dissenting.
I respectfully dissent. In State ex rel. SSM Health Care St. Louis v. Neill, 78 S.W.3d 140 (Mo. banc 2002), this Court held that section 355.176.4 provides the exclusive venues for suit against nonprofit corporations, even if an individual defendant is involved. I would overrule Neill and hold that section 355.176.4, like section 508.040, does not apply if the case involves individual defendants.
Under section 508.040, venue in a suit against a corporation “shall be commenced either where the cause of action accrued *107... or in any county where such corporations have or usually kéep an office or agent for the transaction of their usual and customary business.” The word “shall” mandates that venue in suits against corporations is limited to two possible locations. However, Missouri courts have long held that section 508.040 does not provide the exclusive list of possible venues for suits against corporations. The statute applies only if all defendants are corporations. State ex rel. Baker v. Goodman, 364 Mo. 1202, 274 S.W.2d 293 (banc 1954); Futrell v. Luhr Bros., Inc., 916 S.W.2d 348, 352[2] (Mo.App.1996). If an individual defendant is joined in a suit against a corporation, venue is determined under the general venue statute, section 508.010. State ex rel. Dick Proctor Imports, Inc. v. Gaertner, 671 S.W.2d 273, 274 (Mo. banc 1984). Similarly, section 355.176.4 provides that suit against a nonprofit corporation “shall be commenced only in one of’ three locations. In Neill, this Court focused on the word “only” to hold that the statute expressly provides the exclusive list of venues for suits involving a nonprofit corporation. The Court’s focus on the word “only” was misplaced.
Analytically, section 508.040 and section 355.176.4 are identical. Both statutes use the word “shall” to mandate that venue is limited to a set of specified locations. The sole difference is that section 508.040 limits the range of possible venues through an “either/or” proposition, whereas section 355.176.4 limits venue through use of the word “only.” The word choice is different, but the effect is the same: the word “shall” expressly limits venue to specified locations. Consequently, there is nothing in the plain language of section 355.176.4 or section 508.040 that requires, or even permits, the statutes to be construed in the fundamentally inconsistent manner adopted by this Court in Neill. Just as section 508.040 does not apply if a suit against a corporation involves an individual defendant, section 355.176.4 does not apply if a suit against a nonprofit corporation involves an individual defendant. Consistency permits no other interpretation. To hold otherwise, as in Neill, is to ignore the plain language of the statutes and make a policy choice that is beyond the purview of this Court.
I would overrule State ex rel. SSM Health Care St. Louis v. Neill, 78 S.W.3d 140 (Mo. banc 2002).