MISSOURI COURT OF APPEAL WESTERN DISTRICT
MARY CRAWFORD AND ) JASON CRAWFORD, ) WD85628 ) Appellants, ) OPINION FILED: v. ) ) March 21, 2023 FAMILY TREE, INC., ) ) Respondent. ) )
Appeal from the Circuit Court of Jackson County, Missouri Honorable Marco Roldan, Judge
Before Division One: Anthony Rex Gabbert, Presiding Judge, W. Douglas Thomson, Judge and Janet Sutton, Judge
Mary and Jason Crawford appeal from the judgment of the Jackson County
Circuit Court (trial court) dismissing their civil case for damages against Family
Tree, Inc. (Family Tree) on the basis of forum non conveniens. For reasons explained
herein, we reverse and remand.
Factual and Procedural Background
In late March 2022, Mary Crawford went to Family Tree’s garden center in
Shawnee, Kansas, and while walking to the entrance she fell and was injured. In
early June 2022, Mary Crawford and her husband, Jason Crawford, (the Crawfords) filed a petition for damages against Family Tree in Jackson County, Missouri,
alleging negligence, premises liability, and loss of consortium.
Family Tree filed an answer to the petition, and on the same day also filed a
motion to dismiss on the basis of forum non conveniens. The motion was two
sentences, which read in its entirety: “Defendant Family Tree, Inc. moves the [c]ourt
to dismiss this action under the doctrine of forum non conveniens. Defendant
incorporates its Suggestions in Support of Defendant’s Motion to Dismiss.” Family
Tree filed its accompanying suggestions in support, with one attached exhibit, an
internet print-out for Family Tree’s garden center location in Liberty, Missouri. The
Crawfords filed suggestions in opposition to the motion to dismiss with one attached
exhibit, which was Family Tree’s application for Certificate of Authority filed with
the Missouri Secretary of State’s office in 2021.
The Crawfords opposed the motion to dismiss, contending that Family Tree
failed to prove that the factors in State ex rel. Chicago, Rock Island & Pac. R.R. Co.
v. Riederer, 454 S.W.2d 36 (Mo. banc 1970), discussed infra, weighed heavily in
Family Tree’s favor and that Family Tree failed to demonstrate that permitting the
case to be tried in Jackson County would be oppressive, prejudicial, and manifestly
unjust. Discovery was not conducted before the motion to dismiss was filed, and it
does not appear that any occurred after.
The trial court did not hold a hearing on Family Tree’s motion to dismiss, but
notified the parties that it intended to grant the motion to dismiss and requested
Family Tree submit a proposed judgment. Family Tree submitted a proposed
2 judgment to the trial court, and the Crawfords filed an objection on the basis that it
contained facts not introduced into evidence and misstatements of the law.
On August 10, 2022, the trial court entered its judgment granting Family Tree’s
motion to dismiss on the basis of forum non conveniens. The trial court considered
the Riederer factors and found that all but one, the location of the witnesses, weighed
in favor of dismissal.
The Crawfords appeal.
Standard of Review
We review a dismissal based on forum non conveniens for an abuse of
discretion. Rabago v. Kansas City S. Inc., 589 S.W.3d 97, 100 (Mo. App. E.D. 2019);
Adkins v. Hontz, 280 S.W.3d 672, 675 (Mo. App. W.D. 2009). “An abuse of
discretion occurs when the trial court’s ruling is clearly against the logic of the
circumstances and is so arbitrary and unreasonable as to indicate a lack of careful
consideration.” Adkins, 280 S.W.3d at 675. The trial court has broad discretion, but
it is not unlimited and it must be applied with control. State ex rel. Wyeth v. Grady,
262 S.W.3d 216, 219 (Mo. banc 2008). “[I]f reasonable persons may differ as to the
propriety of an action taken by the trial court, then it cannot be held that the trial
court has abused its discretion.” Id. We consider “‘only those facts . . . that were
before the trial court when it ruled on the motion to dismiss, and the evidence will be
viewed in a light favorable to the result of the trial court.’” Id. (quoting Anglim v.
