Estate of Taylor Cole, by Carla McDonough, Administratrix v. Taylor Barefoot ( 2023 )


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  •                    RENDERED: JANUARY 6, 2023; 10:00 A.M.
    NOT TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2021-CA-0190-MR
    ESTATE OF TAYLOR COLE, BY
    CARLA MCDONOUGH,
    ADMINISTRATRIX AND ESTATE
    OF BRAXTON FIELDS, BY CARLA
    MCDONOUGH, ADMINISTRATRIX                                                 APPELLANTS
    APPEAL FROM JEFFERSON CIRCUIT COURT
    v.                 HONORABLE AUDRA J. ECKERLE, JUDGE
    ACTION NO. 20-CI-002271
    TAYLOR BAREFOOT; BAREFOOT
    CONSULTING, LLC; NAKED BY
    SUNDAY, LLC; SAZERAC NORTH
    AMERICA, INC.; AND SAZERAC OF
    INDIANA, LLC                                                                 APPELLEES
    OPINION
    VACATING AND REMANDING
    ** ** ** ** **
    BEFORE: COMBS, LAMBERT, AND K. THOMPSON,1 JUDGES.
    1
    Judge Kelly Thompson authored this Opinion before his tenure with the Kentucky Court of
    Appeals expired on December 31, 2022. Release of this Opinion was delayed by administrative
    handling.
    THOMPSON, K., JUDGE: The Estate of Taylor Cole, by Carla McDonough,
    Administratrix and the Estate of Braxton Fields, by Carla McDonough,
    Administratrix (collectively the Estates), appeal from the Jefferson Circuit Court’s
    order granting the motions to dismiss with prejudice for forum non conveniens and
    failure to join indispensable parties filed by Taylor Barefoot, Barefoot Consulting,
    LLC, Naked by Sunday, LLC (NBS), Sazerac North America, Inc. (Sazerac NA)
    and Sazerac of Indiana, LLC (Sazerac IN) (collectively the appellees). We vacate
    and remand as the circuit court acted prematurely in cutting off discovery and then
    dismissing the case in light of the very incomplete record before us which
    prevented the Estates from being able to adequately represent their position.
    Additionally, it is intolerable for two cases involving the victims of the same car
    crash to ultimately be litigated in two different states when they were both
    originally filed in Kentucky.
    FACTUAL AND LEGAL BACKGROUND
    On March 7, 2020, Sazerac IN hosted a Mardi Gras party in
    Jeffersonville, Indiana, for its Crews C and D of its Northwest Ordinance Distilling
    plant. Sazerac IN rented the Carriage House, purchased the alcohol and contracted
    -2-
    with NBS to provide bartending services. NBS employed or contracted with
    bartenders2 to serve drinks at the party.
    Sazerac NA is a Delaware corporation with its principal place of
    business in Kentucky. Sazerac IN is limited liability company which at the
    relevant time was a Kentucky corporation. Both Sazeracs produce alcohol
    beverages but their exact relationship to one another is unclear at this juncture.
    The Carriage House is owned and operated by the Clark County Historical Society
    and Howard Steamboat Museum, Inc, an Indiana nonprofit corporation. NBS is an
    Indiana limited liability corporation.
    Barefoot, a Kentucky resident, attended the party. Barefoot was a
    recruiter for Sazerac NA’s New Albany plant. Barefoot was allegedly overserved
    at the party, became highly intoxicated and was allowed to drive her vehicle,
    leaving the party at around 9 p.m. At around 9:14 p.m., witnesses began calling
    911 to report a vehicle driving north in the southbound lanes of I-65. The vehicle
    then exited and drove west in the eastbound lanes of I-265.
    A collision occurred on I-265 in Indiana, in Floyd County, near New
    Albany, between Barefoot’s vehicle and Cole’s vehicle. In Cole’s vehicle were the
    2
    Whether these bartenders are employees of NBS or independent contractors has yet to be
    established, although NBS and the circuit court repeatedly referred to them as independent
    contractors. We do not even know if it was one bartender or more than one bartender.
    Therefore, we simply refer to them as the bartenders.
    -3-
    driver, twenty-one-year-old Cole (who was twelve weeks pregnant at the time), her
    three-year-old son, Fields, her friend Leah Onstott Dunn, and Dunn’s child, T.J.
    All were transported to Louisville hospitals, where Cole, Fields, and Dunn were
    pronounced dead.
    Cole and Fields had been living in Kentucky since December 2019.
    On the day of the accident, Cole, Fields, Dunn, and T.J. had visited the Mall St.
    Matthews. At the time of the accident, Cole was taking Dunn and T.J. to meet
    Dunn’s husband at a Walmart in Clarksville, Indiana.
    Cole and Fields were previously domiciled in Indiana and Cole
    retained her Indiana license and voting status. It was disputed where they were
    domiciled when the collision occurred. Dunn, her husband, and T.J. were Indiana
    residents, as was Field’s father.
    Barefoot was later charged by the State of Indiana with three counts of
    causing death when operating a vehicle while intoxicated, three counts of causing
    death when operating a vehicle with an alcohol concentrate equivalent (ACE) of
    .08 or more, and involuntary manslaughter (for the death of the fetus). She pled
    guilty to multiple criminal charges and was sentenced to a total of twenty years,
    twelve years in prison and an additional eight years probated.
    McDonough, a Kentucky resident, who was the mother of Cole and
    the grandmother of Fields, filed probate actions in Jefferson District Court on the
    -4-
    basis that they were Kentucky residents. McDonough was appointed as
    Administratrix of their Estates. On April 1, 2020, she then filed wrongful death
    lawsuits on behalf of the Estates in Jefferson Circuit Court against Barefoot and
    Sazerac NA.
    The Estates alleged that Barefoot was negligent in driving the wrong
    way on a one-way divided highway while intoxicated and caused the head-on
    collision which killed Cole and Fields. The Estates alleged that Sazerac NA
    through its agents was negligent in over-serving Barefoot and allowing her to drive
    away while intoxicated. The Estates further alleged that Barefoot should be civilly
    liable for violating criminal statutes and both defendants should be liable for
    punitive damages.
