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Smith v. Dollar General Stores10/7/2005
REVERSING AND REMANDING
BEFORE: GUIDUGLI AND TAYLOR, JUDGES; HUDDLESTON, SENIOR JUDGE.
Mabel Rose Smith brings this appeal from a November 10, 2003, order of the Casey Circuit Court dismissing her negligence claim against Dollar General Stores, Ltd., based upon expiration of the one-year statute of limitations contained in Kentucky Revised Statutes (KRS) 413.140. We reverse and remand.
On April 28, 2002, appellant allegedly slipped and fell at appellee's store in Casey County, Kentucky. She suffered substantial injuries as a result of the fall. Consequently, on April 28, 2003, appellant filed a complaint in the Jefferson Circuit Court against appellee alleging negligence. Appellee moved to dismiss the action or transfer it to Casey County based upon improper venue and/or forum non conveniens. Eventually, the Jefferson Circuit Court dismissed the action based upon forum non conveniens on August 5, 2003.
Fifteen days later, on August 20, 2003, appellant filed a complaint against appellee in the Casey Circuit Court. Appellee then filed a motion to dismiss the Casey County action based upon the one-year statute of limitations applicable to a personal injury action. KRS 413.140. Appellant responded that the action was saved by application of KRS 413.270(1). By order entered November 10, 2003, the Casey Circuit Court dismissed appellant's action as time-barred by KRS 413.140, thus precipitating this appeal.
Appellant argues the circuit court committed error by dismissing the action as time-barred by the one-year statute of limitations found in KRS 413.140. Specifically, appellant contends that the action was timely filed based upon application of KRS 413.270(1), which states, as follows:
If an action is commenced in due time and in good faith in any court of this state and the defendants or any of them make defense, and it is adjudged that the court has no jurisdiction of the action, the plaintiff or his representative may, within ninety (90) days from the time of that judgment, commence a new action in the proper court. The time between the commencement of the first and last action shall not be counted in applying any statute of limitation. (Emphasis added.)
Even though KRS 413.270(1) only utilizes the term "jurisdiction," appellant maintains that KRS 413.270(1) is equally applicable to actions dismissed upon forum non conveniens. Appellee argues to the contrary. Appellee believes by its very terms KRS 413.270(1) has no application to an action dismissed upon forum non conveniens and that the statute is only applicable to an action dismissed for lack of jurisdiction.
In determining whether KRS 413.270(1) applies to a dismissal upon forum non conveniens, we are guided by the Supreme Court's decision in D & J Leasing , Inc. v. Hercules Galion Products, Inc., 429 S.W.2d 854 (Ky. 1968). In that case, the Supreme Court framed the precise legal issue before it as "whether the appellant, which filed its original action in the wrong venue where the statute of limitations ran against it, is entitled to the benefit of the ninety day saving-period afforded by KRS 413.270 or the six months saving-period of KRS 355.2-725 . . . ." Id. at 855. In determining that the action was saved, the Court observed that " he intention of . . . [KRS 413.270] 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." Id. at 856. In D & J, the Supreme Court clearly held that KRS 413.270 was applicable to a dismissal based upon improper venue.
Having concluded that KRS 413.270(1) applies to a dismissal upon improp
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