JOHN J. SIEGEL, JR., ET AL. V. HONORABLE AUDRA ECKERLE JUDGE, JEFFERSON CIRCUIT COURT, DIVISION SEVEN, ET AL.Annotate this Case
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
'THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE ; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED AI~ONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
RENDERED : MARCH 24, 2011
NOT TO BE PUBLISHED
,6ixyrQmP C~Vurf of
JOHN J . SIEGEL, JR.,
RICKMEIER ADVISORS, INC .
ON APPEAL FROM COURT OF APPEALS
CASE NO . 2009-CA-001935-OA
JEFFERSON CIRCUIT COURT NO . 07-CI-004282
HONORABLE AUDRA ECKERLE
JUDGE, JEFFERSON CIRCUIT COURT
SAMUEL S . FRANCIS
REAL PARTY IN INTEREST
MEMORANDUM OPINION OF THE COURT
Appellants John Siegel, Jr., Steven Rickmeier, and Rickmeier Advisors,
Inc . (RAI), defendants in a breach of contract action brought against them by
Samuel S . Francis, the real party in interest, appeal from an Order of the Court
of Appeals denying their petition for a writ prohibiting Judge Audra Eckerle of
the Jefferson Circuit Court from transferring venue in Francis's suit to the
Boyd Circuit Court. The Court of Appeals ruled that .the Appellants are not
entitled to extraordinary relief under CR 81 because the order transferring
venue is within Judge Eckerle's authority and because the propriety of the
transfer may be reviewed by appeal in the ordinary course of litigation . We
agree and so affirm.
The parties' underlying dispute involves a financing agreement between
Bowie Resources, LLC, a Kentucky limited liability company headquartered in
Ashland Kentucky, and General Electric Capital Corporation . Bowie sought
financing to support its mining operations, and in 2006 the Appellants helped
design and broker the deal with GE Capital . In exchange for those services,
Bowie entered a Consulting Agreement with the Appellants whereby it agreed to
pay them mining royalties and other forms of compensation . In May 2007,
Francis, a resident of Nevada, brought suit against the Appellants in Jefferson
County, where Siegel is a resident,' alleging that he, Francis, participated in
arranging Bowie's financing and that, pursuant to an agreement he had
entered into with the Appellants, he was entitled to a share of the consultants'
When Francis learned that the compensation included future payments,
he notified Bowie of his claim and threatened suit if Bowie did not honor it . At
that point, Bowie filed a "Complaint for Interpleader and Declaratory Relief' in
the Boyd Circuit Court naming Francis and the Appellants as defendants.
Bowie sought to have Francis and the Appellants restrained from taking action
against it and sought a determination of Bowie's obligations to them. RAI then
filed a counterclaim in the Jefferson County action, in which it alleged that
1 Rickmeier is a resident of Illinois, where RAI is incorporated and headquartered .
Francis's demand upon Bowie had induced the company to breach its
Consulting Agreement with the Appellants . Meanwhile, Francis answered
Bowie's complaint and filed cross and counterclaims in Boyd Circuit Court.
There then ensued competing motions to transfer. Appellants (with no
objection from Bowie) moved the Boyd Circuit Court to transfer Bowie's action
to Jefferson County . The Boyd Circuit Court overruled the motion by summary
order entered May 29, 2008 . That court also denied Bowie's motion for
voluntary dismissal approximately four months later. Francis, meanwhile,
moved the Jefferson Circuit Court to transfer his action to Boyd County.
Noting the risk of inconsistent judgments if the actions remained separate as
well as the advantage of Bowie's participation in the Boyd County action, the
Jefferson Circuit Court ruled that "[w)hether under the law of venue or its
subcategory of forum non conveniens, this case should and will be transferred
to Boyd County Circuit Court ."
Appellants thereupon petitioned the Court of Appeals for a writ
prohibiting the transfer . They argued before the Court of Appeals, as they
argue now before us, that venue is not proper in Boyd County, and that even if
it were, the transfer would still amount to an abuse of the trial court's
discretion because venue is also proper in Jefferson County and no showing
has been made which would justify a forum non conveniens' finding in favor of
Boyd County. Appellants also argue that Francis waived any objection to the
Jefferson County venue by bringing his suit there .
Allegations of error alone, of course, do not justify extraordinary relief
under CR 81 . On the contrary, a writ for extraordinary relief may be granted
upon a showing (1) that the lower court is proceeding
or is about to proceed outside its jurisdiction and there
is no remedy through an application to an
intermediate court; or (2) that the lower court is acting
or is about to act erroneously, although within its
jurisdiction, and there exists no adequate remedy by
appeal or otherwise and great injustice and irreparable
injury will result if the petition is not granted.
Cline v. Weddle, 250 S .W.3d 330, 334 (Ky. 2008) (quoting from Hoskins v.
Maricle, 150 S .W.3d l, 10 (Ky. 2004)) . Noting succinctly that in its view Judge
Eckerle has the authority to order the transfer and that appeal provides an
adequate remedy for an erroneous venue determination, the Court of Appeals
denied relief. We agree .