    Sazerac NA answered and denied employing Barefoot, being
    responsible for the Mardi Gras party, and all other allegations against it. Sazerac
    NA then moved for an order of dismissal, or a stay based on forum non conveniens,
    and separately asked that all discovery be stayed in the interim. An order for the
    discovery stay was entered.
    Sazerac NA argued in its motion to dismiss that Indiana was a
    superior forum because the accident and all alleged tortious activity occurred in
    Indiana, the state had significant public and private interests and was an
    appropriate forum that holds personal jurisdiction over all defendants and potential
    -5-
    defendants, including the Carriage House and NBS (and its employees) with venue
    being appropriate where the motor vehicle accident occurred. It further argued that
    all occupants of Cole’s vehicle were Indiana residents, all the first responders were
    Indiana residents, as were the three witnesses listed in the police report, and the
    overwhelming majority of the material evidence was in Indiana, including the
    vehicles and blood tests of Barefoot. It noted that Kentucky could not subpoena
    non-party witnesses from Indiana, deferring to the Estates’ choice of forum as less
    reasonable when the decedents were Indiana residents, and opined that Indiana was
    the jurisdiction with a significant public interest in this litigation. In the
    alternative, Sazerac NA argued that Indiana law should apply. Sazerac NA sought
    dismissal without prejudice.
    In May 2020, Barefoot also filed a motion to dismiss under the
    doctrine of forum non conveniens, arguing that because all operative facts alleged
    in the complaint occurred in Indiana, either an Indiana or federal court3 was the
    3
    Unfortunately, because the parties do not have complete diversity of citizenship, the case could
    not be filed in or removed to a federal court in either state. 28 United States Code (U.S.C.) §
    1332(a)(1). This is regrettable as many of the difficulties with evidence being present in both
    Indiana and Kentucky, although within a relatively small geographic area between their southern
    and northern borders, would be alleviated as Federal Rules of Civil Procedure (Fed. R. Civ. P.)
    45(c)(1)(A) and (c)(2)(A) provide federal district courts with the subpoena power to: “command
    a person to attend a trial, hearing, or deposition . . . within 100 miles of where the person resides,
    is employed, or regularly transacts business in person” and “command . . . production of
    documents, electronically stored information, or tangible things at a place within 100 miles of
    where the person resides, is employed, or regularly transacts business in person[.]”
    -6-
    more convenient forum. In support of this motion, Barefoot explained that Indiana
    would have jurisdiction over the named defendants, allegations relating to
    violations of the Indiana State Code would require interpretation of Indiana law,
    and proof would come from Indiana law enforcement. She argued that all relevant
    factors favored dismissal in that the accident occurred in Indiana, arguing: (1) all
    the occupants of Cole’s vehicle being Indiana residents, the operative events
    regarding the Mardi Gras party occurred in Indiana, and the eyewitnesses,
    investigators, and authorities at the accident scene were all located in Indiana; the
    defendants might need to implead third-party defendants; and NBS and others
    might not be subject to the jurisdiction of Kentucky courts; (2) the Estates’ choice
    of Jefferson Circuit Court as a forum should be afforded little weight as according
    to the accident report, Cole, Fields, Dunn, and T.J. were residents of Indiana and
    Fields’s father is an Indiana resident.
    On July 23, 2020, the Estates filed their first amended complaint,
    naming the additional defendants of Barefoot Consulting, Sazerac IN (which they
    argued was a wholly owned subsidiary of Sazerac NA), and NBS. Barefoot
    Consulting and Sazerac of IN were incorporated into the original negligence claims
    and they and NBS were incorporated into the punitive damages claim. A new
    dram shop claim was added against NBS and both Sazeracs. The Estates argued
    that Barefoot Consulting was a Kentucky company; Sazerac of Indiana was a
    -7-
    Kentucky company with its principal place of business in Louisville, Kentucky,
    and that although NBS was an Indiana company, it publicly holds itself out as a
    mobile bartending service which serves Indiana and Kentucky, with the majority of
    its business taking place primarily in Jefferson County, Kentucky. The Estates
    argued that Cole and Fields were residents of Jefferson County, Kentucky.
    After the circuit court granted the motion to amend, Sazerac NA filed
    a supplemental brief in support of its motion to dismiss, arguing that the Estates
    had failed to establish that Cole and Fields were residents of Kentucky, had failed
    to join the Carriage House as a necessary party, and had not yet established that
    Kentucky had personal jurisdiction over NBS. It reiterated that Indiana remained a
    superior forum.
    The new defendants, after answering and raising defenses including
    those based on lack of jurisdiction, failure to join necessary parties, and
    inconvenient forum, filed motions to dismiss in November 2020. NBS argued that
    while it “does occasionally contract with Kentucky businesses to provide
    bartending services in Kentucky, NBS does not have any physical locations in, nor
    does it conduct business in Kentucky.” NBS joined in Barefoot’s and Sazerac
    NA’s motions to dismiss and additionally argued that dismissal should be granted
    because the amended complaint: (1) fails to state a claim as a matter of law
    because the Estates are void for lack of domicile in Kentucky; (2) should be
    -8-
    dismissed on the basis of forum non conveniens; (3) does not establish personal
    jurisdiction over NBS in Kentucky as (a) it is not subject to general jurisdiction in
    Kentucky because it does not have “continuous and systematic” contact with
    Kentucky; and (b) it is not subject to specific jurisdiction in Kentucky under the
    long-arm statute because the tortious injury did not occur in Kentucky.
    Sazerac IN filed two different motions to dismiss, one to dismiss or
    stay for forum non conveniens, and another to dismiss pursuant to Kentucky Rules
    of Civil Procedure (CR) 12.02. In each motion, Sazerac IN adopted Sazerac NA’s
    arguments and argued that if NBS should be dismissed, its absence would be
    highly prejudicial to Sazerac IN. Sazerac IN also argued it believed that NBS had
    hired an independent contractor bartender to work the Mardi Gras event and given
    the dram shop claims against both Sazeracs and NBS that the independent
    contractor bartender is also a necessary party.
