Ex parte Johnson
| Decision Date | 14 January 1994 |
| Citation | 638 So.2d 772 |
| Parties | Ex parte Bertha JOHNSON, as administratrix of the Estate of Larry Johnson, Jr., deceased (Re Bertha JOHNSON, as administratrix of the Estate of Larry Johnson, Jr., deceased, v. CSX TRANSPORTATION, INC., et al.) 1930014. |
| Court | Alabama Supreme Court |
Kathryn H. Sumrall and Ezra B. Perry, Jr. of Corley, Moncus & Ward, P.C., Birmingham, for petitioner.
Charles E. Sharp and Michael W. Ray of Sadler, Sullivan, Herring & Sharp, P.C., Birmingham, for respondent.
Bertha Johnson, as administratrix of the estate of Larry Johnson, Jr., filed a wrongful death action seeking damages against CSX Transportation, Inc. (CSX), and Joel A. Barnett, the operator and the engineer of a train that struck a motor vehicle in which Larry Johnson, Jr., was traveling. Larry Johnson, Jr., was killed in the collision; the collision occurred on October 29, 1992, in Calera, Shelby County, Alabama. Mrs. Johnson filed her action in Jefferson County; she petitions this Court for a writ of mandamus directing the Honorable Claude Hughes, judge of the Circuit Court of Jefferson County, to vacate his order transferring the case to Shelby County. We grant her petition.
Mrs. Johnson filed her complaint on July 15, 1993. The complaint alleges that Barnett, a material defendant, is a resident of Jefferson County. On August 12, 1992, the defendants moved to transfer the cause to the Circuit Court of Shelby County. Judge Hughes granted their motion, without a hearing. On September 1, 1993, Mrs. Johnson filed a motion to set aside the transfer order; that motion was denied. She then petitioned this Court for a writ of mandamus directing Judge Hughes to vacate the transfer order.
Mandamus is an extraordinary remedy requiring a showing that 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 Edgar, 543 So.2d 682, 684 (Ala.1989); Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991).
In 1987, the Alabama legislature adopted the doctrine of forum non conveniens. Section 6-3-21.1, Ala.Code 1975, provides:
"(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein...."
This court rejected a constitutional challenge to that statute in Ex parte Southern Ry., 556 So.2d 1082 (Ala.1989). The standard of review applicable to a trial court's order transferring a case pursuant to the statute is whether the trial court abused its discretion. Ex parte Smith, 533 So.2d 533 (Ala.1988).
Bertha Johnson maintains that there are a number of reasons that her petition for the writ of mandamus should be granted. She argues that venue was proper in Jefferson County and that, as the plaintiff, she has the right to choose the forum and that the defendant has the burden of proving that the case should be transferred. She contends that the defendants made no showing that Shelby County was more convenient than Jefferson County, and she points out that, in fact, Judge Hughes held no hearing before issuing the transfer order. Mrs. Johnson states that while some of the parties to this action are residents of Shelby County and while the accident occurred there, a material defendant resides in Jefferson County, all of the lawyers involved in this case live there, and CSX does business in Jefferson County; therefore, she argues, Jefferson County would be a more convenient forum.
The defendants contend that the trial court did not err in granting the motion to transfer. They point out that the accident occurred in Shelby County, that the plaintiff lives there, and that CSX does business by agent in Shelby County, and they argue that an opportunity for a jury to view the accident scene would be lost if the...
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