Ex parte Overstreet
| Decision Date | 22 October 1999 |
| Citation | 748 So.2d 194 |
| Parties | Ex parte Ronnie W. OVERSTREET, Sr. (Re Arrow Construction, Inc. v. Ronnie W. Overstreet, Sr., et al.). |
| Court | Alabama Supreme Court |
Robert E. Sasser, Tamara A. Stidham, and Craig M. Stephens of Sirote & Permutt, P.C., Montgomery; and Ronnie E. Keahey, Grove Hill, for petitioner.
A. Wesley Pitters, Montgomery, for respondent.
Ronnie W. Overstreet, Sr., is a defendant in an action pending in the Montgomery County Circuit Court. He petitions for a writ of mandamus directing the trial judge to vacate his order denying Overstreet's motion for a change of venue and directing the trial judge to grant the motion and transfer this case to the Clarke County Circuit Court. For the reasons discussed below, we grant the petition and issue the writ.
Overstreet had been employed by Arrow Construction, Inc. ("Arrow"), the plaintiff in the action pending in the Montgomery Circuit Court. Arrow is a construction company that builds "heavy" construction projects, such as highways.1 Arrow is an Alabama corporation with its principal place of business in Montgomery County. Overstreet lives on a farm near Jackson, in Clarke County.
Overstreet was the superintendent in charge of several of Arrow's construction projects in south Alabama. Because of the proximity of Overstreet's farm to those project sites, his farm served as a temporary storage location for construction equipment alleged by Arrow to be its property. In June 1998, according to Arrow's complaint, the south Alabama construction projects were completed and Arrow asked Overstreet to return its equipment. Arrow alleges that Overstreet failed to do so.
On January 22, 1999, Arrow sued Overstreet in the Montgomery Circuit Court, alleging that he had converted to his own use, and had wrongfully detained, Arrow's property. Arrow also named two fictitious defendants in its complaint and alleged that they had "combined and concurred with" Overstreet in converting and wrongfully detaining Arrow's property. On February 22, 1999, Overstreet moved for a change of venue. As grounds for a change of venue, Overstreet asserted that he was a resident of Clarke County and that the property that was the subject of Arrow's action was located in Clarke County. The trial judge denied Overstreet's motion for a change of venue.
On April 8, 1999, Arrow amended its complaint to list "DJ's Ground Maintenance" and "Ronnie Overstreet, Sr., d/b/a DJ's Ground Maintenance" as additional defendants. Shortly thereafter, Overstreet filed this petition for the writ of mandamus, asking this Court to order the trial court to transfer Arrow's lawsuit to the Clarke Circuit Court.
The writ of mandamus is an extraordinary remedy, and one seeking that writ must show: "(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 Alfab, Inc., 586 So.2d 889, 891 (Ala.1991). It is also well settled that "[i]n cases involving the exercise of discretion by a lower court, a writ of mandamus may issue to compel the exercise of that discretion [but that] it may not issue to control the exercise of discretion except in a case of abuse." Ex parte Ben-Acadia, Ltd., 566 So.2d 486, 488 (Ala. 1990)
(emphasis added).
As this Court has frequently held, proper venue for an action is determined at the commencement of the action. Ex parte Mitchell, 690 So.2d 356 (Ala. 1997); Ex parte Parker, 413 So.2d 1105 (Ala.1982); Ex parte Wilson, 408 So.2d 94 (Ala.1981); see also Rule 82(d)(1), Ala. R. Civ. P. 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. Parker, supra; Rule 82(d)(1), Ala. R. Civ. P.
Section 6-3-2, Ala.Code 1975, governs venue of actions against individuals. It provides that such an action must be brought in the county of the defendant's residence or "in the county in which the act or omission complained of may have been done or may have occurred." § 6-3-2(a)(3); see also Rule 82(b)(1)(A), Ala. R. Civ. P. That Code section applies to cases, such as this one, in which a plaintiff alleges conversion of property. Ex parte Sierra Dev., Inc., 652 So.2d 251 (Ala.1994). Further, in a detinue action, venue is proper in any county where the property sued for may be found in the possession of the defendant. Jones v. Norman Fountain Contractor, Inc., 435 So.2d 729 (Ala.1983).
Based on these principles, we conclude that the proper venue for Arrow's action is (1) the county of the defendant's residence; (2) "the county in which the act or omission complained of may have been done or may have occurred," § 6-3-2(a)(3), Ala.Code 1975; or (3) the county where the property that is the subject of the detinue count is located. The question, then, is whether Montgomery County falls within any of these three categories. If it does not, then it is not a proper venue. We will first address this question as it relates to Overstreet, who was the only named defendant at the time the action was filed. If Montgomery County was not a proper venue at the time Arrow filed its action, then we will address the question whether Arrow's amendment purporting to add new defendants made Montgomery County a proper venue.
Does Montgomery County fall within the first category? That is, is Montgomery County Overstreet's county of residence? It appears undisputed that Overstreet is a resident of Clarke County. In fact, Arrow's complaint states: "Defendant Ronnie Overstreet is over the age of [19 years] and a resident of Jackson, Clark[e] County, Alabama." It is clear that Montgomery County is not the county of Overstreet's residence.
Does Montgomery County fall within the second category? That is, did "the act or omission complained of" occur in Montgomery County? Arrow argues that Overstreet took the property in question from Montgomery County. It is evident, however, from Arrow's statement of facts included in its response brief (see n. 1), that such was not the case. Arrow's brief states: "The equipment [was] taken from Montgomery to construction sites in the Baldwin [County] and Mobile County area, with the understanding that Mr. Overstreet would allow the company to keep or store [it] on his farm in Jackson and [that] upon completion of the projects he would return [the equipment] to Montgomery." (Brief of Respondent at 4-5; emphasis added.) Thus, it is apparent that Arrow made no objection when the equipment was taken from its Montgomery facility, because it was being taken to south Alabama to be used there on Arrow's construction projects. Further, it appears that the equipment was stored for a period at Overstreet's...
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