Vogler v. Interstate Freight USA, Inc. (Ex parte Interstate Freight USA, Inc.)

• Decision Date: 24 June 2016
• Docket Number: 1141422.
• Citation: 213 So.3d 560
• Parties: Ex parte INTERSTATE FREIGHT USA, INC., et al. (In re Kevin L. Vogler v. Interstate Freight USA, Inc., et al.).
• Court: Alabama Supreme Court

213 So.3d 560

Ex parte INTERSTATE FREIGHT USA, INC., et al.

(In re Kevin L. Vogler

v.Interstate Freight USA, Inc., et al.).

1141422.

Supreme Court of Alabama.

June 24, 2016.

Erskin R. Funderburg of Trussell Funderburg Rea & Bell, Pell City; and E.B. Harrison Willis of Cloud & Willis, LLC, Mobile for petitioners.

Lawrence J. Seiter and Emily A. Crow of Johnstone Adams, LLC, Mobile for respondent.

WISE, Justice.

The petitioners, Interstate Freight USA, Inc. ("Interstate Freight USA"), Interstate Specialized, Inc. ("Interstate Specialized"), Interstate Freight, Inc. ("Interstate Freight") (hereinafter collectively referred to as "the Interstate companies"), Charles A. Browning, and Donald R. Raughton, Sr., filed a petition for a writ of mandamus asking this Court to direct the Baldwin Circuit Court to vacate its order denying their motion to transfer the underlying action to the St. Clair Circuit Court and to enter an order granting the motion. We grant the petition and issue the writ.

Facts and Procedural History

The plaintiff below, Kevin L. Vogler, was hired as a vice president/general manager for Interstate Specialized and Interstate Freight USA. Vogler alleged that, in December 2013, he was working for another company and had become interested in acquiring the transportation branch of the Interstate companies; that he had entered into negotiations with Browning, the president of Interstate Freight USA and Interstate Specialized, and Raughton, a business consultant for the Interstate companies; that Browning and Raughton were acting on behalf of the Interstate companies; that the parties had agreed that "Vogler could acquire a minority interest in the trucking business over a two year period and, after two years of employment with the Interstate companies, would have the option of buying out the interest of Defendant Browning"; that Browning and Raughton had made representations to him regarding his salary and benefits; and that, based on those representations, Vogler left his previous employment and entered into separate employment contracts with Interstate Specialized and Interstate Freight USA. Both contracts provided that they would commence on May 19, 2014, "for a guaranteed period of not less than two (2) years" and contained provisions regarding Vogler's salary and benefits. Vogler also alleged that, on February 24, 2015, he met with Raughton and Browning and that they told him "that the businesses were being shut down for financial reasons and his position was being terminated."

On July 6, 2015, Vogler sued the Interstate companies, Browning, and Raughton. In his complaint, Vogler asserted claims of breach of contract and fraud.

On August 17, 2015, the petitioners filed a motion to dismiss for failure to state a cause of action or, in the alternative, for a change of venue. In their motion, they alleged that venue was not proper in Baldwin County and sought to have the case transferred to St. Clair County. They also argued that, even if venue was proper in Baldwin County, the case should be transferred to St. Clair County pursuant to the doctrine of forum non conveniens. In support of their motion, the petitioners attached affidavits from Raughton, Browning, and Amy Browning Strickland, one of the owners of Interstate Freight.

On September 2, 2015, Vogler filed a response to the petitioners' motion to dismiss or, in the alternative, for a change of venue. On September 8, 2015, after conducting a hearing, the trial court denied the petitioners' motion.¹ On October 1, 2015, the petitioners filed this petition for a writ of mandamus, challenging the order only insofar as it denied their motion for a change of venue.

Standard of Review

" 'The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.' Ex parte Alabama Great Southern R.R., 788 So.2d 886, 888 (Ala.2000). 'Mandamus is a drastic and extraordinary writ, to be issued only where there is (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 Integon Corp., 672 So.2d 497, 499 (Ala.1995). Moreover, our review is limited to those facts that were before the trial court. Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998)."

Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002).

Discussion

The petitioners argue that the trial court erroneously denied the motion to transfer this case to the St. Clair Circuit Court.

