Ex parte Charles Bell Pontiac-Buick-Cadillac-GMC, Inc., PONTIAC-BUICK-CADILLAC-GM

• Decision Date: 03 October 1986
• Docket Number: INC,PONTIAC-BUICK-CADILLAC-GM
• Citation: 496 So.2d 774
• Parties: Ex parte CHARLES BELL, and Charles Bell. (In re Ed Willie TRAYLOR v. Charles BELL, et al.) 85-872.
• Court: Alabama Supreme Court

Page 774

496 So.2d 774

Ex parte CHARLES BELL PONTIAC-BUICK-CADILLAC-GMC, INC., and Charles Bell (In re Ed Willie TRAYLOR v. Charles BELL, et al.)

85-872.

Supreme Court of Alabama.

Oct. 3, 1986.

Robert S. Thompson, Tuskegee, for petitioner.

James R. Bowles of Bowles & Cottle, Tallassee, for respondent.

PER CURIAM.

This petition seeks a writ of mandamus to compel the transfer of a fraud action from the Montgomery County Circuit Court to the Macon County Circuit Court. The writ is denied.

It is undisputed that Charles Bell Pontiac-Buick-Cadillac-GMC, Inc., is a domestic corporation doing business in Macon County, Alabama. It is undisputed that the dealership does not do business by agent in Montgomery County and that it was not doing business by agent there at the time the cause of action arose.

Ala.Code 1975, § 6-3-7, provides in relevant part:

"[A] domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose; provided, that all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiff's residence."

However, Traylor is also suing Charles Bell individually. Charles Bell resides in Montgomery County. Ala.Code 1975, § 6-3-2(a)(3), provides that personal actions of a legal nature against individuals may be commenced in the county in which the defendant or one of the defendants has a personal residence. In addition, Rule 82(b)(1)(A), Ala.R.Civ.P., provides that personal actions, other than an action on a contract, against an individual or individuals having a permanent residence in this state "may be brought either in the county where the act or omission complained of occurred, or in the county of the permanent residence of the defendant or one of them." Furthermore, Rule 82(c) provides that where several parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought. Thus, venue is proper in Montgomery County if Traylor has asserted a claim against Charles Bell individually.

In Alabama, the general rule is that officers or employees of a corporation are liable for torts in which they have personally participated, irrespective of whether they were acting in a corporate capacity. Candy H. v. Redemption Ranch, Inc., 563 F.Supp. 505, 513 (M.D.Ala.1983); Chandler v. Hunter, 340 So.2d 818, 822 (Ala.Civ.App.1976).

The complaint charges that Charles Bell personally participated in the alleged fraud; thus, venue in Montgomery County is proper.

WRIT DENIED.

MADDOX, JONES, ALMON, SHORES and BEATTY, JJ., concur.

ADAMS, J., concurs specially.

TORBERT, C.J., and HOUSTON and STEAGALL, JJ., dissent.

ADAMS, Justice (concurring specially).

I have read the dissenting opinion authored by Chief Justice Torbert in which he quotes from my dissent in Ex parte Ford, 431 So.2d 1194 (Ala.1983). I was joined in that dissent by Chief Justice Torbert and Justice Faulkner. I did not prevail then and the law as enunciated by the majority is expressed in the per curiam opinion in this case. Even though I believe that my dissent was correct, it nevertheless is not the law in this jurisdiction. There comes a time when one must recognize what the law is and accept same without dissent.

TORBERT, Chief Justice (dissenting).

The majority correctly relies on Rule 82(b)(1)(A), A.R.Civ.P., as the controlling rule of civil procedure in this case. This rule provides that suits against resident individuals

"[m]ust be brought in the county where the defendant or any material defendant resides at the commencement of the action, except that if the action is a personal action other than an action on a contract, it may be brought either in the county where the act or omission complained of occurred, or in the county of the permanent residence of the defendant or one of them...."

Id. (emphasis added). Although the majority does not specifically address the requirement of materiality set forth in this rule, the Court has presumably defined a "material defendant" as one against whom a legally sufficient claim has been stated in the plaintiff's complaint. I believe that this definition is incompatible with the language and purpose of Rule 82(b)(1)(A). For this reason, I respectfully dissent.

In Ex parte Ford, 431 So.2d 1194 (Ala.1983), I concurred with Justice Adams's dissent, in which he offered the following observations:

"As stated in the committee's comments to the rule, the purpose of incorporating the 'material defendant' language ... was 'to prevent a plaintiff from joining a nominal defendant for the express purpose of shifting the venue of the action.'

"The comments clearly reflect the committee's intention that the courts look...