                                                        RENDERED : NOVEMBER 1, 2007
                                                                   TO BE PUBLISHED


             ,$uyreme Courf of '[i
                                    2005-SC-000867-DG


 DOLLAR GENERAL STORES, LTD .                                                  APPELLANT


                       ON REVIEW FROM COURT OF APPEALS
V.                        CASE NUMBER 2003-CA-002632
                      CASEY CIRCUIT COURT NO . 03-CI-000148


MABEL ROSE SMITH                                                                 APPELLEE


               OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT

                                        AFFIRMING



       We have held that the saving provision of KRS 413.270 applies as well to

improper venue selection as to jurisdictional error.' However, we have not previously

decided whether the saving statute applies also where the original forum dismissed the

case on grounds of forum non conveniens and the claim was re-brought in another

proper venue within the extended time allowed . This issue is before us here .

       This case arose on April 28, 2002, when Appellee, Mabel Rose Smith, was

injured in a slip and fall accident on the Appellant's premises in Casey County . Smith

instituted litigation against Appellant, Dollar General Stores, Limited (Dollar General) in

the Jefferson Circuit Court on the last day of the one-year limitation period . Dollar

General owned and operated several stores in Jefferson County and there was no

' D & J Leasing, Inc. v. Hercules Galion Products, Inc., 429 S.W.2d 854 (Ky. 1968).
See also Shircliff v. Elliot, 384 F.2d 947 (6 th Cir. 1967) .
contention that the Jefferson Circuit Court lacked jurisdiction or that it was an improper

venue . The trial court acknowledged this fact. Nevertheless, relying on Beaven v.

McAnultv,2 the Jefferson Circuit Court dismissed the claim under the doctrine of forum

non conveniens. The trial court held that because the accident and injury occurred in

Casey County and because Smith and most of the witnesses resided in Casey County,

Jefferson County was an inconvenient forum .

       Fifteen days after dismissal, Smith filed a new claim in the Casey Circuit Court .

As previously noted, however, her prior claim had been filed on the last day of the

period, and by the time Smith filed in Casey County, the statute of limitations had run.

Smith pled that the statute of limitations was tolled under KRS 413 .270 and that her

claim was timely. However, upon its conclusion that KRS 413 .270 was inapplicable, the

Casey Circuit Court dismissed the claim as time-barred . On appeal from that final order,

the Court of Appeals disagreed and reversed . It held that KRS 413.270(1) was

applicable to a case timely brought but previously dismissed on grounds of forum non

conveniens. Dollar General sought and was granted discretionary review in this Court.

We affirm the decision of the Court of Appeals.

       We begin with a brief review of KRS 413.270, a statute providing for a ninety-day

saving period where claims are brought in a court having no jurisdiction . By its terms,

the statute applies to claims brought "in due time and in good faith" and which are

adjudged to have been brought in a court with "no jurisdiction ." While the statutory

language speaks to jurisdiction, this Court has long held that dismissal for improper


2 980 S.W.2d 284 (Ky. 1998) .
3 The Jefferson Circuit Court appears not to have been mindful that dismissal would
have serious statute of limitations implications.
 venue also triggers the saving statute . In D. & J. Leasing, Inc. v. Hercules Galion

 Products . Inc. ,4 we reversed the trial court upon the view that the statute was "to obtain

 a trial on the merits and not to penalize it for filing its original action in a court of the

 wrong venue." In Shircliff v. Elliott,5 the United States Court of Appeals for the Sixth

 Circuit held likewise . Following flawed attempts to bring their claim in state court,

 plaintiffs sued in the United States District Court for the Western District of Kentucky

 after expiration of the statute of limitations. Anticipating our decision in D. & J. Leasing ,

the Shircliff court said, "When a plaintiff has shown the proper diligence required by the

applicable statute of limitations but has filed in an improper court, the saving statute

provides him a further period of time in which to find the proper court ." Shircliff analyzed

the venue and jurisdiction dichotomy, but held that in view of the remedial purpose of

the saving statute and the frequent confusion of jurisdiction and venue, "jurisdiction" in

KRS 413 .270 should be broadly construed to achieve its remedial purpose .

