Lead Opinion
Riverfront, LLC, petitions this Court for a writ of mandamus directing the Tuscaloosa Circuit Court to vacate its order transferring an action filed against Riverfront by Fish Market Restaurants, Inc., and George Sarris (hereinafter referred to collectively as “Fish Market”) to- the Eto-wah Circuit, Court. We grant the petition and issue the writ.
Facts and Procedural History
This case fust came before this Court in Ex parte Riverfront, LLC,
. As set forth in Riverfront I, a disagreement over the lease led Fish Market to file a declaratory-judgment action against Riverfront; Fish Market filed its action, in the Etowah Circuit Court. In response to Fish Market’s complaint, “Riverfront filed a motion to dismiss the declaratory-judgment action on the basis of improper venue or, in the alternative, to transfer the case to the Tuscaloosa Circuit Court, pursuant to the forum-selection clause.”
In Riverfront I, this Court determined that the lease containing the forum-selection clause was valid and that the forum-selection clause was enforceable. In determining that the forum-selection clause was enforceable, this Court held that Tuscaloosa County was not a “seriously inconvenient” forum.
“Riverfront has established that it has a clear legal right to the enforcement of the forum-selection clause ■ in the lease, because Fish Market has failed to establish that : enforcement of the clause would be unfair or unreasonable. The*1169 [Etowah] [C]ircuit [C]ourt exceeded the scope of its discretion in denying Riverfront’s motion to dismiss or, in the alternative, to transfer the case to the Tuscaloosa Circuit Court. We direct the [Etowah] [C]ircuit [C]ourt either to dismiss this cause, without prejudice, pursuant to Rule 12(b)(3), Ala. R. Civ. P., or to transfer the cause to the Tuscaloosa Circuit Court, the forum agreed to in the lease.”
.
On July 30, 2013, the Etowah Circuit. Court transferred the action to the Tuscaloosa Circuit Court. On October 22, 2013, Fish Market filed a motion to transfer the action, then pending in the Tuscaloosa Circuit Court, back to the Etowah Circuit Court. In its motion, Fish Market noted that Riverfront I states that Fish Market failed to present any argument or evidence in the Etowah Circuit Court in response to Riverfront’s original motion to transfer, which was the subject of Riverfront I. Fish Market then argued,. citing § 6-3-21.1, Ala.Code 1975, that Tuscaloosa County “would be a seriously inconvenient forum.” On January 24, 2014, Riverfront filed a response to Fish Market’s motion to transfer. Riverfront argued that “[t]he issue stated in [Fish Market’s] Motion to Transfer has previously been litigated between the parties, and adjudicated in [Riverfront’s] favor by the Alabama Supreme Court.” The Tuscaloosa Circuit Court held a hearing on Fish Market’s motion to transfer on April 1, 2014. Following the hearing, the parties each filed additional documents presenting arguments similar to their earlier arguments.
On May 12, 2014, the Tuscaloosa Circuit Court granted Fish Market’s motion to transfer, stating:
“Plaintiff Fish. Market Restaurants, Inc. (‘Fish Market’), filed this action in Etowah County on February 27⅛ 2012. Defendant Riverfront, LLC (‘Riverfront’), filed a motion to dismiss or transfer to Tuscaloosa County on March 26, 2012. The trial court denied Riverfront’s motion on May 24, 2012, and Riverfront filed a [petition for a] writ of mandamus. The'' Alabama Supreme Court granted the writ and the-case was transferred to Tuscaloosa County. The Court determined that the forum-selection clause in the lease was enforceable because Fish Market failed to establish that enforcement of the clause would be unfair or unreasonable. The Alabama Supreme' Court also noted that [Fish Market] did not argue‘that enforcement would be unreasonable on the basis that the selected forum [the Tuscaloosa Circuit Court] would be seriously inconvenient.’ Ex parte Riverfront, LLC[,129 So.3d 1008 , 1014-15] (Ala.2013) (internal citations omitted.)
“This matter is before the court on Fish Market’s motion to transfer to Eto-wah County based on forum non conve-niens. The lease between Fish Market and Riverfront contains a forum-selection clause. However, a forum-sele'etion clause is unenforceable if the challenging 'party can establish"that enforcement of the clause would be ‘periously inconvenient.’ Ex parte D.M. White Constr. Co., Inc.,806 So.2d 370 , 372 (Ala.2001). Pursuant to Ala.Code [1975,] 6-3-21.1(a),
“ “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.’
*1170 /‘[Fish Market] cited several cases and made numerous arguments as to why Tuscaloosa County would be -seriously inconvenient, and that Etowah County would be a more convenient forum. The property and restaurant which is the subject of this litigation are less than a mile from the Etowah County courthouse, yet over 100 miles from the Tuscaloosa County courthouse. The witnesses are in Etowah County.. The restaurant would shut down, for a day or more for the witnesses to travel from Etowah County to Tuscaloosa County. Transferring a case from one county to another is proper if it is more, convenient for the parties and witnesses. See Ex parte Ford Motor Credit,561 So.2d 244 , 246-247, citing Ex parte Southern Ry., 556 So.2d [1082,] 1086 [ (Ala.1989) ]: ‘[Section 6-3-21.1] contemplates transfer of venue from a county in Alabama where venue is proper to another county within the state where venue is also proper, but more convenient for the parties and witnesses [or in the interest of justice].’
