Opinion
NO. 2012-CA-000484-MR
06-21-2013
RANDY POPE APPELLANT v. EDWARD RUDE AND SUSAN RUDE APPELLEES
BRIEF FOR APPELLANT: Christopher B. Oglesby Madisonville, Kentucky BRIEF FOR APPELLEE: Timothy C. Wills Dana Daughetee Fohl Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE JAMES C. BRANTLEY, JUDGE
ACTION NO. 09-CI-00483
OPINION
AFFIRMING
BEFORE: CLAYTON, MOORE, AND NICKELL, JUDGES. MOORE, JUDGE: Randy Pope appeals the Hopkins Circuit Court order concluding that it was the appropriate venue for the subject action. After a thorough review of the record, we affirm.
In early 2007, Randy Pope, Edward Rude, and Susan Rude entered into a series of agreements concerning the purchase of a portion of Cottonmouth Land and Timber, LLC, a Kentucky Limited Liability Corporation. Randy Pope organized Cottonmouth several years prior and had retained all ownership interest up until that time. The parties executed an Operating Agreement in early 2007, which provided that "the business of [Cottonmouth] shall be to (a) invest in tangible and intangible real or personal property of any kind, specifically, the ownership, development and management of the Cottonmouth Lodge and its contiguous real property located near Madisonville [Hopkins County], Kentucky. . . ." The agreement stated that its business office would be located in Mississippi, with a registered agent located in Madisonville, which is located in Hopkins County, Kentucky. The Articles of Organization reflect that Cottonmouth's principal office is located in White Plains, which is located in Hopkins County, Kentucky. Although the Operating Agreement does not designate the place of execution, the corresponding LLC Unit Assignment was executed in Hopkins County. It appears, however, that all parties resided outside the Commonwealth of Kentucky at all times relevant to this action. However, Edward Rude later submitted an affidavit attesting that Pope led him to believe that Cottonmouth operated in Hopkins County, Kentucky, and that the subject real property was located there.
On December 31, 2007, Randy Pope, Ed Rude, and Susan Rude entered into an agreement entitled "Member Withdrawal and LLC Unit Assignment and Release" wherein the Rudes withdrew their membership from Cottonmouth. The agreement, which was executed out-of-state, provided for the repayment of the Rudes' $250,000 cash investment.
The Rudes initiated this action in Hopkins Circuit Court, alleging that Pope failed to repay the $250,000 in accordance with the terms of the contract. Pope asserted that Hopkins Circuit Court was an improper venue for this action. The circuit court initially determined that, although it possessed personal jurisdiction over Pope pursuant to Kentucky Revised Statutes (KRS) 452.210(2)(a)(1) as well as subject matter jurisdiction, venue was nevertheless improper. The circuit court later amended its decision pursuant to the Rudes' motion to alter, amend, or vacate, concluding that it was in fact the proper venue. The circuit court granted summary judgment in favor of the Rudes, finding that no genuine issue of material fact existed regarding Pope's indebtedness for $250,000 because Pope failed to respond to the Rudes' request for admissions and admitted the indebtedness in his brief. Pope now appeals. According to Pope's brief, "[t]he sole question in this appeal is whether any part of [the Rudes'] cause of action for breach of the 'Member Withdrawal and LLC Unit Assignment and Release' arose in Hopkins County, Kentucky."
"Venue . . . is a statutory enactment establishing where a case must be tried." Derry v. Commonwealth, 274 S.W.3d 439, 442 (Ky. 2008). Pursuant to KRS 454.210(4):
Pope does not contest that the circuit court had subject matter jurisdiction or personal jurisdiction pursuant to the long-arm provision found in KRS 454.210.
When the exercise of person jurisdiction is authorized by this section, any action or suit may be brought in the county wherein the [appellee] resides or where the cause of action or any part thereof arose.(Emphasis added).
The requirement of the venue statute is easily met in this case. The Operating Agreement states in clear terms that the parties' business relationship concerned real property located in the vicinity of Madisonville, which is located in Hopkins County and the principal office for Cottonmouth is in Hopkins County.
Pope cites to Green River Steel Corp. v. Globe Erection Co., 294 S.W.2d 507, 509 (Ky. 1956), for the proposition that the case sub judice could not have arisen in Hopkins County where the last act to finalize the withdrawal agreement was performed elsewhere. This case, however, pertains to the venue provision found in KRS 452.450. Where personal jurisdiction was achieved pursuant to the long arm statute in KRS 454.210, venue is appropriate where any part of the action arose. KRS 454.210(4).
Accordingly, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Christopher B. Oglesby
Madisonville, Kentucky
BRIEF FOR APPELLEE: Timothy C. Wills
Dana Daughetee Fohl
Lexington, Kentucky