Seymour Charter Buslines, Inc. v. Hopper

111 S.W.3d 387, 2003 Ky. LEXIS 79, 2003 WL 1937172

• Court: Kentucky Supreme Court
• Decided: April 24, 2003
• Docket: 2002-SC-0928-MR
• Status: Published

Opinions

Opinion of the Court by Justice

WINTERSHEIMER.

This appeal is from an order of the Court of Appeals denying a petition by Seymour Charter Buslines, Inc. for a writ of prohibition which sought to prohibit transfer of a personal injury action from Laurel County where the claim was filed to Whitley County where the injury occurred.

On June 26, 1999, Merrill suffered a broken leg while boarding a bus owned and operated by Seymour. At that time, Merrill was a citizen and resident of the state of Ohio and Seymour was a common carrier incorporated in Tennessee and operating in Kentucky. It is undisputed by the parties that the accident occurred in Whitley County. However, on June 23, 2000, counsel for Merrill mistakenly filed suit in neighboring Laurel County. In its answer to the complaint, Seymour completely denied the claim and made no objection to venue.

Almost two years later, on May 28, 2002, counsel for Merrill filed a motion in Laurel Circuit Court seeking to transfer the case to Whitley County. Pursuant to KRS 452.105, the circuit judge granted the motion to transfer over the objection of Seymour. The order granting transfer was entered on August 6, 2002 and Seymour filed a writ of prohibition in the Court of Appeals on September 11, 2002. That Court denied the same, stating that the circuit court had not acted outside its jurisdiction and that Seymour failed to show irreparable harm or that it has no adequate remedy by appeal. This appeal followed.

Seymour argues that KRS 452.105 authorizes a circuit judge to transfer venue to another county only if venue in his county is improper. It contends that Merrill chose the Laurel Circuit Court as the venue for her action, and because it did not object, the issue of venue was waived. Seymour maintains that venue was proper in Laurel County and that Merrill is es-topped to change venue under these circumstances.

Merrill responds that the petition for a writ of prohibition was not proper because Seymour did not file it timely. She also argues that Seymour did not meet the requirements necessary for the grant of a writ of prohibition. Merrill asserts that transfer of venue is not prohibited by the failure of Seymour to object to improper venue. She maintains that venue in Laurel County was improper as the action was not transitory. Merrill also claims that Seymour is estopped from objecting to the transfer of venue.

After careful consideration of the arguments by both parties, we must conclude that the Court of Appeals properly denied the writ of prohibition. Such a remedy is extraordinary, one which should be used only under the most exceptional circumstances. Shobe v. EPI Corp., Ky., 815 S.W.2d 395 (1991). It will be granted only upon a showing that: 1) the lower court is proceeding or is about to proceed outside its jurisdiction and there is no adequate remedy by appeal, or 2) the lower court is about to act incorrectly, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury would result. Kentucky Labor Cabinet v. Graham, Ky., 43 S.W.3d 247 (2001).

Here, it is undisputed that the injury occurred in Whitley County. That county was the proper venue for this action. See KRS 452.455, which provides that in these situations the action must be brought in the county in which the plaintiff was injured. The underlying action was improperly filed in Laurel County and upon a motion by Merrill, the circuit judge correctly transferred the case to Whitley County. See KRS .452.105, which states as follows:

In civil actions, when the judge of the court in which the case was filed determines that the court lacks venue to try the case due to an improper venue, the judge, upon motion of a party, shall transfer the case to the court with the proper venue.

Obviously this statute, which was effective July 14, 2000, was enacted following the decision of this Court in Beaven v. McAnulty, Ky., 980 S.W.2d 284 (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 for a judge in one circuit to move a case to a judge of another court. McAnulty, 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. The argument by Seymour to the contrary is without merit.

The claim by Seymour that the transfer was improper because it did not object to the original venue is also lacking in merit. The cases it cites were decided before the enactment of KRS 452.105. There is nothing in the language of the statute that limits transfer to instances where waiver is not at issue. The mistake by counsel for Merrill of filing this claim in the wrong county does not negate the application of the statute. The assertion by Seymour that Merrill should be estopped from transferring this case is equally without merit.

Finally, Seymour contends that because there was diversity of citizenship between Merrill and itself, it could have removed this case to federal district court. It claims that it chose not to do so because the Laurel Circuit Court is well known among trial lawyers in Southeastern Kentucky as a conservative jury venue for the trial of personal injury actions. Now that the case has been transferred, it asserts that it has lost the opportunity to remove this case to federal court. See 28 U.S.C. 1446(b).

We must observe that Seymour did not present this issue to the circuit judge in its response to the motion to transfer. In any event, we find the claim concerning the juries to be entirely speculative and not supported by any evidence. Further, this claim does not rise to the level of a great injustice which is necessary for the issuance of a writ. The Court of Appeals properly denied the writ of prohibition.

The decision of the Court of Appeals is affirmed.

LAMBERT, C.J., JOHNSTONE and STUMBO, JJ., concur. COOPER, J. dissents by separate opinion and is joined by GRAVES and KELLER, JJ.