Mo. Pac. R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992)).
3 Legal Analysis
In their first point on appeal, the Crawfords contend that the trial court erred in
entering a dismissal based on forum non conveniens because Family Tree did not
establish and support with evidence that the Crawfords’ forum choice was manifestly
inconvenient. In their second point on appeal, the Crawfords contend the trial court
erred in dismissing their claims because the Riederer factors do not support a finding
of inconvenience as the two venues where the suit could have been brought are
contiguous and it is not inconvenient for Family Tree to defend this “neighborhood
litigation.” Family Tree argues that dismissal under forum non conveniens was
appropriately based on the “uncontroverted” allegations in the Crawfords’ petition
and that Family Tree did not need to present additional evidence. We discuss the
Crawfords’ points on appeal together.
The doctrine of forum non conveniens permits a trial court to dismiss an action
if the forum is seriously inconvenient and there is a more appropriate forum available
to the plaintiff, even if venue and jurisdiction are otherwise proper. Adkins, 280
S.W.3d at 676; Campbell v. Francis, 258 S.W.3d 94, 97 (Mo. App. W.D. 2008). “The
doctrine is to be applied with caution and only upon a ‘clear showing of
inconvenience and when the ends of justice require it.’” Campbell, 258 S.W.3d at 97
(quoting State ex rel. Ford Motor Co. v. Westbrooke, 12 S.W.3d 386, 394 (Mo. App.
S.D. 2000)). “[A] plaintiff’s choice of forum is not to be disturbed except for
‘weighty reasons’ and the case should be dismissed only if the ‘balance is strongly in
favor’ of the defendant.’” Wyeth, 262 S.W.3d at 220 (quoting Anglim, 832 S.W.2d at
302).
4 I. The Riederer Factors
A trial court should weigh six important, but non-exclusive, factors in
determining whether a suit should be dismissed on the grounds of an inconvenient
forum. Riederer, 454 S.W.2d at 39; Wyeth, 262 S.W.3d at 220. They are: (1) the
place where the cause of action accrued; (2) the location of witnesses; (3) the
residence of the parties; (4) any nexus with the place of suit; (5) the public factor of
the convenience to and burden on the court; and (6) the availability to the plaintiff of
another court with jurisdiction over the cause of action that affords the plaintiff a
forum for his or her remedy. Riederer, 454 S.W.2d at 39.
“[T]he weight to be given any one factor may be different depending upon the
facts and circumstances of each case.” Taylor v. Farmers Ins. Co., Inc., 954 S.W.2d
496, 500 (Mo. App. S.D. 1997); see also Anglim, 832 S.W.2d at 302–03. There may
be additional factors to consider “in light of the particular circumstances of each
case.” Adkins, 280 S.W.3d at 676. The “relevant factors must first be considered as
to whether they weigh heavily in favor of applying the doctrine of forum non
conveniens, and then as to whether a trial in Missouri would be oppressive to the
defendants and unduly burdensome for Missouri courts.” Id. ‘‘The defendant has the
burden of establishing all factors supporting a claim that a Missouri court is an
inconvenient forum.’’ Wyeth, 262 S.W.3d at 228 (Clark, J., concurring) (citation
omitted); Anglim, 832 S.W.2d at 305.
Applying the first factor to the facts of the case here, the cause of action did
not accrue in Missouri. Crawford visited the Family Tree’s garden center in
5 Shawnee, Kansas where she was allegedly injured while walking to the front doors.
This factor weighs in favor of dismissal under forum non conveniens.
The second factor is the location of the witnesses. Riederer, 454 S.W.2d at 39.
