Cathy K. Harmon v. Hon Jeffrey T. Burdette Judge, Pulaski Circuit Court ( 2007 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED : SEPTEMBER 20, 2007
NOT TO BE PUBLISHED
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2007-SC-000188-OA
CATHY K. HARMON
ON REVIEW FROM COURT OF APPEALS
V CASE NUMBER 2006-CA-002582
PULASKI CIRCUIT COURT NO. 06-CI-00606
HONORABLE JEFFREY T. BURDETTE,
(JUDGE, PULASKI CIRCUIT COURT),
AND CARLTON E. CASH AND
JENNIFER L. BURTON
(REAL PARTIES IN INTEREST) APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
The Appellant in this action, Cathy K. Harmon, requested the Court of Appeals
issue a writ of prohibition against Honorable Jeffrey T. Burdette, judge of the Pulaski
Circuit Court, to prevent the transfer of a civil action based upon an automobile wreck,
from the Appellant's county of residence to the county where the accident occurred .
The court denied the request and the Appellant appeals to this Court as a matter of
right .
Harmon, a Pulaski County resident, was injured as a passenger in an automobile
wreck that occurred in Larue County. She filed suit against both the driver of the vehicle
she had been riding in (an Adair County resident), and the driver of a second vehicle (a
resident of Alabama at the time the suit was filed), in the Pulaski Circuit Court .
Judge Burdette issued an order transferring venue to Larue Circuit Court, the
court located within the county where the accident occurred . Judge Burdette first
considered whether venue was proper in Pulaski County. He determined that venue
was improper in Pulaski County because the accident did not occur in Pulaski County
and neither of the defendants resided there. Judge Burdette opined that KRS 452.460,
providing that venue is proper in the county where the defendant resides or where the
injury occurred, and KRS 454.210(4), providing that venue is proper as to a nonresident
defendant in the county where the plaintiff resides or where the injury occurred, were in
conflict . Adopting this Court's rationale in a similar case, Kennedy v. Lee, 272 Ky. 237,
113 S.W.2d 1125 (1938) (holding that an action against a nonresident arising out of the
operation of an automobile on highways of the state may only be brought in the county
where the defendant resides or where the injury occurred), the trial judge declared
venue was improper in Pulaski Circuit Court.
Harmon petitioned the Court of Appeals for extraordinary relief pursuant to CR
76 .36, asking the appellate court to prohibit the trial court from enforcing its orders
transferring the civil action to Larue County. The Court of Appeals, in a unanimous
opinion, denied the petition . Writing for the court, Senior Judge Knopf explained that
under KRS 452 .105, a trial court may transfer an action to another venue based upon
its determination that it lacks venue to try the case. Citing this Court's opinion in
Hoskins v. Maricle, 150 S .W.3d 1 (Ky. 2004), the Court of Appeals reasoned that when
the trial court was acting within its jurisdiction, extraordinary relief would only be granted
upon a showing that Petitioner had no adequate remedy by appeal or otherwise and
that she would be irreparably harmed unless the court issued the writ. Finding that
Petitioner made no such showing, the Court of Appeals declined to issue the writ.
A writ of prohibition is a matter of this Court's judicial discretion . Id . at 5. Writs
interfere with "the orderly, even if erroneous , proceedings of a trial court," Id . (emphasis
2
added), and therefore "should be granted only upon a showing that: 1) the lower court
is proceeding or is about to proceed outside its jurisdiction and there is no adequate
remedy by appeal or 2) the lower court is about to act incorrectly, although within its
jurisdiction, and there exists no adequate remedy by appeal or otherwise and great
injustice and irreparable injury would result." Id. at 6 (quoting Southeastern United
Medigroup, Inc. v. Hughes , 952 S.W .2d 195 (Ky. 1997)) .
In the case sub iudice , a writ of prohibition is not appropriate . Harmon has not
shown that the trial court was acting outside of its jurisdiction . Under KRS 452.105, a
trial court is given the authority to transfer an action to another venue based upon its
determination that it lacks venue to try the case .
Because the lower court had the authority to determine whether venue was
proper and transfer the case to another county upon a finding that venue was improper,
and because Harmon has failed to show that the ordinary process of appeal is
inadequate and that she would suffer irreparable injury if forced to try her case in the
county where the accident occurred, the opinion of the Court of Appeals denying the
writ of prohibition is affirmed .
All sitting . All concur.
COUNSEL FOR APPELLANT :
John Richard Clay
Clay & Clay
319 West Main Street
Danville, KY 40422
COUNSEL FOR APPELLEE:
Hon . Jeffrey T. Burdette
100 N. Main Street
P.O. Box 1324
Somerset, KY 42501
Craig Cox
Bertram, Cox & Miller
321 E . Main Street
P .O . Box 1155
Campbellsville, KY 42719-1155
Michael L. Harris
204 Public Square
P.O. Box 459
Columbia, KY 42728