. “This Court finds that the forum-selection clause in the contract ,is unenforceable because Tuscaloosa County would be a seriously inconvenient forum. Further, under Ala.Code [1975,] 6-3-21.1, Etowah County is more convenient for the parties and witnesses and it is in the interest of justice for .the case to be transferred.
“Accordingly, Plaintiffs motion to transfer is due to be GRANTED and the ease is hereby TRANSFERRED to Etowah County.”
(Capitalization in original.) Riverfront then petitioned this Court for a writ of mandamus directing the Tuscaloosa Circuit Court to vacate its order transferring the action back to - the Etowah Circuit Court.
Standard of Review
“A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right 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) -the properly invoked jurisdiction of the court. Ex parte Inverness Constr. Co.,775 So.2d 153 , 156 (Ala.2000); A writ of mandamus may not be issued to control or review the exercise of discretion, except in a case of abuse. Ex parte Auto-Owners Ins. Co.,548 So.2d 1029 , 1030 (Ala.1989).”
Ex parte BOC Grp., Inc.,
Discussion
Riverfront argues that the Tuscaloosa Circuit Court “failed to comply with this Court’s mandate from Riverfront Riverfront states that “this Court held that the forum-selection clause is enforceable and mandated transfer of the [l]awsuit to Tuscaloosa County.” Riverfront then argues that the Tuscaloosa Circuit Court
As set forth above, in Riverfront I, this Court concluded that the forum-selection clause was enforceable. Included within the conclusion that the forum-selection clause is enforceable is the conclusion that Tuscaloosa County is not a “seriously inconvenient” forum. In fact, Riverfront argued extensively in Riverfront I that Tuscaloosa County is not a “seriously inconvenient”- forum, See Riverfront I,
“‘“In order to demonstrate that the chosen forum is seriously inconvenient, the party challenging the clause must show that a trial in that forum would be so gravely difficult and inconvenient that the challenging party would effectively be deprived of his day in court. Ex parte Northern Capital Res. Corp., 751 So.2d [12] at 15 [ (Ala.1999) ].” ’ ”
The Tuscaloosa Circuit Court appears to be under the' mistaken impression that, because Fish Market failed to assert any argument in the Etowah Circuit Court or before this Court in Riverfront I, this Court did not decide the issue whether Tuscaloosa County is a “seriously inconvenient” forum. However, this Court clearly' determined that the forum-selection clause was enforceable. Necessary to, and an essential part of, our conclusion in Riverfront I is the holding that Tuscaloosa County is not a “seriously inconvenient” forum. That conclusion was reached regardless of the fact that Fish Market failed to raise the argument; Riverfront did raise the argument, and it was decided by this Court. The Tuscaloosa Circuit Court does not have the authority to overrule or disregard this Court’s decision.
Moreover, this Court’s decision in Riverfront I is binding on the parties, including Fish Market:
“As to issues actually determined by a judgment in a mandamus proceeding, the judgment is conclusive, thus precluding the parties from relitigating the same issues, and the same is true as to issues necessarily determined in the judgment. It has been held that a judgment in .mandamus also precludes the litigation of issues which could have been raised and resolved in the prior proceeding, but were not in fact resolved, at least where the cause of action in the prior mandamus action is identical to that in the later action in which the res judicata effect of the judgment in the mandamus suit is invoked.”
52 ., Am.Jur.2d Mandamus § 469 (2011)(footnotes omitted). As set forth above, this Court did determine in Riverfront I that Tuscaloosa County is not a “seriously. inconvenient” forum; that determination is binding on the parties and may not now be relitigated. Furthier, Fish Market, could have challenged Tuscaloosa County as a “seriously .inconvenient” forum- in the Etowah Circuit Court and before this Court in Riverfront I. Fish Market did not do so and may not now have a second bite at the forum apple and reliti-gate, that issue. The matter has been decided.
In its response, Fish Market argues that the Tuscaloosa Circuit Court’s order transferring the action had independent bases. First, Fish Market states that the Tuscaloosa Circuit Court’s order was based on its holding that'the forum-selection clause is unenforceable because the Tuscaloosa Circuit Court is a “seriously inconvenient” forum. As set forth above, this Court held in Riverfront I that the forum-selection clause is enforceable because the Tuscaloosa Circuit Court is not a “seriously inconvenient” forum. Second, Fish Market states that the Tuscaloosa Circuit Court’s order is independently based on § 6-3-21.1, Ala.Code 1975, which “provides when a civil action must be transferred under the doctrine of forum non conveniens.” Ex parte Indiana Mills & Mfg., Inc.,
Section 6-3-21.1 is not applicable in this case. Section 6-3-21.1(a), Ala.Code 1975, states, 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*1173 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.) Section 6-3-21.1 only applies if there is more than one court “in which the action might have been properly filed.” In Riverfront I, we held that the forum-selection clause' is enforceable and that the Tuscaloosa Circuit Court is the only court in which Fish Markét’s action against Riverfront may' be prosecuted. After Riverfront I, the Etowah Circuit Court was no longer a court in which Fish Market’s action “might have been properly filed.” Accordingly, there was no reason for Riverfront to address that purportedly independent basis of the Tuscaloosa Circuit Court’s order because § 6-3-21.1 has no applicability in this case. Fish Market’s argument is unpersuasive.