I.

First, the petitioners argue that the trial court should have granted their motion for a change of venue because, they say, venue was not proper in Baldwin County. It is undisputed that venue was not proper in Baldwin County as to Raughton or Browning. The issue in this case, however, is whether venue was proper in Baldwin County as to any of the Interstate companies.

" ' "The question of proper venue for an action is determined at the commencement of the action." ' Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002) (quoting Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001) ). If venue is improper at the outset, then, upon motion of the defendant, the court must transfer the case to a court where venue is proper. Pike Fabrication, 859 So.2d at 1091....

" ' "....

" ' "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). In addition, this Court is bound by the record, and it cannot consider a statement or evidence in a party's brief that was not before the trial court. Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995).'

" Pike Fabrication, 859 So.2d at 1091."

Ex parte Guarantee Ins. Co., 133 So.3d 862, 867 (Ala.2013).

Section 6–3–7(a), Ala.Code 1975, provides, in pertinent part:

"All civil actions against corporations may be brought in any of the following counties:

"(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of real property that is the subject of the action is situated; or

"(2) In the county of the corporation's principal office in this state; or

"(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiff's residence; or

"(4) If subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action."

It is uncontested that all three of the Interstate companies have their principal place of business in St. Clair County. Additionally, the petitioners presented evidence indicating that a substantial part of the actions or omissions that give rise to Vogler's claims occurred in St. Clair County. However, Vogler argues that venue is proper in Baldwin County under § 6–3–7(a)(3), Ala.Code 1975.

In his affidavit, Vogler stated that he was a resident of Spanish Fort, Alabama, which is located in Baldwin County, and that he had lived in Spanish Fort since April 1999. Accordingly, he has satisfied the first prong of § 6–3–7(a)(3) by establishing that he was a resident of Baldwin County at the time of the accrual of the cause of action. Therefore, the issue in this case is whether, at the commencement of the action, any of the Interstate companies did business by agent in Baldwin County.

"In Ex parte Elliott, 80 So.3d 908, 912 (Ala.2011), this Court held:

" 'To establish that a corporation does business in a particular county for purposes of venue, past isolated transactions are inconclusive.

Ex parte Harrington Mfg. Co., 414 So.2d 74 (Ala.1982). A corporation does business in a county for purposes of § 6–3–7 if it performs with some regularity in that county some of the business functions for which the corporation was created. Ex parte SouthTrust Bank of Tuscaloosa Cnty., N.A., 619 So.2d 1356, 1358 (Ala.1993).'

"(Emphasis added.) This Court has also held that ' " 'not every act done within the corporate powers of a foreign corporation will constitute doing business within the meaning of the statute.' " ' Ex parte Greenetrack, Inc., 25 So.3d 449, 453 (Ala.2009) (quoting Ex parte Scott Bridge Co., 834 So.2d 79, 81 (Ala.2002), quoting in turn Ex parte Charter Retreat Hosp., Inc., 538 So.2d 787, 790 (Ala.1989) )...."

Ex parte Guarantee Ins. Co., 133 So.3d at 872.

"A critical distinction exists between corporate defendants currently doing business in a county (the test applied by subsection (a)(3)) and those that formerly did business in the county (the test applied only when venue is proper in no other county). As this Court has said, 'isolated transactions in the past are inconclusive in determining venue.' Ex parte Pike Fabrication, [Inc.], 859 So.2d [1089,] 1093 [ (Ala.2002) ] (emphasis added). Here we are concerned only with whether Perfection can fairly be said to be conducting business currently in Hale County.

"In addition, our holdings make clear that a corporation 'does business' under the statute if, ' " 'with some regularity, it performs there some of the business functions for which it was created.' " ' Ex parte Pike Fabrication, 859 So.2d at 1093 (quoting Ex parte Wiginton, 743 So.2d 1071, 1074–75 (Ala.1999), quoting in turn Ex parte SouthTrust Bank of Tuscaloosa, 619 So.2d 1356, 1358 (Ala.1993) ). We have found pretransaction inquiries within a county to be an insufficient basis for placing venue there, Ex parte Pike Fabrication, 859 So.2d at 1093, because business inquiries are essentially an

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