Dollar General Stores, Ltd. v. Smith

Dissenting Opinion by

Justice MINTON.

I respectfully dissent. We have often said that the proper role of the courts in the field of statutory interpretation is to determine the intention of the legislature as expressed in the “plain language” of its statutes without resorting to guessing about what the legislature intended.1 With that in mind, I cannot agree -with the majority’s assumption that when the legislature used the words “no jurisdiction” in the savings statute (KRS 413.270), it intended to conflate three distinct legal concepts — jurisdiction, venue, and forum non conveniens. And I believe that now is the time for us to clean up our own loose language by overruling certain precedents to the extent that imprecise use of the terms jurisdiction, venue, and forum non conveniens has distorted the savings statute well beyond its express provisions of *168“saving” cases initially dismissed for “no jurisdiction.”

In Shircliff v. Elliott,2 the Sixth Circuit Court of Appeals interpreted KRS 413.270 without benefit of any Kentucky state cases directly on point. The court decided that our savings statute operated to “save” cases initially filed in improper venues based on the “common confusion” of the terms venue and jurisdiction. The court, thus, implicitly found that the legislature had confused these terms.3 I disagree with the assumption that the legislature had confused the terms, especially in light of the legislature’s own stated direction in KRS 446.080(4) that where statutes employ terms such as “jurisdiction,” which “have acquired a peculiar and appropriate meaning in the law,” such terms “shall be construed according to such meaning.”

This Court reached the correct result in D. & J. Leasing, Inc. v. Hercules Galion Products, Inc.4 by reversing the second court’s dismissal of a lawsuit, which was dismissed in the first court for lack of subject matter jurisdiction rather than for improper venue.5 But that opinion confused the terms venue and jurisdiction by stating that: “The intention of both statutes 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.”6 Nonetheless, that case properly determined that both the general savings statute (KRS 413.270) and the savings portion of the Uniform Commercial Code statute of limitations (KRS 355.2-725) applied because the plaintiff had not voluntarily sought to “drop” the case in the first court but, rather, was forced to dismiss the action in the first court “so that it could file it in a court with jurisdiction of the subject matter or parties.”7

More germane to the issue at hand, in my view, this Court confused improper venue and forum non conveniens and reached an incorrect result in Seymour Charter Buslines, Inc. v. Hopper,8 In that case, this Court faced the question of whether the Court of Appeals had properly denied a writ of prohibition filed in response to a trial court’s granting transfer of a case for which the trial court was not a proper venue when the case was originally filed. This Court determined that KRS 452.105 mandated that the case be transferred to the court with proper venue. In doing so, it stated:

Obviously!,] this statute, which was effective July 14, 2000, was enacted follow*169ing the decision of this [C]ourt in [Beaven v. McAnulty, 980 S.W.2d 284 (Ky.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.9

But the dissent in Hopper correctly points out that KRS 452.105 provides for transfer of cases initially brought in improper venues and does not address the Beaven v. McAnulty situation of whether a case can be transferred when it is initially brought in a proper venue, yet the trial court determines that it should not hear the case under the doctrine of forum non conveniens:

Although the majority opinion posits that the purpose of the statute was to abrogate our decision in [Beaven v. McAnulty, 980 S.W.2d 284 (Ky.1998)], Beaven was a case in which the trial judge transferred an action that had been brought in a proper 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.10

The dissent also holds, correctly in my view, that because venue was waived by lack of timely objection,11 the trial court where the case was originally filed became a proper venue to hear the case; and, thus, a writ of prohibition should have been issued to prevent the trial court from transferring the case since it was not an improper venue to hear it.12

This Court again confused improper venue and forum non conveniens in Fritsch v. Caudill13 in which we failed to mention forum non conveniens in citing Beaven v. McAnulty in our discussion of the availability of transfer for cases brought in improper venues:

KRS 452.105 became effective on July 14, 2000, and followed this [C]ourt’s decision in Beaven v. McAnulty, where we held that a trial judge who sought to transfer venue was without such authority; that dismissal or stay was the only remedy. It is reasonable to conclude that statute was enacted to prevent mandatory dismissal for improper venue and to allow trial courts discretion to transfer cases where circumstances warrant.14

