*1 BUSLINES, CHARTER SEYMOUR
INC., Appellant, HOPPER, Judge, Lewis
Honorable B. Court; Honorable Jer
Laurel Circuit Winchester, Whitley Judge,
ry
Court; Appellees, Merrill, Party in Interest.
Juanita Real
No. 2002-SC-0928-MR. Kentucky.
Supreme Court of
April
Rehearing Aug. Denied Watson, Middlesboro, Coun-
William A. for Appellant. sel Mann, Joyce Sandra Howard Oliver Mann, Reeves, of Howard O. Law Offices P.S.C., Corbin, Appellees. Counsel Opinion of the Court Justice WINTERSHEIMER. is from an order appeal
This Appeals denying *2 Buslines, Seymour for a change Charter writ venue under these cir- topped of prohibition sought prohibit cumstances. personal injury transfer of a from responds the Merrill that for a Laurel County where the claim was filed prohibition writ not proper was because Whitley County injury where the oc- Seymour timely. did not file it She also curred. Seymour that did not argues meet the for the requirements necessary grant of a On June Merrill suffered a prohibition. writ of Merrill asserts that broken leg boarding while owned bus transfer of the prohibited venue is not time, and operated Seymour. At that Seymour improper failure a citizen was and resident of the in venue. She that venue Laurel maintains state Seymour of Ohio and was a common County the action was improper was as carrier in incorporated and op- Tennessee Sey- that transitory. claims Merrill also erating Kentucky. in undisputed by It is objecting to the estopped mour is from parties the that the accident occurred transfer of venue. However,
Whitley County.
on June
mistakenly
counsel for Merrill
filed
After careful consideration
suit in neighboring
County.
we must con
arguments
parties,
Laurel
its
both
Appeals properly
answer to
that the
complaint,
the
com-
clude
Court
Seymour
pletely
the
the
Such a
prohibition.
denied
claim and
no
denied
writ of
ob-
jection
remedy
extraordinary,
one which should
to venue.
only
exceptional
under
most
used
later,
Almost
years
May
two
on
EPI Corp., Ky.,
circumstances.
Shobe
counsel for Merrill filed a
motion Laurel
(1991).
granted
It will be
In civil when the actions. Now injury filed trial of personal which the de- court case transferred, it asserts has been lacks venue to termines that court to remove opportunity that it has lost due to an ven- *3 court. See 28 U.S.C. ue, a this to federal party, of case judge, 1446(b). the court shall transfer case to the proper
with venue. not Seymour did We must observe that in its statute, judge to circuit present this issue Obviously was effec this any 14, 2000, response to the motion to transfer. July following tive was enacted event, concerning we find claim this in Beaven v. the decision of Court juries entirely speculative and to be McAnulty, Ky., 980 S.W.2d Further, this by any evidence. supported That case held that the of forum doctrine great level claim not rise to the of a does empowers non conveniens trial for the issu- injustice necessary which is stay to action before judge dismiss an statute, Appeals The of Moreover, ance of a writ. Court him. absent a there prohibition. of judge properly denied the writ authority no inherent for a judge one circuit to move case to a of of is Appeals The of decision McAnulty, supra. another court. affirmed. now KRS 452.105 authori- C.J., LAMBERT, and JOHNSTONE circumstances, ty. the man- Under these JJ., STUMBO, concur. datory language required of the statute circuit this case. transfer COOPER, by separate J. dissents Seymour argument by contrary The to the joined and by and is GRAVES opinion is without merit. KELLER, JJ. The claim Seymour Dissenting Opinion by Justice COOPER. transfer was it did not because Merrill, an resi- Appellee Juanita Ohio object the original lacking venue is also party in in this dent and the real interest merit. The cases cites were decided injured Whitley County, appeal, was the enactment of 452.105. before a bus Kentucky, attempting while enter in the nothing language There is of the Seymour by Appellant owned Charter limits transfer to instances statute Buslines, cor- Seymour is a Tennessee waiver not at The mistake where is issue. in Ken- offices poration corporate with for this claim in filing counsel Merrill 23, 2000, Merrill filed a tucky. June On does wrong county negate ap against Seymour for damages civil action of the statute. The assertion plication 11, July On in the Laurel Circuit Court. Seymour estopped be Merrill should 2000, in which it Seymour filed an answer transferring equally with from July did not to venue. On merit. out re- interrogatories and Merrill served documents on
Finally, Seymour quests production that be contends discovery deposi- Seymour. Seymour took diversity citizenship cause there was itself, and December September it could have tions on between Merrill discovery deposi- district court. took removed this case federal Thereafter, Au- tion on July do so because It claims that it chose filed pursuant to a motion gust well known the Laurel Circuit Court objected, lawyers trial Ken- Merrill among Southeastern trial judge arose, transferring entered order all the plaintiffs enjoy protection venue from the Laurel Circuit Court to the they plaintiff need. to select Allowing a Whitley Circuit Court. Seymour then change one venue and its mind then to filed a Appeals Court of for mid-proceeding encourage forum would prohibition writ of prohibit enforce- (If shopping Judge kind. worst ment of that order. The Appeals Court of Hopper rulings against had made certain denied the petition and this appeal ensued. Merrill, could then she have moved order obtain
