conduct оf its franchisees v. 941 to control certain rel. Inc. ex Domino’s running to of their franchises Such related (Mo.App.W.D.1997). S.W.2d 667 But, may such suffice is a case there. while contacts It be noted that this should plaintiffs personal jurisdiction, in a ran- sec. where the have filed suit to establish case, plaintiffs 506.500.1, dom In one county forum. that the that does mean County, and in both residents of Jackson cases, ex appropriate venue the suit. State is an for child-plaintiffs received medical Mummert, v. rel. DePaul Health Center County, and in Jackson treatment (Mo. banc S.W.2d does, noted, Corporation estate own real in a and that these franchisees are fiducia- rather than vice See ex versa. State rel. Pizza, Inc., ry relationship their with franchisor. But Domino’s at 665- (evaluating agreement there is no evidence of the third critical 67 franchise and re- agency: ability jecting pizza element the fran- claim that Domino’s franchi- legal relationship agent franchisor); chisees to alter the see Roger be- was D. LaFontaine, tween and a third Blair & Francine Under- It party. very was the of such standing Franchising lack the Economics & it, to ability change legal relationships that Regulate Laws 26 Franchise (Fall 2006) to parent that led this Court conclude L.J. (describing na- that Ford Credit was not an ture relationship). under of a franchise Co., law in Motor Missouri Ford issue, need This Court not resolve this analysis applies at 644. That same here. as-yet-unexamined even were the Plaintiffs disagree, pointing repeatedly agreement give chise to franchi- individual to evidence that the enter franchisees into authority sees some alter franchi- to third-parties purchase contracts with sor’s legal relationships non-parties with products speculating agreement, would not turn will there be evidence that the franchise these franchisees into transac- requires McDonald’s franchi- Corporation’s tion of McDonald’s “usual buy types sees certain meats required business” as raw ingredients approved other from ven- section 508.040. ex rel. See State Webb argue dors. Plaintiffs that these contracts Satz, 1978) 113, 114 legal relationships affect between third (noting that section аgent under parties and McDonald’s Corporation. But specified type”). 508.040 must be “of the *6 such contracts would affect the rela- “The legislature imposed has no limitation tionship of par- the with third on ‘agent’ except agent the term that the franchisees required ties. What is is that proof the engaged must be in the ‘usual custom- and relationship franchisee can alter the of its ary business’ of the ex principal.” State Corрoration, McDonald’s with Elson, rel. 856 at S.W.2d 62. For this parties. third reason, pres- determining whether the party county ence of a within a is sufficient note, however, they timely that provide a section basis for venue under sought sample agree- a of the franchise 508.040, agents distinguish between courts ment between McDonald’s customary agents and for the “usual and franchisees, its and Jackson but business” of the defendant. they provided had not it prior been with respondents’ rulings They below. say is well- Applying principle, this that, minimum, aat this Court should re- registered agent settled that a for service so that can agree- mand obtain that of process agent “is not an within the provisions ment and see if it contains any the meaning of statute.” State ex [venue] giving right franchisees the to alter the rel. v. Bottling Coca Cola Mid-America of legal relationships of third with parties (Mo. Gaertner, 681 447 banc S.W.2d their franchisor. 1984) grounds by overruled on other De- Mummert, a provision would to be at Paul Center v. 870
Such seem Health (Mo. odds with the nature of a franchise rela- S.W.2d 822 banc This is tionship, in not registered agent which the extracts is an franchisor because from return promises “agent” corporation, the franchisee in of the defendant but right product, registered agent to sell the is not an agent franchisor’s because
125 through Mc- County, оperate that customary business” of “usual Missouri, a whol- scope regis [a the defendant. “The Restaurants of Donald’s agent’s] agency subsidiary Corpo- to receive and ly-owned tered is process. ration, separate transmit notices and It does not nature of these but customary transact of the usual or (despite consolidat- corporations two ex rel. business of its clients.” State Wha that Mc- ownership) undersсores ed (Mo. Gaertner, 506, 507 ley v. longer no Corporation itself is Donald’s E.D.1980). App. operating res- owning business Although Corpora- taurants. Application of this has similar- principle Big right tion to make Macs owns ly newspaper led to hold courts that public under the allure to sell them to reporter agent not an for the transaction is arches, corporation exists golden newspaper’s customary usual and today tо third parties. to license