Ex Parte Greenetrack, Inc.

• Decision Date: 12 June 2009
• Docket Number: 1061768.
• Citation: 25 So.3d 449
• Parties: Ex parte GREENETRACK, INC. (In re Joe Estano v. Greenetrack, Inc., et al.).
• Court: Alabama Supreme Court

25 So.3d 449

Ex parte GREENETRACK, INC. (In re Joe Estano v. Greenetrack, Inc., et al.).

1061768.

Supreme Court of Alabama.

June 12, 2009.

John M. Bolton III, Patrick L.W. Sefton, and Charlanna W. Spencer of Sasser, Bolton & Sefton, P.C., Montgomery; J. Mason Davis, Charles R. Driggars, J. Rushton McClees, and R. Ryan Daugherty of Sirote & Permutt, P.C., Birmingham; and John Owens of Owens & Millsap, LLP, Tuscaloosa, for petitioner.

Wilson F. Green and James E. Fleenor, Jr., of Battle, Fleenor, Green, Winn & Clemmer, LLP, Tuscaloosa; and Clatus C. Junkin and Samuel W. Junkin of Junkin Pearson Harrison & Junkin, LLC, Tuscaloosa, for respondent.

Doy Leale McCall III of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery; and R. Bruce Barze, Jr., of Balch & Bingham LLP, Birmingham, for amicus curiae Alabama Defense Lawyers Association, in support of the petitioner.

Matthew C. McDonald and Kirkland E. Reid of Miller, Hamilton, Snider & Odom, LLC, Mobile, for amicus curiae Business Council of Alabama, in support of the petitioner.

PARKER, Justice.

Greenetrack, Inc., petitions for a writ of mandamus directing the Pickens Circuit Court to vacate its order denying Greenetrack's motion to transfer to the Greene Circuit Court an action filed against it by Joe Estano. Estano seeks restitution for moneys he and a putative class of others allegedly lost at the Greenetrack gaming facility. We grant the petition and issue the writ.

Background

Greenetrack operates "both paper and electronic video bingo" at its facility in Greene County for "80 nonprofit organizations licensed by the Sheriff of Greene County." Amendment No. 743, Ala. Const. 1901 (Local Amendments, Greene County, § 1 (Off.Recomp.)), authorizes nonprofit organizations to operate "bingo games for prizes or money" in Greene County. Estano filed a complaint in December 2006, alleging that the gaming operation at the Greenetrack facility is illegal because, he argues, it exceeds the authority granted by the local amendment. Section 8-1-150, Ala.Code 1975, provides that a person may recover losses incurred as the result of an illegal gambling operation. Estano filed the complaint in his county of residence, Pickens County. The complaint stated that venue is proper in Pickens County because Greenetrack, the defendant, does business there and because Estano, the plaintiff, resides there.

On February 9, 2007, Greenetrack filed a motion to dismiss Estano's complaint pursuant to Rules 12(b)(3) and 12(b)(6), Ala. R. Civ. P. Alternatively, Greenetrack moved the trial court to transfer the case to Greene County pursuant to § 6-3-7, Ala.Code 1975, which governs venue as to corporations, or under the doctrine of forum non conveniens, § 6-3-21.1, Ala.Code 1975. The trial court denied Greenetrack's motion. Greenetrack has petitioned for a writ of mandamus alleging that the trial court exceeded its discretion by refusing the transfer of the case to Greene County.¹

Analysis

"`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).

In its motion for a change of venue, Greenetrack argued that venue in Pickens County was not proper, and it asked the trial court to transfer the action to Greene County pursuant to § 6-3-7, Ala.Code 1975, or, in the alternative, under § 6-3-21.1, Ala.Code 1975, the forum non conveniens statute, for the convenience of the parties. Because the writ will issue on the authority of § 6-3-7, we need not reach the issue whether Greene County is a more convenient forum under § 6-3-21.1, Ala.Code 1975.

