DOLLAR GENERAL STORES, LTC V. SMITH
CIVIL PROCEDURE:  VENUE AND STATUTE OF LIMITATIONS AND SAVINGS PROVISION
2005-SC-000867-DG.pdf
PUBLISHED: 1051 AFFIRMING; OPINION WRITTEN BY –  LAMBERT
DATE RENDERED:  11/1/2007

If you’re the kind of person who can get excited about civil procedure, this case is for you. The SC addresses the issue of whether the savings provision in KRS 413.270 applies where the original forum dismissed a case on ground of forum non conveniens (FNC) and the claim was re-brought in another proper venue within the extended time allowed. On April 28, 2002, Ms. Smith was injured in a slip-and-fall on Dollar General’s (DG) premises in Casey County. She filed suit on the last day of the one-year SOL in Jefferson County; there was no contention that Jeff. Co. lacked jurisdiction (JD) or was an improper venue, but the Jeff. Circuit Court dismissed the claim under FNC because the accident and injury occurred, and most of the witnesses resided in, Casey Co. Fifteen days after the dismissal, Ms. Smith filed in Casey Circuit Court, but by that time the SOL had run. She pled that the SOL was tolled under KRS 413.270, but the Casey Court held that statute was inapplicable and dismissed the case as time-barred. The Court of Appeals reversed, holding that KRS 413.270 was applicable to a case timely brought but previously dismissed on grounds of FNC. The majority of the SC affirmed this decision, with Justice Abramson concurring and Justice Minton dissenting.

KRS 413.270 provides for a 90-day savings period where claims are brought in a court having no JD and applies to claims brought "in due time and good faith" which are adjudged to have abeen brought in a court with "no JD." The SC notes that while the statutory language speaks to JD, it has long held that dismissal for improper venue also triggers the saving statute. D & J Leasing, Inc. v. Hercules Galion Prods., Inc., 429 S.W.2d 854; Shircliff v. Elliott, 284 F.2d 947 (6th Cir.). Shircliff held that in view of the remedial purpose of the saving statute and the frequent confusion of JD and venue, "JD" in KRS 413.270 should be broadly construed to achieve its remedial purpose.

DG argued that KRS 413.270 should be read literally, but the SC held that there is no reasonable explanation for the legislature to have acted to save claims brought in an improper JD, but denied the saving provision to claims brought in an improper venue. It concluded with the Shircliff court that the legislature used the term "JD" broadly to include the concept of place as well as the concept of power.

The SC then reviewed the Casey Co. order of dismissal with due regard for the basis of the Jefferson Co. order of dismissal, FNC. FNC was thoroughly considered in Beaven v. McAnulty, 980 S.W. 2d 284, where the SC granted a writ of prohibition holding that the trial court acted beyond its JD in transferring a civil action from the Jeff. Cir. Ct. to the Marion Cir. Ct. on grounds of FNC. Beavens held that Kentucky’s doctrine of FNC only empowered a trial court to dismiss or stay an action before it, not to transfer it. Shortly after that case, the legislature adopted KRS 452.105, a statute mandating that a trial court transfer a case upon a determination that the venue selected was improper. The SC noted that this statute has been construed as requiring transfer rather than dismissal. The question remains, though, as to whether transfer is available upon a determination of FNC, and the SC held that it is. It noted that there is no fundamental distinction between venue and FNC: venue derives from a statutory mandate as to which county (or counties) is the proper place for a claim to be heard. FNC presupposes proper venue but posits that another county where venue would also be proper is a more convenient forum and calls for a discretionary ruling by a trial court to that effect. FNC is a subdivision of venue requiring the exercise of trial court discretion; the SC ruled that it must follow that a dismissal on the grounds of FNC would necessarily be a venue based dismissal resulting in applicability of the savings statute, KRS 413.270.

HERE’S THE BIG IDEA IN THIS CASE, AND I QUOTE: "Notwithstading language of Beaven to the contrary, in the future, cases should not be dismissed on the grounds of FNC." Remember it, write it down, take a picture.

Justice Minton dissented, noting that the proper role of the courts in interpreting statutes is to determine the intent of the legislature as expressed in "plain language" without resort to guessing about what the legislature intended. He therefore could not agree with the majority’s assumption that when the legislature used the words "no JD" in KRS 413.270, it intended to conflate three distinct legal concepts–JD, venue, and FNC. He stated he felt it was time to clean up loose language by overruling certain precedents to the extent that imprecise use of those three legal terms has distorted the saving statute well beyond is express provisions. He finds no reason to assume the legislature meant FNC when it used the legal terms of "improper venue" in KRS 452.105 and "no JD" in KRS 413.270. He would construe the savings statute at issue, as well as the closely related transfer statute, according to the legal meanings of the terms used in the statutes and would overrule ambiguous authority to the contrary. He noted that the majority freely mixed legal concepts by equating JD with venue and improper venue with FNC, and he argued that 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." Finally, he noted that while some argue expanding the grace granted by the saving statute is good because more cases get "saved" from dismissal on SOL grounds, he would contend if the legislature wants to broaden the protection of KRS 413.270 to cases initially filed with the SOL in a court that ultimately declined to hear the case on FNC grounds, then the legislature can amend the statute or provide for it.

Justice Abramson concurred with the majority, in that she did not feel Ms. Smith should be punished for her counsel’s reliance on the overly broad reading of the saving statute, but she stated that she felt the dissent reflects what she believes is the correct interpretation of the two statutes.

Digested by Cherry Guarnieri