Ex Parte Haynes Downard Andra & Jones, Llp

• Decision Date: 29 July 2005
• Docket Number: 1040657.
• Citation: 924 So.2d 687
• Parties: Ex parte HAYNES DOWNARD ANDRA & JONES, LLP, and Lewis F. Jones. (In re Bobby Little, et al. v. Southeastern Commercial Finance, et al.)
• Court: Alabama Supreme Court

924 So.2d 687

Ex parte HAYNES DOWNARD ANDRA & JONES, LLP, and Lewis F. Jones.

(In re Bobby Little, et al. v. Southeastern Commercial Finance, et al.)

1040657.

Supreme Court of Alabama.

July 29, 2005.

As Modified on Denial of Rehearing September 30, 2005.

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Robert K. Spotswood, Kenneth D. Sansom, and Michael T. Sansbury of Spotswood, LLC, Birmingham, for petitioners.

Bill Thomason, Becky Thomason, and Clay J. Thomason of Thomason, Maples & Allsup, LLC, Bessemer, for respondents.

HARWOOD, Justice.

Haynes Downard Andra & Jones, LLP ("the partnership"), and Lewis F. Jones, one of its partners (hereinafter jointly referred to as "Haynes Downard"), defendants in an action pending in the Jefferson Circuit Court, petition for a writ of mandamus directing the Bessemer Division of the Jefferson Circuit Court (1) to sever the claims filed against Haynes Downard from claims filed against other defendants and (2) to transfer those claims, once severed, to the Birmingham Division of the Jefferson Circuit Court. We grant the petition and issue the writ.

Facts and Procedural History

The action underlying this petition comprises 17 claims filed by 5 plaintiffs against 15 defendants. The partnership and Jones are 2 of the 15 defendants. The partnership is a Birmingham accounting firm organized as a limited liability partnership, composed of four partners, including Jones. The action was filed by RockSolid Industries, LLC, and its four incorporators (hereinafter collectively "RockSolid").

The incorporators formed RockSolid Industries in order to purchase the assets of Grasselli Concrete Products Company ("Grasselli"), which manufactured colored concrete blocks. Grasselli's plant is located in Bessemer. Before the purchase, during the performance of their due-diligence investigation, the incorporators began collecting data from various parties concerning Grasselli's financial condition. To this end, the incorporators obtained permission to speak with Jones concerning the partnership's assessment, done at the request of another party, of Grasselli's financial condition. On September 13, 2001, after deciding to purchase Grasselli's assets, the incorporators organized RockSolid Industries; its principal place of business was located in Bessemer. Fifteen days later, on September 28, RockSolid Industries purchased Grasselli's assets. For a variety of reasons not currently before us, however, RockSolid Industries ultimately failed.

RockSolid's complaint first alleges that the partnership and Jones fraudulently misrepresented Grasselli's financial health in financial statements they prepared and that the incorporators relied on the financial statements to their detriment. RockSolid Industries' complaint further alleges that, in the midst of RockSolid Industries' collapse, Jones and the partnership made additional fraudulent misrepresentations to RockSolid, this time concerning the operating capital that would be needed to sustain the business. By September 2003, RockSolid Industries' collapse was complete; it ceased doing business, laid off its remaining employees, and closed its doors.

According to an affidavit subscribed and sworn to by Jones, the truth of which the plaintiffs do not challenge, all allegations of misrepresentations by Jones individually or acting on behalf of the partnership made by RockSolid in its complaint stem from events occurring solely within the Birmingham Division of Jefferson County. Specifically, Jones states that all communication with the incorporators and RockSolid Industries after it was incorporated, as well as the generation of all financial data that was communicated to them, occurred from Haynes Downard's office located in downtown Birmingham. The only event that transpired within the Bessemer Division was "field work" at Grasselli's plant in Bessemer, and it entailed no communications with RockSolid.

On April 23, 2004, RockSolid sued the partnership, Jones, and the 13 additional defendants in the Bessemer Division of the Jefferson Circuit Court. Beyond the allegations detailed above, RockSolid specifically alleged that the partnership had been negligent or wanton in hiring, retaining, and supervising Jones.

Haynes Downard timely served a motion requesting, among other relief, the trial court to sever the claims filed against Haynes Downard and transfer those claims to the Birmingham Division of the Jefferson Circuit Court. After the parties filed briefs supporting and opposing the motion, and after oral argument on the motion, which was not transcribed, the trial court denied the motion to sever and to transfer. Haynes Downard then timely filed this mandamus petition.

