Weir v. Aquilex Hydrochem, LLC (In re Transp. Leasing Corp.)

• Decision Date: 03 May 2013
• Docket Number: 1120326.
• Citation: 128 So.3d 722
• Parties: Ex parte TRANSPORTATION LEASING CORP. and Aquilex Hydrochem, LLC. (In re Ronald Weir v. Aquilex Hydrochem, LLC, et al.).
• Court: Alabama Supreme Court

128 So.3d 722

Ex parte TRANSPORTATION LEASING CORP. and Aquilex Hydrochem, LLC.(In re Ronald Weir

v.Aquilex Hydrochem, LLC, et al.).

1120326.

Supreme Court of Alabama.

May 3, 2013.

Joseph H. Driver, Thomas L. Oliver II, and Andrew P. Anderson of Carr, Allison, Pugh, Howard, Oliver & Sisson, P.C., Birmingham, for petitionerTransportation Leasing Corp.; and Richard E. Broughton and Benjamin C. Heinz of Ball, Ball, Matthews & Novak, P.A., Montgomery, for petitionerAquilex Hydrochem, LLC.

David M. Cowan, Vestavia Hills, for respondent.

BOLIN, Justice.

Transportation Leasing Corp.(“TLC”) and Aquilex Hydrochem, LLC(“Aquilex”), petition this Court for a writ of mandamus ordering the Perry Circuit Court to vacate its order denying TLC and Aquilex's motion to dismiss the action without prejudice to refile in Mississippi in accordance with the doctrine of forum non conveniens and to enter an order dismissing the action without prejudice.We grant the petition and issue the writ.

Facts and Procedural History

On July 21, 2011, Ronald Weir, a resident of Mississippi, was severely injured in an automobile accident in Meridian, Mississippi.On July 18, 2012, Weir filed a complaint in the Perry Circuit Court naming as defendants TLC, Aquilex, Floyd Hershey, and Gordon Booker and alleging negligence, wantonness, and negligent entrustment.In his complaint, Weir alleged that TLC was a corporate entity whose principal office is located in Illinois and that Booker, an Alabama resident, was operating a vehicle owned by TLC when the accident occurred.Weir alleged that Aquilex was a corporate entity whose principal office is located in Ohio and that Hershey, a resident of Ohio, was operating a vehicle owned by Aquilex when the accident occurred.Weir sued TLC, Aquilex, Booker, and Hershey.TLC and Aquilex have been served with notice of the action, but Booker and Hershey have not.

On August 22, 2012, TLC and Aquilex (hereinafter collectively referred to as “the petitioners”) filed a motion to dismiss in the trial court on the ground that Mississippi was a more convenient forum than the Perry Circuit Court for the following reasons: (1) Weir is a resident of Mississippi; (2) the accident occurred in Mississippi; (3) the accident was investigated by the Meridian Police Department; (4) the investigating police officer, Tommie Coker, is a resident of Mississippi; (5) Aquilex's principal office is located in Ohio; (6) TLC's principal office is located in Illinois; (7) a witness to the accident, Dean Harper(who also is a police officer), resides in Mississippi; and (8) Hershey resides in Ohio.The petitioners argue that Mississippi is a more convenient forum because Booker is the only connection the action has to Alabama and the majority of witnesses and accident-related documents are in Mississippi.In support of the motion, the petitioners attached an affidavit from Officer Coker, who investigated the accident.In the affidavit, Officer Coker stated that it would be inconvenient and a hardship for him to travel to Alabama to testify.The petitioners also attached an affidavit from Officer Harper, who happened to be an eyewitness to the accident.Officer Harper stated in his affidavit that it would be inconvenient and a hardship for him to travel to Alabama to testify.The petitioners also filed an affidavit from the father of another person injured in the accident regarding the residency of the injured person, but the affidavit was not notarized.

On October 30, 2012, Weir filed a motion to strike the affidavits filed in support of the motion to dismiss.That same day, Weir also filed a response to the motion to dismiss, arguing that the petitioners had failed to demonstrate that all the claims arose outside of Alabama because one of Weir's claims was a negligent-entrustment claim based on negligent entrustment that occurred in Perry County, Alabama, when TLC entrusted its vehicle to Booker.Weir also argued that the petitioners' argument that the majority of witnesses and accident-related documents are in Mississippi is inaccurate because Booker is from Alabama and Weir's accident-reconstruction expert witnesses are from Alabama.Last, Weir argued that neither of the officers in his affidavit stated definitely that he would not attend a deposition or a trial in Alabama, only that it would be inconvenient.

