Speer v. Quality Carriers, Inc. (Ex parte Quality Carriers, Inc.)

• Decision Date: 05 June 2015
• Docket Number: 1140202.
• Citation: 183 So.3d 937
• Parties: Ex parte QUALITY CARRIERS, INC., and Bennie Hugh Orcutt. (In re: Robert Speer, as administrator of the Estate of Kimberly Shonta Livingston, deceased v. Quality Carriers, Inc., Bennie Hugh Orcutt, and Desmond Rachard Woods).
• Court: Alabama Supreme Court

183 So.3d 937

Ex parte QUALITY CARRIERS, INC., and Bennie Hugh Orcutt.(In re: Robert Speer, as administrator of the Estate of Kimberly Shonta Livingston, deceased

v.Quality Carriers, Inc., Bennie Hugh Orcutt, and Desmond Rachard Woods).

1140202.

Supreme Court of Alabama.

June 5, 2015.

William Steele Holman II and Jennifer S. Holifield of Speegle, Hoffman, Holman & Holifield, LLC, Mobile; and William J. Gamble of Gamble Gamble & Calame, LLC, Selma, for petitioners.

Christopher D. Glover of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for respondent Robert Speer, as administrator of the estate of Kimberly Shonta Livingston, deceased.

Rob Riddle of Cleveland, Riddle & Atchison, L.L.C., Prattville, for respondent Desmond Rachard Woods.

WISE, Justice.

Quality Carriers, Inc., and Bennie Hugh Orcutt, two of the defendants below, filed a petition for a writ of mandamus requesting this Court to direct the Dallas Circuit Court to vacate its order denying their motion to transfer the underlying action to the Autauga Circuit Court and to enter an order granting the motion. We grant the petition and issue the writ.

Facts and Procedural History

On February 9, 2014, Desmond Rachard Woods was driving northbound on Interstate 65 in Autauga County in a Ford Crown Victoria automobile; Kimberly Shonta Livingston, Tory Danta Cooper, Marquita Shonay Speer ("Marquita"), and Aaron Randall Jones were passengers in the automobile. The automobile Woods was driving had a mechanical problem and stalled in the right travel lane; it was nighttime, and the lights on the automobile were not on. Woods, Cooper, and Jones got out of the automobile and started looking under the hood. Livingston and Marquita remained in the automobile.

Orcutt, who was employed by Quality Carriers, was also traveling northbound on Interstate 65 in a tractor-trailer rig that was owned by Quality Carriers. The tractor-trailer rig Orcutt was driving collided with the back of the automobile, which was stalled in the roadway. Both vehicles caught fire. Livingston and Marquita, who were in the automobile when it caught fire, were pronounced dead at the scene by Malvin O. Barber, the Autauga County coroner. Woods and Cooper were transported to Prattville Hospital. According to the accident report, marijuana was found on Woods's person at the hospital. At the time the accident report was filed, toxicology results were pending to determine whether Woods was under the influence of marijuana at the time of the crash.

The deputy sheriff who was the first responder to the scene worked in Autauga County. Additionally, a member of the Autauga County Rescue Squad also responded to the scene and assisted in the care of the injured individuals. The Autauga County coroner also responded to the scene and pronounced Livingston and Marquita dead. Kenneth Barber and Catherine Ricketts, who were both assistant Autauga County coroners, also responded to the scene. In his affidavit, Kenneth Barber stated that he was also the chief of the Marbury Volunteer Fire Department ("MVFD"); that he was a resident of Autauga County; and that he directed the MVFD's work and assisted with the pronouncements of death in this case. In her affidavit, Ricketts stated that she was also the assistant chief of the MVFD; that she also assisted in the pronouncements of death; and that she also assisted with MVFD's work.

Livingston and Marquita were both residents of Autauga County. At all material times, Orcutt was a resident of Pensacola, Florida. Quality Carriers is an Illinois corporation, with its principal place of business in Tampa, Florida. Quality Carriers has never been an Alabama corporation and has never had its principal place of business in Alabama.

