Lovett v. Wal-Mart Stores, Inc.

• Decision Date: 22 December 2000
• Docket Number: No. 95,114.,95,114.
• Citation: Lovett v. Wal-Mart Stores, Inc., 2001 OK CIV APP 9, 18 P.3d 387 (Okla. Civ. App. 2000)
• Parties: Joyce LOVETT, Plaintiff/Appellant, v. WAL-MART STORES, INC., Defendant/Appellee.
• Court: United States State Court of Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

18 P.3d 387

2001 OK CIV APP 9

Joyce LOVETT, Plaintiff/Appellant, v. WAL-MART STORES, INC., Defendant/Appellee.

No. 95,114.

Court of Civil Appeals of Oklahoma, Division No. 1.

December 22, 2000.

Michael E. Yeksavich, Tulsa, OK, for Plaintiff/Appellant.

Douglas E. Stall, Mark T. Steele, Latham, Stall, Wagner, Steele & Lehman, Tulsa, OK, for Defendant/Appellee.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Opinion by KENNETH L. BUETTNER, J:

¶ 1 Plaintiff/Appellant Joyce Lovett appeals from the trial court's order granting a motion to dismiss filed by Defendant/Appellee Wal-Mart Stores, Inc. Lovett was injured at a Wal-Mart store in California, but she filed suit in Okmulgee County, Oklahoma. The trial court dismissed the action without prejudice under the doctrine of forum non conveniens. Because we find no abuse of discretion, we affirm the order of dismissal.

¶ 2 Lovett filed her petition July 30, 1999, in which she alleged she was injured August 2, 1998 in the Wal-Mart store in San Jose, California as a result of negligence on the part of Wal-Mart. Lovett asserted that Wal-Mart conducts business in Oklahoma and may be served with process in Oklahoma.

¶ 3 Wal-Mart filed its motion to dismiss based on forum non conveniens August 9, 1999. Wal-Mart asserted that it is a Delaware corporation with its principal place of business in Arkansas. Wal-Mart argued that Lovett had failed to allege any facts showing that Okmulgee County was the proper forum for the action. Wal-Mart further averred that all witnesses to Lovett's injury, including Wal-Mart employees, and all Wal-Mart records related to the incident are located in California. Wal-Mart lastly asserted that it would be inconvenient and expensive for the California witnesses to travel to Oklahoma to testify and that former Wal-Mart employees residing in California are beyond the subpoena power of Oklahoma. Wal-Mart's motion to dismiss was verified by Don Wallis, manager of the San Jose, California Wal-Mart store.

¶ 4 In her response, Lovett argued that whether to dismiss a case on the basis of an inconvenient forum is a fact-based decision and she therefore requested that the trial court continue its decision on Wal-Mart's motion to dismiss until Wal-Mart had responded to Lovett's discovery requests. Lovett further argued that venue is proper in Okmulgee County and that the Okmulgee County District Court has jurisdiction over the parties. Lovett finally contended that Okmulgee County is not an inconvenient forum for Wal-Mart because the only eye witnesses to the accident are Lovett's relatives who are willing to travel from California to testify and that trial in California would be inconvenient for Lovett.

¶ 5 Wal-Mart objected to Lovett's request for a continuance, asserting that the requested discovery is unnecessary to the issue of forum non conveniens. Wal-Mart also reasserted its claims made in its motion to dismiss that witnesses who are California residents are beyond the subpoena power of an Oklahoma court.

¶ 6 In its order filed July 17, 2000, the Okmulgee County District Court held that California is the appropriate forum for the instant dispute and dismissed the case without prejudice.

¶ 7 Forum non conveniens is a doctrine in which the courts of one state, on a statewide basis, in the exercise of discretion, refuse to entertain an action which would be more appropriately heard in another state's courts. Friberg v. Chrysler Motors Corp., 786 S.W.2d 923, 924 (Mo.App.1990). The Oklahoma Supreme Court first approved the doctrine of forum non conveniens in St. Louis-San Francisco Railway Co. v. Superior Court, Creek County, 1955 OK 111, 290 P.2d 118. In that case the court held that whether to dismiss an action on the basis of forum non conveniens is left to the trial court's discretion and that on appeal we must review the trial court's decision for an abuse of that discretion. Id. at 120. An order of dismissal on the ground of forum non conveniens is a final appealable order, while the remedy for an arbitrary abuse of discretion in making an order denying a motion to dismiss on that ground may be appealed by way of seeking mandamus. Id.

¶ 8 In St. Louis-San Francisco Railway Co., the petitioner seeking mandamus was the defendant in two cases. In the first, the defendant alleged that the plaintiff was a resident of Missouri; the defendant was a Missouri corporation doing business in Missouri; the plaintiff was injured in the defendant's business in Missouri while employed there; all of the witnesses lived in Missouri; a jury in Missouri would be able to view the scene of the injury if necessary; and that the cost of trial of the action in Oklahoma would be $1,900 more than the cost of trying the case in Missouri. The plaintiff alleged that he could obtain a larger verdict in Oklahoma; that he had been examined by three Oklahoma doctors who would be expert witnesses; and that the plaintiff had become a resident of Oklahoma since the accident.

¶ 9 The Supreme Court analyzed cases from other states to conclude that the possibility of a higher verdict does not make an otherwise inappropriate forum convenient, nor does the hiring of out-of-state doctors; indeed, the court determined that even the plaintiff's act of becoming an Oklahoma citizen did not make Oklahoma a convenient forum under the facts which strongly suggested that Missouri was the most convenient forum. Id. at 121. The court noted:

The trend in favor of the use of considerations of forum non conveniens seems to us to be a wholesome one and in furtherance of the sound administration of justice. Trial courts should not hesitate to follow it in appropriate circumstances. (Italics added.)

Id. The Supreme Court granted a writ of mandamus to the defendant and ordered the trial court to dismiss the Oklahoma action.

¶ 10 In the second case involved in St. Louis-San Francisco Railway Co., the plaintiff was a resident of Missouri and worked for the defendant Missouri corporation in Missouri. The plaintiff was injured in Kansas, however. The...