SEYMOUR CHARTER BUSLINES, INC . V. HONORABLE LEWIS B . HOPPER, JUDGE, LAUREL CIRCUIT COURT ; HONORABLE JERRY WINCHESTER, JUDGE, WHITLEY CIRCUIT COURT ; AND JUANITA MERRILL
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2002-SC-0928-MR
SEYMOUR CHARTER BUSLINES, INC .
APPELLANT
APPEAL FROM COURT OF APPEALS
2002-CA-1883-OA
LAUREL CIRCUIT COURT NO . 2000-CI-545
V.
HONORABLE LEWIS B . HOPPER,
JUDGE, LAUREL CIRCUIT COURT;
HONORABLE JERRY WINCHESTER,
JUDGE, WHITLEY CIRCUIT COURT;
AND
APPELLEES
REAL PARTY IN INTEREST
JUANITA MERRILL
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
AFFIRMING
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 estopped 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.
COUNSEL FOR APPELLANT :
William A . Watson
North 20th Street, Suite 230
United States Post Office Building
P.O. Box 1340
Middlesboro, KY 40965
COUNSEL FOR APPELLEES :
Howard Oliver Mann
Sandra Joyce Reeves
Law Offices of Howard O . Mann, P.S.C.
P.O. Box 1344
Corbin, KY 40702
RENDERED : APRIL 24, 2003
TO BE PUBLISHED
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2002-SC-0928-MR
SEYMOUR CHARTER BUSLINES, INC.
APPELLANT
APPEAL FROM COURT OF APPEALS
2002-CA-1883-OA
LAUREL CIRCUIT COURT NO. 2000-CI-545
V.
HONORABLE LEWIS B. HOPPER,
JUDGE, LAUREL CIRCUIT COURT;
HONORABLE JERRY WINCHESTER,
JUDGE, WHITLEY CIRCUIT COURT;
APPELLEES
AND
JUANITA MERRILL
REAL PARTY IN INTEREST
DISSENTING OPINION BY JUSTICE COOPER
Appellee Juanita Merrill, an Ohio resident and the real party in interest in this
appeal, was injured in Whitley County, Kentucky, while attempting to enter a bus owned
by Appellant Seymour Charter Buslines, Inc . Seymour is a Tennessee corporation with
no corporate offices in Kentucky. On June 23, 2000, Merrill filed a civil action for
damages against Seymour in the Laurel Circuit Court . On July 11, 2000, Seymour filed
an answer in which it did not object to venue . On July 25, 2000, Merrill served
interrogatories and requests for production of documents on Seymour. Seymour took
discovery depositions on September 8, 2000, and December 17, 2001 . Merrill took a
discovery deposition on July 16, 2002 . Thereafter, on August 8, 2002, pursuant to a
motion filed by Merrill to which Seymour objected, the trial judge entered an order
transferring venue from the Laurel Circuit Court to the Whitley Circuit Court . Seymour
then filed a petition in the Court of Appeals for a writ of prohibition to prohibit
enforcement of that order. The Court of Appeals denied the petition and this appeal
ensued.
Generally, a motion to dismiss or transfer for lack of venue may not be made by
the plaintiff who selected the forum . "The plaintiff, by bringing the suit in a district other
than that authorized by the statute, relinquished his right to object to the venue."
Olberdina v. Illinois Centr. R. Co. . Inc . , 346 U.S . 338, 340, 74 S .Ct. 83, 85, 98 L.Ed. 39
(1953) . See also Manley v. Enaram , 755 F .2d 1463, 1468 (11th Cir. 1985) (noting
general rule that plaintiff waives objection to venue by selecting forum with filing of suit).
"Venue is a personal privilege of the defendant." 15 Charles Alan Wright, Arthur R.
Miller, & Edward H . Cooper, Federal Practice & Procedure : § 3826, at 73 (2002
Supplement) (emphasis added).
In most instances, the purpose of statutorily specified venue is to protect
the defendant against the risk that a plaintiff will select an unfair or
inconvenient place of trial . For that reason, Congress has generally not
made the residence of the plaintiff a basis for venue in nondiversity cases .
. . . So long as the plain language of the statute does not open the severe
type of "venue gap" that the amendment giving plaintiffs the right to
proceed in the district where the claim arose was designed to close, there
is no reason to read it more broadly on behalf of plaintiff.