Generally, a motion to dismiss trans- friendly” fer “more judge?) for lack of venue may not made by who selected the forum. “The Rules Civil Procedure *4 plaintiff, by bringing the in a suit district this principle reflect fundamental of law. statute, other than that by authorized the objection An as to must be made venue relinquished right object his to to the ven- 12.02(c), according clearly to CR which Co., ue.” v. Olberding Illinois R. Centr. objection labels venue as a “defense.” Inc., 338, 340, 346 U.S. 74 S.Ct. 98 So, too, 12.08(1), does CR (1953). L.Ed. 39 Manley See also v. En- that such are if “defenses” waived (11th Cir.1985) gram, 755 F.2d 1468 in a responsive pleading made or Rule (noting general rule that plaintiff waives 452.010(2) 12 Although pro- motion. objection to venue selecting forum with may vides that a be had change of suit). filing of personal privi- “Venue is a attending because of the a party’s “odium” lege of the 15 Alan Charles defendant.” action,” of “cause that refers to counter- Miller, Wright, R. Arthur & Edward H. claim or pursuant crossclaim to CR 13. Cooper, Federal Practice & Procedure: exception The sole occurs when the plain- (2002 § at Supplement) (emphasis 73 duped selecting tiff has been into the ini- added). deception tial forum some omission instances, In most the of purpose statu- of Manley, the defendant. at supra, See torily specified venue is to the protect 1468-69 (permitting plaintiff against the a plain- risk that defendant venue when defendant concealed its actual tiff will select an unfair or inconvenient residence and could not in plaintiff “due place reason, of trial. For that Con- residence; diligence” have discovered true gress generally has the resi- in “[o]nly it Wonderland could be said that dence of plaintiff the a basis for venue in plaintiff in ‘knowingly’ this situation nondiversity long cases.... So objections merely by waives her plain of language the does statute suit fifing appears where open the defendant type the gap” severe of “venue reside.”). statute, Kentucky’s “saving” giving plaintiffs amendment 413.270, right in proceed extend the limita- applies district where the KRS close, claim designed arose was period there tions in D that circumstance. See is no broadly reason read it more Leasing, & J Hercules Galion behalf plaintiff. of Prods., Inc., Ky., 856 429 S.W.2d (1968). Nevertheless, deception Leroy v. Corp., Great Western United 443 omission of induced choice of 2710, 2716-17, U.S. 99 S.Ct. 61 here, (1979) forum “and as master of L.Ed.2d 464 (emphasis original). Thus, ease is by selecting [her] [her] stuck with choice.” forum in the first place, Adver. being City Rolling assured of the Nat'l Co. v. Mead opportuni- ty (7th Cir.1986). to litigate ows, in the forum where claim F.2d 789 574
391 course, it still law errs Of majority opinion The also jurisdiction that venue can established analysis of viz: 12.08(1). by waiver. CR actions, judge of the In civil when the inju- personal ... filed deter- provision court which the venue to must be ry mines that the court lacks venue, resides, inor the defendant case due to an done, injury shall is not party, which the judge, requirement, with the but one the case to the court absolute if he jurisdiction. by the defendant must be invoked it. If compel compliance with wishes to added.) This was en- (Emphasis statute by proper pleading, he does not invoke Assembly. acted the 2000 General immateri- of venue becomes question Acts, 420, § Ky. Although ch. al. majority opinion posits purpose 159,159-60 abrogate Holt, our decision the statute was 244 S.W.2d James v. McAnulty, Ky., S.W.2d 284 Beaven (1998), was a in which the Beaven v. Hel Licking River Limestone Co. *5 an that had
trial transferred action ton, (1967), held 413 61 it was S.W.2d brought in a proper been venue another “[ujnless waived, was KRS venue grounds of venue on non conve- forum Morgan County prop fixed 452.460 niens. Id. at 285. Beaven held that against defen place er for an action both finding of non is conveniens forum dants, where the collision for was dismissal, for not grounds transfer. Id. at added). at (emphasis Id. 63 occurred.” Thus, 452.105, KRS which addresses waived, if venue fixed as Obversely, is brought where an situation action brought. county where the venue, wrong has no effect on our here, noted, As issue of holding Beaven. brought was waived when however, agree, I to the prior en- Sey- her in Laurel Court and suit 452.105, actment actions timely object. mour did not wrong venue could not be trans- first of lack of venue was The issue ferred but could dismissed on by the amended raised as to Kenneth timely motion of the v. defendant. Latta after for answer which was filed counsel (no (1892) Sandifer, Ky.L.Rptr. 13 rule deposi- participated taking Company statutory provision permits practice tions, interrogatories answering county action from one judgment. This moving summary for another). Typically, prior to the enact- con- late and does not appellant too ment of motions to transfer to the claim of Kenneth tend as in transitory actions and occurred were venue was waived. had creditor who sued waiver, become, Having Id. at 63. in a a defendant debtor venue, did the Laurel Circuit Court defendant did not reside. Such mo- to an the case due “lack[ ] were made after the defendant filed a tions KRS 452.105 did improper venue” and of venue. dismiss lack apply. obviously preferable to out- Transfer was “[Bjecause beyond the trial court acted right dismissal because dismissal meant in- if transferred the jurisdiction fee when filing of an additional payment grounds, [improper having proper venue] circuit court venue. stant case an appropriate remedy.” the writ is Beav-
en, at supra, Accordingly, I dissent
and would order that writ be issued. KELLER, JJ., join
GRAVES and
dissenting opinion.
D.R.T., Child, Appellant, Kentucky,
COMMONWEALTH of
Appellee.
M.R., Juvenile, Appellant, Kentucky, Appellee.
Commonwealth *6 2001-CA-000127-DG,
Nos.
2001-CA-000145-DG. of Appeals Kentucky.
Sept.
Discretionary Review Denied
Aug. Hopf, Public Advo-
Suzanne A. Assistant cate, Frankfort, D.R.T., KY, for a Child M.R., a Juvenile. III, General, Attorney A.B. Chandler Ferguson, Todd D. Attorney Assistant General, Frankfort, KY, for Common- wealth of in Appeal No. 2001- CA-000127-DG. III, General, Attorney
A.B. Chandler Fuchs, Attorney Gregory C. Assistant