Dollar General Stores, Ltd. v. Smith

237 S.W.3d 162, 2007 Ky. LEXIS 207, 2007 WL 3224738

• Court: Kentucky Supreme Court
• Decided: November 1, 2007
• Docket: 2005-SC-000867-DG
• Status: Published

Opinions

Opinion of the Court by

Chief Justice LAMBERT.

We have held that the saving provision of KRS 413.270 applies as well to improper venue selection as to jurisdictional error.¹ 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 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. McAnulty,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.³

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 conve-niens. 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 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 P. & 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 concept of place as well as the concept of power.⁶ Accordingly, we reaffirm the views expressed in D. & J. Leasing and Shircliff⁷

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.,8 reviewed forum non con-veniens 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 plaintiffs convenience, or the chosen forum was inappropriate because of considerations affecting the Court’s own administrative and legal problems.⁹ It observed that a defendant invoking forwm non conveniens bears a heavy burden in opposing the plaintiffs 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.”¹⁰ 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.”¹¹ From the foregoing, the Supreme Court clearly views forum non con-veniens 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, ¹³ 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 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.¹⁵ 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 subdivision of venue requiring the exercise of trial court discretion.¹⁷ Surely it must follow that a dismissal on grounds of forum non conve-niens 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 conve-niens.

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,¹⁸ 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.

1 . D & J Leasing, Inc. v. Hercules Galion Products, Inc., 429 S.W.2d 854 (Ky.1968). See also Shircliff v. Elliott, 384 F.2d 947 (6th Cir.1967).

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.

4 . 429 S.W.2d 854.

5 . 384 F.2d 947.

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.

7 . 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).

9 . 127 S.Ct. at 1190.

10 . 127 S.Ct. at 1190, quoting American Dredging Co. v. Miller, 510 U.S. 443, 453, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994).

11 . 127 S.Ct. at 1190-91.

12 . See Carter v. Netherton, 302 S.W.2d 382 (Ky.1957) (involving continuing jurisdiction of a child custody and support case); Evans v. Com., 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 conve-niens ).

13 . 980 S.W.2d 284.

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. McAnulty. It viewed KRS 452.105 as applicable only where the court lacks venue, but inapplicable where the court finds forum non conveniens.

17 . 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.