    On December 21, 2020, the opinion and order was entered. The
    circuit court considered the evidence and arguments in detail in determining
    whether Kentucky was a forum non conveniens based on residency and domicile of
    Cole and Fields, the availability of an alternative forum, the private interests of the
    parties and public interests. It concluded that Cole and Fields were Kentucky
    residents, and that Indiana offered a superior forum under every factor it
    considered. As to failure to join indispensable parties, the circuit court concluded
    -9-
    that the Carriage House and the bartenders were indispensable parties, and the
    action could not properly proceed without them.
    The circuit court thereupon granted the motions to dismiss for forum
    non conveniens and for failure to join indispensable parties. The circuit court
    declined to rule upon NBS’s motion to dismiss for lack of jurisdiction as moot. In
    dismissing, the circuit court specifically ruled that “[a]ll claims against all
    Defendants are dismissed with prejudice.”
    The Estates timely filed a motion to alter, amend, or vacate. The
    Estates expressed their concern that the case was “dismissed with prejudice.” To
    ensure there was no issue with refiling in Indiana, as the circuit court had
    repeatedly stated in the opinion and order that they could do, the Estates asked that
    the circuit court “amend or clarify its Order changing the language from ‘dismissed
    with prejudice’ to ‘dismissed without prejudice’ to ensure there are no legal issues
    created upon refiling in Indiana should the Plaintiffs chose to do so.”
    Barefoot opposed this motion, reasoning it would allow the Estates
    “to refile their claims in Kentucky in direct conflict with this Court’s determination
    that Indiana is the appropriate forum.” Therefore, it requested that any amendment
    state “‘Plaintiffs’ Complaint is dismissed with prejudice in Kentucky and this
    Order shall not preclude Plaintiffs from filing in a different forum in Indiana’ to
    ensure Plaintiffs are precluded from refiling in Kentucky thereafter.”
    -10-
    On January 12, 2021, an order on the Estates’ motion to alter, amend,
    or vacate was denied in part, but the circuit court stated it “shall amend the
    language of the Order to indicate Plaintiffs’ Complaint is dismissed with prejudice
    in Kentucky and this Order shall not preclude Plaintiffs from filing in a different
    forum in Indiana.”
    Meanwhile, later in 2021, a separate lawsuit was filed in Jefferson
    Circuit Court by Leah Onstott Dunn’s Estate (which was opened in Indiana) and
    Aaron Dunn, Leah’s husband (the Dunn case), Case No. 21-CI-001414. This case
    was assigned to a division different from that of the case before us.
    In the Dunn case, Sazerac NA and Sazerac IN filed a joint motion to
    dismiss pursuant to CR 12.02, Sazerac NA filed a motion to dismiss for forum non
    conveniens, and Sazerac NA and Sazerac IN filed a joint motion seeking to transfer
    the Dunn case to the same division as the case before us, or alternatively stay the
    Dunn case until resolution of the instant appeal. Following a hearing, the circuit
    court summarily denied all of these motions.
    The parties requested and we granted them oral argument. During
    oral argument, the Estates noted that in the Dunn case, despite the Dunns’ being
    Indiana citizens, the circuit court denied the motions to dismiss pursuant to CR
    12.02 or forum non conveniens and the motion to transfer/stay. The Estates
    requested that we take judicial notice of these orders in the Dunn case, arguing
    -11-
    what would be truly inconvenient would be to have part of the matter litigated in
    Kentucky and part in Indiana. A formal motion that we take judicial notice of
    three orders in the Dunn case was submitted and we granted that motion.
    APPEAL
    The Estates argue that the circuit court abused its discretion by: (1)
    dismissing for forum non conveniens where Cole and Fields were Kentucky
    residents and other factors were in favor of Kentucky’s continuing jurisdiction; (2)
    it was premature to order dismissal for failure to join indispensable parties based
    on specious assumptions about whether they were necessary and amenable to
    Kentucky jurisdiction; and (3) any order granting dismissal should have been
    without prejudice. However, we are stymied from being able to adequately
    address these issues due to the fact that discovery was prematurely halted in this
    matter.
    I.     Forum Non Conveniens
    We review dismissal under the doctrine of forum non conveniens for
    abuse of discretion. Williams v. Frymire, 
    377 S.W.3d 579
    , 589 (Ky.App. 2012).
    “The test for abuse of discretion is whether the trial judge’s decision was arbitrary,
    unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
    English, 
    993 S.W.2d 941
    , 945 (Ky. 1999).
    -12-
    “Under the doctrine of forum non conveniens, a stay or a dismissal
    without prejudice may be appropriate where the chosen forum has jurisdiction and
    venue, but where another court also having proper jurisdiction and being a proper
    venue would be a more convenient forum to hear the case.” Stewart v.
    Kentuckiana Medical Center, LLC, 
    604 S.W.3d 264
    , 270 (Ky.App. 2019). Despite
    having jurisdiction, Kentucky courts have “not only . . . a right, but also a duty to
    consider the doctrine and to decline jurisdiction, if appropriate.” Williams v.
    Williams, 
    611 S.W.2d 807
    , 809 (Ky.App. 1981). This is based on the
    consideration that trial in another forum would be “more convenient for the
    litigants and witnesses[.]” Roos v. Kentucky Educ. Ass’n, 
    580 S.W.2d 508
    , 508
    (Ky.App. 1979).
    “While, even in the ordinary action, the residence of the suitor will not
    fix the proper forum without reference to other considerations, it is a fact of ‘high
    significance.’” Koster v. (American) Lumbermens Mut. Cas. Co., 
    330 U.S. 518
    ,
    525, 
    67 S.Ct. 828
    , 832, 
    91 L.Ed. 1067
     (1947) (quoting International Milling Co. v.
    Columbia Transportation Co., 
    292 U.S. 511
    , 520, 
    54 S.Ct. 797
    , 799, 
    78 L.Ed. 1396
    (1934)).
    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.
    -13-
    In Gulf Oil Corp. v. Gilbert, 
    330 U.S. 501
    , 
    67 S.Ct. 839
    , 
    91 L.Ed. 1055
     (1947) [(superseded by statute)4], the
    Court noted that:
    (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.
    Roos, 
    580 S.W.2d at 508-09
    .
    However, “unless the balance is strongly in favor of the defendant, the
    plaintiff’s choice of forum should rarely be disturbed.” Gulf Oil Corp., 
    330 U.S. at 508
    , 67 S.Ct. at 843. See Stipp v. St. Charles, 
    291 S.W.3d 720
    , 726 (Ky.App.
