Ex parte Wiginton

• Decision Date: 17 September 1999
• Citation: 743 So.2d 1071
• Parties: Ex parte Danny WIGINTON et al. (Re Danny Wiginton et al. v. Belmont Homes et al.).
• Court: Alabama Supreme Court

743 So.2d 1071

Ex parte Danny WIGINTON et al.

(Re Danny Wiginton et al. v. Belmont Homes et al.).

1971622.

Supreme Court of Alabama.

September 17, 1999.

G. Rick Hall and James Tassin of Almon, McAlister, Baccus & Hall, L.L.C., Tuscumbia, for petitioners.

Samuel H. Franklin, Sara Anne Ford, and Ivan B. Cooper of Lightfoot, Franklin & White, L.L.C., Birmingham, for respondents Belmont Homes, Inc. (Ala.); BHI, Inc., and Belmont Homes, Inc. (Miss.).

L. Tennent Lee III and Walter A. Dodgen of Burr & Forman, L.L.P., Huntsville; and Daniel B. Banks, Jr., of Morris, Cloud & Conchin, P.C., Huntsville, for respondents Mildred E. Kennedy, as executrix of the estate of Jerold Kennedy, deceased; and J.M. Page.

On Application for Rehearing

JOHNSTONE, Justice.

The opinion of May 7, 1999, is withdrawn and the following is substituted therefor.

The plaintiffs, Danny Wiginton, Ed Stevenson, and Gary Joyce, petition for a writ of mandamus directing the Honorable E. Dwight Fay, Jr., Judge of the Madison County Circuit Court, to vacate his order transferring their action from Madison County to Franklin County. We deny the petition.

In 1987, Wiginton, Stevenson, and Joyce incorporated Belmont Homes, Inc. (Belmont-Alabama) in Madison County, where they resided. In 1989, after various alleged misrepresentations were made to them by Jerold Kennedy, now deceased, the plaintiffs sold their shares in Belmont-Alabama to J.M. Page, Donald S. McNeil, and William R. Collins. These buyers, or their successors in interest, purported to dissolve the corporation in 1991. Kennedy spoke the misrepresentations, if at all, from locations in Mississippi.

In 1997, in the Madison County Circuit Court, Wiginton (then a part-time resident of Madison County) and Stevenson and Joyce (still full-time residents there) sued Page, a resident of Franklin County; Mildred E. Kennedy, a resident of Franklin County and executrix of the estate of Jerold Kennedy, deceased, by virtue of letters testamentary granted in Franklin County; Belmont-Alabama; two Mississippi corporations by similar names—BHI, Inc. (also dissolved before suit according to the defendants) and Belmont Homes, Inc. (Belmont-Mississippi); and various fictitious defendants. The complaint alleged breach of fiduciary duty, three counts of fraud, and civil conspiracy, all based on the alleged misrepresentations and suppressions relating to the corporate affairs of Belmont-Alabama. The plaintiffs sought compensatory damages, punitive damages, and equitable relief, including the impressment of a constructive trust.

Defendants Kennedy and Page moved to transfer the action from Madison County to Franklin County pursuant to Rule 82(d)(1), Ala. R. Civ. P., on the ground of improper venue or, in the alternative, to transfer the action to Franklin County pursuant to § 6-3-21.1, Ala.Code 1975, for the convenience of the parties and witnesses. Following the submission of materials and a hearing before Judge Fay, he granted Kennedy and Page's motion to transfer on both grounds alternatively— that is, for improper venue in Madison County or, if not, then for the convenience of the parties and witnesses in Franklin County.

"A writ of mandamus is an extraordinary remedy that requires the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court." Ex parte McNaughton, 728 So.2d 592, 594 (Ala.1998). A petition for a writ of mandamus is the proper means for challenging an order transferring an action to another county. Ex parte AU Hotel, Ltd., 677 So.2d 1160 (Ala.1996). The appellate courts will sustain the decision of the trial court if it is right for any reason, even one not presented by a party or considered or cited by the trial judge, Morrison v. Franklin, 655 So.2d 964 (Ala. 1995), even though the appellate courts will not reverse the trial court on an issue or contention not presented to the trial court for its consideration in making its ruling, Smith v. Equifax Services, Inc., 537 So.2d 463 (Ala.1988).

