SHEPHERD v. KAWASAKI USA

SHEPHERD v. KAWASAKI USA
2010 OK CIV APP 60
Case Number: 107824
Decided: 05/10/2010
Mandate Issued: 06/04/2010
DIVISION II
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION II

KEN SHEPHERD, Plaintiff/Appellant,
v.
KAWASAKI USA, Defendant/Appellee.

APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, OKLAHOMA

HONORABLE MARY F. FITZGERALD, TRIAL JUDGE

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS

Gerald J. Lovoi, Tulsa, Oklahoma, for Plaintiff/Appellant
Stacey S. Chubbuck, Gary M. Chubbuck, FENTON FENTON SMITH RENEAU & MOON, Oklahoma City, Oklahoma, for Defendant/Appellee

DEBORAH B. BARNES, JUDGE:

¶1 Ken Shepherd (Shepherd) appeals1 from the trial court's judgment, filed on January 8, 2010,2 dismissing his lawsuit against Kawasaki USA (Kawasaki)3 on the grounds of forum non conveniens. Shepherd had purchased a Kawasaki motorcycle in 2007 in Katy, Texas. After several failed repair attempts in Texas and Mexico, Shepherd, a resident of Tulsa, Oklahoma, sued Kawasaki in Tulsa County, Oklahoma, for breach of warranty. Kawasaki filed its answer and then, nearly five months later, filed its motion to dismiss the lawsuit, asserting forum non conveniens. Finding the trial court improperly dismissed this case, we reverse and remand for further proceedings.

UNDISPUTED MATERIAL FACTS

¶2 The record on appeal reveals the following undisputed facts:4

1. Shepherd resides in Tulsa, Oklahoma.

2. Kawasaki is a United States corporation whose principal place of business is in Irvine, California.

3. On September 28, 2007, Shepherd purchased a new 2008 Kawasaki motorcycle with a warranty from Wild West Honda Kawasaki in Katy, Texas.

4. The bill of sale reflects Shepherd's address as "PO Box 244, Tulsa, Oklahoma 74101."

5. On October 17, 2007, November 3, 2007, and February 6, 2008, Shepherd took the motorcycle to Motocicletas y Equipos, S.A. de C.V. in Monterey, Mexico for repair.

6. On February 28, 2008, Shepherd took his motorcycle to Team Mancuso PowerSports in Houston, Texas for repair.

7. Shepherd contacted Kawasaki on or about January 26, 2009, demanding either restitution or replacement of the motorcycle,

8. Shepherd filed his Petition on March 6, 2009.

9. Kawasaki filed its Answer on April 22, 2009. The Answer included affirmative defenses. None were asserted as to venue.

10. On September 16, 2009,

11. On September 30, 2009, Shepherd filed his response to the Motion to Dismiss and attached an affidavit, stating he had been ill and that his illness restricts his ability to travel.

STANDARD OF REVIEW

¶3 "The dispositive questions in this appeal concerning application of the doctrine of interstate forum non conveniens . . . are questions of law. We review questions of law by a de novo standard, independent of and without deference to the lower court's legal rulings." Conoco, Inc. v. Agrico Chemical Co.,

ANALYSIS

¶4 Forum non conveniens is a common law

¶5 Shepherd asserts that the trial court erred in dismissing this case under the doctrine of forum non conveniens because Kawasaki waived its right to invoke the doctrine. Kawasaki filed its Answer on April 22, 2009. The Answer included affirmative defenses; none, however, were asserted as to venue. Kawasaki's Motion to Dismiss was not filed until September 16, 2009 - nearly five months after it filed its Answer.

¶6 In support of his argument, Shepherd cites

B. HOW PRESENTED. Every defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

. . .

3. Improper venue

. . . .

A motion making any of these defenses shall be made before pleading if a further pleading is permitted.

. . . .

F. WAIVER OR PRESERVATION OF CERTAIN DEFENSES.

1. A defense of . . . improper venue . . . is waived:

. . .

b. if it is not made by motion and it is not included in a responsive pleading . . . .

(Emphasis added.)

¶7 In Halliburton Company v. District Court of Creek County, Drumright Division,

[W]e hold that the language in [Gulf Oil Company v. Woodson,

Halliburton Company v. District Court of Creek County, Drumright Division

¶8 Even if Kawasaki had timely raised the issue of forum non conveniens, the dismissal should be reversed. Recently enacted, title

A. If the court, upon motion by a party or on the court's own motion, finds that, in the interest of justice and for the convenience of the parties, an action would be more properly heard in another forum either in this state or outside this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay, transfer or dismiss the action.

