Fish Mkt. Rests., Inc. v. Riverfront, LLC (Ex parte Riverfront, LLC)

• Court: Alabama Supreme Court
• Writing for the Court: PARKER, Justice.
• Citation: Fish Mkt. Rests., Inc. v. Riverfront, LLC (Ex parte Riverfront, LLC), 196 So.3d 1167 (Ala. 2015)
• Decision Date: 06 November 2015
• Docket Number: 1131061.
• Parties: Ex parte RIVERFRONT, LLC. (In re Fish Market Restaurants, Inc., and George Sarris v. Riverfront, LLC ).

196 So.3d 1167

Ex parte RIVERFRONT, LLC.

(In re Fish Market Restaurants, Inc., and George Sarris

v.Riverfront, LLC ).

1131061.

Supreme Court of Alabama.

Nov. 6, 2015.

Wayne L. Williams of Wayne L. Williams & Associates, LLP, Tuscaloosa; and James E. Fleenor of Fleenor & Green LLP, Tuscaloosa, for petitioner.

R. Bernard Harwood, Jr., of Rosen Harwood, P.A., Tuscaloosa; and Robert J. Hayes of Hayes & McKinney, LLC, Birmingham, for respondents.

PARKER, Justice.¹

Riverfront, LLC, petitions this Court for a writ of mandamus directing the Tuscaloosa Circuit Court to vacate its order transferring an action filed against Riverfront by Fish Market Restaurants, Inc., and George Sarris (hereinafter referred to collectively as “Fish Market”) to the Etowah Circuit Court. We grant the petition and issue the writ.

Facts and Procedural History

This case first came before this Court in Ex parte Riverfront, LLC, 129 So.3d 1008 (Ala.2013) (“Riverfront I ”). In Riverfront I, we explained that Riverfront and Fish Market had entered into a lease for real property located in Gadsden. The lease contained a forum-selection clause naming Tuscaloosa County as the venue in which any litigation concerning the lease was to be brought.

As set forth in Riverfront I, a disagreement over the lease led Fish Market to file a declaratory-judgment action against Riverfront; Fish Market filed its action in the Etowah Circuit Court. In response to Fish Market's complaint, “Riverfront filed a motion to dismiss the declaratory-judgment action on the basis of improper venue or, in the alternative, to transfer the case to the Tuscaloosa Circuit Court, pursuant to the forum-selection clause.” 129 So.3d at 1011. Significantly, Fish Market did not file a written response to Riverfront's motion, nor did Fish Market present any oral argument opposing Riverfront's motion at a hearing held on Riverfront's motion. Regardless, without stating its reasons for doing so, the Etowah Circuit Court denied Riverfront's motion. Riverfront then petitioned this Court for a writ of mandamus, which resulted in Riverfront I.

In Riverfront I, this Court determined that the lease containing the forum-selection clause was valid and that the forum-selection clause was enforceable. In determining that the forum-selection clause was enforceable, this Court held that Tuscaloosa County was not a “seriously inconvenient” forum.² 129 So.3d at 1014. Regarding the issue whether the Tuscaloosa Circuit Court was a “seriously inconvenient” forum, Riverfront I noted that Fish Market “did not present any evidence or argument in the [Etowah] [C]ircuit [C]ourt concerning whether the Tuscaloosa Circuit Court would be a ‘seriously inconvenient’ forum” and that, before this Court, “Fish Market ha[d] not presented any argument in opposition to Riverfront's argument” that Tuscaloosa County was not a “seriously inconvenient” forum. 129 So.3d at 1014. Riverfront I concludes:

“Riverfront has established that it has a clear legal right to the enforcement of the forum-selection clause in the lease because Fish Market has failed to establish that enforcement of the clause would be unfair or unreasonable. The [Etowah] [C]ircuit [C]ourt exceeded the scope of its discretion in denying Riverfront's motion to dismiss or, in the alternative, to transfer the case to the Tuscaloosa Circuit Court. We direct the [Etowah] [C]ircuit [C]ourt either to dismiss this cause, without prejudice, pursuant to Rule 12(b)(3), Ala. R. Civ. P., or to transfer the cause to the Tuscaloosa Circuit Court, the forum agreed to in the lease.”

129 So.3d at 1015.

On July 30, 2013, the Etowah Circuit Court transferred the action to the Tuscaloosa Circuit Court. On October 22, 2013, Fish Market filed a motion to transfer the action, then pending in the Tuscaloosa Circuit Court, back to the Etowah Circuit Court. In its motion, Fish Market noted that Riverfront I states that Fish Market failed to present any argument or evidence in the Etowah Circuit Court in response to Riverfront's original motion to transfer, which was the subject of Riverfront I. Fish Market then argued, citing § 6–3–21.1, Ala.Code 1975, that Tuscaloosa County “would be a seriously inconvenient forum.” On January 24, 2014, Riverfront filed a response to Fish Market's motion to transfer. Riverfront argued that “[t]he issue stated in [Fish Market's] Motion to Transfer has previously been litigated between the parties, and adjudicated in [Riverfront's] favor by the Alabama Supreme Court.” The Tuscaloosa Circuit Court held a hearing on Fish Market's motion to transfer on April 1, 2014. Following the hearing, the parties each filed additional documents presenting arguments similar to their earlier arguments.

