Se. Ala. Timber Harvesting, LLC v. Se. Ala. Timber Harvesting, LLC

• Decision Date: 20 April 2012
• Docket Number: 1110349.
• Citation: 94 So.3d 371
• Parties: Ex parte SOUTHEAST ALABAMA TIMBER HARVESTING, LLC, and Michael J. Smith. (In re Patricia Gail Webster v. Southeast Alabama Timber Harvesting, LLC, and Michael J. Smith).
• Court: Alabama Supreme Court

94 So.3d 371

Ex parte SOUTHEAST ALABAMA TIMBER HARVESTING, LLC, and Michael J. Smith.(In re Patricia Gail Webster

v.Southeast Alabama Timber Harvesting, LLC, and Michael J. Smith).

1110349.

Supreme Court of Alabama.

April 20, 2012.

Connie Ray Stockham and Christopher Lee Shaeffer of Stockham, Carroll & Smith, P.C., Birmingham, for petitioners.

Ted L. Mann of Mann & Potter, P.C., Birmingham; and Keith Thomas, Tuskegee, for respondent.

PER CURIAM.

Southeast Alabama Timber Harvesting, LLC (“Southeast”), and Michael J. Smith petition this Court for a writ of mandamus directing the Chambers Circuit Court to vacate its order denying their motion to transfer the underlying action to Lee County on the ground of forum non conveniens and to enter an order granting their motion. We grant the petition and issue the writ.

I. Facts and Procedural History

On February 22, 2011, a vehicle being driven by Patricia Gail Webster on Marvyn Parkway in Lee County allegedly collided with timber that had come loose from a tractor-trailer rig owned by Southeast and being driven by its employee, Smith, causing Webster serious injuries. Police officers who work in Lee County responded to the scene of the accident. After the accident, Webster was treated at East Alabama Medical Center in Lee County.

On April 18, 2011, Webster sued Southeast and Smith alleging negligent and/or wanton loading and/or securing load; negligent entrustment; negligent, reckless, and/or wanton violations of the rules of the road; negligent training, hiring, and supervision; and wanton and reckless conduct. Webster filed her action in the Chambers Circuit Court in reliance upon the venue provision of § 6–3–7(a)(2), Ala.Code 1975, providing that a county in which a corporation maintains its principal office in this state is a proper venue for an action against that corporation. Southeast's principal office is located in Chambers County.¹

On May 19, 2011, Southeast and Smith filed answers to the complaint in which they asserted improper venue and the doctrine of forum non conveniens as defenses. On July 12, 2011, Southeast and Smith filed a motion for a change of venue in which they contended, based on § 6–3–21.1, Ala.Code 1975, that the case should be transferred to Lee County in the interest of justice and for the convenience of the parties and witnesses. Southeast and Smith filed exhibits in support of their motion, including an affidavit of David Lollis, the only known nonparty eyewitness to the accident, who averred that he lives and works in Lee County and that traveling to Chambers County for the trial would be “a significant burden” to him.

On October 18, 2011, Webster filed an opposition to Southeast and Smith's motion for a change of venue.

On November 10, 2011, following a hearing, the circuit court entered an order denying the motion for a change of venue. Southeast and Smith timely filed a petition for a writ of mandamus seeking a review of the circuit court's order.

II. Standard of Review

“The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297, 302 (Ala.1986). ‘Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.’ Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995). ‘When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court [exceeded] its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.’ Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So.2d 932, 936 (Ala.1995).”

Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998).

III. Analysis

Section 6–3–21.1 provides when an action must be transferred to another venue under the doctrine of forum non conveniens:

“With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”

§ 6–3–21.1(a), Ala.Code 1975 (emphasis added). “A defendant moving for a transfer under § 6–3–21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties and witnesses or based on the interest of justice.” Ex parte National Sec. Ins. Co., 727 So.2d at 789.

Southeast and Smith contend that both the interest of justice and the convenience of the parties and witnesses dictate the transfer of this case from Chambers County to Lee County. Because Southeast and Smith have demonstrated that the interest of justice requires a transfer of this case, we do not address the convenience of the parties and witnesses.