business, Co., Litzinger v. Pulitzer Pub. customary business” “usual (Mo.1962); independent an S.W.2d therefore, Corporation, is to adjuster by an company hired insurance rights license franchise to entities that agent “is not an of relator within the wish franchisees and lease or to become 508.040,” meaning of State rel. [section] ex them real estate on which sub-lease to Koehr, Cameron Mut. Ins. Co. v. will these franchisees E.D.1993); (Mo.App. rеstaurants. defendant litem is agent ad not an for the corporation’s defendant usual custom- Plaintiffs do contend business, ary ex State rel. Etter Inc. v. chise would establish that Neill, E.D.2002); (Mo.App. S.W.3d 28 purpose for the franchisees and an insurance salesman is not an selling rights leasing es- real company insurance for service of Indeed, tate the en- to other franchisees. process, ex rel. MFA Mut. Ins. State Co. separate law is to purpose tire of franchise Rooney, 406 day-to-day running from franchisor business, duty This case thus turns on whether of the actual which is the Killion, L. Fran- “transaction of the usual and the franchisee. William *7 Corpora- Liability-The business” of relator McDonald’s chisor Proverbial Vicarious (a) Citadel, operating tion is: 24 Franchise L.J. restaurants Assault on 2005) (Winter (“In Macs, Meals, Big Quarter exchange for Happy serve 165 Pounders, Filets-o-Fish, assumption so forth to its investment and capital (b) loss, contend; public, plaintiffs as the franchisee obtains risk licensing parties system third a business ability to to use Macs, Meals, maximize Quarter profits.”). its Big Happy opportunity serve Pounders, etc., Filets-o-Fish, and franchisor share pub- While the franchisee interest, in- lic, community of these shared contend. The record estab- relators Corporation McDonald’s do not mean that “usual lishes that itself terests customary not business” transacted restaurants Jack- franchisor are the There Missouri franchisee and the County. son are some Pizza, restaurants, including rel. Domino’s three same.5 See State ex dif- "usual and business” could be If franchisor were in business Roger La- through D. Blair & Francine providing public food to the itself ferent See Fontaine, Understanding corporate-owned operated Economics it, franchisees, Regulate analysis Franchising 26 its & the Laws that addition to then the Inc., 941 S.W.2d at (noting, 666-67 in dis- IV. CONCLUSION cussion of whether fiduciary, franchisee is above, For given the reasons prelim- that franchisee and franchisor share “mu- inary prohibition writs of are made abso- tual but “the interests]” conduct of [the lute. primarily franchisees’] business is for their franchisor]”).
benefit, [the WOLFF, C.J., LIMBAUGH and RUSSELL, J.J., BATES, Sp.J., Therefore, even were the franchise concur. agreement to establish that the franchisees WHITE, J., agents are in separate of McDonald’s dissents opinion filed; TEITELMAN, J., in opinion concurs purposes, some because there is no claim WHITE, J. Corpo- ration for licensing purposes, plaintiffs WHITE, RONALD L. Judge, could prove that the franchisees are dissenting. agents for the “customary and usual busi- view, I respectfully In my dissent. on ness” Corporation. of McDonald’s record, this factual McDonald’s fails to presumption overcоme the in favor of the finally contend that this ruling.1 trial court’s McDonald’s bears the result policy is inconsistent with the showing burden of that the trial court ex- “broadly subjecting corporations to suit.” jurisdiction.2 ceeded its The franchise Ball v. Greetings Corp., American agreement that plaintiffs seek to dis- W.D.1983), (Mo.App. quot cover light could shed on whether the fran- ing, Stussie, Pagliara State ex rel. chise location constitutes office and E.D.1977). (Mo.App. whether the franchisee is an of Mc- “Policy arguments, while useful in the face Donald’s. If the terms statute, of an ambiguous are of no benefit support position, when the statute is not ambiguous.” Ha need produced the document to vens Steel Property Co. v. Mo. & Cas. Ins. satisfy its burden of proof. Absent such Ass’n, Guar. evidence, the trial court’s determination unambiguous Section 508.040 clearly high was not erroneous. The stan- ly provides against corporations that suits dard of extraordinary review for relief may properly brought be in three kinds of calls for deference to the trial court’s de- places: where corporation has an office termination.
for the transaction of its usual and custom
ary business; the corporation has *8 for the transaction of its usual business;
and customary and where the
cause of action accrued. among places.
is not those (Fall 2006) Kendrick, Franchise (noting L.J. 55 n. 2 1. Hill v. franchising typically that "firms involved in App.2006). distribution, i.e., engage in dual vertical- ly integrate some units and franchise the oth- Id. ers"). But the evidence establishes that rela- tor McDonald's does not except through franchisees.