RENDERED : NOVEMBER 1, 2007 TO BE PUBLISHED
,$uyreme Courf of '[i 2005-SC-000867-DG
DOLLAR GENERAL STORES, LTD . APPELLANT
ON REVIEW FROM COURT OF APPEALS V. CASE NUMBER 2003-CA-002632 CASEY CIRCUIT COURT NO . 03-CI-000148
MABEL ROSE SMITH APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
AFFIRMING
We have held that the saving provision of KRS 413.270 applies as well to
improper venue selection as to jurisdictional error.' However, we have not previously
decided whether the saving statute applies also where the original forum dismissed the
case on grounds of forum non conveniens and the claim was re-brought in another
proper venue within the extended time allowed . This issue is before us here .
This case arose on April 28, 2002, when Appellee, Mabel Rose Smith, was
injured in a slip and fall accident on the Appellant's premises in Casey County . Smith
instituted litigation against Appellant, Dollar General Stores, Limited (Dollar General) in
the Jefferson Circuit Court on the last day of the one-year limitation period . Dollar
General owned and operated several stores in Jefferson County and there was no
' D & J Leasing, Inc. v. Hercules Galion Products, Inc., 429 S.W.2d 854 (Ky. 1968). See also Shircliff v. Elliot, 384 F.2d 947 (6 th Cir. 1967) . contention that the Jefferson Circuit Court lacked jurisdiction or that it was an improper
venue . The trial court acknowledged this fact. Nevertheless, relying on Beaven v.
McAnultv,2 the Jefferson Circuit Court dismissed the claim under the doctrine of forum
non conveniens. The trial court held that because the accident and injury occurred in
Casey County and because Smith and most of the witnesses resided in Casey County,
Jefferson County was an inconvenient forum .
Fifteen days after dismissal, Smith filed a new claim in the Casey Circuit Court .
As previously noted, however, her prior claim had been filed on the last day of the
period, and by the time Smith filed in Casey County, the statute of limitations had run.
Smith pled that the statute of limitations was tolled under KRS 413 .270 and that her
claim was timely. However, upon its conclusion that KRS 413 .270 was inapplicable, the
Casey Circuit Court dismissed the claim as time-barred . On appeal from that final order,
the Court of Appeals disagreed and reversed . It held that KRS 413.270(1) was
applicable to a case timely brought but previously dismissed on grounds of forum non
conveniens. Dollar General sought and was granted discretionary review in this Court.
We affirm the decision of the Court of Appeals.
We begin with a brief review of KRS 413.270, a statute providing for a ninety-day
saving period where claims are brought in a court having no jurisdiction . By its terms,
the statute applies to claims brought "in due time and in good faith" and which are
adjudged to have been brought in a court with "no jurisdiction ." While the statutory
language speaks to jurisdiction, this Court has long held that dismissal for improper
2 980 S.W.2d 284 (Ky. 1998) . 3 The Jefferson Circuit Court appears not to have been mindful that dismissal would have serious statute of limitations implications. venue also triggers the saving statute . In D. & J. Leasing, Inc. v. Hercules Galion
Products . Inc. ,4 we reversed the trial court upon the view that the statute was "to obtain
a trial on the merits and not to penalize it for filing its original action in a court of the
wrong venue." In Shircliff v. Elliott,5 the United States Court of Appeals for the Sixth
Circuit held likewise . Following flawed attempts to bring their claim in state court,
plaintiffs sued in the United States District Court for the Western District of Kentucky
after expiration of the statute of limitations. Anticipating our decision in D. & J. Leasing ,
the Shircliff court said, "When a plaintiff has shown the proper diligence required by the
applicable statute of limitations but has filed in an improper court, the saving statute
provides him a further period of time in which to find the proper court ." Shircliff analyzed
the venue and jurisdiction dichotomy, but held that in view of the remedial purpose of
the saving statute and the frequent confusion of jurisdiction and venue, "jurisdiction" in
KRS 413 .270 should be broadly construed to achieve its remedial purpose .