In its suggestions to its motion to dismiss, Family Tree indicated that “the witnesses
that would testify to the elements necessary to establish [p]laintiffs’ claims are
located in Kansas. At this early point in the litigation, there are no known witnesses
located in Missouri.” The trial court found, “It is unclear at this early point in the
litigation if there are any witnesses located in Missouri.” The location of the
witnesses does not weigh in favor of dismissal because, as the Crawfords point out,
the names of witnesses have not been disclosed, and the names were not contained in
their petition. Therefore, it follows, that Family Tree cannot establish that any
witnesses would be “inconvenienced” by appearing in Jackson County for trial. This
factor does not weigh in favor of dismissal under forum non conveniens.
The third factor is residence of the parties. Riederer, 454 S.W.2d at 39. In its
reply to Crawfords’ suggestions in opposition to the motion to dismiss, Family Tree
claimed that although it had a Missouri presence, it was only a resident for venue and
jurisdiction purposes, but not for forum non-conveniens purposes. The trial court
acknowledged the following:
While Family Tree may be a Missouri resident for purposes of venue and jurisdiction, it is not a Missouri resident for purposes of forum non conveniens analysis. Family Tree was created under the laws of Kansas, has its headquarters in Kansas, and does its principal place of business is in Kansas. There are no corporate activities that are relevant to this case which Family Tree conducts in Missouri.
The trial court summarily found that all of the parties are Kansas residents, and that
this weighed in favor of dismissal. While Family Tree is a Kansas corporation, it
6 fails to acknowledge that by availing itself of the ability to do business in Missouri, it
also becomes a Missouri resident for purposes of the venue statutes.
Family Tree, a foreign corporation authorized to transact business in the state,
is required under Missouri law to continuously maintain in the state: (1) a registered
office that may be the same as any of its places of business; and (2) a registered
agent, who may be an individual who resides in this state and whose business office
is identical with the registered office. § 351.586. 1 There is no support for the trial
court’s distinction that while Family Tree is a Missouri resident for venue and
jurisdiction purposes, it is not for a forum non conveniens analysis. Here, the trial
court discounted both that Family Tree operates a garden center in Clay County,
Missouri and that it has its registered agent in Jackson County, Missouri. There is no
evidence that Family Tree has “so significantly limited its Missouri operations that it
may not be considered a Missouri resident in the context of the Riederer factors.”
Anglim, 832 S.W.2d at 304. This factor does not weigh in favor of Family Tree.
The fourth factor is whether there is any nexus with the place of the suit.
Riederer, 454 S.W.2d at 39. The trial court found there was no “substantial nexus
between the allegations and Missouri” and that there were “significant connections”
between the allegations and Kansas. But whether there is a “substantial” nexus is not
the applicable test. “All that is required is a showing of ‘any nexus’ or ‘some nexus,’
or a ‘nexus of community integration’ with the place of the lawsuit.” Adkins, 280
S.W.3d at 677 (citations omitted). Here, there is a sufficient nexus to deny dismissal
1 Statutory citations refer to the 2016 edition of the Revised Statutes of Missouri, updated through the 2020 Cumulative Supplement. 7 because (1) the suit was brought in a forum in close proximity to where the events
allegedly occurred and (2) Family Tree operates a business with multiple locations
across the Kansas City metro area, one of which is in Missouri, and Family Tree
designated a registered agent for service of process and venue purposes in Jackson
County, Missouri.
Loftus 2 and Campbell 3 are “instructive in addressing situations where litigation
was brought in Missouri for events occurring in neighboring communities across the
state line in Kansas (Loftus) and in Iowa (Campbell).” Adkins, 280 S.W.3d at 677. In
Loftus and Campbell, the courts concluded that the forum’s proximity to the location
of the events, even though in a different state, weighed against dismissal on the basis
of forum non conveniens. Loftus v. Lee, 308 S.W.2d 654, 661 (Mo. 1958); Campbell,
258 S.W.3d at 98-99. We reach the same conclusion here, given the close proximity
of the chosen forum, Jackson County, to the location where the accident allegedly
occurred. Although the trial court did not take judicial notice of the distance at
issue, we may do so. See State v. Barac, 558 S.W.3d 126, 132 n.3 (Mo. App. W.D.