       We have considered Dollar General's argument that KRS 413.270 should be

read literally and its contention that D . & J . Leasing and Shircliff are distinguishable, but

we do not agree . There is no reasonable explanation for the Legislature to have acted

to save claims brought in an improper jurisdiction, but denied the saving provision to

claims brought in an improper venue . As such, we can only conclude with the Shircliff

court that the General Assembly used the term "jurisdiction" broadly to include the




4 429 S.W.2d 854 .
5 284 F.2d 947.
 concept of place as well as the concept of power . Accordingly, we reaffirm the views

 expressed in D. & J. Leasing and Shircliff.7

        A necessary predicate for appellate review of the Casey Circuit Court order of

 dismissal is an understanding of the Jefferson Circuit Court order. As stated previously,

 the Jefferson Circuit Court acknowledged that venue was not improper, but determined

 that the Casey Circuit Court would be a more convenient forum . Instead of transferring

 the case, however, the Jefferson Circuit Court dismissed on grounds of forum non

 conveniens leaving plaintiff with no alternative but to appeal, or to bring a new action in

the Casey Circuit Court and thereby depend upon the saving statute . Thus, the Casey

Circuit Court order of dismissal must be reviewed with due regard for the basis of the

Jefferson Circuit Court order of dismissal, forum non conveniens.

       A recent decision of the Supreme Court of the United States, Sinochem

International Co. Ltd. v. Malaysia International Shipping Corp. ,$ reviewed forum non

conveniens to determine whether a federal court was required to first decide matters of

jurisdiction before proceeding to dismiss on forum non conveniens grounds. Holding

that it was not necessary to first make the threshold jurisdiction determination, the Court

commented generally on forum non conveniens, and its views are instructive here . The

Court noted, inter alia, that forum non conveniens dismissal was appropriate where the

chosen forum would result in oppressiveness and vexation to a defendant out of all

proportions to plaintiff's convenience, or the chosen forum was inappropriate because of




6 James v . Holt, 244 S.W .2d 159 (Ky. 1951) and Duncan v. O'Nan , 451 S.W.2d 626 (Ky .
1970) provide an explanation of the distinction between jurisdiction and venue .
  See also Ockerman v. Wise , 274 S.W.2d 385 (Ky. 1954) .
8 - U.S. -, 127 S .Ct. 1184, 167 L.Ed.2d 15 (2007) .
 considerations affecting the Court's own administrative and legal problems-9 It

 observed that a defendant invoking forum non conveniens bears a heavy burden in

 opposing the plaintiff's chosen forum. The Court recognized that forum non conveniens

 was essentially "a supervening venue provision permitting displacement of the ordinary

 rules of venue when, in light of certain circumstances, the Court thinks that venue ought

 to be declined ."' ° Moreover, the Court observed that "Congress has codified the

 doctrine and provided for transfer rather than dismissal when a sister federal court is the

 more convenient place for trial of the action ."" From the foregoing, the Supreme Court

clearly views forum non conveniens dismissal as rarely appropriate and imposes on one

seeking such dismissal a heavy burden . The Court also characterized forum non

conveniens as a subdivision of venue and noted that transfer rather than dismissal was

the proper course where appropriate .

       The doctrine of forum non conveniens is not deeply embedded in Kentucky law.

It has been touched upon from time to time through the years, 12 but has rarely appeared

as an issue on appeal . However, the doctrine of forum non conveniens was thoroughly

considered in Beaven v. McAnulty,'3 where this Court granted a writ of prohibition

holding that the trial court acted beyond its jurisdiction in transferring a civil action from

the Jefferson Circuit Court to the Marion Circuit Court on grounds of forum non


9 127 S .Ct. at 1190.
'° 127 S .Ct. at 1190, uotin American Dredging Co. v. Miller , 510 U.S. 443, 453
(1994) .
" 127 S .Ct. at 1190-91 .
'2
   See Carter v. Netherton, 302 S.W.2d 382 (Ky. 1957) (involving continuing jurisdiction
of a child custody and support case) ; Commonwealth v. Evans , 645 S .W.2d 346 (Ky.
1982) (holding that forum non conveniens does not apply in criminal cases); and
Skidmore v. Meade, 676 S.W.2d 793 (Ky. 1984) (where the Court declined to grant a
writ of mandamus preventing transfer on grounds of forum non conveniens) .
13
   980 S.W.2d 284 .
 conveniens. Beaven concluded with the view that "Kentucky's doctrine of forum non
 conveniens only empowers a trial court to dismiss or stay an action before it. As the trial

 court did not have the power to transfer the action to Marion County, it was acting

 beyond its jurisdiction when it did so, and a writ of prohibition is an appropriate

 remedy. "14

        Shortly after Beaven v. McAnulty was rendered, the General Assembly adopted

 KRS 452.105, a statute mandating trial court transfer of cases upon a determination that

 the venue selected is improper . This statute has been construed as requiring transfer

 rather than dismissal .. KRS 452.105 and our decisions construing it firmly establish

that where venue is improper, the remedy is transfer rather than dismissal . A question

 remains, however, whether transfer is available upon a determination of forum non

conveniens . We have no doubt that it is. 16
       While there are fundamental distinctions between the concepts of jurisdiction and

venue, the former relating to the power of courts to adjudicate and the latter relating to

the proper place for the claim to be heard, there is no such fundamental distinction

between venue and forum non conveniens. In general, venue derives from a statutory

mandate as to which county or counties is the proper place for a claim to be heard .