We have considered Dollar General's argument that KRS 413.270 should be
read literally and its contention that D . & J . Leasing and Shircliff are distinguishable, but
we do not agree . There is no reasonable explanation for the Legislature to have acted
to save claims brought in an improper jurisdiction, but denied the saving provision to
claims brought in an improper venue . As such, we can only conclude with the Shircliff
court that the General Assembly used the term "jurisdiction" broadly to include the
4 429 S.W.2d 854 . 5 284 F.2d 947. concept of place as well as the concept of power . Accordingly, we reaffirm the views
expressed in D. & J. Leasing and Shircliff.7
A necessary predicate for appellate review of the Casey Circuit Court order of
dismissal is an understanding of the Jefferson Circuit Court order. As stated previously,
the Jefferson Circuit Court acknowledged that venue was not improper, but determined
that the Casey Circuit Court would be a more convenient forum . Instead of transferring
the case, however, the Jefferson Circuit Court dismissed on grounds of forum non
conveniens leaving plaintiff with no alternative but to appeal, or to bring a new action in
the Casey Circuit Court and thereby depend upon the saving statute . Thus, the Casey
Circuit Court order of dismissal must be reviewed with due regard for the basis of the
Jefferson Circuit Court order of dismissal, forum non conveniens.
A recent decision of the Supreme Court of the United States, Sinochem
International Co. Ltd. v. Malaysia International Shipping Corp. ,$ reviewed forum non
conveniens to determine whether a federal court was required to first decide matters of
jurisdiction before proceeding to dismiss on forum non conveniens grounds. Holding
that it was not necessary to first make the threshold jurisdiction determination, the Court
commented generally on forum non conveniens, and its views are instructive here . The
Court noted, inter alia, that forum non conveniens dismissal was appropriate where the
chosen forum would result in oppressiveness and vexation to a defendant out of all
proportions to plaintiff's convenience, or the chosen forum was inappropriate because of
6 James v . Holt, 244 S.W .2d 159 (Ky. 1951) and Duncan v. O'Nan , 451 S.W.2d 626 (Ky . 1970) provide an explanation of the distinction between jurisdiction and venue . See also Ockerman v. Wise , 274 S.W.2d 385 (Ky. 1954) . 8 - U.S. -, 127 S .Ct. 1184, 167 L.Ed.2d 15 (2007) . considerations affecting the Court's own administrative and legal problems-9 It
observed that a defendant invoking forum non conveniens bears a heavy burden in
opposing the plaintiff's chosen forum. The Court recognized that forum non conveniens
was essentially "a supervening venue provision permitting displacement of the ordinary
rules of venue when, in light of certain circumstances, the Court thinks that venue ought
to be declined ."' ° Moreover, the Court observed that "Congress has codified the
doctrine and provided for transfer rather than dismissal when a sister federal court is the
more convenient place for trial of the action ."" From the foregoing, the Supreme Court
clearly views forum non conveniens dismissal as rarely appropriate and imposes on one
seeking such dismissal a heavy burden . The Court also characterized forum non
conveniens as a subdivision of venue and noted that transfer rather than dismissal was
the proper course where appropriate .
The doctrine of forum non conveniens is not deeply embedded in Kentucky law.
It has been touched upon from time to time through the years, 12 but has rarely appeared
as an issue on appeal . However, the doctrine of forum non conveniens was thoroughly
considered in Beaven v. McAnulty,'3 where this Court granted a writ of prohibition
holding that the trial court acted beyond its jurisdiction in transferring a civil action from
the Jefferson Circuit Court to the Marion Circuit Court on grounds of forum non
9 127 S .Ct. at 1190. '° 127 S .Ct. at 1190, uotin American Dredging Co. v. Miller , 510 U.S. 443, 453 (1994) . " 127 S .Ct. at 1190-91 . '2 See Carter v. Netherton, 302 S.W.2d 382 (Ky. 1957) (involving continuing jurisdiction of a child custody and support case) ; Commonwealth v. Evans , 645 S .W.2d 346 (Ky. 1982) (holding that forum non conveniens does not apply in criminal cases); and Skidmore v. Meade, 676 S.W.2d 793 (Ky. 1984) (where the Court declined to grant a writ of mandamus preventing transfer on grounds of forum non conveniens) . 13 980 S.W.2d 284 . conveniens. Beaven concluded with the view that "Kentucky's doctrine of forum non conveniens only empowers a trial court to dismiss or stay an action before it. As the trial
court did not have the power to transfer the action to Marion County, it was acting
beyond its jurisdiction when it did so, and a writ of prohibition is an appropriate
remedy. "14
Shortly after Beaven v. McAnulty was rendered, the General Assembly adopted
KRS 452.105, a statute mandating trial court transfer of cases upon a determination that
the venue selected is improper . This statute has been construed as requiring transfer
rather than dismissal .. KRS 452.105 and our decisions construing it firmly establish
that where venue is improper, the remedy is transfer rather than dismissal . A question
remains, however, whether transfer is available upon a determination of forum non
conveniens . We have no doubt that it is. 16 While there are fundamental distinctions between the concepts of jurisdiction and
venue, the former relating to the power of courts to adjudicate and the latter relating to
the proper place for the claim to be heard, there is no such fundamental distinction
between venue and forum non conveniens. In general, venue derives from a statutory
mandate as to which county or counties is the proper place for a claim to be heard .
