Ex parte Fontaine Trailer Co.

• Decision Date: 31 January 2003
• Citation: 854 So.2d 71
• Parties: Ex parte FONTAINE TRAILER COMPANY and Ex parte International Truck and Engine Corporation. (In re Angela Taylor, on behalf of and as next friend and mother of Freddie Curry, Jr., a minor; et al. v. Charles Thomas Parker, individually; et al.).
• Court: Alabama Supreme Court

854 So.2d 71

Ex parte FONTAINE TRAILER COMPANY and Ex parte International Truck and Engine Corporation.

(In re Angela Taylor, on behalf of and as next friend and mother of Freddie Curry, Jr., a minor; et al. v. Charles Thomas Parker, individually; et al.).

1014.

Supreme Court of Alabama.

January 31, 2003.

Andrew B. Johnson and Jeffrey M. Anderson of Bradley Arant Rose & White, LLP, Birmingham; and Charles A. Stewart III of Bradley Arant Rose & White, LLP, Montgomery, for petitioner Fontaine Trailer Company.

De Martenson, James R. Shaw, and David L. Brown of Huie, Fernambucq & Stewart, LLP, Birmingham, for petitioner International Truck and Engine Corporation.

Benjamin E. Baker, Jr., of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for respondent Angela Taylor.

HARWOOD, Justice.

The petitioners, Fontaine Trailer Company ("Fontaine") and International Truck and Engine Corporation ("International"), defendants in an action pending in the Wilcox Circuit Court, seek a writ of mandamus from this Court ordering the trial court to transfer the underlying case to the Winston Circuit Court. The background of the case, and the parties and claims involved in it, are as follows.

On February 22, 2001, Freddie Curry ("Curry") was killed in a vehicular collision that occurred in Orange County, Texas. At the time of his death he was a resident of Wilcox County, Alabama, and was driving a tractor-trailer truck for his employer, Hornady Truck Line, Inc. ("Hornady"), an Alabama corporation. Hornady was the owner of the tractor-trailer unit. The other vehicle involved in the collision was another tractor-trailer truck operated by Charles Thomas Parker ("Parker"), who was likewise an employee of Hornady. International had manufactured the truck-tractor driven by Curry, and Fontaine had manufactured the trailer component. On July 2, 2001, an action was filed in the Wilcox Circuit Court "pursuant to the Wrongful Death Statute and the Survival Statute of Texas."¹ The plaintiffs were Angela Taylor, suing on behalf of her and Curry's son, Freddie Curry, Jr., a minor; Kimberly Murphy, suing individually as Curry's daughter and also as the proposed administratrix of his estate; and Richard Curry, suing as Curry's father. Freddie Curry, Jr., was a resident of Butler County, Alabama, but Murphy and Richard Curry are residents of Wilcox County. The defendants were Parker, Hornady, International, and Fontaine. Parker is a resident of Georgia; Hornady is an Alabama corporation, with its home office located in Monroeville, Alabama; International is a Delaware corporation having its principal place of business in Illinois; and Fontaine is also a Delaware corporation, but its principal place of business is in Haleyville in Winston County, Alabama. The plaintiffs asserted various claims of negligence and wantonness against Parker and Hornady and product-liability claims against International and Fontaine. The plaintiffs also made a claim on behalf of Freddie Curry, Jr., against "the defendants" for workers' compensation benefits. That latter claim was subsequently focused so as to target only Hornady. Although International and Fontaine initially challenged the "standing" of the plaintiffs other than Angela Taylor to bring claims against them under Texas law, that issue is not presented in their petitions to this Court. Rather, they seek relief pursuant only to that aspect of their respective change-of-venue motions filed in the trial court seeking a transfer of the action from the Wilcox Circuit Court to the Winston Circuit Court, where Fontaine had its principal place of business. They contend that venue is improper as to them in Wilcox County under the controlling venue statute, § 6-3-7, Ala.Code 1975. Subsection (a) of that Code section provides as follows:

"(a) All civil actions against corporations may be brought in any of the following counties:

"(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of real property that is the subject of the actions is situated; or

"(2) In the county of the corporation's principal office in this state; or

"(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiff's residence; or

"(4) if subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action."