Forum non conveniens presupposes proper venue, but posits that another county
where venue would be proper also is a more convenient forum, and calls for a

discretionary ruling by a trial court to that effect. Thus forum non conveniens is a


14 Id . at 288.
15
   Fritsch v. Caudill , 146 S.W.3d 926 (Ky. 2004), and Seymour Charter Buslines, Inc. v.
Hopper , 111 S.W.3d 387 (Ky. 2003) .
16 The Jefferson Circuit Court thought otherwise . It regarded KRS 452.105 as having no
effect on Beaven v. McAnultv. It viewed KRS 452.105 as applicable only where the
court lacks venue, but inapplicable where the court finds forum non conveniens .
 subdivision of venue requiring the exercise of trial court discretion ." Surely it must

 follow that a dismissal on grounds of forum non conveniens would be, of necessity, a

 venue based dismissal resulting in applicability of the saving statute, KRS 413.270 .

 Notwithstanding language in Beaven to the contrary, in the future, cases should not be

 dismissed on grounds of forum non conveniens.

        With enactment of KRS 452 .105, the General Assembly made it clear that venue

should be transferred in a proper case, and that the action should not be dismissed .

We now hold that the same rule applies where the trial court determines that another

forum would be a more convenient place for the litigation . The General Assembly

showed no concern for the idea in Beaven that one court could not force a case upon

another court. Undoubtedly, this view is correct. Kentucky has one unified Court of

Justice. All trial courts and appellate courts are a part of that Court of Justice, '8 and in

it is vested the judicial power of the Commonwealth .

        For the foregoing reasons, we affirm the Court of Appeals and remand this case

to the Casey Circuit Court for further consistent proceedings .

       All sitting . Lambert, C.J., and Cunningham, Noble, Schroder, and Scott, JJ .,

concur. Abramson, J ., concurs by separate opinion . Minton, J., dissents by separate

opinion .




" See Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp. , ___ U .S. -, 127 S.Ct.
1184, 167 L. Ed.2d 15 (2007).
18
   Ky. Const . §109.
COUNSEL FOR APPELLANT :

Kevin G . Henry
Kevin W. Weaver
STURGILL, TURNER, BARKER & MOLONEY, PLLC
333 West Vine Street, Suite 1400
Lexington, KY 40507



COUNSEL FOR APPELLEE:

Jonathon N. Amlung
AMLUNG LAW OFFICES, PLLC
616 South Fifth Street
Louisville, KY 40202-2202
                                                          RENDERED : NOVEMBER 1, 2007
                                                                     TO BE PUBLISHED

                 ,9ixpxmttr Courf of ~mfurkv
                                    2005-SC-000867-DG



 DOLLAR GENERAL STORES, LTD .                                                    APPELLANT


                      ON REVIEW FROM THE COURT OF APPEALS
V.                        CASE NUMBER 2003-CA-002632-MR
                        CASEY CIRCUIT COURT NO. 03-CI-00148


MABEL ROSE SMITH                                                                  APPELLEE



                   CONCURRING OPINION BY JUSTICE ABRAMSON

        I concur in the result reached by the majority only because I agree that we ought

not to penalize the plaintiff, Mabel Smith, for her counsel's reliance on the overly broad

reading of the saving statute, KRS 413.270, which the Sixth Circuit Court of Appeals

propounded in Shircliff v. Elliott . 384 F.2d 947 (6' Cir. 1967), and which this State's

highest Court suggested in D. & J. Leasing, Inc . v. Hercules Galion Products, Inc., 429

S .W .2d 854 (Ky. 1968) . I agree with Justice Minton, however, that that broad reading

does not comport with the statutory language, and so henceforth would limit application

of KRS 413.270 and KRS 452.105 to the circumstances the General Assembly has

specified . In short, the dissent reflects what I believe is the correct interpretation of the

two statutes .
                                                               RENDERED : NOVEMBER 1, 2007
                                                                          TO BE PUBLISHED


                     ,Vuyrrme Courf of                               rufurhv
                                         2005-SC-000867-DG