    2009) (favorably quoting this provision). “[A]bsent compelling or unusual
    circumstances, a court is duty bound to hear cases within its vested jurisdiction.”
    Roos, 
    580 S.W.2d at 509
    .
    4
    As explained in American Dredging Company v. Miller, 
    510 U.S. 443
    , 449 n.2, 
    114 S.Ct. 981
    ,
    986 n.2, 
    127 L.Ed.2d 285
     (1994), “[s]uch a dismissal [as occurred in Gulf Oil Corp.] would be
    improper today because of the federal venue transfer statute, 
    28 U.S.C. § 1404
    (a)[;] . . . [a]s a
    consequence, the federal doctrine of forum non conveniens has continuing application only in
    cases where the alternative forum is abroad.” Similarly, in Dollar General Stores, Ltd. v. Smith,
    
    237 S.W.3d 162
    , 167 (Ky. 2007), the Kentucky Supreme Court noted “[w]ith 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” and “[held] that the same rule applies where the trial
    court determines that another forum [in Kentucky] would be a more convenient place for the
    litigation.”
    -14-
    A. Whose Home Forum is Paramount?
    Although the parties and the circuit court all seem to have assumed
    that Cole’s and Field’s domicile is paramount in considering whether Kentucky is
    the home forum, this is incorrect and overly simplistic. In fact, it is the home
    forum of McDonough which is paramount. She is not only the party who filed suit
    but is a real party in interest given that Cole died intestate along with her child, and
    McDonough as Cole’s mother stands to inherit from Cole’s estate given our
    intestacy laws. While Kentucky cases do not clarify this matter, federal cases do.
    Piper Aircraft Company v. Reyno, 
    454 U.S. 235
    , 
    102 S.Ct. 252
    , 
    70 L.Ed.2d 419
     (1981), is instructive. In that wrongful death case, a plane crash in
    Scotland killed the pilot and five passengers. All of the decedents were Scottish
    subjects and residents, as were their heirs and next of kin. Id. at 239, 102 S.Ct. at
    257. However, a California probate court appointed Gaynell Reyno, the legal
    secretary of the attorney who ended up filing a wrongful death action on their
    behalf, as administratrix of the estates of the five passengers. As the Court
    observed, “Reyno is not related to and does not know any of the decedents or their
    survivors.” Id. In considering the plaintiff’s choice of forum as a factor in its
    inconvenient forum analysis, the district court determined that in this instance the
    plaintiff’s choice of forum was entitled to little weight even though a plaintiff’s
    choice ordinarily deserves substantial deference. The district court
    -15-
    noted . . . that Reyno “is a representative of foreign
    citizens and residents seeking a forum in the United
    States because of the more liberal rules concerning
    products liability law,” and that “the courts have been
    less solicitous when the plaintiff is not an American
    citizen or resident, and particularly when the foreign
    citizens seek to benefit from the more liberal tort rules
    provided for the protection of citizens and residents of
    the United States.”
    Id. at 242, 102 S.Ct. at 259 (quoting Reyno v. Piper Aircraft Co., 
    479 F. Supp. 727
    ,
    731 (M.D. Pa. 1979)). In the district court case, the court specifically emphasized
    the fact that the case “does not involve Americans as real parties in interest.”
    Reyno, 
    479 F. Supp. at 731
    .
    In considering the district court’s decision as to home forum, the
    Supreme Court agreed with its holding that the presumption that a plaintiff’s
    choice of forum is entitled to substantial deference “applies with less force when
    the plaintiff or real parties in interest are foreign” and determined that its
    “distinction between resident or citizen plaintiffs and foreign plaintiffs is fully
    justified.” Piper Aircraft Co., 454 U.S. at 255, 102 S.Ct. at 266. The Supreme
    Court further explained:
    When the home forum has been chosen, it is reasonable
    to assume that this choice is convenient. When the
    plaintiff is foreign, however, this assumption is much less
    reasonable. Because the central purpose of any forum
    non conveniens inquiry is to ensure that the trial is
    convenient, a foreign plaintiff’s choice deserves less
    deference.
    -16-
    Id. at 255-56, 102 S.Ct. at 266 (footnote omitted). In doing so, the Supreme Court
    accepted the premise that because the real parties in interest were foreign, that the
    fact that an American citizen was appointed to be the estates’ representative was
    not entitled to much weight, simplifying the matter of citizenship to make its
    general point.
    However, the converse is also true. When the representative is a real
    party in interest, that representative’s choice of her home forum is entitled to
    substantial deference. See Nandjou v. Marriott International, Inc., 
    985 F.3d 135
    ,
    141-42 (1st Cir. 2021) (recognizing that the wife and mother of the decedents who
    served as the representative for their estates, was entitled to great deference when
    pursuing suit in what was her home forum district in Massachusetts at the time of
    the decedent’s deaths even though the deaths occurred in Canada); Wilson v. Island
    Seas Investments, Ltd., 
    590 F.3d 1264
    , 1267, 1269 (11th Cir. 2009) (recognizing
    the importance to be given to the home forum of Florida which was the residence
    of the decedent, where the decedent’s estate was being probated, is the residence of
    the decedent’s sister and cousins who witnessed the accident and the residence of
    the plaintiff who represented the estate and was the decedent’s daughter, noting
    “[a] plaintiff’s choice of forum is entitled to deference, and there is a presumption
    in favor of a plaintiff’s choice of forum, particularly where the plaintiffs are
    citizens of the United States.”).
    -17-
    The record below indicates that no one questioned that McDonough is
    domiciled in Kentucky. Therefore, her choice of her home forum to litigate this
    matter is entitled to substantial deference. That does not mean that Cole’s and
    Fields’s home domiciles are irrelevant to the overall analysis, but that they simply
    have less weight than McDonough’s domicile.
    B. Where Were Cole’s and Field’s Domicile?
    As to the factor of whether Indiana or Kentucky was Cole’s and
    Fields’s home forum, there is ample law on how domicile is determined. “A
    person may have many residences, but can have but one domicile[.]” Wheeler v.
