Floyd v. Wachovia Bank (Ex parte Wachovia Bank, N.A.)

• Citation: 77 So.3d 570
• Decision Date: 12 August 2011
• Docket Number: 1100645.
• Parties: Ex parte WACHOVIA BANK, N.A.(In re Tameka Floyd and Unique Image Pro Car Care v. Wachovia Bank et al.).
• Court: Supreme Court of Alabama

77 So.3d 570

Ex parte WACHOVIA BANK, N.A.(In re Tameka Floyd and Unique Image Pro Car Care

v.Wachovia Bank et al.).

1100645.

Supreme Court of Alabama.

May 27, 2011.Rehearing Denied Aug. 12, 2011.

Floyd D. Gaines, W. Patton Hahn, and Marianne H. Combs of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for petitioner.

Fred D. Gray and Stanley F. Gray of Gray, Langford, Sapp, McGowan, Gray, Gray & Nathanson, P.C., Tuskegee, for respondents.

WOODALL, Justice.

Wachovia Bank, N.A. (“Wachovia”), petitions this Court for a writ of mandamus directing the Macon Circuit Court to vacate its order denying Wachovia's motion to transfer the underlying case to Lee County on the ground of forum non conveniensand to enter an order granting the motion. We grant the petition and issue the writ.

I. Factual and Procedural Background

On April 4, 2008, Tameka Floyd and her husband, Adam Lee Floyd, were joint signatories on a business checking account in the name of Adam Lee Floyd, d/b/a Unique Image Pro Car Care (“Unique”), at one of Wachovia's branch banks in Auburn. On that day, an allegedly unauthorized withdrawal in the amount of $3,000 appeared on Unique's account. The discovery of this withdrawal precipitated an investigation by the Auburn Police Department.

On March 30, 2009, Tameka Floyd and Unique filed a complaint in the Macon Circuit Court against Wachovia and Tammy Sistrunk, a sometime employee of Unique, alleging that Sistrunk—a resident of Macon County—had taken funds from Unique's account “by forging the name of an authorized signatory on withdrawal slips.” The complaint alleged that Wachovia “knew, or should have known, that Defendant Sistrunk was not a signatory on Plaintiffs' account and ... had no authority to withdraw money.” The complaint sought recovery of damages on various theories, including negligence and conversion.

On April 30, 2009, Wachovia answered the complaint, contending, among other things, that venue was improper in Macon County. Its venue challenge did not include, in the alternative, a request for a change of venue on the ground of forum non conveniens. On October 7, 2009, Floyd and Unique filed a first amended complaint, asserting a fraud claim against Wachovia.

On January 22, 2010, Wachovia answered the first amended complaint, again pleading that venue was improper in Macon County ¹ and, in the alternative, that the case was “due to be transferred pursuant to Ala.Code [1975,] § 6–3–21.1 for the convenience of the parties and witnesses and in the interest of justice.” On January 26, 2010, Wachovia filed a motion to transfer the action to Lee County, arguing primarily that a transfer was required based on caselaw applying the “interest-of-justice” prong of § 6–3–21.1.

On April 6, 2010, the motion to transfer was orally argued in the trial court. On April 8, 2010, Floyd and Unique filed a second amended complaint, adding as a defendant James M. Sutherland, a resident of Macon County. The amended pleading averred that Sutherland was “an employee of Defendant Wachovia and [was] responsible for supervision of the tellers, who processed” Sistrunk's allegedly unauthorized account activity. On May 28, 2010, Wachovia filed a renewed motion to transfer the action to Lee County. On June 7, 2010, Sutherland filed a motion for a summary judgment.

On June 15, 2010, the trial court entered an order setting an August date for the trial of the case. On June 30, 2010, Wachovia filed a motion for a summary judgment. On July 22, 2010, the trial court entered an order postponing the trial date. On July 12, 2010, Wachovia moved to strike the plaintiffs' jury demand. On January 13, 2011, the trial court heard arguments on, among other things, the summary-judgment motions and the motion to strike the jury demand. Before ruling on those motions, the trial court, on January 28, 2011, denied Wachovia's motion to transfer the case to Lee County. This petition followed.

II. Discussion

A petition for a writ of mandamus is the appropriate “method for obtaining review of a denial of a motion for a change of venue” pursuant to § 6–3–21.1. Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998). Section 6–3–21.1 provides, in pertinent part:

“(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....