In their petitions for a writ of mandamus, International and Fontaine argue that subsection (a)(1) would not apply, because the vehicular collision and Curry's resulting death occurred in Texas; that (a)(2) would apply as to Fontaine, but would make venue proper only in Winston County; that (a)(3) would not apply to either International or Fontaine because neither does business by agent in Wilcox County; and that (a)(4) would not apply because neither was doing business by agent in Wilcox County at the time of the accrual of the cause of action. They both moved the trial court to transfer the case to Winston County.

Hornady and Parker filed with the trial court a motion to dismiss, asserting that the Alabama Workers' Compensation Act provided the exclusive remedy as to them, and stating generally "[t]hese Defendants also contend that venue in Wilcox County is improper." No explanatory averment was made and, in particular, there was no assertion that Hornady did not do business in Wilcox County. Initially, by order of October 10, 2001, the trial judge granted the motion as to Hornady and denied it as to Parker, but he subsequently vacated that order and "reinstated" the tort claims asserted against Hornady under theories of negligence, willfulness, recklessness, and wantonness; vicarious liability and negligent entrustment; negligent maintenance and repair; and negligent supervision, hiring, and training. Hornady remains a defendant in the case.² On April 5, 2002, Hornady petitioned this Court for a writ of mandamus directing the trial court to grant its motion to dismiss, asserting as its sole ground the exclusivity-of-remedy rule of the Alabama Workers' Compensation Act. No issue of venue was raised by that petition. It was denied on May 9, 2002, without an opinion, (No. 1011318), and Hornady's motion for reconsideration was denied on June 27, 2002, again without an opinion. Hornady has not joined in the present petitions for writs of mandamus filed by International and Fontaine.

"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). "`The burden of proof on factual issues in a venue dispute is upon the party or parties challenging venue in the forum.' Ex parte Wiginton, 743 So.2d 1071, 1074 (Ala. 1999)." Ex parte Jim Burke Auto., Inc., 776 So.2d 118, 121 (Ala.2000). As noted earlier, a petitioner for a writ of mandamus is obliged to provide with the petition "copies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition." Rule 21(a), Ala. R.App. P. In the event the petition is not denied, the respondent is directed to file an answer to the petition, which provides the respondent with an "opportunity to supplement the `record' by attaching exhibits of its own...." Ex parte Miltope Corp., 522 So.2d 272, 273 (Ala.1988). In considering a mandamus petition relating to a ruling on a motion for a change of venue, "[o]ur 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). See also Ex parte American Res. Ins. Co., 663 So.2d 932 (Ala.1995), and Ex parte Moore, 642 So.2d 457 (Ala. 1994). Although in Ex parte Miltope Corp., supra, the phrase quoted above continued on to say that the supplementing exhibits filed by the respondent "should ordinarily include only matters submitted to the trial court," 522 So.2d at 273 (emphasis supplied), the circumstances of that case were sufficiently unique so as to warrant a partial suspension of the rule to allow the respondent to submit to this Court affidavits that had not been before the trial court at the time of its ruling. Specifically, in that case "the trial court ruled in [the respondents'] favor before the time set for hearing on the motion for change of venue, and before [the respondent] submitted its evidence in opposition, thus obviating the necessity for [the respondent] to submit any such evidence." 522 So.2d at 273. In the present case, no party was "cut off" from placing pertinent matters before the trial court; we, therefore, adhere to the rule that we will consider only those facts that were before the trial court at the time it made its ruling.

The trial court actually entered five successive rulings: As already noted, on October 10, 2001, it granted Hornady's dismissal motion while denying Parker's motion. On November 20, 2001, it denied the motions of International and Fontaine for a dismissal, a change of venue, and/or severance. In that order the court took the position that "under Rule 82 of the Ala. R. Civ. Pro., venue that is proper as to one defendant is proper as to all defendants" and concluded that, venue being proper as to Hornady (and Parker who was then still in the case), venue in Wilcox County was proper as to all defendants. The court noted that the plaintiffs claimed that Hornady "does business by agent in Wilcox County," which would satisfy venue as to it pursuant to § 6-3-7(a)(3) and that "[t]he Defendants have presented no evidence to establish...