Delaney Exch., LLC v. Eng'g Design Grp., LLC (Ex parte Eng'g Design Grp., LLC)

• Decision Date: 05 February 2016
• Docket Number: 1141219, 1141245.
• Citation: 200 So.3d 634
• Court: Alabama Supreme Court
• Parties: Ex parte ENGINEERING DESIGN GROUP, LLC, and David Stovall. (In re Delaney Exchange, LLC, and Springdale Stores Exchange, LLC v. Engineering Design Group, LLC, et al.) Ex parte Building & Earth Sciences, Inc. (In re Delaney Exchange, LLC, and Springdale Stores Exchange, LLC v. Building & Earth Sciences, Inc., et al.)

200 So.3d 634

Ex parte ENGINEERING DESIGN GROUP, LLC, and David Stovall.

(In re Delaney Exchange, LLC, and Springdale Stores Exchange, LLC

v.Engineering Design Group, LLC, et al.)

Ex parte Building & Earth Sciences, Inc.

(In re Delaney Exchange, LLC, and Springdale Stores Exchange, LLC

v.Building & Earth Sciences, Inc., et al.)

1141219, 1141245.

Supreme Court of Alabama.

Feb. 5, 2016.

John M. Laney, Jr., and Clark E. Bowers of Laney & Foster, P.C., Birmingham, for petitionersEngineering Design Group, LLC, and David Stovall.

Tom Burgess and Ethan R. Dettling of Burgess Roberts LLC, Birmingham, for petitionerBuilding & Earth Sciences, Inc.

H. Cannon Lawley and J. Bart Cannon of Huie, Fernambucq & Stewart, LLP, Birmingham, for respondents.

BRYAN, Justice.

Engineering Design Group, LLC, and David Stovall, the principal of Engineering Design Group, LLC(hereinafter collectively referred to as “EDG”), and Building & Earth Sciences, Inc.(“BES”), filed separate petitions with this Court, each seeking a writ of mandamus directing the St. Clair Circuit Court(“the trial court”) to enter an order transferring the action filed in the trial court by Delaney Exchange, LLC, and Springdale Stores Exchange, LLC(hereinafter collectively referred to as “the plaintiffs”), to the Shelby Circuit Court.For the reasons set forth below, we grant the petitions and issue a writ of mandamus directing the trial court to transfer the plaintiffs' action to the Shelby Circuit Court.

Facts and Procedural History

The plaintiffs, limited liability companies with their principal places of business in Mobile County, own real property in Shelby County.In anticipation of constructing a lake on that property, the plaintiffs entered into separate contracts with EDG; BES; Kent Brascho Excavating, Inc.(“KBE”); and Kent Brascho, the principal of KBE.

Engineering Design Group, a limited liability company with its principal place of business in Shelby County, contracted with the plaintiffs to provide engineering-design services for the dam necessary to construct the lake.BES, a corporation with its principal place of business in Jefferson County, contracted with the plaintiffs to provide geotechnical-engineering services relevant to construction of the dam, namely monitoring the placement of fill material and testing and verifying compaction of the fill material.KBE, a corporation with its principal place of business in St. Clair County, contracted with the plaintiffs to serve as the general contractor for construction of the dam.

On September 6, 2013, the dam constructed by KBE failed, causing the 37–acre lake to drain and temporarily flood the surrounding areas.¹On March 17, 2015, the plaintiffs commenced an action in the trial court in which they asserted claims of negligence, breach of contract, gross negligence, wantonness, unjust enrichment, and breach of express warranty against EDG, BES, KBE, and Brascho.The plaintiffs' complaint alleged: (1) that EDG had failed to design the dam's outflow structure in accordance with the applicable standard of care and that EDG's alleged breach of the standard of care was a direct cause of the failure of the dam; (2) that the alleged defects in EDG's design of the outflow structure of the dam were “so obvious and apparent to a reasonably prudent contractor[ ] that no reasonably prudent contractor would follow them”; (3) that KBE generally failed to construct the dam “in a good and workmanlike manner”; (4) that Brascho failed to properly supervise and direct KBE's employees in constructing the dam; and (5) that BES failed to monitor properly the placement of fill material and/or to test properly the fill material for confirmation that it met the applicable compaction requirements.

The plaintiffs claimed that, as a result of the defendants' alleged breaches, they had incurred costs and expenses “associated with clean-up, redesign and reconstruction of the lake and dam, loss of use and enjoyment of [their] property, loss of aquatic life, and damage and diminished value of [their] property.”The plaintiffs further alleged that they had been exposed to liability for injuries to third-party property owners whose property had been affected by the flood and that they had been exposed to liability to Shelby County agencies and departments that had responded to the accident.