Forum non conveniens presupposes proper venue, but posits that another county where venue would be proper also is a more convenient forum, and calls for a
discretionary ruling by a trial court to that effect. Thus forum non conveniens is a
14 Id . at 288. 15 Fritsch v. Caudill , 146 S.W.3d 926 (Ky. 2004), and Seymour Charter Buslines, Inc. v. Hopper , 111 S.W.3d 387 (Ky. 2003) . 16 The Jefferson Circuit Court thought otherwise . It regarded KRS 452.105 as having no effect on Beaven v. McAnultv. It viewed KRS 452.105 as applicable only where the court lacks venue, but inapplicable where the court finds forum non conveniens . subdivision of venue requiring the exercise of trial court discretion ." Surely it must
follow that a dismissal on grounds of forum non conveniens would be, of necessity, a
venue based dismissal resulting in applicability of the saving statute, KRS 413.270 .
Notwithstanding language in Beaven to the contrary, in the future, cases should not be
dismissed on grounds of forum non conveniens.
With enactment of KRS 452 .105, the General Assembly made it clear that venue
should be transferred in a proper case, and that the action should not be dismissed .
We now hold that the same rule applies where the trial court determines that another
forum would be a more convenient place for the litigation . The General Assembly
showed no concern for the idea in Beaven that one court could not force a case upon
another court. Undoubtedly, this view is correct. Kentucky has one unified Court of
Justice. All trial courts and appellate courts are a part of that Court of Justice, '8 and in
it is vested the judicial power of the Commonwealth .
For the foregoing reasons, we affirm the Court of Appeals and remand this case
to the Casey Circuit Court for further consistent proceedings .
All sitting . Lambert, C.J., and Cunningham, Noble, Schroder, and Scott, JJ .,
concur. Abramson, J ., concurs by separate opinion . Minton, J., dissents by separate
opinion .
" See Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp. , ___ U .S. -, 127 S.Ct. 1184, 167 L. Ed.2d 15 (2007). 18 Ky. Const . §109. COUNSEL FOR APPELLANT :
Kevin G . Henry Kevin W. Weaver STURGILL, TURNER, BARKER & MOLONEY, PLLC 333 West Vine Street, Suite 1400 Lexington, KY 40507
COUNSEL FOR APPELLEE:
Jonathon N. Amlung AMLUNG LAW OFFICES, PLLC 616 South Fifth Street Louisville, KY 40202-2202 RENDERED : NOVEMBER 1, 2007 TO BE PUBLISHED
,9ixpxmttr Courf of ~mfurkv 2005-SC-000867-DG
ON REVIEW FROM THE COURT OF APPEALS V. CASE NUMBER 2003-CA-002632-MR CASEY CIRCUIT COURT NO. 03-CI-00148
CONCURRING OPINION BY JUSTICE ABRAMSON
I concur in the result reached by the majority only because I agree that we ought
not to penalize the plaintiff, Mabel Smith, for her counsel's reliance on the overly broad
reading of the saving statute, KRS 413.270, which the Sixth Circuit Court of Appeals
propounded in Shircliff v. Elliott . 384 F.2d 947 (6' Cir. 1967), and which this State's
highest Court suggested in D. & J. Leasing, Inc . v. Hercules Galion Products, Inc., 429
S .W .2d 854 (Ky. 1968) . I agree with Justice Minton, however, that that broad reading
does not comport with the statutory language, and so henceforth would limit application
of KRS 413.270 and KRS 452.105 to the circumstances the General Assembly has
specified . In short, the dissent reflects what I believe is the correct interpretation of the
two statutes . RENDERED : NOVEMBER 1, 2007 TO BE PUBLISHED
,Vuyrrme Courf of rufurhv 2005-SC-000867-DG
ON REVIEW FROM COURT OF APPEALS V. CASE NUMBER 2003-CA-002632-MR CASEY CIRCUIT COURT NO . 03-CI-00148
DISSENTING OPINION BY JUSTICE MINTON
i respectfully dissent. We have often said that the proper role of the courts in the
field of statutory interpretation is to determine the intention of the legislature as
expressed in the "plain language" of its statutes without resorting to guessing about
what the legislature intended .' With that in mind, 1 cannot agree with the majority's
assumption that when the legislature used the words "no jurisdiction" in the savings
statute (KRS 413.270), it intended to conflate three distinct legal conceptsjurisdiction,
venue, and forum non conveniens . And I believe that now is the time for us to
See, e.g., Commonwealth v. Gaitherwright , 70 S.W.3d 411, 413 (Ky. 2002); Troxell v. Trammell , 730 S.W.2d 525, 527-28 (Ky. 1987). See also KRS 446.080(1) and (4): (1) All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature, and the rule that statutes in derogation of the common law are to be strictly construed shall not apply to the statutes of this state .