Ultimately, however, this Court reached the proper result in denying extraordinary relief in Fritsch, stating that transfer was mandatory under KRS 452.105 only where the trial court found that it lacked venue to try a case and “[a]s the trial court here held otherwise, the mandatory transfer provision of the statute did not become applicable.” 15

*170Unlike the majority, I find no reason to assume that the legislature meant forum non conveniens when it used the legal terms of “improper venue” in KRS 452.105 and “no jurisdiction” in KRS 413.270. In fact, the doctrine of forum non conveniens allows a court to decline to hear a case despite having proper jurisdiction and being a proper venue where another court also having proper jurisdiction and being a proper venue would be a more convenient forum to hear the case.16 I would construe the savings statute at issue here (KRS 413.270), as well as the closely related transfer statute (KRS 452.105), according to the legal meanings of the terms used in the statutes; and I would overrule ambiguous authority to the contrary.

The majority opinion freely mixes legal concepts by equating jurisdiction with venue and improper venue with forum non conveniens. The result contravenes the legislature’s directive in KRS 446.080(4) that legal terms in statutes be construed by their “peculiar and appropriate meaning in the law[.]” And in so doing, the majority effectively usurps the legislature’s role by expanding the class of cases that may be saved from dismissal.

Some might argue that expanding the grace granted by the saving statute is good because more cases get “saved” from dismissal on statute of limitation grounds. But I would contend that if the legislature wants to broaden the protection of KRS 413.270 to cases initially filed within the statute of limitations in a court that ultimately declined to hear the case because it was an inconvenient forum, then the legislature can amend the statute or provide for it. Since it is not our role to amend statutes, I cannot join in the majority opinion.

. See, e.g., Commonwealth v. Gaitherwiight, 70 S.W.3d 411, 413 (Ky.2002); Troxell v. Trammell, 730 S.W.2d 525, 527-28 (Ky.1987). See also KRS 446.080(1) and (4):

(1) All statutes of this state shall be liberally construed with a view to promote their objects and carry out the intent of the legislature, and the rule that statutes in derogation of the common law are to be strictly construed shall not apply to the statutes of this state.
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(4) All words and phrases shall be construed according to the common and approved usage of language, but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed according to such meaning.

. 384 F.2d 947 (6th Cir.1967).

. See id. at 950-51. (“This Court is aware that there is a fundamental distinction between jurisdiction and venue. But this Court is also aware of the common confusion of the terms, and the problem in this case is not to determine the meaning of jurisdiction as it concerns the power of the court to decide a case but to determine what was comprehended in the meaning of the term as used in this saving statute.... To effect the prime purpose of K.R.S. § 413.270 to afford a full opportunity for a hearing on the merits, it seems clear that the legislative intent embodied in the phrase 'no jurisdiction' must at least comprehend 'lack of venue.' ")

. 429 S.W.2d 854 (Ky.1968).

. See id. at 855 (describing how defendant had filed a motion to dismiss based on improper venue, followed by the plaintiff's motion to dismiss without prejudice for lack of subject-matter jurisdiction, and the trial court granted the plaintiff’s motion to dismiss without prejudice due to lack of subject matter jurisdiction apparently without expressly ruling on the motion to dismiss for improper venue).

. Id. at 856.

. Id. (emphasis added.)

. 111 S.W.3d 387 (Ky.2003).

. Hopper, 111 S.W.3d at 389.

. Id. at 391 (Cooper, J., dissenting).

. Venue may be established by waiver. CR 12.08(1).

. Id.

. 146 S.W.3d 926 (Ky.2004).

. Id. at 929 (footnote omitted).

. Id.

. "The doctrine of forum non conveniens recognizes that there are certain instances in which a court properly vested with jurisdiction and venue may, nonetheless, dismiss an action if it determines that it is more convenient for the litigants and witnesses that the action be tried in a different forum.” Beaven, 980 S.W.2d at 285.