Woerner v. Killian Constr. Co. (In re Killian Constr. Co.)
| Decision Date | 02 November 2018 |
| Docket Number | 1170696 |
| Parties | Ex parte Killian Construction Company and Christian Mills (In re: Edward E. Woerner v. Killian Construction Company and Christian Mills) |
| Court | Alabama Supreme Court |
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
(Baldwin Circuit Court, CV-17-900436)
Killian Construction Company ("Killian") and Christian Mills petition this Court for a writ of mandamus directing the Baldwin Circuit Court to vacate its order denying their motion to dismiss the underlying action and to enter an order dismissing the action, based on improper venue. We grant the petition and issue the writ.
The City of Foley, Alabama, contracted with Killian to construct the Foley Sports Tourism Complex ("the sports complex"). Killian is a Missouri corporation whose principal place of business is located in Springfield, Missouri. On December 17, 2015, Killian entered into a subcontract for part of the work on the sports complex with Edward E. Woerner, who owns Southern Turf Nurseries, Inc. ("the subcontract"). Woerner is a resident of Baldwin County.
Under the subcontract, Woerner agreed to spread sand on all sports fields, to install sod on all sports fields, and to sprig and overspread all common areas in connection with the sports complex. Section 16 of the subcontract provided:
(Emphasis added.)
According to Woerner, Killian failed to pay him the full amount due for the work performed under the subcontract and failed to pay him for additional work performed at the sports complex that was not included in the subcontract. On April 25, 2017, Woerner filed a complaint in the Baldwin Circuit Court against Killian and one of Killian's employees, Christian Mills.1 Woerner alleged that he had performed all the work required under the subcontract but that Killian had failed to pay him the full amount due under the subcontract, with the outstanding balance being $143,581. Woerner also alleged that Mills, who the complaint stated had been "at all times pertinent thereto, ... Defendant Killian'srepresentative in dealings with [Woerner]," had convinced Woerner "to perform maintenance work not within the original [subcontract]" for a certain price, but that Woerner was never paid for that work. Woerner alleged that the outstanding amount for the additional work was $206,996. The complaint asserted three counts. Count I asserted a claim "against Defendant Killian for breach of contract in the amount of $350,577.00, plus interest and costs." Count II asserted a claim against both Killian and Mills alleging that Mills committed fraudulent misrepresentations "to induce [Woerner] to continue to work on the project" and sought compensatory and punitive damages. Count III asserted a claim of unjust enrichment against Killian in the amount of $350,577.
On June 2, 2017, Killian and Mills filed: (1) a "Notice of Removal" in the United States District Court for the Southern District of Alabama ("the federal district court") and (2) a "Notice of Removal of Action to Federal Court" in the circuit court in which the defendants notified the circuit court that the action had been removed to the federal district court. In their notice filed in the federal district court, Killian and Mills alleged complete diversity among the partiesbecause Mills was a resident and citizen of the State of Florida. Killian and Mills also stated that Woerner "filed [his] Complaint in [the] Circuit Court of Baldwin County, Alabama, despite [his] agreement to litigate any dispute arising under or related to the Subcontract in Missouri pursuant to a mandatory forum selection clause," and they quoted section 16 of the subcontract.
On June 7, 2017, Woerner filed in the federal district court a motion to remand the action to state court because, he asserted, complete diversity was lacking. According to Woerner, Mills was, in fact, domiciled in Alabama. The federal district court referred the matter to United States Magistrate Judge Sonja F. Bivens. On June 13, 2017, Woerner filed an amended complaint in the federal district court. On June 23, 2017, Killian and Mills filed a response in opposition to Woerner's motion to remand the action to state court.
The motion quoted section 16 of the subcontract. In support of the motion to dismiss, Killian and Mills filed an affidavit of Matt Breland, Killian's "Project Executive," who asserted that Mills was a citizen and resident of the State of Florida and who described the nature of the subcontract between Killian and Woerner. A copy of the subcontract was attached to Breland's affidavit.
On January 31, 2018, Magistrate Judge Bivens entered an order in which she declared that Following the evidentiary hearing, on March 7, 2018, Magistrate Judge Bivens entered a "Report and Recommendation" on the issue of Mills's domicile in which she recounted the evidence the parties had presentedfor their respective positions. Judge Bivens concluded: "In examining the totality of the evidence presented, the Court finds that Mills was domiciled in Alabama and was a citizen of Alabama at the time he purchased his home in Foley, Alabama, in 2015, if not earlier." Magistrate Judge Bivens recommended that Woerner's motion to remand should be granted.
On March 22, 2018, the federal district court entered an order adopting the recommendation of Magistrate Judge Bivens, and it remanded the action to the Baldwin Circuit Court.
On March 29, 2018, Killian and Mills filed in the circuit court a "Motion to Dismiss for Contractually Improper Venue." In the motion, Killian and Mills moved to dismiss the action without prejudice Killian and Mills argued that the outbound forum-selection clause was valid and applicable to all claims because: (1) the claims were all related to the subcontract and (2) Mills, as a Killian employee, was entitled to enforce the forum-selection clause because of his relationship toKillian. As they had done in their motion to dismiss in the federal district court, Killian and Mills attached an affidavit of Breland to their motion, and Breland's affidavit included a copy of the subcontract.
On March 30, 2018, Woerner filed in the circuit court a response in opposition to Killian and Mills's motion to dismiss the action. In the response, Woerner argued that the outbound forum-selection clause should not be enforced because it would be "seriously inconvenient" to do so because most of the witnesses he intended to use were residents of Baldwin County. Woerner subsequently filed a supplement to his response in opposition to the motion to dismiss in which he purported to "identify those persons having knowledge of discoverable information," a total of 23 individuals. He alleged that all the individuals were Alabama residents and that 19 were residents of Baldwin County.
On April 23, 2018, Killian and Mills filed a reply to Woerner's responses in opposition to their motion to dismiss. They argued that distance alone did not establish that Missouri was a "seriously inconvenient" forum.
On April 24, 2018, Woerner filed a second supplement to his response in opposition to the motion to dismiss. In his second supplement, in addition to contending that Missouri was a "seriously inconvenient" forum, Woerner argued that Mills could not enforce the outbound forum-selection clause because he was not a party to the subcontract. Woerner also stated that at trial he would ask the circuit court to "make a site visit in order that the Court will have a full understanding of the site issues."
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