(4) All words and phrases shall be construed according to the common and approved usage of language, but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed according to such meaning. clean up our own loose language by overruling certain precedents to the extent that
imprecise use of the terms jurisdiction, venue, and forum non conveniens has distorted
the savings statute well beyond its express provisions of "saving" cases initially
dismissed for "no jurisdiction ."
In Shircliff v. Elliott,2 the Sixth Circuit Court of Appeals interpreted KRS 413.270
without benefit of any Kentucky state cases directly on point. The court decided that our
savings statute operated to "save" cases initially filed in improper venues based on the
"common confusion" of the terms venue and jurisdiction . The court, thus, implicitly
found that the legislature had confused these terms. I disagree with the assumption
that the legislature had confused the terms, especially in light of the legislature's own
stated direction in KRS 446.080(4) that where statutes employ terms such as
"jurisdiction," which "have acquired a peculiar and appropriate meaning in the law," such
terms "shall be construed according to such meaning ."
This Court reached the correct result in D . & J. Leasing, Inc. v. Hercules Galion
Products, Inc.4 by reversing the second court's dismissal of a lawsuit, which was
dismissed in the first court for lack of subject matter jurisdiction rather than for improper
384 F.2d 947 (6th Cir. 1967). See id. at 950-51 . ("This Court is aware that there is a fundamental distinction between jurisdiction and venue . But this Court is also aware of the common confusion of the terms, and the problem in this case is not to determine the meaning of jurisdiction as it concerns the power of the court to decide a case but to determine what was comprehended in the meaning of the term as used in this saving statute. . . . To effect the prime purpose of K.R .S. § 413.270 to afford a full opportunity for a hearing on the merits, it seems clear that the legislative intent embodied in the phrase `no jurisdiction' must at least comprehend `lack of 'venue ."') 429 S .W .2d 854 (Ky. 1968) . venue .5 But that opinion confused the terms venue and jurisdiction by stating that :
"The intention of both statutes is to enable a litigant in such a situation to obtain a trial
on the merits and not to penalize it for filing its original action in a court of the wrong
venue ."6 Nonetheless, that case properly determined that both the general savings
statute (KRS 413.270) and the savings portion of the Uniform Commercial Code statute
of limitations (KRS 355.2-725) applied because the plaintiff had not voluntarily sought to
"drop" the case in the first court but, rather, was forced to dismiss the action in the first
court "so that it could file it in a court with jurisdiction of the subject matter or parties."'
More germane to the issue at hand, in my view, this Court confused improper
venue and forum non conveniens and reached an incorrect result in Seymour Charter
Buslines, Inc. v. Hopper .8 In that case, this Court faced the question of whether the
Court of Appeals had properly denied a writ of prohibition filed in response to a trial
court's granting transfer of a case for which the trial court was not a proper venue when
the case was originally filed. This Court determined that KRS 452.105 mandated that
the case. be transferred to the court with proper venue . In doing so, it stated :
Obviously[,] this statute, which was effective July 14, 2000, was enacted following the decision of this [C]ourt in [Beaven v. McAnulty, 980 S.W.2d 284 (Ky. 1998)] . That case held that the doctrine of [forum non conveniens] only empowers a trial judge to dismiss or stay an action before him . Moreover, absent a statute, there was no inherent authority
See id. at 855 (describing how defendant had filed a motion to dismiss based on improper venue, followed by the plaintiff's motion to dismiss without prejudice for lack of subject- matter jurisdiction, and the trial court granted the plaintiff's motion to dismiss without prejudice due to lack of subject matter jurisdiction apparently without expressly ruling on the motion to dismiss for improper venue). /d. at 856. /d. (emphasis added.) 111 S.W.3d 387 (Ky. 2003). for a judge in one circuit to move a case to a judge of another court. McAngI , supra .