    Burgess, 
    263 Ky. 693
    , 
    93 S.W.2d 351
    , 353 (1936). “A domicile once acquired
    continues until a new one is acquired. The burden of showing the acquisition of a
    new domicile is on the one asserting it. Two things must concur to establish a new
    domicile, actual physical residence at the new location and the intention of
    remaining there.” Id. at 354.
    As for Fields’s domicile, it is well established that a minor’s domicile
    may be changed by the person having legal custody. Boyd’s Ex’r v.
    Commonwealth, 
    149 Ky. 764
    , 
    149 S.W. 1022
    , 1023 (1912). Therefore, as Cole
    had primary physical custody of Fields, her domicile is his.
    “[W]hen one acquires a domicile, it cannot be changed without the
    acquisition of another domicile, which, as seen, must be done by acts, conduct, and
    -18-
    intention.” Semple v. Commonwealth, 
    181 Ky. 675
    , 
    205 S.W. 789
    , 791 (1918).
    “[T]here must be an intention to abandon the old domicile and not to return to it
    and an intention to acquire a new residence as a permanent home; the intention
    being coupled with a corresponding act evidencing those purposes.” Appleton v.
    Southern Tr. Co., 
    244 Ky. 453
    , 
    51 S.W.2d 447
    , 449 (1932). “The intention to stay,
    to make the new establishment their home for good, is what makes it their
    domicile.” Wheeler, 
    93 S.W.2d at 353
    . Therefore, an existing domicile is not
    changed by a prolonged, indefinite stay elsewhere, when coupled with definite
    intent to return to the existing domicile. 
    Id.
    Intention is the dominant factor. Ellison v. Smoot’s Adm’r, 
    286 Ky. 768
    , 
    151 S.W.2d 1017
    , 1020-21 (1941); City of Ashland v. City of Catlettsburg,
    
    172 Ky. 364
    , 
    189 S.W. 454
    , 454-55 (1916). However, “[e]xpressions of intent are
    not alone sufficient; there must be some evidence supporting these declarations of
    intent.” Boyd’s Ex’r, 149 S.W. at 1023.
    As discussed in Wheeler, in the case of Baker v. Baker, Eccles and
    Company, 
    162 Ky. 683
    , 
    173 S.W. 109
    , 119 (1915), which was affirmed by the
    United States Supreme Court in 
    242 U.S. 394
    , 
    37 S.Ct. 152
    , 
    61 L.Ed. 386
     (1917),
    our highest Court found it to be extremely significant in determining Baker’s
    domicile, that not only did Baker move to Paducah and conduct business there
    -19-
    until his death but he registered to vote there, and did not vote in Tennessee after
    his removal to Kentucky, with the Court in Wheeler noting:
    Each vote he cast and each of his registrations as a voter
    was a most solemn declaration, he possessed all those
    qualifications set out in section 145 of the Kentucky
    Constitution, and that he was not domiciled elsewhere. If
    Baker were domiciled in Tennessee, then each time he
    voted in Kentucky he committed a felony punishable by
    one to five years’ confinement in the penitentiary.
    Wheeler, 
    93 S.W.2d at 355
    .
    Regarding Cole’s and Fields’s residence being in Kentucky or
    Indiana, the circuit court cited appropriate law and determined that Cole’s
    intentions could be deduced by her actions that showed she intended to remain an
    Indiana resident. The Court emphasized that Cole had an Indiana driver’s license,
    was required to change her license to Kentucky within thirty days after moving to
    Kentucky and chose not to do so, which was evidence of her intent to maintain a
    domicile in Indiana. The circuit court also heavily relied on the fact that Cole:
    [M]aintained her voter residence in Indiana. Further, she
    went so far as to update her voter registration in
    December of 2019, to reflect that she would vote in
    Crawford County, Indiana. In order to maintain the
    registration, she had to swear that she would remain in
    the Indiana precinct for at least 30 days prior to the next
    election in May of 2020.
    The circuit court noted that all public records supported Cole’s having an intent “to
    reside in Indiana. And she is the one who caused by her actions the creation of
    -20-
    those records.” The circuit court also noted that Cole attended church in Indiana,
    her visitation and funeral took place in Indiana, and she and Fields were buried in
    Indiana. While the circuit court acknowledged the contrary evidence and opined
    that Cole “appeared to desire to move to Kentucky,” it resolved that she was
    domiciled in Indiana.
    On appeal, the Estates argue that Cole’s residence was of paramount
    importance in the circuit court’s decision to dismiss for forum non conveniens, and
    the circuit court’s decision that Cole was an Indiana resident was clearly erroneous.
    The Estates argue that it is more appropriate to discern Cole’s intent as to her
    domicile based upon her actions regarding living in Kentucky as shown through
    the affidavits of McDonough, Andrew Wilson, and the father of Fields. They
    argue that Cole moved to Kentucky with the plan of raising her new child with
    Wilson and her actions regarding failing to change her driver’s license and voter
    registration were explained by Cole’s not wishing to have to change her residential
    address multiple times before she was finally settled in independent housing with
    Wilson. The Estates point to Cole’s having grown up in Kentucky; having lived in
    both Kentucky and Indiana; and having returned to Kentucky – combined with her
    action of looking for a new job and daycare for Fields in Louisville; moving in
    with Wilson and his parents in Kentucky and then her mother and stepfather in
    -21-
    Louisville; planning to live with Wilson in Louisville; and storing her belongings
    in Kentucky.
    The Estates object that the circuit court put far too much weight on
    Cole’s retention of her Indiana driver’s license and voting registration. They point
    out that in the affidavits, Cole’s mother explained what Cole told her about why
    she had not yet changed her license and Cole made statements about her intent to
    remain in Kentucky and raise her new baby with Wilson. They emphasize that
    Wilson stated he was unwilling to relocate to Indiana and that he and Cole agreed
    that Louisville would present the best opportunities for their family. They note
    that Cole’s conduct was consistent with her statements of intent as she remained
    living in Kentucky after she moved until she passed away. The Estates also argue
    it was inappropriate for the circuit court to consider where Cole’s and Fields’s
    services and burials took place because Cole had not provided any direction as to
    where this should occur in the event of her death.
