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[10] |
REVERSING AND REMANDING |
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[11] |
At issue in this appeal is whether the Court of Appeals properly denied Appellants' writ of mandamus on grounds that Appellants had an adequate remedy on appeal. We conclude that because the trial court acted beyond its jurisdiction when it transferred the instant case on forum non conveniens grounds, the writ is an appropriate remedy. Therefore, we reverse the Court of Appeals and remand the case to the Court of Appeals to enter an order directing the trial court to reconsider Appellees' forum non conveniens motion in light of this opinion.
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[12] |
The plaintiffs in the underlying action, Virginia Beaven et al., filed suit against Maker's Mark Distillery, Inc., and T. William Samuels, Jr., president of Maker's Mark, in Jefferson Circuit Court. No argument is made that Jefferson County is not a proper venue for this action.
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[13] |
The defendants moved to dismiss or transfer the case on the grounds of forum non conveniens. The defendants argued that the Marion Circuit Court was a more appropriate forum because the plaintiffs, the distillery, and the distillery's personnel records are all located in Marion County. The trial court granted the motion and transferred the case to Marion County under the authority of Skidmore v. Meade, Ky., 676 S.W.2d 793 (1984).
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[14] |
Skidmore concerned a medical negligence action brought in Fayette Circuit Court in which the injury took place in Harlan County, the witnesses and medical records were located in Harlan County, but the incorporated hospital had its headquarters in Fayette County. Id. Venue was proper in both circuits. Id. The Fayette Circuit Court transferred the case to Harlan County on grounds of forum non conveniens. Id.
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[15] |
The plaintiffs in Skidmore petitioned the Court of Appeals for a writ of mandamus to require the Fayette Circuit Court to hear the case. Id. at 794. The Court of Appeals denied the writ on the grounds that the petitioners had an adequate remedy on appeal. The Skidmore Court affirmed the Court of Appeals on the same ground, citing City of Lexington v. Cox, Ky., 481 S.W.2d 645 (1972), which holds that mandamus is ordinarily not available to the question of venue because the remedy by appeal is adequate if any error as to venue is committed. Id.
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[16] |
In the case at bar, both the trial court and the Court of Appeals properly applied the mandate of Skidmore. However, the Skidmore Court erred in determining that a writ of mandamus was not an appropriate remedy because there existed an adequate remedy by appeal.
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[17] |
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. The convenience vel non of a given forum is not determined by a fixed set of rules, but is arrived at by a consideration of various factors on a case by case basis.
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[18] |
In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947), the Court noted that: |
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[19] |
(i)mportant considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing witnesses; possibility of view of premises if view would be appropriate to the action; and all other practical problems that make trial of case easy, expeditious, and inexpensive. Id. at page 508, 67 S. Ct. at page 843.
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[20] |
Roos v. Kentucky Education Association, Ky. App., 580 S.W.2d 508 at 508-509 (1979). |
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[21] |
The trial court had no statutory authority to transfer the case to Marion County. See KRS 452.010(2). Thus, for the transfer to be valid, the authority had to come from the common law doctrine of forum non conveniens. However, there is little authority to support the position that forum non conveniens includes the power to transfer a case and much authority to the contrary. Apparently, only two jurisdictions, Illinois and Oklahoma, recognize a common law right of intrastate forum non conveniens which includes the power to transfer a case to a court in a different venue.
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[22] |
Illinois adopted the doctrine of intrastate forum non conveniens, which includes the power to transfer, in Torres v. Walsh, 98 Ill. 2d 338, 456 N.E.2d 601, 74 Ill. Dec. 880 (Ill. 1983). The Walsh Court relied on the case of Holmes v. Wainwright, 3 East 329, 102 Eng. Rep. 624 (K.B. 1803), to find that the doctrine exists at common law. Holmes approved of the transfer of a case from one county to another county where "all the convenience and Justice of the case preponderates in favour of the application [of transfer]." Torres, 456 N.E.2d at 606. The Torres Court noted that Illinois had expressly adopted the common law of England as it existed "prior to the fourth year of James the First" and held that the doctrine of intrastate forum non conveniens was part of the common law of Illinois. Torres, 456 N.E.2d at 605.
