In re Board of Water and Sewer Commissioners of Mobile, 1170400

• Court: Supreme Court of Alabama
• Writing for the Court: BRYAN, Justice.
• Citation: 272 So.3d 635
• Parties: EX PARTE BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE (In re Spanish Fort Water System v. Board of Water and Sewer Commissioners of the City of Mobile )
• Docket Number: 1170400
• Decision Date: 31 August 2018

272 So.3d 635

EX PARTE BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE

(In re Spanish Fort Water System
v.
Board of Water and Sewer Commissioners of the City of Mobile )

1170400

Supreme Court of Alabama.

August 31, 2018

Andrew J. Rutens and Melissa P. Hunter of Galloway, Wettermark & Rutens, LLP, Mobile, for petitioner.

George R. Irvine III of Stone Crosby, P.C., Daphne, for respondent.

BRYAN, Justice.

The Board of Water and Sewer Commissioners of the City of Mobile ("the Board") petitions this Court for a writ of mandamus directing the Baldwin Circuit Court to transfer the underlying case to the Mobile Circuit Court. Because we conclude that venue is proper in Mobile County, we grant the petition and issue the writ.

The Board is a public, governmental agency that does business as the Mobile Area Water and Sewer System, and its principal place of business is located in Mobile County. In 2000, the Board entered into an agreement with the Spanish Fort Water System ("SFWS"), in which the Board agreed to sell treated water to SFWS. SFWS provides water to the City of Spanish Fort, which is located in western Baldwin County close to neighboring Mobile County. To transport the treated water, the Board agreed to build and operate a connection between the two water systems. Over the years, the Board and SFWS entered into other agreements concerning the Board's sale of treated water to SFWS. A 2008 agreement between the parties contains a forum-selection clause providing that venue for any dispute between the parties would be proper only in Mobile County.

In 2011, SFWS sought to make capital improvements to its system. To fund the improvements, SFWS sought to obtain a loan from the United States Department of Agriculture ("the USDA"). As part of the loan process, the USDA required SFWS and the Board to enter into another agreement concerning the continuing sale of treated water from the Board to SFWS.

272 So.3d 637

Thus, in 2011, SFWS and the Board executed a standard form contract provided by the USDA. The 2011 agreement is the first agreement between the parties since the 2008 agreement. In the 2011 agreement, as in the previous agreements, the Board agreed to sell treated water to SFWS. However, the 2011 agreement is shorter than the previous agreements, and some of the material terms are different from the earlier agreements. The 2011 agreement references the existence of the 2008 agreement in the recitals but does not discuss the 2008 agreement beyond that. Unlike the 2008 agreement, the 2011 agreement does not contain a forum-selection clause providing that venue is proper only in Mobile County.

In 2017, the Board increased the rates for the water that it sells SFWS. SFWS then sued the Board in the Baldwin Circuit Court, alleging that the Board had breached the 2011 agreement by raising the rates it charges for water. SFWS also alleged that the Board had unlawfully discriminated against SFWS by increasing the rates and that the Board was estopped from increasing the rates. The complaint also sought, under the Declaratory Judgment Act, § 6-6-220 et seq., Ala. Code 1975, a declaration of rights as between the parties and an injunction enjoining the Board from applying the increased rates.

The Board filed a motion to dismiss or, alternatively, to transfer the case to the Mobile Circuit Court. The Board asserted that venue is proper only in Mobile County, where the Board has its principal place of business. SFWS responded, arguing that venue is proper in Baldwin County, where SFWS is located. The Baldwin Circuit Court denied, without explanation, the Board's motion to dismiss or, alternatively, to transfer the case. The Board then petitioned this Court for a writ of mandamus, arguing that venue is proper only in Mobile County.

" ‘A petition for the writ of mandamus is the appropriate means by which to challenge a trial court's order regarding a change of venue. The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows" ’ " (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 Inverness Constr. Co., 775 So.2d 153, 156 (Ala. 2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala. 1996) ); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala. 1999).’

" Ex parte Children's Hosp. of Alabama, 931 So.2d 1, 5–6 (Ala. 2005).

"Applying the general rules to a petition for a writ of mandamus challenging a ruling related to venue, this Court has held: ‘The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.’ Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala. 1987). ‘Our review is limited to only those facts that were before the trial court.’ Ex parte Kane, 989 So.2d 509, 511 (Ala. 2008)."

Ex parte Lugo de Vega, 65 So.3d 886, 891 (Ala. 2010).

The Board contends that venue is proper only in Mobile County and, thus, that this Court should order the Baldwin Circuit Court to transfer the case to the Mobile Circuit Court. The Board makes two arguments in support of its contention that venue is proper in Mobile County. First,

272 So.3d 638

the Board relies on the forum-selection clause in the 2008 agreement, which states that venue is proper only in Mobile County....