2018) (noting that an appellate court may take judicial notice of current history,
geographical facts, and of facts commonly known to all). The driving distance
between the Johnson County, Kansas and Jackson County, Independence, Missouri,
courthouses is approximately 32 miles. This “proximity of the forum to the location
of the events, even though in a different state, weigh[s] against dismissal.” Adkins,
280 S.W.3d at 677. Family Tree, in their brief, even acknowledges the “close
2 Loftus v. Lee, 308 S.W.2d 654 (Mo. 1958). 3 Campbell v. Francis, 258 S.W.3d 94 (Mo. App. W.D. 2008).
8 proximity” between Johnson County, Kansas and Jackson County, Missouri.
Additionally, Johnson County, Kansas and Jackson County, Missouri, are contiguous
counties, each part of the greater Kansas City metropolitan area which share the state
line as a border. Under the facts of this case, and at this early point in litigation, the
minimal distance between Johnson County, Kansas and Jackson County, Missouri is
not a “weighty reason” that shows clear inconvenience that would allow the
Crawfords’ chosen forum to be disturbed.
Additionally, it is reasonable for Family Tree to expect to be sued in the county
where its registered agent is located. See § 508.010.5(1) (providing that where the
place of first injury is outside Missouri, and if the defendant is a corporation, then
venue “shall be in any county where a defendant corporation’s registered agent is
located. . . .”). A sufficient nexus exists with the place of the suit, and this factor
does not weigh in favor of dismissal.
The fifth Riederer factor is the public factor of convenience to and burden on
the court. Riederer, 454 S.W.2d at 39. The trial court found that placing this case in
the hands of Missouri jurors to determine liability for an alleged injury that occurred
in Kansas would be “unreasonable,” and that Missouri jurors and the court would be
“inconvenienced” by applying Kansas law. The trial court concluded that the case
should be decided by “Kansas jurors and paid for by Kansas taxpayers” and that to
litigate the case in Missouri would “heavily inconvenience” the court and Missouri
residents.
Statistical data may be submitted to support a claim that the caseload of the trial court is so overwhelming that the case cannot be expeditiously litigated in the jurisdiction where the case is filed. Such matters as taxpayer cost, jury time, the necessity to interpret and apply the law of a
9 foreign jurisdiction, and similar facts may be offered and weighed by the trial court. In addition, the trial court may take notice of the congestion of its own docket. Anglim, 832 S.W.2d at 304.
Here, Family Tree offered no statistical data, and the trial court did not take
judicial notice that the dockets in Jackson County, Missouri, were heavily congested,
thereby supporting the proposition that litigating the case would impose a burden on
the trial court. Further, the trial court’s reference to applying Kansas law and the
inconvenience that it could cause a Missouri jury or court would not alone justify
dismissing Crawford’s case. “Missouri courts are capable of applying the laws of
other states without creating an undue burden on the court system.” Taylor, 954
S.W.2d at 502. “The mere fact that the trial court must apply a foreign jurisdiction’s
law to an action does not burden the court enough to support a dismissal.” Campbell,
258 S.W.3d at 99. Accordingly, this factor does not weigh in favor of dismissal.
Finally, the sixth factor—the availability of another court with jurisdiction
affording a forum for plaintiff’s remedy. Riederer, 454 S.W.2d at 39. In their brief
to this Court, the Crawfords admit they could have filed their claims in Kansas.
Family Tree asserts that all the evidence the trial court needed to rule on the motion
to dismiss was contained in the “uncontroverted” allegations in the Crawfords’
petition, but the fact that Kansas was an available forum was not part of the
Crawfords’ petition. In its judgment, the trial court summarily concluded that Kansas
provides an available forum, that it is the most convenient forum for the Crawfords,
that the Crawfords have the ability to bring suit in Kansas, and that it is where
“witnesses and evidence are more readily accessible.” The trial court made these
conclusions without any evidence in support. No discovery had been conducted to
10 identify witnesses and evidence so it would be impossible for the trial court to predict
which location would be more accessible or convenient. Therefore, this factor does
not weigh in favor of dismissal.