KRS 452.105 now provides that authority. Under these circumstances, the mandatory language of the statute required the circuit judge to transfer this case.9
But the dissent in Hopper correctly points out that KRS 452.105 provides for
transfer of cases initially brought in improper venues and does not address the
Beaven v. McAnulty situation of whether a case can be transferred when it is initially
brought in a proper venue, yet the trial court determines that it should not hear the case
under the doctrine of forum non conveniens :
Although the majority opinion posits that the purpose of the statute was to abrogate our decision in [Beaven v. McAnuliy, 980 S .W .2d 284 (Ky. 1998)], Beaven was a case in which the trial judge transferred an action that had been brought in a proper venue to another venue on grounds of [forum non conveniens] . Id. at 285 . Beaven held that a finding of [forum non conveniens] is grounds for dismissal, not transfer. Id. at 288 . Thus, KRS 452.105, which addresses a situation where an action is brought in the wrong venue, has no effect on our holding in Beaven .' °
The dissent also holds, correctly in my view, that because venue was waived by lack of
timely objection," the trial court where the case was originally filed became a proper
venue to hear the case; and, thus, a writ of prohibition should have been issued to
prevent the trial court from transferring the case since it was not an improper venue to
hear it. 12
Ho er, 111 S.W.3d at 389. Id. at 391 (Cooper, J., dissenting) . Venue may be established by waiver. CR 12.08 (1). This Court again confused improper venue and forum non conveniens in
Fritsch v. Caudill13 in which we failed to mention forum non conveniens in citing
Beaven v. McAnulty in our discussion of the availability of transfer for cases brought in
improper venues:
KRS 452 .105 became effective on July 14, 2000, and followed this [C]ourt's decision in Beaven v. McAnulty, where we held that a trial judge who sought to transfer venue was without such authority; that dismissal or stay was the only remedy. It is reasonable to conclude that statute was enacted to prevent mandatory dismissal for improper venue and to allow trial courts discretion to transfer cases where circumstances warrant. 14
Ultimately, however, this Court reached the proper result in denying extraordinary relief
in Fritsch , stating that transfer was mandatory under KRS 452.105 only where the trial
court found that it lacked venue to try a case and "[a]s the trial court here held
otherwise, the mandatory transfer provision of the statute did not become applicable . 05
Unlike the majority, I find no reason to assume that the legislature meant forum
non conveniens when it used the legal terms of "improper venue" in KRS 452.105 and
"no jurisdiction" in KRS 413.270 . In fact, the doctrine of forum non conveniens allows a
court to decline to hear a case despite having proper jurisdiction and being a proper
venue where another court also having proper jurisdiction and being a proper venue
would be a more convenient forum to hear the case. I would construe the savings
statute at issue here (KRS 413 .270), as well as the closely related transfer statute
146 S.W.3d 926 (Ky. 2004) . /d. at 929 (footnote omitted).
"The doctrine of forum non conveniens recognizes that there are certain instances in which a court properly vested with jurisdiction and venue may, nonetheless, dismiss an action if it determines that it is more convenient for the litigants and witnesses that the action be tried in a different forum." Beaven , 980 S.W.2d at 285. (KRS 452.105), according to the legal meanings of the terms used in the statutes; and I
would overrule ambiguous authority to the contrary .
The majority opinion freely mixes legal concepts by equating jurisdiction with
venue and improper venue with forum non conveniens . The result contravenes the
legislature's directive in KRS 446.080(4) that legal terms in statutes be construed by
their "peculiar and appropriate meaning in the law[ .]" And in so doing, the majority
effectively usurps the legislature's role by expanding the class of cases that may be
saved from dismissal .
Some might argue that expanding the grace granted by the saving statute is
good because more cases get "saved" from dismissal on statute of limitation grounds .
But I would contend that if the legislature wants to broaden the protection of
KRS 413 .270 to cases initially filed within the statute of limitations in a court that
ultimately declined to hear the case because it was an inconvenient forum, then the
legislature can amend the statute or provide for it. Since it is not our role to amend
statutes, I cannot join in the majority opinion.