On November 7, 2012, the trial court entered an order striking the affidavit that had not been notarized but refusing to strike Officer Coker's and Office Harper's affidavits.That same day, the trial court denied the petitioners' motion to dismiss.On December 18, 2012, the petitioners timely filed a petition for a writ of mandamus.

Standard of Review

A petition for a writ of mandamus is the appropriate method for obtaining review of a ruling denying a motion to dismiss based on the doctrine of forum non conveniens.Ex parte Kia Motors America, Inc.,881 So.2d 396(Ala.2003).

“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).‘A petition for the writ of mandamus is a proper method for presenting a venue challenge based on the doctrine of forum non conveniens.’Id.(citations omitted).We apply the abuse-of-discretion standard when considering a mandamus petition challenging a venue ruling, and we will not issue the writ unless the trial court exercised its discretion in an arbitrary and capricious manner.Id.”

Ex parte Brookwood Health Servs., Inc.,781 So.2d 954, 956–57(Ala.2000).Furthermore, our review is limited to those facts that were before the trial court.Ex parte Jim Burke Auto., Inc.,776 So.2d 118, 120(Ala.2000).

Discussion

Section 6–5–430 provides:

“Whenever, either by common law or the statutes of another state or of the United States, a claim, either upon contract or in tort has arisen outside this state against any person or corporation, such claim may be enforceable in the courts of this state in any county in which jurisdiction of the defendant can be legally obtained in the same manner in which jurisdiction could have been obtained if the claim had arisen in this state; provided, however, the courts of this state shall apply the doctrine of forum non conveniens in determining whether to accept or decline to take jurisdiction of an action based upon such claim originating outside this state; and provided further that, if upon motion of any defendant it is shown that there exists a more appropriate forum outside this state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interests of justice, the court must dismiss the action without prejudice.Such dismissal may be conditioned upon the defendant or defendants filing with the court a consent (i) to submit to jurisdiction in the identified forum, or (ii) to waive any defense based upon a statute of limitations if an action on the same cause of action is commenced in the identified forum within 60 days of the dismissal.”

(Emphasis added.)

“The purpose of the doctrine of forum non conveniens is to ‘prevent the waste of time, energy, and money and also to protect witnesses, litigants, and the public against unnecessary expense and inconvenience.’ ”Ex parte Perfection Siding, Inc.,882 So.2d 307, 312(Ala.2003)(quotingEx parte New England Mut. Life Ins. Co.,663 So.2d 952, 956(Ala.1995)).“Under § 6–5–430a trial court must dismiss without prejudice ‘if, upon motion of a defendant, it is shown that there exists a more appropriate forum outside the state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interest of justice....’ ”Ex parte DaimlerChrysler Corp.,952 So.2d 1082, 1087(Ala.2006)(quotingEx parte Prudential Ins. Co. of America,721 So.2d 1135, 1138(Ala.1998)).

“The doctrine of forum non conveniens requires a court to determine whether to accept or to decline jurisdiction of claims arising outside the state.Ex parte Integon Corp.,672 So.2d 497(Ala.1995).‘Initially, the party seeking dismissal must show that the claim[s] arose outside Alabama.Next, that party must show that an alternative forum exists.’672 So.2d at 499;Ex parte Preston Hood Chevrolet, Inc.,638 So.2d 842, 845(Ala.1994);Ex parte Employers Ins. of Wausau,590 So.2d 888, 893(Ala.1991);Jerome A. Hoffman & Sandra C. Guin, Alabama Civil Procedure§ 2.148 (2d ed. 2000)(‘A party seeking dismissal under § 6–5–430 must establish that the claim to be dismissed arose elsewhere than in Alabama.’(footnote omitted)).

“Thus, the trial court is compelled to dismiss an action without prejudice if ... it is shown that there exists a more appropriate forum outside the state....”

Ex parte Kia Motors,881 So.2d at 399–400.

Pursuant to § 6–5–430, a defendant seeking dismissal of an action based on the doctrine of forum non conveniens must show that the plaintiff's claims arose outside of Alabama and that a more appropriate forum exists based on the location of the acts giving rise to the action, the convenience of the parties and witnesses, and the interests of justice.Malsch v. Bell Helicopter Textron, Inc.,916 So.2d 600(Ala.2005).We note that the petitioners have agreed to a stipulation of a dismissal without prejudice that allows Weir to file an action in Mississippi and that they have also agreed to waive any defense based on the statute of limitations.

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