On May 12, 2014, the Tuscaloosa Circuit Court granted Fish Market's motion to transfer, stating:

“Plaintiff Fish Market Restaurants, Inc. (‘Fish Market’), filed this action in Etowah County on February 27, 2012. Defendant Riverfront, LLC (‘Riverfront’), filed a motion to dismiss or transfer to Tuscaloosa County on March 26, 2012. The trial court denied Riverfront's motion on May 24, 2012, and Riverfront filed a [petition for a] writ of mandamus. The Alabama Supreme Court granted the writ and the case was transferred to Tuscaloosa County. The Court determined that the forum-selection clause in the lease was enforceable because Fish Market failed to establish that enforcement of the clause would be unfair or unreasonable. The Alabama Supreme Court also noted that [Fish Market] did not argue ‘that enforcement would be unreasonable on the basis that the selected forum [the Tuscaloosa Circuit Court] would be seriously inconvenient.’ Ex parte Riverfront, LLC (Ala.2013) (internal citations omitted.)

“This matter is before the court on Fish Market's motion to transfer to Etowah County based on forum non conveniens. The lease between Fish Market and Riverfront contains a forum-selection clause. However, a forum-selection clause is unenforceable if the challenging party can establish that enforcement of the clause would be ‘seriously inconvenient.’ Ex parte D.M. White Constr. Co., Inc., 806 So.2d 370, 372 (Ala.2001). Pursuant to Ala.Code [1975,] 6–3–21.1(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.’ “[Fish Market] cited several cases and made numerous arguments as to why Tuscaloosa County would be seriously inconvenient, and that Etowah County would be a more convenient forum. The property and restaurant which is the subject of this litigation are less than a mile from the Etowah County courthouse, yet over 100 miles from the Tuscaloosa County courthouse. The witnesses are in Etowah County. The restaurant would shut down for a day or more for the witnesses to travel from Etowah County to Tuscaloosa County. Transferring a case from one county to another is proper if it is more convenient for the parties and witnesses. See Ex parte Ford Motor Credit, 561 So.2d 244, 246–247, citing Ex parte Southern Ry., 556 So.2d [1082,] 1086 [ (Ala.1989) ]: ‘[Section 6–3–21.1 ] contemplates transfer of venue from a county in Alabama where venue is proper to another county within the state where venue is also proper, but more convenient for the parties and witnesses [or in the interest of justice].’

“This Court finds that the forum-selection clause in the contract is unenforceable because Tuscaloosa County would be a seriously inconvenient forum. Further, under Ala.Code [1975,] 6–3–21.1, Etowah County is more convenient for the parties and witnesses and it is in the interest of justice for the case to be transferred.

“Accordingly, Plaintiff's motion to transfer is due to be GRANTED and the case is hereby TRANSFERRED to Etowah County.”

(Capitalization in original.) Riverfront then petitioned this Court for a writ of mandamus directing the Tuscaloosa Circuit Court to vacate its order transferring the action back to the Etowah Circuit Court.³

Standard of Review

“A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right 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) the properly invoked jurisdiction of the court. Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala.2000). A writ of mandamus may not be issued to control or review the exercise of discretion, except in a case of abuse. Ex parte Auto–Owners Ins. Co., 548 So.2d 1029, 1030 (Ala.1989).”

Ex parte BOC Grp., Inc., 823 So.2d 1270, 1272 (Ala.2001). “[A] trial court's ruling on the question of enforcing a forum-selection clause is reviewed to determine whether in enforcing or refusing to enforce the forum-selection clause the trial court exceeded its discretion.” Riverfront I, 129 So.3d at 1011–12 (citing Ex parte D.M. White Constr. Co., 806 So.2d 370, 372 (Ala.2001) ).

Discussion

Riverfront argues that the Tuscaloosa Circuit Court “failed to comply with this Court's mandate from Riverfront I. ” Riverfront states that “this Court held that the forum-selection clause is enforceable and mandated transfer of the [l]awsuit to Tuscaloosa County.” Riverfront then argues that the Tuscaloosa Circuit Court considered “the same issue that was decided by this Court—enforceability of the forum-selection clause—and reache[d] a contrary conclusion.” Riverfront states that the Tuscaloosa Circuit Court determined that the forum-selection clause is unenforceable on the ground that Tuscaloosa County is “seriously inconvenient” as a forum. We agree with Riverfront; the Tuscaloosa Circuit Court entered an order addressing an issue this Court had already decided in...