EX PARTE DM WHITE CONST. CO., INC.

• Decision Date: 15 June 2001
• Citation: 806 So.2d 370
• Parties: Ex parte D.M. WHITE CONSTRUCTION COMPANY, INC. (Re Stinnett Concrete Company, Inc. v. D.M. White Construction Company, Inc.)
• Court: Alabama Supreme Court

806 So.2d 370

Ex parte D.M. WHITE CONSTRUCTION COMPANY, INC.

(Re Stinnett Concrete Company, Inc. v. D.M. White Construction Company, Inc.)

1000199.

Supreme Court of Alabama.

June 15, 2001.

David B. Block and Walter A. Dodgen of Balch & Bingham, L.L.P., Huntsville, for petitioner.

C. Wayne Morris, Huntsville, for respondent.

STUART, Justice.

D.M. White Construction Company, Inc. ("D.M.White"), is a defendant in an action pending in the Madison Circuit Court. It petitions for a writ of mandamus directing the circuit court to enforce an "outbound" forum-selection clause in its contract with the plaintiff Stinnett Concrete Company, Inc. ("Stinnett"), by granting D.M. White's motion for summary judgment.

In August 1997, Stinnett, through its owner, Edgar Stinnett, contracted to become a subcontractor to perform specified concrete work for D.M. White's construction project—the Carmike Cinemas 10-plex theater in Huntsville. The contract contained the following clause:

"Should the parties be unable to agree on a reasonable sum on said basis for work actually performed, or if there is any other dispute between the parties to this agreement, the parties agree that all causes of action, lawsuits and any other legal and/or administrative proceedings must be instituted in the courts of Hamilton County, Tennessee, and that the courts in Hamilton County, Tennessee, shall be the sole forum for the adjudication of any and all disputes between the Contractor and Subcontractor. The Subcontractor expressly agrees to submit to the jurisdiction of the courts in the State of Tennessee and the venue of the courts in Hamilton County, Tennessee, whether or not any of the work was actually performed in the State of Tennessee or without regard to where this contract was entered into. The Subcontractor further agrees that the laws of the State of Tennessee shall apply to the interpretation of this contract and to any dispute that may arise between the Contractor and Subcontractor."

The contract further provided: "This Agreement shall be governed by and interpreted in accordance with the substantive laws of the State of Tennessee."

In November 1998, Stinnett sued D.M. White, alleging fraud, negligence, breach of contract, and failure to timely pay a subcontractor, and seeking payment for work and labor performed. In December 1998, D.M. White moved for a summary judgment, alleging improper venue and requesting that the circuit court enforce the "outbound" forum-selection clause. In July 2000, the circuit court conducted a hearing on D.M. White's motion and denied it, without issuing a written explanation. D.M. White petitioned the Court of Civil Appeals for a writ of mandamus directing the circuit court to vacate its order denying the summary-judgment motion and to enforce the "outbound" forum-selection clause by granting the summary-judgment motion. The Court of Civil Appeals, on October 17, 2000, denied the mandamus petition. Ex parte D.M. White Constr. Co. (No. 2991177), ___ So.2d ___ (Ala.Civ.App. 2000) (table). D.M. White then petitioned this Court for a writ of mandamus, seeking the same relief. See Rule 21, Ala. R.App.P.¹

"`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)."

Ex parte CTB, Inc., 782 So.2d 188, 190 (Ala.2000). In Ex parte CTB, this Court established that a petition for a writ of mandamus is the proper vehicle for obtaining review of an order denying enforcement of an "outbound" forum-selection clause when it is presented in a motion to dismiss. Indeed, an attempt to seek enforcement of the outbound forum-selection clause is properly presented in a motion to dismiss without prejudice, pursuant to Rule 12(b)(3), Ala.R.Civ.P., for contractually improper venue. Additionally, we note that a party may submit evidentiary matters to support a motion to dismiss that attacks venue. Williams v. Skysite Communications Corp., 781 So.2d 241 (Ala.Civ. App.2000), quoting Crowe v. City of Athens, 733 So.2d 447, 449 (Ala.Civ.App.1999).

D.M. White raised the forum-selection clause in a motion for summary judgment. A motion for summary judgment is an appropriate means of seeking an adjudication on the merits. Bean v. Craig, 557 So.2d 1249 (Ala.1990). D.M. White, however, is not seeking an adjudication on the merits; therefore, summary judgment—which would operate much as a dismissal with prejudice—would not be appropriate. However, in light of the facts of this particular case and recognizing that "[t]he substance of a motion and not its style determines what kind of motion it is," Evans v. Waddell, 689 So.2d 23, 26 (Ala. 1997), we will treat D.M. White's motion as a motion to dismiss without prejudice and address the merits of this petition. Ex parte CTB, Inc.

An outbound forum-selection clause is enforceable unless the challenging party can establish that enforcement of the clause would be unfair on the basis that the contract "`[w]as affected by fraud, undue influence, or overweening bargaining power or ... enforcement would be unreasonable on the basis that the [selected] forum would be seriously inconvenient.'" The burden on the challenging party is difficult to meet. Ex parte CTB, supra

. See also Professional Ins. Corp. v. Sutherland, 700 So.2d 347, 351 (Ala.1997). On appeal, the review of a trial court's ruling on the question of enforcing a forum-selection clause is for an abuse of discretion. O'Brien Eng'g Co. v. Continental Machs., Inc., 738 So.2d 844 (Ala. 1999).

When D.M. White moved for a summary judgment—basing its motion on the grounds that the outbound forum-selection clause should be enforced and the cause "dismissed"—Stinnett responded with an affidavit stating:

"My name is Ed Stinnett and I am the president of Stinnett Concrete Co. Inc. an Alabama Corporation which is solely owned by myself. Stinnett Concrete Co. Inc. became licensed to do business in Huntsville Alabama in 1987. D.M. White is a large construction company located in

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