In this case, it appears that the trial court’s conclusions on the factors were
framed by Family Tree’s assertions that were not supported by evidence. Family Tree
contends the Crawfords’ petition contained ample facts to support dismissal for forum
non conveniens and that the trial court was permitted to rely on the uncontroverted
allegations in the petition, and that the petition itself provided the necessary facts to
make the evaluation. This, however, ignores the fact that allegations in the petition
were not uncontroverted. Family Tree filed an answer and specifically denied many
of the allegations in the petition. The Crawfords’ residence was one of the only
Riederer factors that weighed in favor of dismissal but even this was an allegation in
the petition that Family Tree denied in its answer.
“In deciding whether to dismiss [for forum non conveniens], a trial court
necessarily must determine facts and, in doing so, weighs evidence and assesses the
credibility of witnesses as to the reasons given for selecting or opposing a particular
forum.” Anglim, 832 S.W.2d at 303. Here, the trial court had no evidence to weigh
nor witness testimony to assess credibility. Family Tree failed to establish that the
Riederer factors weighed heavily in its favor, and the trial court abused its discretion
when it dismissed the cause of action on the basis of Missouri being an inconvenient
forum for a resolution of the matter.
11 II. Oppression to Family Tree or Undue Burden on Missouri Courts
In addition to the Riederer factors, we also consider “whether trial in Missouri
would be oppressive to the defendants” or would impose an “undue burden on
Missouri courts.” Wyeth, 262 S.W.3d at 220-21; Anglim, 832 S.W.2d at 303. “[T]here
are two primary considerations in the forum non conveniens analysis. In determining
whether the forum is inconvenient, courts shall consider both the private interests of
the litigants and the public interest factors.” Wyeth, 262 S.W.3d at 220. Family Tree
failed to demonstrate that permitting this case to be tried in Jackson County would be
oppressive or an undue burden on Missouri courts. As we have already said, Family
Tree contends that the allegations in the Crawfords’ petition were sufficient to
establish the grounds necessary to dismiss on forum non conveniens grounds, but the
Crawfords’ petition did not contain any allegations about oppression to Family Tree
or an undue burden to a Missouri court.
Family Tree argues that Missouri is an inconvenient forum, primarily because it
contends that five out of the six Riederer factors weigh in favor of dismissal. We have
already concluded that the Riederer factors do not weigh in favor of dismissal. We must
also stress that in so arguing this contention, Family Tree has not provided any factual
information about the nature of that inconvenience. Further, Family Tree has not shown
that the Crawfords’ filing and maintenance of the suit in Missouri was for the purpose of
vexing, oppressing, or harassing Family Tree, which the doctrine of forum non
conveniens was intended to prevent. Anglim, 832 S.W.2d at 302. Similarly, the trial
court in its judgment concluded, without any evidence in support, that Jackson County
was a “substantially inconvenient” forum to adjudicate the Crawfords’ claims.
12 Here, Family Tree has not provided facts which were before the trial court and
which convince us that a trial in Missouri would be oppressive to Family Tree or
which would pose an undue burden on a Missouri court. We could reach that
conclusion only through speculation and not based on a record supported by facts.
The Crawfords’ petition alone, and Family Tree’s answer, do not provide any
evidence of oppression to Family Tree or undue burden on a Missouri court. Family
Tree has not provided any case law supporting a dismissal based on forum non
conveniens relying solely on those type of pleadings alone. 4
Section 507.020 provides that Missouri courts shall be open to suits between non-residents concerning causes arising under the laws of another state. Non-residents have a constitutional and statutory right to litigate their claims here, and our state courts have a clear duty to provide a forum and a fair trial in conformity with established principles. . . That duty should be avoided only with reasoned discretion and caution. . . [U]nless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.