DOLLAR GENERAL STORES, LTD .                                                           APPELLANT


                           ON REVIEW FROM COURT OF APPEALS
V.                           CASE NUMBER 2003-CA-002632-MR
                           CASEY CIRCUIT COURT NO . 03-CI-00148


MABEL ROSE SMITH                                                                        APPELLEE


                         DISSENTING OPINION BY JUSTICE MINTON

         i respectfully dissent. We have often said that the proper role of the courts in the

field of statutory interpretation is to determine the intention of the legislature as

expressed in the "plain language" of its statutes without resorting to guessing about

what the legislature intended .' With that in mind, 1 cannot agree with the majority's

assumption that when the legislature used the words "no jurisdiction" in the savings

statute (KRS 413.270), it intended to conflate three distinct legal conceptsjurisdiction,

venue, and forum non conveniens . And I believe that now is the time for us to



     See, e.g., Commonwealth v. Gaitherwright , 70 S.W.3d 411, 413 (Ky. 2002); Troxell v.
     Trammell , 730 S.W.2d 525, 527-28 (Ky. 1987). See also KRS 446.080(1) and (4):
     (1) All statutes of this state shall be liberally construed with a view to promote their objects
     and carry out the intent of the legislature, and the rule that statutes in derogation of the
     common law are to be strictly construed shall not apply to the statutes of this state .


     (4) All words and phrases shall be construed according to the common and approved usage
     of language, but technical words and phrases, and such others as may have acquired a
     peculiar and appropriate meaning in the law, shall be construed according to such meaning.
clean up our own loose language by overruling certain precedents to the extent that

imprecise use of the terms jurisdiction, venue, and forum non conveniens has distorted

the savings statute well beyond its express provisions of "saving" cases initially

dismissed for "no jurisdiction ."

        In Shircliff v. Elliott,2 the Sixth Circuit Court of Appeals interpreted KRS 413.270

without benefit of any Kentucky state cases directly on point. The court decided that our

savings statute operated to "save" cases initially filed in improper venues based on the

"common confusion" of the terms venue and jurisdiction . The court, thus, implicitly

found that the legislature had confused these terms. I disagree with the assumption

that the legislature had confused the terms, especially in light of the legislature's own

stated direction in KRS 446.080(4) that where statutes employ terms such as

"jurisdiction," which "have acquired a peculiar and appropriate meaning in the law," such

terms "shall be construed according to such meaning ."

       This Court reached the correct result in D . & J. Leasing, Inc. v. Hercules Galion

Products, Inc.4 by reversing the second court's dismissal of a lawsuit, which was

dismissed in the first court for lack of subject matter jurisdiction rather than for improper




   384 F.2d 947 (6th Cir. 1967).
   See id. at 950-51 . ("This Court is aware that there is a fundamental distinction between
   jurisdiction and venue . But this Court is also aware of the common confusion of the terms,
   and the problem in this case is not to determine the meaning of jurisdiction as it concerns
   the power of the court to decide a case but to determine what was comprehended in the
   meaning of the term as used in this saving statute. . . . To effect the prime purpose of
   K.R .S. § 413.270 to afford a full opportunity for a hearing on the merits, it seems clear that
   the legislative intent embodied in the phrase `no jurisdiction' must at least comprehend `lack
   of 'venue ."')
   429 S .W .2d 854 (Ky. 1968) .
 venue .5 But that opinion confused the terms venue and jurisdiction by stating that :

"The intention of both statutes 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 ."6 Nonetheless, that case properly determined that both the general savings

statute (KRS 413.270) and the savings portion of the Uniform Commercial Code statute

of limitations (KRS 355.2-725) applied because the plaintiff had not voluntarily sought to

"drop" the case in the first court but, rather, was forced to dismiss the action in the first

court "so that it could file it in a court with jurisdiction of the subject matter or parties."'

       More germane to the issue at hand, in my view, this Court confused improper

venue and forum non conveniens and reached an incorrect result in Seymour Charter

Buslines, Inc. v. Hopper .8 In that case, this Court faced the question of whether the

Court of Appeals had properly denied a writ of prohibition filed in response to a trial

court's granting transfer of a case for which the trial court was not a proper venue when

the case was originally filed. This Court determined that KRS 452.105 mandated that

the case. be transferred to the court with proper venue . In doing so, it stated :

       Obviously[,] this statute, which was effective July 14, 2000, was enacted
       following the decision of this [C]ourt in [Beaven v. McAnulty, 980 S.W.2d
       284 (Ky. 1998)] . That case held that the doctrine of [forum non
       conveniens] only empowers a trial judge to dismiss or stay an action
       before him . Moreover, absent a statute, there was no inherent authority