On April 21, 2015, KBE and Brascho filed a joint answer to the plaintiffs' complaint.That answer indicated that Brascho had individually initiated Chapter 7 bankruptcy proceedings in 2013, that he had received a discharge in bankruptcy, and that KBE had been dissolved on or around April 16, 2014.

On April 23, 2015, BES filed a motion to transferthe plaintiffs' action to the Shelby Circuit Court.In that motion, BES argued that venue was not proper in St. Clair County but that, even if it was, the case should be transferred to Shelby County pursuant to § 6–3–21.1,Ala.Code 1975, commonly known as Alabama's forum non conveniensstatute.BES supplemented its motion with affidavits on June 1, 2015, and again supplemented the motion with legal authority on June 17, 2015.

On April 29, 2015, EDG filed an answer to the plaintiffs' complaint in which it also alleged that venue in St. Clair County was improper and that the trial court should enter an order transferring the case to Shelby County pursuant to § 6–3–21.1.EDG subsequently filed a motion for a change of venue in which it detailed its grounds for requesting the change of venue.EDG supplemented its motion with an affidavit on June 2, 2015.

On June 22, 2015, the plaintiffs filed a response in opposition to EDG's and BES's motions for a change of venue.In that response, the plaintiffs argued that venue was proper in St. Clair County and that § 6–3–21.1 did not require the transfer of the case to Shelby County.

On June 23, 2015, the trial court heard oral arguments on EDG's and BES's motions.On July 2, 2015, the trial court entered an order denying EDG's motion for a change of venue.Because that order did not mention BES's motion for a change of venue, BES filed a motion requesting clarification of the July 2, 2015, order.Subsequently, on July 19, 2015, the trial court entered an order denying BES's motion for a change of venue.EDG and BES filed with this Court separate petitions on August 13, 2015, and August 20, 2015, respectively, seeking a writ of mandamus directing the trial court to enter an order transferring the case to the Shelby Circuit Court.On December 28, 2015, this Court entered an order consolidating those petitions.

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.”Ex parte Alabama Great Southern R.R.,788 So.2d 886, 888(Ala.2000).“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).Moreover, our review is limited to those facts that were before the trial court.Ex parte National Sec. Ins. Co.,727 So.2d 788, 789(Ala.1998).

“ ‘ “The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.”Ex parte Finance America Corp.,507 So.2d 458, 460(Ala.1987).In addition, this Court is bound by the record, and it cannot consider a statement or evidence in a party's brief that was not before the trial court.Ex parte American Res. Ins. Co.,663 So.2d 932, 936(Ala.1995).’

“Ex parte Pike Fabrication, Inc.,859 So.2d 1089, 1091(Ala.2002).”

Ex parte Morton,167 So.3d 295, 297(Ala.2014).

Discussion

In their petitions to this Court, EDG and BES do not dispute that venue is proper in St. Clair County.²Venue is proper in St. Clair County because Brascho is a resident of St. Clair County, see§ 6–3–2(a),Ala.Code 1975, and KBE's principal place of business was in St. Clair County, see§ 6–3–7(a)(2),Ala.Code 1975.It is equally clear, given that EDG's principal place of business is in Shelby County, that venue is also proper in Shelby County.§ 6–3–7(a)(2).

“When venue is appropriate in more than one county, the plaintiff's choice of venue is generally given great deference.”Ex parte Perfection Siding, Inc.,882 So.2d 307, 312(Ala.2003).

“Nevertheless, Alabama's forum non conveniensstatute permits the transfer of a civil action from one appropriate venue to another appropriate venue ‘for the convenience of parties and witnesses, or in the interest of justice.’§ 6–3–21.1.The forum non conveniensstatute provides, in pertinent part:

“ ‘(a) 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.”

Ex parte J & W Enters., LLC,150 So.3d 190, 193(Ala.2014).EDG and BES argue that the interest-of-justice prong of § 6–3–21.1 requires a transfer of the case from St. Clair County to Shelby County.³

“Thus, we must now determine whether ‘the interest of justice’ overrides the deference due the plaintiff's choice of forum.Our inquiry depends on the facts of the case.Ex parte ADT Sec. Servs., Inc.,933 So.2d 343(Ala.2006).

“With regard to the ‘interest of justice’ prong of the forum non conveniensstatute, this Court has stated:

“ ‘The “interest of justice” prong of § 6–3–21.1 requires “the transfer of the action from a county with

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