Leroy v . Great Western United Corp. , 443 U .S. 173, 184, 99 S .Ct . 2710, 2716-17, 61
L .Ed .2d 464 (1979) (emphasis in original) . Thus, by selecting the forum in the first
place, and being assured of the opportunity to litigate in the forum where the claim
arose, plaintiffs enjoy all the protection they need . Allowing a plaintiff to select one
venue and then to change its mind mid-proceeding would encourage forum shopping of
the worst kind . (If Judge Hopper had made certain rulings against Merrill, could she
have then moved to transfer the case in order to obtain a "more friendly" judge?)
The Kentucky Rules of Civil Procedure reflect this fundamental principle of law.
An objection as to venue must be made according to CR 12 .02(c), which clearly labels
a venue objection as a "defense ." So, too, does CR 12 .08(1), which provides that such
"defenses" are waived if not made in a responsive pleading or by Rule 12 motion .
Although KRS 452 .010(2) provides that a change of venue may be had because of the
"odium" attending a party's "cause of action," that refers to a counterclaim or crossclaim pursuant to CR 13. The sole exception occurs when the plaintiff has been duped
into selecting the initial forum by some deception or omission of the defendant . See
Manley , supra, at 1468-69 (permitting plaintiff to object to venue when defendant
concealed its actual residence and plaintiff could not in "due diligence" have discovered
true residence; "[o]nly in Wonderland could it be said that a plaintiff in this situation
'knowingly' waives her objections to venue merely by'filing suit where the defendant
appears to reside ."). Kentucky's "saving" statute, KRS 413.270, applies to extend the
limitations period in that circumstance. See D & J Leasing, Inc. v. Hercules Galion
Prods. . Inc. , Ky., 429 S .W .2d 854, 856 (1968). Nevertheless, no deception or omission
of Seymour induced the choice of forum here, "and the plaintiff as master of [her] case
is stuck with [her] choice." Nat'l Adver. Co. v. City of Rolling Meadows, 789 F .2d 571,
574 (7th Cir. 1986) .
The majority opinion also errs in its analysis of KRS 452 .105, viz:
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 jurisdiction.
(Emphasis added.) This statute was enacted by the 2000 General Assembly. 2000 Ky.
Acts, ch . 420, § 1 . Although the majority opinion posits that the purpose of the statute
was to abrogate our decision in Beaven v. McAnultv, Ky., 980 S.W.2d 284 (1998),
Beaven was a case in which the trial judge transferred an action that had been brought
in a
rp oper 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.
I agree, however, that prior to the enactment of KRS 452 .105, actions brought in
the wrong venue could not be transferred but could only be dismissed on timely motion
of the defendant . Latta v. Sandifer , 13 Ky.L.Rptr. 973 (1892.) (no rule of practice or
statutory provision permits transfer of an action from one county to another) . Typically,
prior to the enactment of KRS 452 .105, motions to transfer occurred in transitory
actions and were made by a plaintiff creditor who had sued a defendant debtor in a
county in which the defendant did not reside . Such motions were made after the
defendant filed a motion to dismiss for lack of venue . Transfer was obviously
preferable to outright dismissal because dismissal meant payment of an additional filing
fee in the circuit court having proper venue .
Of course, it is still the law of this jurisdiction that venue can be established by
waiver. CR 12.08(1) .
The provision . . . that a personal injury action must be brought in
the county in which the defendant resides, or in which the injury was
done, is not an absolute requirement, but is one that must be invoked by
the defendant if he wishes to compel compliance with it. If he does not
invoke it by proper pleading, the question of venue becomes immaterial .
James v. Holt , Ky., 244 S.W .2d 159, 159-60 (1951).
In Licking River Limestone Co . v . Helton , Ky., 413 S .W .2d 61 (1967), it was held
that "julnless the venue was waived , KRS 452.460 fixed Morgan County as the proper
place for an action against both defendants, for that was where the collision occurred ."
Id . at 63 (emphasis added) . Obversely, if venue is waived, it is fixed as the county
where the action was brought.
As noted, here, the issue of improper venue was waived when Merrill brought her
suit in Laurel Circuit Court and Seymour did not timely object .
The issue of lack of venue was first raised as to Kenneth by the
amended answer which was filed after counsel for Company participated
in taking depositions, answering interrogatories and moving for summary
judgment. This was too late and appellant does not contend as to the
claim of Kenneth that venue was not waived .
Id . at 63 . Having become, by waiver, the proper venue, the Laurel Circuit Court did not
"lack[] venue to try the case due to an improper venue" and KRS 452 .105 did not apply.
"[B]ecause the trial court acted beyond its jurisdiction when it transferred the
instant case on [improper venue] grounds, the writ is an appropriate remedy." Beaven,
supra , at 285. Accordingly, I dissent and would order that the writ be issued .
Graves and Keller, JJ ., join this dissenting opinion .
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