The defendants in this case are of three types: corporations, a natural person (or "individual"), and an executrix. Venue as to these three types of defendants is addressed by separate statutes. Page is an "individual." An action for fraud, which is the gravamen of all the plaintiffs' claims, is a "personal action" as well as a "personal injury action." Ex parte Graham, 634 So.2d 994 (Ala.1993), and Ex parte SouthTrust Bank of Tuscaloosa County, N.A., 619 So.2d 1356 (Ala. 1993). Therefore, the venue statute applicable to him is § 6-3-2, Ala.Code 1975, which provides, in pertinent part:

"(a) In proceedings of a legal nature against individuals:

". . . .

"(2) All actions on contracts, except as may be otherwise provided, must be commenced in the county in which the defendant or one of the defendants resides if such defendant has within the state a permanent residence.

"(3) All other personal actions, if the defendant or one of the defendants has within the state a permanent residence, may be commenced in the county of such residence or in the county in which the act or omission complained of may have been done or may have occurred.

"(b) In proceedings of an equitable nature against individuals:

". . . .

"(3) Except as may be otherwise provided, actions must be commenced in the county in which the defendant or a material defendant resides."

Mildred E. Kennedy is an executrix. The venue statute applicable to her is § 43-2-130, which provides, in pertinent part:

"Civil actions may be brought against executors or administrators in their representative character, in all cases, in the county in which letters were granted."

Under these statutes, venue as to Page and Kennedy is proper in Franklin County.

However, Rule 82(c), Ala. R. Civ. P., provides that "[w]here 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." Accordingly, if venue for the claims against Belmont-Alabama, BHI, or Belmont-Mississippi is proper in Madison County, then venue for the claims against Kennedy and Page is also proper in Madison County under Rule 82(c).

BHI and Belmont-Mississippi were both incorporated in Mississippi. Belmont-Alabama was incorporated in Madison County. All three corporations had their respective principal places of business at the same manufacturing plant in Belmont, Mississippi. The venue statute, applicable to actions against foreign and domestic corporations¹ is § 6-3-7, which provides:

"A foreign corporation may be sued in any county in which it does business by agent, and a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose; provided, that all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiffs residence."

As noted, fraud is called not only a "personal action" but also a "personal injury action" for purposes of determining proper venue. Ex parte SouthTrust Bank of Tuscaloosa County, N.A., supra. Ex parte SouthTrust Bank of Tuscaloosa, N.A. observes:

"In Age-Herald Publishing Co. v. Huddleston, 207 Ala. 40, 92 So. 193 ([1921]), a libel action, this Court established that the term `injury' for purposes of § 6-3-7 refers to the wrongful act or omission of the corporate defendant, not to the resulting damage to the plaintiff, and thus determined that venue for such an injury is proper where a wrongful act was committed, not where the damage resulted."

619 So.2d at 1358. (Emphasis added.) Age-Herald Publishing Co. explains the Latin derivations. "Injury" derives from injuria, meaning the wrongful act or omission. "Injury" does not mean damage, which derives from damnum. Thus, for examples of the usage, the common phrase damnum absque injuria means damage without wrongdoing, and the equally common phrase injuria sine damno means wrongdoing without damage. 207 Ala. at 44, 92 So. at 197. Accordingly, Ex parte SouthTrust Bank of Tuscaloosa, N.A., supra, holds that the "county where the injury occurred," as intended by § 6-3-7, is the county where the wrongdoing occurred. 619 So.2d at 1357-58. Likewise, in the case before us, because Jerold Kennedy, now deceased, allegedly made the misrepresentations from locations in Mississippi, the injuria, or "injury" contemplated by § 6-3-7, did not "occur" in Madison County, id., even though the plaintiffs claim their damages occurred there.

Therefore, the plaintiffs' only basis for venue in Madison County would be a factual finding that Belmont-Alabama, BHI, or Belmont-Mississippi did business in Madison County at the time the cause of action arose or at the time suit was filed. "A corporation `does business' in a county for purposes of § 6-3-7 if, with some regularity, it performs there some of the business functions for which it was created." Ex parte SouthTrust Bank of Tuscaloosa, N.A., 619 So.2d at 1358.

The parties presented conflicting evidence to Judge Fay on the issue whether Belmont-Alabama, BHI, or Belmont-Mississippi did business in Madison County at the time the alleged causes of action arose or at the time suit was filed. They also presented conflicting evidence on whether Belmont-Alabama was dissolved in 1991 or BHI was dissolved in 1995. In deciding whether venue is authorized by statute or rule in Madison County, Judge Fay states, "The Court is unable to determine as a matter of fact whether the corporations were doing business in Madison County at the time the cause of action arose. It does appear though that the corporation was and has been dissolved, thus establishing ...