   See id. at 855 (describing how defendant had filed a motion to dismiss based on improper
   venue, followed by the plaintiff's motion to dismiss without prejudice for lack of subject-
   matter jurisdiction, and the trial court granted the plaintiff's motion to dismiss without
   prejudice due to lack of subject matter jurisdiction apparently without expressly ruling on the
   motion to dismiss for improper venue).
   /d. at 856.
   /d. (emphasis added.)
   111 S.W.3d 387 (Ky. 2003).
         for a judge in one circuit to move a case to a judge of another court.
         McAngI , supra .

         KRS 452.105 now provides that authority. Under these circumstances,
         the mandatory language of the statute required the circuit judge to transfer
         this case.9

         But the dissent in Hopper correctly points out that KRS 452.105 provides for

transfer of cases initially brought in improper venues and does not address the

Beaven v. McAnulty situation of whether a case can be transferred when it is initially

brought in a proper venue, yet the trial court determines that it should not hear the case

under the doctrine of forum non conveniens :

         Although the majority opinion posits that the purpose of the statute was to
         abrogate our decision in [Beaven v. McAnuliy, 980 S .W .2d 284 (Ky.
         1998)], Beaven was a case in which the trial judge transferred an action
         that had been brought in a proper venue to another venue on grounds of
         [forum non conveniens] . Id. at 285 . Beaven held that a finding of [forum
         non conveniens] is grounds for dismissal, not transfer. Id. at 288 . Thus,
         KRS 452.105, which addresses a situation where an action is brought in
         the wrong venue, has no effect on our holding in Beaven .' °

The dissent also holds, correctly in my view, that because venue was waived by lack of

timely objection," the trial court where the case was originally filed became a proper

venue to hear the case; and, thus, a writ of prohibition should have been issued to

prevent the trial court from transferring the case since it was not an improper venue to

hear it. 12




    Ho er, 111 S.W.3d at 389.
    Id. at 391 (Cooper, J., dissenting) .
    Venue may be established by waiver. CR 12.08 (1).
        This Court again confused improper venue and forum non conveniens in

 Fritsch v. Caudill13 in which we failed to mention forum non conveniens in citing

 Beaven v. McAnulty in our discussion of the availability of transfer for cases brought in

improper venues:

        KRS 452 .105 became effective on July 14, 2000, and followed this
       [C]ourt's decision in Beaven v. McAnulty, where we held that a trial judge
       who sought to transfer venue was without such authority; that dismissal or
       stay was the only remedy. It is reasonable to conclude that statute was
       enacted to prevent mandatory dismissal for improper venue and to allow
       trial courts discretion to transfer cases where circumstances warrant. 14

Ultimately, however, this Court reached the proper result in denying extraordinary relief

in Fritsch , stating that transfer was mandatory under KRS 452.105 only where the trial

court found that it lacked venue to try a case and "[a]s the trial court here held

otherwise, the mandatory transfer provision of the statute did not become applicable . 05

       Unlike the majority, I find no reason to assume that the legislature meant forum

non conveniens when it used the legal terms of "improper venue" in KRS 452.105 and

"no jurisdiction" in KRS 413.270 . In fact, the doctrine of forum non conveniens allows a

court to decline to hear a case despite having proper jurisdiction and being a proper

venue where another court also having proper jurisdiction and being a proper venue

would be a more convenient forum to hear the case. I would construe the savings

statute at issue here (KRS 413 .270), as well as the closely related transfer statute



   146 S.W.3d 926 (Ky. 2004) .
   /d. at 929 (footnote omitted).


   "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." Beaven , 980 S.W.2d at 285.
(KRS 452.105), according to the legal meanings of the terms used in the statutes; and I

would overrule ambiguous authority to the contrary .

        The majority opinion freely mixes legal concepts by equating jurisdiction with

venue and improper venue with forum non conveniens . 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[ .]" And in so doing, the majority

effectively usurps the legislature's role by expanding the class of cases that may be

saved from dismissal .

       Some might argue that expanding the grace granted by the saving statute is

good because more cases get "saved" from dismissal on statute of limitation grounds .

But I would contend that if the legislature wants to broaden the protection of

KRS 413 .270 to cases initially filed within the statute of limitations in a court that

ultimately declined to hear the case because it was an inconvenient forum, then the

legislature can amend the statute or provide for it. Since it is not our role to amend

statutes, I cannot join in the majority opinion.