Section 6-3-7(a), Ala.Code 1975, provides, in part, that "[a]ll civil actions against corporations may be brought . . . (3)[i]n the county in which the plaintiff resided . . . 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. . . ." The crux of the issue presented by Greenetrack's petition is whether Greenetrack "does business by agent" in Pickens County, the county of Estano's residence. Greenetrack argued in its motion for a change of venue that all Greenetrack's business functions occur at its facility, which is located in Greene County; that its principal place of business and its offices are located exclusively in Greene County; and that it has not purchased any newspaper, radio, or billboard advertisements in Pickens County.

Estano argued in his opposition to Greenetrack's motion for a change of venue that because Greenetrack operated a bus that ran on a regular schedule from its facility in Greene County to Columbus, Mississippi, with scheduled stops in Pickens County at Aliceville and Reform,² Greenetrack did business by agent in Pickens County. The bus provided free transportation to and from Greenetrack.³ Estano also argued that Greenetrack targets business from Pickens County through "advertisements over television, radio, billboards and other mass media." In a footnote to his opposition to Greenetrack's motion, Estano indicated that Greenetrack also had 10 employees who reside in Pickens County who presumably travel to and from Greene County daily.

To support his argument, made in opposition to Greenetrack's motion, that the operation of the bus service between Greene County, Alabama, and Columbus, Mississippi, with stops in Pickens County, constituted conducting business by agent in Pickens County, Estano first defined the terminology by quoting from Ex parte Pike Fabrication, 859 So.2d at 1093: "`"[A] corporation `does business' in a county for the purposes of § 6-3-7 if, with some regularity, it performs there some of the business functions for which it was created."'" (Quoting Ex parte Wiginton, 743 So.2d 1071, 1074-75 (Ala.1999), quoting in turn Ex parte SouthTrust Bank of Tuscaloosa, N.A., 619 So.2d 1356, 1358 (Ala. 1993).) In his opposition to Greenetrack's motion, Estano then argued:

"The Alabama Supreme Court has repeatedly held that a corporation does business by agent in a County when it performs business functions which relate to its core business. For example, in Ex parte Scott Bridge Co., 834 So.2d 79, 81-82 (Ala.2002), a former employee living in Chambers County filed a retaliatory discharge action in Chambers County against his employer, Scott Bridge, a bridge-building company in Lee County. Scott Bridge moved to dismiss or transfer claiming that venue was improper under Section 6-3-7(a)(3) because it was not doing business in Chambers County, in that it had never constructed a bridge there. The evidence however showed that Scott Bridge had bought some supplies for bridge-building from vendors in Chambers County. The Supreme Court held that Scott Bridges's purchase of supplies in Chambers County rendered it to be doing business there.

"Also instructive is Ex parte Perfection Siding, Inc., 882 So.2d 307 (Ala. 2003). In that case, Plaintiff (an employee of a siding contractor) sued the subcontractor and general contractor in Hale County, seeking damages resulting from a fall from a roof occurring at a jobsite in Tuscaloosa County. Defendants sought dismissal or transfer, claiming that venue was improper because the subcontractor (Perfection Siding) was not doing business in Hale County. Particularly, Perfection Siding claimed that it had only performed two (2) jobs in Hale County in the year prior to the lawsuit, a minuscule fraction of its approximately 1,000 total jobs performed that year. The Supreme Court held that Perfection Siding was doing business in Hale County because its `physical presence [and] performance of services within the county.' Perfection Siding, 882 So.2d at 311."

In determining whether venue in Pickens County is proper in this case, we must look to whether Greenetrack was, in Pickens County, "perform[ing] some of the business functions for which it was created," Ex parte Pike Fabrication, 859 So.2d at 1093, as Estano argued in his opposition to Greenetrack's motion for a change of venue. When Greenetrack made its prima facie case that it did not do business in Pickens County, the burden then shifted to Estano to prove that Greenetrack did, in fact, conduct in Pickens County the business for which it was created.

Estano cited Ex parte Scott Bridge Co., 834 So.2d 79 (Ala.2002), for the holding that Scott Bridge was doing business in Chambers County even though it had not built a bridge there but had merely purchased some supplies there. Estano argued that this activity by Scott Bridge is analogous to Greenetrack's running a bus service to pick up potential customers in Pickens County and transport them to Greene County. But this Court in Scott Bridge reasoned:

"`A corporation "does business" in a county for purposes of § 6-3-7 if, with some...