“The ‘interest of justice’ prong of § 6–3–21.1 requires ‘the transfer of the actionfrom a county with little, if any, connection to the action, to the county with a strong connection to the action.’ Ex parte National Sec. Ins. Co., 727 So.2d [788,] 790 [ (Ala.1998) ]. Therefore, ‘in analyzing the interest-of-justice prong of § 6–3–21.1, this Court focuses on whether the “nexus” or “connection” between the plaintiff's action and the original forum is strong enough to warrant burdening the plaintiff's forum with the action.’ Ex parte First Tennessee Bank Nat'l Ass'n, 994 So.2d 906, 911 (Ala.2008). Additionally, this Court has held that ‘litigation should be handled in the forum where the injury occurred.’ Ex parte Fuller, 955 So.2d 414, 416 (Ala.2006). Further, in examining whether it is in the interest of justice to transfer a case, we consider ‘the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.’ Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala.2007). The petitioners in this case are thus required to demonstrate ‘ “that having the case heard in [Lee] County would more serve the interest of justice” ’ than having the case heard in [Chambers] County. Ex parte First Tennessee Bank, 994 So.2d at 909 (quoting Ex parte Fuller, 955 So.2d 414, 416 (Ala.2006)).”

Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala.2008).

Southeast and Smith emphasize that the only connection this case has to Chambers County is the fact that Southeast's principal place of business is located in Chambers County. They cite several automobile-accident cases with procedural facts similar to those in this case in which this Court mandated that the case should be transferred to the county in which the accident occurred.

For example, in Indiana Mills, Marcy Johnson, the widow of an employee of Sunflower Waste, LLC, sued Sunflower and some of its employees following an accident that caused her husband's death. Johnson filed the action in Macon County, where one of the defendants resided and where Sunflower did business. Based on the doctrine of forum non conveniens, the defendants filed a motion for a change of venue to Lee County, the situs of the accident. The Macon Circuit Court denied the motion to transfer the case, and the defendants filed a petition for a writ of mandamus in this Court. In granting the defendants' petition, this Court explained:

“We agree that this case certainly has a connection with Macon County—as Marcy notes, Conner[, an individual defendant,] resides there and Sunflower conducts business there. Additionally, it is true that none of the parties in this case actually resides in Lee County. However, we nevertheless hold that the overall connection between Macon County and this case is weak and that the connection between the case and Lee County is strong.

“First and foremost, the accident occurred in Lee County. Lee County police and emergency personnel—the Opelika Police Department and the Opelika Fire Department—responded to the scene and investigated the accident. Additionally, Gene Manning, the chief deputy coroner of Lee County, investigated James's death. He testified in an affidavit that all the work he performed in connection with the investigation took place in Lee County. Additionally Danny Cotney, the assistant fire chief of the Opelika Fire Department, testified that the various records and documents generated by the department are located in Lee County.

“On the other hand, the ‘connection’ or ‘nexus' with Macon County in this case is weak. No party but Conner resides or is located there. Additionally, none of the relevant facts in this case actually involve Macon County.”

Ex parte Indiana Mills & Mfg., Inc., 10 So.3d at 540–41 (footnote omitted).

Similarly, in Ex parte McKenzie Oil Co., 13 So.3d 346 (Ala.2008), Lee Franklin sued Gary Heathcock, the driver of a vehicle that struck the vehicle Franklin was driving, and McKenzie Oil Company, Inc., which operated a convenience store at which Heathcock had purchased alcoholic beverages before the accident. Franklin filed the action in Barbour County, where McKenzie's corporate headquarters were located. Based on the doctrine of forum non conveniens, the defendants filed a motion for a change of venue to Escambia County, the situs of the accident. The Barbour Circuit Court denied the motion to transfer the case. The defendants then filed a petition for a writ of mandamus in this Court. In granting the defendants' petition for a writ of mandamus, this Court observed:

“Franklin points out that McKenzie's...