    We acknowledge that there was evidence from which the circuit court
    could determine that Cole’s (and thereby Fields’s) domicile had changed from
    Indiana to Kentucky, but there was also contrary evidence. We note that even the
    Estates’ evidence was that Cole had switched her residences in Kentucky, first
    residing with Wilson and his parents, then residing with her mother and stepfather,
    had plans to reside with Wilson separately but did not yet have a separate residence
    -22-
    with him, had not yet acquired employment in Kentucky and had not yet obtained
    childcare in Kentucky. There was certainly evidence to support the circuit court’s
    decision that while Cole apparently did not have a residence to return to in Indiana,
    she had maintained her legal affiliations there and had not yet changed her
    domicile to Louisville, Kentucky, and had not acquired a permanent residence
    there. See Wheeler, 
    93 S.W.2d at 353
    ; Appleton, 
    51 S.W.2d at 449
    .
    However, it was improper for the circuit court to consider the location
    of Cole’s and Fields’s funeral and burial as evidence of Cole’s intention to remain
    an Indiana citizen, given that she left no directions as to her burial. We are
    uncertain of how much this consideration swayed the circuit court’s ultimate
    decision on their domicile. Given how close this issue was, we believe the circuit
    court should have allowed the parties to gather and present additional information
    on this issue. Therefore, we vacate the circuit court’s ruling as to the domicile of
    Cole and Fields.
    We additionally observe that whatever the circuit court’s ultimate
    decision on the issue of Cole’s and Field’s domicile, given how close this issue is
    and given Cole’s strong connections to both Indiana and Kentucky, in a relatively
    small area near the adjoining borders of both states, we do not believe the issue of
    the decedents’ domicile is entitled to as much weight given that Kentucky is
    -23-
    McDonough’s domicile and the probate actions were opened in Kentucky.5 While
    the circuit court indicated that its ruling on the decedents’ domicile was not
    controlling as to its ultimate conclusion that Kentucky was an inconvenient forum,6
    we believe this portion of its analysis was important enough that this alone would
    warrant vacating its decision.
    C. Additional Factors in Determining Forum Non Conveniens
    Regarding its overall analysis of forum non conveniens, the circuit
    court concluded Indiana offered a superior forum after considering the Gulf Oil
    factors. The circuit court noted that Indiana was an appropriate alternative forum
    based on the party and collision having occurred there, and Indiana having
    jurisdiction over all of the defendants and potential defendants.
    The circuit court weighed the private interests of the parties and
    concluded Indiana was a superior forum based on: (1) the relevant ease of access
    to sources of proof, including physical proof and the availability of personal
    jurisdiction in Indiana over The Carriage House and independent contractor
    5
    Our decision that the circuit court could ultimately determine that Cole was domiciled in
    Indiana should not be viewed as controlling as to whether the probate action was properly filed
    in Louisville. We are confident that McDonough filed there in good faith and there was an
    adequate basis for opening the estates there.
    6
    The circuit court concluded its analysis on the forum non conveniens by stating that “[e]ven if
    this Court had personal jurisdiction over all existing defendants and indispensable parties, which
    it does not, and even if Cole and Fields were Kentucky residents, which they were not, Indiana
    offers a superior forum.”
    -24-
    bartenders, noting “the majority of the relevant evidence is located in Indiana, and
    this factor weighs heavily in favor of Indiana being a superior forum”; (2) the
    availability of subpoena power over Indiana witnesses in Indiana; (3) the
    possibility of viewing the scene in Indiana; and (4) the practical problem that Leah
    Onstott Dunn’s case might take place in Indiana and the practical expenses of
    defending in Kentucky and compelling Indiana witnesses to appear in Kentucky
    courts when there were relatively few Kentucky witnesses. As to this final factor,
    the circuit court emphasized that:
    If Onstott’s case is brought in Indiana, the four
    defendants currently in this case, along with The Carriage
    House, could be subject to defending the case in both
    Kentucky and Indiana. This would result in extra
    expense to the defendants and would not be considered
    an expeditious manner to handle the cases.
    In considering the public interest, the circuit court determined this
    also weighed in favor of Indiana because the tort and crime occurred within
    Indiana’s borders. The circuit court again emphasized:
    Onstott’s case will likely proceed in Indiana, as she is not
    a Kentucky resident, and the relevant factors weigh
    heavily in adjudicating her case in Indiana. To have the
    defendants defend this case in two separate jurisdictions
    at the same time would be costly to the defendants and
    could result in inconsistent verdicts.
    The circuit court also noted it was appropriate to have Indiana adjudicate and
    interpret its own dram shop law.
    -25-
    The Estates argue that although specific evidence is located in
    Indiana, it is available in Kentucky through the Uniform Interstate Depositions and
    Discovery Act (UIDDA), Kentucky Revised Statutes (KRS) 421.360. They argue
    that Kentucky courts have retained control of cases where automobile accidents
    have occurred in other states, even when there were fewer contacts with Kentucky
    than in the case before us. They also argue the witnesses that the Estates desire to
    call are all either Kentucky residents or employed by one of the Sazerac companies
    and could be called by them. The Estates argue that the corporate defendants are
    properly before Kentucky courts based upon their connections to Kentucky,
    whether they are Kentucky corporations or not. Finally, the Estates argue that it is
    appropriate for Kentucky courts to apply Kentucky law when at all possible, and if
    made to litigate in Indiana, the Estates will be limited in the amounts they may
    recover under Indiana law, which would violate the Kentucky Constitutional
    prohibition against placing a cap on the recovery, explaining this provides a public
    policy reason why Kentucky should maintain jurisdiction and apply its own law.
    We also consider additional arguments the Estates made in their brief
    in the section devoted to the grant of dismissal for failure to join indispensable
    parties, as we believe those arguments equally apply to the analysis of whether
    Kentucky was an inconvenient forum. The Estates argue that the circuit court
    erred in finding that the Estates’ case should be dismissed for failure to join
    -26-
    necessary parties when they were prohibited from obtaining discovery determining
    the residence of the bartenders and it is not clear the Carriage House is a necessary
    party. They argue it was inappropriate for the circuit court to conclude that the
    bartenders were likely Indiana residents when there was no evidence (and only
    argument) to support this conclusion.
    Finally, we consider that during oral argument, on the basis of
    subsequent developments in the Dunn case, which was that the case would not be
    dismissed, the Estates also argued that what would be truly inconvenient would be
    for these cases to be litigated in two different states. We believe this point is
    paramount, given the emphasis the circuit court gave to this factor.