Standard of Review

"`The question of proper venue for an action is determined at the commencement of the action.' Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001). `If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.' Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999). `A petition for a writ of mandamus is the appropriate means for challenging a trial court's refusal to transfer an action and such a petition is due to be granted if the petitioner makes a clear showing of error on the part of the trial court.' Ex parte Alabama Power Co., 640 So.2d 921, 922 (Ala.1994). `In considering a mandamus petition, we must look at only those facts before the trial court.' Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995)."

Ex parte Walter Indus., Inc., 879 So.2d 547, 548-49 (Ala.2003). The petitioner for the writ of mandamus has the additional burden of showing

"`"(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 Crawford Broad. Co., 904 So.2d 221, 224 (Ala.2004)(quoting Ex parte Perfection Siding, Inc., 882 So.2d 307, 309-10 (Ala.2003)(quoting in turn Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995))).

Analysis

This Court has recently decided several cases discussing the "unique legal status" of the Bessemer Division of the Jefferson Circuit Court, all of which reaffirmed the rule that venue is proper in the Bessemer Division only if a case "arises" within the territory of that division. Ex parte Hanna Steel Corp., 905 So.2d 805, 808 (Ala.2004); Ex parte DaimlerChrysler Corp., 899 So.2d 928, 938 (Ala.2004); Ex parte State Farm Mut. Auto. Ins. Co., 893 So.2d 1111, 1114 (Ala.2004); and Ex parte Walter Indus., Inc., 879 So.2d at 549-51. As explained in identical phrasing in both DaimlerChrysler, 899 So.2d at 938, and Hanna Steel, 905 So.2d at 808, this Court in Walter Industries "reiterated the rule expressed in Ex parte Central of Georgia Ry., 243 Ala. 508, 10 So.2d 746 (1942), that the jurisdiction granted to the Bessemer Division is limited to those cases arising in that division." (Footnote in Daimler-Chrysler omitted.) Thus the rule has a lineage of over 60 years. RockSolid argues that because the complaint asserts claims against parties other than Haynes Downard, as to whom venue is proper in the Bessemer Division, the claims against Haynes Downard are properly joined in the Bessemer Division by virtue of ancillary venue under Rule 82(c), Ala. R. Civ. P.

Rule 82(c) provides:

"Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought. Whenever an action has been commenced in a proper county, additional claims and parties may be joined, pursuant to Rules 13, 14, 22, and 24, as ancillary thereto, without regard to whether that county would be a proper venue for an independent action on such claims or against such parties."

Although Rule 82(c) does state Alabama's principle of ancillary venue, as the defendants point out the rule explicitly discusses intercounty venue issues, not venue issues as between judicial divisions of a county. The issue before this Court is not whether these claims are properly within Jefferson County; the issue rather is whether the claims arising out of conduct that occurred in the Birmingham Division may be properly brought within the Bessemer Division.

As we explained in Southeastern Meats of Pelham, Inc. v. City of Birmingham, 895 So.2d 909, 913 (Ala.2004):

"`[T]he construction of rules of court are for the court which promulgated them.' Alabama Public Serv. Comm'n v. Redwing Carriers, Inc., 281 Ala. 111, 115, 199 So.2d 653, 656 (1967). `We start with the basic premise that words used in court rules must be given their plain meaning.' Nieto v. State, 842 So.2d 748, 749 (Ala.Crim.App.2002). In construing a rule promulgated by this Court, effect must be given to `each word, phrase, and clause.' State v. Old West Bonding Co., 203 Ariz. 468, 471, 56 P.3d 42, 45 (Ct.App.2002)."

We must, therefore, give effect to the choice of words in Rule 82(c), which provides for ancillary venue only between counties, not within a county. Concluding, then, that the principle of ancillary venue does not apply to the separate divisions of a county, we hold that any claim against a party arising in Jefferson County that does not arise within the Bessemer Division of the Jefferson Circuit Court is subject to transfer to the Birmingham Division under Ala.Code 1975, § 12-11-11.¹

RockSolid next argues that its claims against Haynes Downard arise in the Bessemer Division because "[i]n this case, the alleged wrongs occurred, at least in part, in the Bessemer Division," inasmuch as RockSolid's "injuries occurred in Bessemer where RockSolid failed, and therefore [RockSolid's] cause of action arose there." (RockSolid's brief, p. 11.) In Walter Industries, this Court quoted as controlling the following passage from Ex parte Fields, 432 So.2d 1290,...