88 So. 3d 817
Ala.2012Background
- Whited v. Wright Brothers et al. arose from a 2008 Jefferson County quarry accident with Whited alleging injuries from Wright Brothers and GIBCO; the action was filed in Walker County.
- Whited amended and argued venue could be Walker County under Rule 82(c) because some claims involved Walker County; he later asserted factual residence in Walker County was incorrect as clerical error.
- Wright Brothers moved to transfer to Jefferson County, contending Walker County was improper since it no longer conducted business there since 2005.
- GIBCO joined a renewed motion to transfer; affidavits attested that GIBCO had never done business or had an agent/office in Walker County.
- Whited's responses and Wright Brothers’ submissions raised questions about an affiliation with Walker County Rock Products (WCRP); Wright Brothers asserted WCRP ceased operations in 1999 and was separate.
- The trial court denied the transfers in April 2011; a subsequent June 2011 corrected order expanded findings but did not alter the venue issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Walker County is improper under §6-3-7(a) | Whited contends Walker County is proper as Wright Brothers did business there by agent. | Wright Brothers and GIBCO argue Walker County is improper because Wright Brothers ceased Walker County business by 2005 and has no agent there. | Venue improper in Walker County; transfer to Jefferson is mandatory. |
| Standard of review for mandamus on venue transfer | Whited argues the issue is mixed law and fact, not purely statutory interpretation. | Wright Brothers/GIBCO argue de novo review on statutory interpretation suffices. | Mandamus is appropriate to compel transfer; standard focuses on a clear error or exceeded discretion. |
| Burden of proof regarding business by agent in Walker County | Whited bears burden to show Wright Brothers did business by agent in Walker County. | Wright Brothers demonstrates lack of Walker County business; Whited fails to rebut. | Whited failed to rebut Wright Brothers’ evidence; Wright Brothers did not do business by agent in Walker County. |
| Effect of affiliation with WCRP on venue | Whited alleges WCRP affiliation could render venue proper. | WCRP is separate and inactive; not a party to this action; no basis to extend venue. | Affiliation with an inactive affiliate does not establish proper venue for the named defendants. |
Key Cases Cited
- Ex parte Pike Fabrication, Inc., 859 So.2d 1089 (Ala. 2002) (mandamus review for improper venue; avoid sandbagging)
- Ex parte Alabama Great Southern R.R., 788 So.2d 886 (Ala.2000) (scope of mandamus review for venue decisions)
- Ex parte Finance America Corp., 507 So.2d 458 (Ala.1987) (burden-shifting in improper venue analysis)
- Ex parte Integon Corp., 672 So.2d 497 (Ala.1995) (mandamus standards and proper jurisdiction)
- Ex parte Parker, 413 So.2d 1105 (Ala.1982) (mandamus transfer requirement when venue wrong)
- Ex parte Movie Gallery, Inc., 31 So.3d 104 (Ala.2009) (burden-shifting in venue challenges)
- Ex parte American Res. Ins. Co., 663 So.2d 932 (Ala.1995) (record-based review; cannot consider evidence not before trial court)
- Fogarty v. Southworth, 953 So.2d 1225 (Ala.2006) (sandbagging and unfair litigation tactics noted)
- Ex parte National Sec. Ins. Co., 727 So.2d 788 (Ala.1998) (record-based mandamus review)