4 Compare the following cases in which there were varying forms of evidence from which the court made its decision to proceed or dismiss on the basis of forum non conveniens: State ex rel. Wyeth v. Grady, 262 S.W.3d 216 (Mo. banc 2008) (exhibits attached); Acapolon Corp. v. Ralston Purina Co., 827 S.W.2d 189 (Mo. banc 1992) (affidavits); Anglim v. Mo. Pac. R.R. Co., 832 S.W.2d 298 (Mo. banc 1992) (affidavits); Rabago v. Kansas City S., Inc., 589 S.W.3d 97 (Mo. App. E.D. 2019) (evidentiary hearing); Adkins v. Hontz, 280 S.W.3d 672 (Mo. App. W.D. 2009) (depositions, completed discovery); Campbell v. Francis, 258 S.W.3d 94 (Mo. App. W.D. 2008) (evidentiary hearing, defendant testified at hearing); Chandler v. Multidata Sys. Int’l Corp., Inc., 163 S.W.3d 537 (Mo. App. E.D. 2005) (extensive discovery, evidentiary hearing); State ex rel. Ford Motor Co. v. Westbrooke, 12 S.W.3d 386 (Mo. App. S.D. 2000) (affidavit); State ex rel. Kansas City S. Ry. Co. v. Mauer, 998 S.W.2d 185 (Mo. App. W.D. 1999) (affidavit); Taylor v. Farmers Ins. Co., Inc., 954 S.W.2d 496 (Mo. App. S.D. 1997) (stipulated facts); Connour v. Burlington N. R.R. Co., 889 S.W.2d 138 (Mo. App. W.D. 1994) (verified motion and affidavits); Herchert v. Marriott Corp., 867 S.W.2d 230 (Mo. App. E.D. 1993) (affidavits); Tempmaster Corp. v. Elmsford Sheet Metal Works, Inc., 800 S.W.2d 45 (Mo. App. W.D. 1990) (affidavits); Meyerkord v. English, 758 S.W.2d 70 (Mo. App. E.D. 1988) (verified motion, interrogatories, answers).
13 Adkins, 280 S.W.3d at 678 (citations omitted).
Here, the trial court’s judgment stated that the Crawfords provided no reason
for bringing their suit in Jackson County, Missouri, rather than Johnson County,
Kansas, where the accident occurred. The plaintiff does not bear the burden of
justifying his or her choice of forum in a forum non conveniens case. See Anglim,
832 S.W. 2d at 305 (reiterating that the doctrine of forum non conveniens is neither
abandoned nor modified and rejecting “the suggestion that the rule be modified so
that whenever litigation is between out-of-state residents over causes of actions that
arose out of state, a plaintiff must bear the burden of justifying the choice of
forum.”). And, while a plaintiff does not have an “unlimited right” to select the
forum, “a plaintiff’s freedom to select a forum is significant.” Barrett v. Mo. Pac.
R.R. Co., 688 S.W.2d 397, 399 (Mo. App. E.D. 1985). “‘[F]orum non conveniens is
an arm of the courts of this State to be applied with caution and only upon a clear
showing of inconvenience of forum and when the ends of justice require it.’”
Riederer, 454 S.W.2d at 38 (quoting Loftus, 308 S.W.2d at 661).
Considering that forum non conveniens should be applied with caution and
only upon a clear showing of inconvenience and when the ends of justice require it,
we conclude that Family Tree did not make such a showing. The forum non
conveniens factors do not weigh heavily in favor of dismissal, and Family Tree failed
to establish that permitting the case to be tried in Jackson County, Missouri would be
oppressive to Family Tree or would impose an undue burden on a Missouri court.
The trial court abused its discretion in granting the motion to dismiss on the basis of
forum non conveniens.
14 Points I and II are granted.
Conclusion
The judgment of dismissal is reversed, and the cause is remanded to the trial
court for further proceedings.
_______________________ Janet Sutton, Judge
Anthony Rex Gabbert, Presiding Judge, and Douglas Thomson, Judge concur.