“(b) The right of a party to move for a change or transfer of venue pursuant to this statute is cumulative and in addition to the rights of a party to move for a change or transfer of venue pursuant to Section 6–3–20, Section 6–3–21 or Alabama Rules of Civil Procedure.”

(Emphasis added.)

“A party moving for a transfer under § 6–3–21.1 has the initial burden of showing, among other things, one of two factors: (1) that the transfer is justified based on the convenience of either the parties or the witnesses, or (2) that the transfer is justified ‘in the interest of justice.’ ” Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 539 (Ala.2008). Although we review a ruling on a motion to transfer to determine whether the trial court exceeded its discretion in granting or denying the motion, id., where “the convenience of the parties and witnesses or the interest of justice would be best served by a transfer, § 6–3–21.1, Ala.Code 1975, compels the trial court to transfer the action to the alternative forum.” Ex parte First Tennessee Bank Nat'l Ass'n, 994 So.2d 906, 912 (Ala.2008) (emphasis added).

In its petition for the writ of mandamus, Wachovia relies solely on the interest-of-justice prong as a ground for transfer.

“ ‘[I]n analyzing the interest-of-justice prong of § 6–3–21.1, this Court focuses on whether the “nexus” or “connection” between the plaintiff's action and the original forum is strong enough to warrant burdening the plaintiff's forum with the action.’ Ex parte First Tennessee Bank Nat'l Ass'n, 994 So.2d [at 911].... Further, in examining whether it is in the interest of justice to transfer a case, we consider ‘the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.’ Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala.2007).”

Ex parte Indiana Mills, 10 So.3d at 540. Thus, the dispositive question is whether the nexus between this action and Macon County is “strong enough to warrant burdening” Macon County with this action. For the following reasons, we hold that it is not.

Lee County is the situs of all the alleged acts or omissions giving rise to the plaintiffs' claims. Any allegedly unauthorized withdrawals were made from a Wachovia branch in Lee County. Police investigation of the matter was conducted in Lee County. Lee County is Floyd's place of residence, as well as the location of Unique. Thus, Lee County is the place where all the injury alleged in the complaint occurred. Although it is not a talisman, the fact that the injury occurred in the proposed transferee county is often assigned considerable weight in an interest-of-justice analysis. See Ex parte Autauga Heating & Cooling, LLC, 58 So.3d 745, 748 (Ala.2010) (“ ‘[T]his Court has held that “litigation should be handled in the forum where the injury occurred.” ’ ” (quoting Ex parte Indiana Mills, 10 So.3d at 540)); Ex parte McKenzie Oil, Inc., 13 So.3d 346, 349 (Ala.2008) (same).

In short, nothing material to this case transpired in Macon County. Macon County's sole material contact with this case is that the two individual defendants, Sistrunk and Sutherland, reside there. Recent cases decided under the interest-of-justice prong are dispositive.

In Ex parte Autauga Heating & Cooling, LLC, for example, this Court issued a writ of mandamus directing the Montgomery Circuit Court—in the interest of justice—to transfer the action to Elmore County. 58 So.3d at 747. That case arose out of an automobile accident involving Lori Lee Wright, a resident of Elmore County, and Richard Alexander Rogers, a resident of Montgomery County. The vehicle being operated by Rogers at the time of the accident was owned by Autauga Heating & Cooling, LLC (“Autauga”), which had its principal place of business in Autauga County. The accident occurred in Elmore County, and Wright received treatment at the scene of the accident from emergency medical personnel who lived in Elmore County. 58 So.3d at 749. When an action was brought against Rogers in the county of his residence, Rogers sought the removal of the action to Elmore County, the situs of the alleged acts or omissions and the place of the injury.

This Court concluded that a transfer of the case was required. In so doing, we said:

“Although we agree with Wright that the case has a connection with Montgomery County because Rogers is a resident of Montgomery County and [Autauga] may have some business connections there, ... the overall connection between Montgomery County and this case is weak and ... the connection between the case and Elmore County is strong.

“... Besides the fact that Rogers is a resident of Montgomery County, there was no other evidence before the trial court indicating a connection between the case and Montgomery County.

“....

“The accident underlying this action occurred in Elmore County, and the emergency personnel who responded to the accident were from Elmore County. The plaintiff herself is a resident of Elmore County. This Court sees no need to burden Montgomery County, with its weak connection to the case, with an action that arose in Elmore County simply because the individual defendant resides in Montgomery County and the corporate defen...