B. In determining whether to grant a motion to stay, transfer or dismiss an action pursuant to this section, the court shall consider:

1. Whether an alternate forum exists in which the action may be tried;
2. Whether the alternate forum provides an adequate remedy;
3. Whether maintenance of the action in the court in which the case is filed would work a substantial injustice to the moving party;
4. Whether the alternate forum can exercise jurisdiction over all the defendants properly joined in the action of the plaintiff;
5. Whether the balance of the private interests of the parties and the public interest of the state predominate in favor of the action being brought in an alternate forum; and
6. Whether the stay, transfer or dismissal would prevent unreasonable duplication or proliferation of litigation.

(Emphasis added.)

¶9 Although the Legislature did not define "private" and "public" interests, the Oklahoma Supreme Court, considering interstate forum non conveniens in Conoco, Inc. v. Agrico Chemical Co., had already defined these terms as follows:

The forum non conveniens criteria consider private and public interests. Gulf Oil Corporation v. Gilbert,

Conoco, Inc. v. Agrico Chemical Co.,

¶10 In Binder v. Shepard's Inc.,

¶11 The Binder Court stated that the "balance in the doctrine of forum non conveniens is not tilted toward a defendant's right to a convenient forum, but toward a plaintiff's right to have its claims heard in the forum of its choice." Binder v. Shepard's Inc., at ¶ 6, 133 P.3d at 278. "While a plaintiff may not use its choice of forum to 'vex or harass a defendant,' we disturb its choice only in 'exceptional cases.'" Id. (Citation omitted.) "Further, the defendant bears the burden of establishing the existence of a viable alternate forum." Id. at ¶ 10, 133 P.3d at 280. (Citation omitted.)

¶12 Reversing and remanding the case for further proceedings, the Binder Court stated that it was error to dismiss the plaintiffs' case without ensuring that an alternative forum was actually available. The Court instructed the trial court to either deny the "motion to dismiss or condition its dismissal to guarantee that an alternate forum is available." Id. at ¶ 14. (Emphasis added.) See also Framel v. State Farm Mutual Automobile Insurance Co.,

CONCLUSION

¶13 Based on the review of the record before us and the applicable law, we find Kawasaki failed to timely raise forum non conveniens and thus waived its right to assert the doctrine. Because of this waiver, we find the Binder case's conditional dismissal alternative is not available to Kawasaki. The trial court erred by granting Kawasaki's motion to dismiss and dismissing Shepherd's lawsuit. The order granting the motion to dismiss should be, and hereby is, reversed. We remand to the trial court for further proceedings consistent with this opinion.

¶14 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

WISEMAN, C.J., and FISCHER, P.J., concur.

FOOTNOTES

1 This accelerated appeal proceeds pursuant to Rule 1.36, Okla. Sup. Ct. Rules, 12 O.S. Supp. 2004, ch. 15, app. l. Kawasaki questions the appropriateness of this procedure as applied to a motion to dismiss on the basis of forum non conveniens. We decline to comment upon this question, but instead note that Kawasaki did not request leave to file a brief nor allege in what way it has been prejudiced by use of the procedure. This Court did not request further briefing pursuant to Rule 1.36(g) because the undisputed material facts are determinative of the appeal and further briefing would not be of assistance.

2 The trial court ruled on October 8, 2009, and the written order was filed on November 9, 2009. Record (R.), Tab 1. The ruling was not embodied in an appealable order until January 8, 2010.

3 Although the Oklahoma Supreme Court's record in this case refers to Defendant as "Kawasaki USA," the pleadings reflect Defendant's name as "Kawasaki Motors Corp., U.S.A."

4 The remaining controverted facts refer to the merits of the breach of warranty claims. Discussion of the merits is not necessary to our analysis and determination of the issue of forum non conveniens on appeal.

5 R., Tab 6, Petition, p. 1.

6 R., Tab 5, Answer, p. 1, ¶ 2; Tab 4, Motion to Dismiss, p. 1.

7 R., Tab 6, Petition, Exhibit A; Tab 5, Answer, p. 2; Tab 4, Motion to Dismiss, p. 2.

8 R., Tab 6, Petition, Exhibit A.

9 R., Tab 6, Petition, Exhibit C; Tab 4, Motion to Dismiss, p. 2.

10 R., Tab 6, Petition, Exhibits C and D; Tab 4, Motion to Dismiss, p. 2.

11 R., Tab 6, Petition, p. 8; Tab 5, Answer, p. 4, ¶ 27.

12 R., Tab 6, Petition.