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[23] |
Oklahoma adopted the doctrine of intrastate forum non conveniens, which includes the power to transfer the case, in Gulf Oil Company v. Woodson, 505 P.2d 484 (Okla. 1972). The Woodson Court also relied on Holmes as well as an unpublished Oklahoma decision. Id. at 488.
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[24] |
Kentucky has adopted "all laws which, on the first day of June, one thousand seven hundred and ninety-two, were in force in the State of Virginia . . . ." Ky. Const. § 233. Thus, any common law principles expressed in 1803 in Holmes were not part of the common law adopted from Virginia in 1792. Of course, this does not mean that the doctrine of forum non conveniens is not a part of Kentucky common law. However, the roots of the doctrine in Kentucky do not support the transfer of a case as part of an intrastate application of forum non conveniens.
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[25] |
In Knight v. Pennsylvania Railroad, Ky., 280 Ky. 191, 132 S.W.2d 950 (1939), the trial court ruled that it did not have jurisdiction over the case at bar. On appeal, the appellee argued that "all its business in Kentucky [was] interstate, and to defend the suit would cause great inconvenience and relatively large expense." 132 S.W.2d at 955. The Knight Court rejected this argument, stating, "the matter of convenience or inconvenience of the parties or witnesses is not determinative." Id. While Knight does not expressly reject the doctrine of forum non conveniens, it does cast a long shadow on the viability of the doctrine in the Commonwealth in 1939. However, the doctrine was approved of in Carter v. Netherton, Ky., 302 S.W.2d 382 (1957), which apparently is the earliest Kentucky case in which the doctrine is expressly mentioned or discussed.
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[26] |
The issue in Carter was, "May the court of original jurisdiction . . . decline to modify support and child custody orders when the parents and child are domiciled in another state?" Id. at 383 (emphasis added). The trial court declined to hear the case on forum non conveniens grounds. Id. In affirming the trial court, the Carter Court relied on the Restatement, Conflict of Laws and cases from New York, Blaustein v. Pan American Petroleum & Transport Company, 174 Misc. 601, 21 N.Y.S.2d 651 (1940), and New Jersey, Hatch v. Hatch, 15 N.J. Misc. 461, 192 A. 241 (N.J. Ch. 1937). 302 S.W.2d at 383-84.
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[27] |
The next Kentucky case in which the doctrine was substantively discussed and applied is Roos, supra. The Roos Court explained that 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." Roos, 580 S.W.2d at 508 (emphasis added). The Roos Court cited the leading case of Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947), as establishing the test to be applied when determining whether a case should be dismissed on the grounds of forum non conveniens. Id. at 509.
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[28] |
Dismissal of an action based on grounds of forum non conveniens was approved of in Williams v. Williams, Ky. App., 611 S.W.2d 807 (1981). The Williams Court stated, "Although the court had jurisdiction of the case, it not only had a right, but also a duty to consider the doctrine and to decline jurisdiction, if appropriate." Id. at 809 (emphasis added).
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[29] |
In Commonwealth v. Evans, Ky. App., 645 S.W.2d 350 (1982), the Court of Appeals held that the doctrine of forum non conveniens does not apply to criminal cases. Evans, 645 S.W.2d at 351-52. This Court affirmed the Court of Appeals in Evans v. Commonwealth, Ky., 645 S.W.2d 346 (1982), in which we stated,
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[30] |
"The right to a change of venue is only bestowed by the statute, and the Legislature has authority to provide for the extent and manner of its exercise." Heck v. Commonwealth, 163 Ky. 518, 174 S.W. 19, 20 (1915).
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[31] |
"The only power the court has to grant a change of venue is conferred by the statute . . ." Penman v. Commonwealth, 141 Ky. 660, 133 S.W. 540, 543 (1911).
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[32] |
Even if it |
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