MABEL ROSE SMITH v. DOLLAR GENERAL STORES, LTD.
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RENDERED:
OCTOBER 7, 2005; 2:00 P.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002632-MR
MABEL ROSE SMITH
APPELLANT
APPEAL FROM CASEY CIRCUIT COURT
HONORABLE JAMES G. WEDDLE, JUDGE
ACTION NO. 03-CI-00148
v.
DOLLAR GENERAL STORES, LTD.
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI AND TAYLOR, JUDGES; HUDDLESTON, SENIOR JUDGE. 1
TAYLOR, JUDGE:
Mabel Rose Smith brings this appeal from a
November 10, 2003, order of the Casey Circuit Court dismissing
her negligence claim against Dollar General Stores, Ltd., based
upon expiration of the one-year statute of limitations contained
in Kentucky Revised Statutes (KRS) 413.140.
We reverse and
remand.
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
On April 28, 2002, appellant allegedly slipped and
fell at appellee’s store in Casey County, Kentucky.
She
suffered substantial injuries as a result of the fall.
Consequently, on April 28, 2003, appellant filed a complaint in
the Jefferson Circuit Court against appellee alleging
negligence.
Appellee moved to dismiss the action or transfer it
to Casey County based upon improper venue and/or forum non
conveniens.
Eventually, the Jefferson Circuit Court dismissed
the action based upon forum non conveniens on August 5, 2003.
Fifteen days later, on August 20, 2003, appellant
filed a complaint against appellee in the Casey Circuit Court.
Appellee then filed a motion to dismiss the Casey County action
based upon the one-year statute of limitations applicable to a
personal injury action.
KRS 413.140.
Appellant responded that
the action was saved by application of KRS 413.270(1).
By order
entered November 10, 2003, the Casey Circuit Court dismissed
appellant’s action as time-barred by KRS 413.140, thus
precipitating this appeal.
Appellant argues the circuit court committed error by
dismissing the action as time-barred by the one-year statute of
limitations found in KRS 413.140.
Specifically, appellant
contends that the action was timely filed based upon application
of KRS 413.270(1), which states, as follows:
-2-
If an action is commenced in due time and in
good faith in any court of this state and
the defendants or any of them make defense,
and it is adjudged that the court has no
jurisdiction of the action, the plaintiff or
his representative may, within ninety (90)
days from the time of that judgment,
commence a new action in the proper court.
The time between the commencement of the
first and last action shall not be counted
in applying any statute of limitation.
(Emphasis added.)
Even though KRS 413.270(1) only utilizes the term
“jurisdiction,” appellant maintains that KRS 413.270(1) is
equally applicable to actions dismissed upon forum non
conveniens. 2
Appellee argues to the contrary.
Appellee believes
by its very terms KRS 413.270(1) has no application to an action
dismissed upon forum non conveniens and that the statute is only
applicable to an action dismissed for lack of jurisdiction.
In determining whether KRS 413.270(1) applies to a
dismissal upon forum non conveniens, we are guided by the
Supreme Court’s decision in D & J Leasing, Inc. v. Hercules
Galion Products, Inc., 429 S.W.2d 854 (Ky. 1968).
In that case,
the Supreme Court framed the precise legal issue before it as
“whether the appellant, which filed its original action in the
wrong venue where the statute of limitations ran against it, is
entitled to the benefit of the ninety day saving-period afforded
2
The doctrine of forum non conveniens empowers a court, vested with
jurisdiction and venue, to dismiss an action if a more convenient venue
exists. Beaven v. McAnulty, 980 S.W.2d 284 (Ky. 1998) superseded by statute
as recognized in Seymour Charter Buslines, Inc. v. Hopper, 111 S.W.3d 387
(Ky. 2003).
-3-
by KRS 413.270 or the six months saving-period of KRS 355.2-725
. . . .”
Id. at 855.
In determining that the action was saved,
the Court observed that “[t]he intention of . . . [KRS 413.270]
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.”
Id. at 856.
In D & J, the
Supreme Court clearly held that KRS 413.270 was applicable to a
dismissal based upon improper venue.
Having concluded that KRS 413.270(1) applies to a
dismissal upon improper venue, we now turn to appellee’s
alternative argument that a dismissal upon forum non conveniens
is separate and distinct from a dismissal for improper venue;
therefore, KRS 413.270(1) should be narrowly interpreted as
applying to only a dismissal for improper venue and not to a
dismissal based upon forum non conveniens.
As to the proper application of KRS 413.270(1), we
view any distinction between a dismissal upon improper venue and
a dismissal upon forum non conveniens to be merely illusory.
We
arrive at this conclusion by reliance upon Seymour Charter
Buslines, Inc. v. Hopper, 111 S.W.3d 387 (Ky. 2003).
In that
case, the Supreme Court commented that the term “improper
venue,” as utilized in KRS 452.105, encompassed a dismissal upon
forum non conveniens.
KRS 452.105 reads, in part, as follows:
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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.
Indeed, the Court recognized that its decision in Beaven v.
McAnulty, 980 S.W.2d 284 (Ky. 1998)(holding that the circuit
court had no authority to transfer an action dismissed upon
forum non conveniens) was abrogated by enactment of KRS 452.105.
Accordingly, we hold that KRS 413.270(1) is applicable
to a dismissal based upon forum non conveniens and conclude that
KRS 413.270(1) applies to the instant action. 3
Thus, the circuit
court erred by dismissing the instant action as time-barred by
KRS 413.140.
For the foregoing reasons, the order of the Casey
Circuit Court is reversed and this cause remanded for
proceedings not inconsistent with this Opinion.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Jonathon N. Amlung
Louisville, Kentucky
Kevin G. Henry
STURGILL, TURNER, BARKER &
MOLONEY, PLLC
Lexington, Kentucky
3
We note that for a litigant to receive the benefit of the saving provision
found in KRS 413.270(1), the original action must have been filed in good
faith. In this case, appellee’s counsel acknowledged during oral argument
that there was no dispute regarding appellant’s good faith in filing the
action in Jefferson Circuit Court; thus, we believe the good-faith
requirement of the statute has been satisfied.
-5-
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