    We agree with the Estates that the circuit court appears to have failed
    to adequately consider all the connections this case has with Kentucky and the
    means by which relevant evidence could still be admitted. We agree that evidence
    can be obtained from out-of-state witnesses through UIDDA, which limits the
    importance of the factor relating to the lack of Kentucky’s subpoena power over
    Indiana witnesses. Additionally, we do not discount that possibly out-of-state
    witnesses would consent to voluntarily travel to give testimony, testify by video
    deposition, or testify virtually over an internet platform such as Zoom, Facetime, or
    Microsoft Teams, or via telephone.
    -27-
    There are certainly some factors which may favor a decision being
    made in Indiana, such as that the alleged overserving of Barefoot and motor
    vehicle accident both occurred in Indiana, that witnesses to these events reside in
    Indiana, and compulsory process to bring them into court is available in Indiana.
    We also agree that there is a public interest in addressing the consequences of these
    Indiana crimes in Indiana before an Indiana jury.
    However, there are also factors that favor the continuation of this
    action in Kentucky, such as the majority of the parties’ being Kentucky residents
    or businesses. Given that Barefoot has pled guilty to her criminal charges, the
    evidence regarding the motor vehicle accident itself is less relevant than it would
    have otherwise been. Her conviction also lessens the importance of obtaining
    witnesses as to the accident itself. Therefore, the situs of the accident and any need
    to view that scene would be lessened.
    As to the issue of the substantive law being less favorable to the
    Estates in Indiana, as explained in Piper Aircraft Company, 454 U.S. at 247, 102
    S.Ct. at 261, “[t]he possibility of a change in substantive law should ordinarily not
    be given conclusive or even substantial weight in the forum non conveniens
    inquiry.” However, that does not mean that it should not be given any weight at
    all, as the Supreme Court observed: “We do not hold that the possibility of an
    unfavorable change in law should never be a relevant consideration in a forum non
    -28-
    conveniens inquiry.” Id. at 254, 102 S.Ct. at 265 (footnote omitted). We do
    believe that in a close case, the limitation of the potential damage award does merit
    consideration along with other factors.
    But of greater importance to our analysis as to whether the circuit
    court’s decision was an abuse of discretion is that the circuit court prematurely
    determined the bartenders were likely Indiana citizens and made an assumption as
    to what would occur in Dunn’s case which was ultimately proven to be incorrect.
    This makes the circuit court’s ultimate conclusion regarding forum non conveniens
    suspect.
    With the available evidence, it is completely unknown whether there
    was personal jurisdiction over the bartenders. The appellees made bare statements
    in support of their motions to dismiss which assumed that the bartenders were
    Indiana residents. However, such an assumption was unwarranted. NBS failed to
    identify which bartenders were serving that evening or their residences prior to
    discovery being halted, and the circuit court lacked any knowledge of whether they
    were Indiana or Kentucky citizens. An issue was at least raised by the Estates that
    these bartenders could have been Kentucky citizens as the Estates alleged that NBS
    conducted the majority of its bartending events in Kentucky and provided evidence
    below to support such contention. In the absence of evidence as to the citizenship
    -29-
    of the bartenders, it should have been assumed that the bartenders could be
    Kentucky residents as it was up to NBS to prove otherwise.
    As was discussed during oral argument, the Dunn case was filed in
    Jefferson County, Kentucky, ending up before another division of the Jefferson
    Circuit Court. When the defendants sought dismissal in the Dunn case, the circuit
    court in that division denied the motions to dismiss based on an inconvenient
    forum and failure to join indispensable parties. The Dunn case continues to
    proceed before the circuit court.
    While it is still possible that the Dunn case could be dismissed in the
    future, should another motion be submitted once further discovery has been
    completed, at this juncture affirming the circuit court’s order of dismissal would
    result in overlapping cases being litigated in two different forums and we agree
    that would be very inconvenient for all concerned, especially the appellees. See
    Piper Aircraft Co., 454 U.S. at 259, 102 S.Ct. at 268 (observing that it is “far more
    convenient . . . to resolve all claims in one trial.”) This is a very significant factor.
    We believe vacating the circuit court’s decision on forum non
    conveniens is appropriate. The circuit court needs to consider the relevant factors
    again once further discovery has taken place.
    -30-
    It may ultimately be appropriate to consolidate this case with the
    Dunn case in either division,7 so that, hopefully, inconvenience to all the parties is
    lessened and the cases remain pending together before the same judge and forum.
    As explained in Kentucky Rules of Civil Procedure (CR) 42.01: “When actions
    involving a common question of law or fact are pending before the court, it may
    order a joint hearing or trial of any or all the matters in issue in the actions; it may
    order all the actions consolidated; and it may make such orders concerning
    proceedings therein as may tend to avoid unnecessary costs or delay.” See Massie
    v. Salmon, 
    277 S.W.2d 49
    , 51 (Ky. 1955) (discussing that while consolidation is a
    matter for the discretion of the trial court, if the common questions of law or fact
    principally involve the issue of negligence, they “should properly be tried together
    to advance the convenience of the court and the parties and to avoid unnecessary
    expense or delay”). While the Dunn case is not before our Court, and we could not
    order consolidation in any event as that is a matter within the trial court’s
    discretion, we believe it is appropriate to order that the division of the circuit court
    before us consult with the other division of the circuit court as to whether these
    7
    While the Estates’ case was filed first, the Dunn case may have proceeded further as it has
    continued while the Estates’ case pended before us on appeal. So, it would not necessarily be
    better for the Dunn case to be consolidated with the Estates’ case in the division in which it is
    currently pending, rather than the other way around.
    -31-
    cases should be consolidated before either judge.8 Therefore, we order that such
    consultation take place.
    II.    Failure to Join Indispensable Parties
    As to dismissal for failure to join indispensable parties, this is also
    premature. We cannot properly evaluate this ruling on its merits given the lack of
    development of the record. Simply put, we do not know at this juncture whether
    these parties are truly indispensable and not amenable to suit in Kentucky.