I. The Trial Court Has Authority To Order Transfer.
The Appellants challenge this result, first, by contending that Judge
Eckerle acted outside the authority to transfer cases created by KRS 452 .105
when she ordered a suit transferred from a proper venue to an improper one .
That statute provides 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.
The Appellants insist that the statute does not authorize transfers to .an
improper venue-, and in a very limited sense that may be true. Presumably a
trial court, having determined that County X was not a proper venue for a suit,
could not then turn around and transfer that suit to County X. But that is not
what has happened . The statute plainly does authorize the trial court to
exercise its discretion in determining where venue is proper, and here both
circuit courts have determined that Boyd County is a proper venue . In Fritsch
v. Caudill, 146 S .W.3d 926 (Ky. 2004), we made clear that that determination,
even if erroneous, is not a basis for extraordinary relief. KRS 452 . 105, we
explained, requires a judge who, upon motion, determines that venue has been
improperly invoked to transfer the case to an appropriate venue, but it does not
create a right to what would amount to interlocutory review of the judge's
venue determinations . Those remain subject to appellate review .
The Appellants also contend that KRS 452 .105 does not authorize
transfers away from a proper venue but only from an improper one . Since the
parties apparently agree that Jefferson County is a proper venue, transfer away
from. that county, the Appellants insist, is outside the trial court's authority.
Again, however, the fact that the statute requires transfer in certain situations
does not imply that those are the only situations in which transfer is allowed.
On the contrary, in Dollar General Stores, Ltd. v. Smith, 237 S .W.3d 162 (Ky.
2007), we ruled that KRS 452 .105, adopted in 2000, in effect superseded
Beaven v. McAnulty, 980 S .W.2d 284 (Ky. 1998) wherein this Court held a trial
court had no authority to transfer a case to another circuit on forum non
conveniens grounds. Now, under the doctrine of forum non conveniens, even if
the trial court's jurisdiction and venue have been properly invoked, the court
may decline to exercise its jurisdiction and may transfer the suit to another
appropriate venue upon a determination 'that the convenience of parties or
courts or the interests of justice so requires . Dollar General Stores, 237 S .W.3d
at 164-67 . Thus, even if Jefferson County is a proper venue for Francis's suit,
the trial court was within its authority in determining that Boyd County is a
more appropriate venue. The Appellants complain that this case does not
justify a forum non conveniens transfer, that the trial court did not make
sufficient forum non conveniens findings, and that having brought suit in
Jefferson County Francis is precluded from invoking forum non conveniens, but
those complaints go not to the trial court's authority to act but to the
correctness of its action. We agree with the Court of Appeals, in sum, that the
transfer to Boyd County is within the trial court's authority .
11 . The Appellants Have An Adequate Remedy By Appeal.
Where the trial court is proceeding within its jurisdiction, as noted
above, CR 81 relief is available only upon. a showing that the court is acting or
is about to act erroneously, "and there exists no adequate remedy by appeal or
otherwise and great injustice and irreparable injury will result if the petition is
not granted ." Cline, 250 S .W.3d at 334 . In those circumstances, "a showing of
no adequate remedy by appeal is `an absolute prerequisite' to obtaining a writ
for extraordinary relief." Id., at 335 (quoting from Independent Order of
Foresters v. Chauvin, 175 S .W.3d 610, 615 (Ky. 2005)) . This Court has held on
several occasions that appellate review is an adequate remedy for an erroneous
venue determination . Fritsch v. Caudill, 146 S .W.3d at 930 ; Pettit v. Raikes,
858 S.W.2d 171 (Ky. 1993) ; Skidmore v. Meade, 676 S .W.2d 793 (Ky. 1984) . As
we noted in Fritsch :
If appellants are correct that the Floyd Circuit Court is
an improper venue for appellee's civil action, in due
course, the trial court or an appellate court will so
recognize and relief in the nature of dismissal for
improper venue will be granted . As to great and
irreparable injury, we see none . Inconvenience,
expense, annoyance, and other undesirable aspects of
litigation may be present, but great and irreparable
injury is not.
146 S .W.3d at 930 . Appellants have not persuaded us to depart from that
precedent. If Boyd County is not a proper venue for this suit, the Appellants'
remedy is by appeal.
In sum, we agree with the Court of Appeals that Judge Eckerle has the
authority to transfer Francis's suit to a more appropriate venue and that the
propriety of the transfer may be addressed in the ordinary course of appeal .
Accordingly, we affirm the Order of the Court of Appeals denying the petition
for CR 81 relief.
All sitting. All concur.
COUNSEL FOR APPELLANTS:
Donald L. Cox
David William Hemminger
Lynch, Cox, Gilman 8v Goodman, PSC
500 W. Jefferson Street, Suite 2100
Louisville, KY 40202-2812
Honorable Audra Eckerle
Judge, Jefferson Circuit Court
Jefferson County Judicial Center
700 West Jefferson Street
Louisville, KY 40202
COUNSEL FOR REAL PARTIES
Mason L. Miller
Seth Jared Johnston
Miller 8s Wells PLLC
300 E . Main Street, Suite 360
Lexington, KY 40507