On March 19, 2014, Robert Speer ("Speer"), as administrator of Livingston's estate, filed a complaint in the Dallas Circuit Court against Quality Carriers, Orcutt, and Woods. Speer, a resident of Autauga County, asserted claims of negligence and wantonness against all the defendants. With regard to Woods, Speer asserted that Woods had negligently and wantonly failed to move his automobile out of the lane of traffic, which resulted in the collision. He asserted that Woods had breached his duty of care by

"failing to pay proper attention to the roadway and the traffic, failing to obey the laws and rules of the State of Alabama, failing to control the vehicle in order to avoid a collision, and failing to move his vehicle out of the lanes of traffic when stalled which resulted in a collision. Further, Defendant Woods was not fit to safely operate a motor vehicle at the time of the incident in question."

Speer also asserted claims of negligent entrustment, negligent hiring, and negligent supervision against Quality Carriers. Woods subsequently answered the complaint and filed cross-claims against Quality Carriers and Orcutt.

On May 12, 2014, Quality Carriers and Orcutt filed a motion to transfer the action from Dallas County to Autauga County based on the doctrine of forum non conveniens, as codified in § 6–3–21.1, Ala.Code 1975. On August 19, 2014, Speer filed his first amended complaint and a response in opposition to the motion to transfer. In his amended complaint, Speer amended his negligence and wantonness claims against Woods to add the allegation that Woods had "negligently and wantonly inspected his vehicle." On August 19, 2014, Woods filed a "Joinder in Opposition to the Motion to Transfer Venue." On October 15, 2014, the trial court denied the motion to transfer. This petition followed.

Standard of Review

"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)....

" ‘....’

" ‘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)."

Ex parte Wachovia Bank, N.A., 77 So.3d 570, 573 (Ala.2011).

Discussion

Quality Carriers and Orcutt argue that the trial court exceeded its discretion in denying their motion to transfer the action from Dallas County to Autauga County. Specifically, they contend that Autauga County has a strong connection to the case because all the material events that gave rise to Speer's claims occurred there. In contrast, Quality Carriers and Orcutt assert, Dallas County has, at best, only a tenuous connection to the case—namely, the facts that Woods resides there and that maintenance on the automobile Woods was driving at the time of the accident may or may not have been performed in Dallas County. Quality Carriers and Orcutt assert that the interest-of-justice prong of Alabama's forum non conveniens statute mandates a transfer to Autauga County.

Quality Carriers and Orcutt have filed a motion to strike certain exhibits attached to the responses to the mandamus petition that were filed by Speer and Woods and to strike any arguments based upon those exhibits because those exhibits were not before the trial court at the time the trial court ruled on the motion to transfer. Neither Speer nor Woods has disputed the assertions of Quality Carriers and Orcutt in this regard. Additionally, it does not appear that Exhibits 2–11 to Speer's response or Exhibits 10–12 to Woods's response were before the trial court when it ruled on the motion to transfer.

"It is well settled that, ‘in a mandamus proceeding, this Court will not consider evidence not presented to the trial court. ’ Ex parte Cincinnati Ins. Co., 51 So.3d 298, 310 (Ala.2010). See Ex parte Ford Motor Credit Co., 772 So.2d 437, 442 (Ala.2000) (‘ "On review by mandamus, we must look only at those facts before the trial court. " ’ (quoting Ex parte Baker, 459 So.2d 873, 876 (Ala.1984) )). ‘[T]his Court is bound by the [materials before it], and it cannot consider a statement or evidence in a party's brief that was not before the trial court.’ Ex parte Pike Fabrication[, Inc.], 859 So.2d [1089,] 1091 [ (Ala.2002) ]. Accordingly, we have not considered those exhibits attached to Tinney's answer in response to the mandamus petition. See Ex parte Pike Fabrication, 859 So.2d at 1091, and Verbena United Methodist Church, 953 So.2d 395, 399 (Ala.2006) (refusing to consider an affidavit submitted in opposition to a mandamus petition because the affidavit was not before the trial court when that court rendered the decision under review )...."

Ex parte East Alabama Med. Ctr., 109 So.3d 1114, 1117–18 (Ala.2012) (emphasis added). Accordingly, we grant Quality Carriers' and Orcutt's motion to strike Exhibits 2–11 to Speer's response and Exhibits 10–12 to Woods's response, and we will not consider those exhibits or any arguments based on those exhibits.

Section 6–3–21.1, Ala.Code 1975, provides, in pertinent part:

"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."

(Emphasis added.)

"Historically, the plaintiff has had the initial choice of venue under the system

...