    The circuit court concluded dismissal was appropriate for failure to
    join indispensable parties, explaining: (1) while NBS and Sazerac IN are now
    joined, NBS has filed a motion to dismiss for lack of personal jurisdiction, but
    would have no basis to dispute jurisdiction in Indiana; (2) Kentucky courts did not
    appear to have jurisdiction over the unnamed bartenders who were thought to be
    Indiana residents and they would be indispensable parties to the dram shop action;
    (3) Kentucky courts did not appear to have jurisdiction over the Carriage House,
    which was the venue in the dram shop case and “its acts or omission, along with
    8
    When consolidation was requested before, the appellees sought to consolidate the Dunn case
    with this case before the division of the circuit court which had already granted dismissal of this
    case, which arguably had a stronger basis for being heard before Kentucky courts than the Dunn
    case. Under those circumstances, knowing how the judge had ruled in this case, granting
    consolidation logically was likely to result in the dismissal of the Dunn case (although of course
    both dismissals were subject to appeal). While the judge in the other division previously
    declined to consolidate the Dunn case with this case, we do not know whether the judges ever
    discussed the matter and whether consolidation might be more appropriate and palatable at this
    juncture now that discovery will continue.
    -32-
    contract terms with the other defendants, is likely very relevant to their issue of
    liability[;]” and (4) all four factors favor dismissal as: (a) failure to add the venue
    and bartenders is highly prejudicial to the other defendants “as a judgment may be
    inconsistent with actual liability[;]” (b) there are no protective provisions which
    would result in less prejudice; (c) a judgment rendered without the Carriage House
    cannot be adequate; and (d) an adequate alternative remedy is to refile the action in
    Indiana.
    As we noted in our prior discussion, the Estates argued it could not be
    established that the bartenders were Indiana residents and not amenable to suit in
    Kentucky in the absence of any evidence about who they were. They also argued
    that it was unclear that the Carriage House needed to be made a party.
    The Estates argue that pursuant to CR 19.01, if an indispensable party
    has not been joined then the court “shall order that he be made a party.” Therefore,
    they argue that the circuit court should have allowed the Estates to conduct their
    requested discovery and amend their complaints to include the bartenders and the
    Carriage House if appropriate. They also argue that the circuit court applied an
    improper standard by considering facts and evidence outside of the pleadings as to
    the citizenship of the bartenders that was evidently believed in the absence of any
    proof and this alone merits reversal.
    -33-
    We agree that it was inappropriate for the circuit court to conclude
    that the bartenders were Indiana citizens and not amenable to suit in Kentucky. At
    this juncture, without more discovery, it is simply impossible to conclude that the
    unnamed bartenders are indispensable parties that are not amenable to suit in
    Kentucky, or to even know if the Carriage House must be joined.
    We additionally agree that dismissal for failure to name indispensable
    parties is not appropriate. As explained in Cabinet for Human Resources v.
    Kentucky State Personnel Board, 
    846 S.W.2d 711
    , 714 (Ky.App. 1992): “When
    one litigant believes there to be an indispensable party it should request the court to
    order joinder by the simple expedient of filing a motion. If the court concurs then
    service of process shall issue[.]” The rules do not allow the parties and court to fail
    to try to join indispensable parties on the basis that they cannot be sued in our
    courts. Therefore, if these unnamed bartenders and the Carriage House are
    ultimately ruled to be indispensable parties, it would be appropriate to order them
    joined and then let them argue that the Kentucky courts do not have jurisdiction
    over them, rather than assuming that to be the case. Therefore, we vacate the
    decision granting dismissal on the basis that indispensable parties were not joined
    and remand for additional discovery.
    -34-
    III.   Dismissal with Prejudice
    Finally, the Estates argue that it was inappropriate for the case to be
    dismissed with prejudice where its merits were never reached, and this could
    prevent them from bringing their claims in Indiana. While our vacation of the
    previous rulings renders any discussion of this matter moot at this time, we briefly
    address this issue so as to provide guidance should the circuit court ultimately
    dismiss this action again.
    We believe this argument is well taken as the appropriate remedy if
    the forum is inconvenient is to stay the action or dismiss without prejudice as
    specified in Stewart, 604 S.W.3d at 270. See Hefferan v. Ethicon Endo-Surgery
    Inc., 
    828 F.3d 488
    , 501 (6th Cir. 2016) (explaining “[i]t is well established that the
    appropriate disposition of a granted forum non conveniens motion is dismissal
    without prejudice to filing in the alternative forum”). See also Prevent USA
    Corporation v. Volkswagen AG, 
    17 F.4th 653
    , 659 (6th Cir. 2021) (noting a
    dismissal without prejudice for forum non conveniens has no res judicata effect
    and “may be refiled in federal court if the alternative forum itself declines to
    exercise jurisdiction”).
    CONCLUSION
    Accordingly, we vacate the Jefferson Circuit Court’s decision to
    dismiss for forum non conveniens and for failure to join indispensable parties. On
    -35-
    remand, the circuit court will order discovery to be recommenced and will consult
    with the other division of the circuit court which has the Dunn case before it. Once
    ample discovery is completed to clarify these issues, the appellees may refile their
    motions.
    ALL CONCUR.
    -36-
    BRIEFS FOR APPELLANTS:      BRIEF FOR APPELLEE TAYLOR
    BAREFOOT:
    Mark Gabriel Hall
    Gary Richard Adams, Jr.     Gregg Edward Thorton
    Darren C. Wolff             Betsy R. Catron
    Louisville, Kentucky        Lexington, Kentucky
    ORAL ARGUMENT FOR           BRIEF FOR APPELLEE NAKED BY
    APPELLANT:                  SUNDAY, LLC:
    Mark Gabriel Hall           Van Thomas Willis
    Louisville, Kentucky        Crystal Gates Rowe
    New Albany, Indiana
    BRIEF FOR APPELLEES SAZERAC
    NORTH AMERICA, INC. AND
    SAZERAC OF INDIANA, LLC:
    Jill Fran Endicott
    Anne Katherine Guillory
    Louisville, Kentucky
    ORAL ARGUMENT FOR
    SAZERAC:
    Jeremy Rogers
    ORAL ARGUMENT FOR
    APPELLEE NAKED BY SUNDAY,
    LLC:
    Crystal Gates Rowe
    New Albany, Indiana
    -37-