Conclusion
Based on the foregoing, we grant Riverfront’s mandamus petition and direct the Tuscaloosa Circuit Court to vacate its order transferring the action to the Etowah Circuit Court.
PETITION GRANTED; WRIT ISSUED.
Notes
. This case was originally assigned to another Justice; it was reassigned to Justice Parker on June 30, 2015.
, Riverfront I was considered by a division of this Court consisting of Justices Stuart, Parker, Murdock, Shaw, and Bryan. Justice Parker authored the main opinion, in which Justices Stuart, Shaw, and Bryan concurred; Justice Murdock concurred in the result, with an opinion. Riverfront I is thus not a majority opinion. However, the result of the case, as to which all Justices considering the case concurred, is that the forum-selection clause in the lease is enforceable.
. Before this Court ordered Fish Market to file an answer and brief on September 22, 2014, Fish Market filed what it styled as an "Opposition to [Riverfront’s] Petition for Writ of Mandamus” on July 9, 2014, and a supplement to its "opposition” on July 15, 2014. Fish Market then filed its ordered, answer and brief on October 8, 2014. We , will consider only the arguments raised in Fish Market’s October 8, 2014, response.
. We also relied upon the following portion of Ex parte D.M. White,
"[A] ... forum-selection clause is enforceable unless the challenging party can establish that ... “‘... enforcement would be unreasonable on the basis that the [selected] forum would be seriously inconvenient.”- ’ The burden on the challenging party is difficult to meet. Ex parte CTB, [Inc.,782 So.2d 188 (Ala.2000)]. See also Professional Ins. Corp. v. Sutherland,700 So.2d 347 , 351 (Ala.1997).”
Concurrence Opinion
(concurring in part and concurring in' the result).
I write to explain my agreement with certain aspects of the main opinion and to explain why I part company with the main opinion in certain limited respects.
First, I take note of the different'purposes and natures of the “seriously inconvenient forum” test referenced in Ex parte D.M. White Construction Co.,
The foregoing is an unspoken corollary of the conclusion reached in the main opinion that “[s]eetion 6-3-21.1 is not applicable in this case.”
I also agree with the main opinion’s understanding of the mandate of this Court in Ex parte Riverfront, LLC,
The main opinion states that “[n]eces-sary to, and an essential part of, our conclusion in Riverfront I is the holding that Tuscaloosa County is not a ‘seriously inconvenient’ forum.”
. I see no reason not to consider the briefs submitted to this Court by Fish Market before October 8, 2014. I respectfully disagree with the approach to the contrary noted in note 3 of the main opinion.
. Justice Shaw is correct when he states in his dissent that, in Riverfront I, I declined to provide the fifth vote in support of a substantive analysis of the "seriously inconvenient forum” issue. I declined to do so because the party who had the burden of raising and pursuing that issue — Fish Market — had not raised and pursued it.
The fact that I did not join a substantive analysis of an issue not properly before this Court does not detract from the fact that I provided the fifth vote for the ultimate "decision” and "judgment” reached in Riverfront I. That decision and judgment — and the mandate that resulted therefrom — was that the forum-selection clause was enforceable and that the trial of this case must be conducted, if at all, in the Tuscaloosa Circuit Court. That is, I provided the fifth vote for the following "result” announced at the end of the opinion in Rivmfront I:
"Riverfront has established that it has a clear legal right to the enforcement of the forum-selection clause in the lease_ We direct the circuit court either to dismiss this cause, without prejudice, pursuant to Rule 12(b)(3), Ala, R. Civ. P., or to transfer the cause to the Tuscaloosa Circuit Court, the forum agreed to in the lease.”
What "law of the case” might or might not have informed the Court’s "decision” or "judgment” as to where any trial must be conducted is not the same as the decision or judgment itself. The opinion in Riverfront I did not garner five votes for a substantive analysis of the "seriously inconvenient” issue, and the dissent therefore correctly observes that "[tjhere [was] no 'decision’ of a majority of the Court in Riverfront I rejecting an argument that 'enforcement [of the forum-selection clause] would be unreasonable on the basis that the selected forum would be seriously inconvenient.’”
Dissenting Opinion
(dissenting).
Riverfront, LLC, petitions this Court for a writ of mandamus directing the Tuscaloosa Circuit Court to vacate its order transferring this lease dispute to the Etowah Circuit Court. A prior decision of this Court, Ex parte Riverfront, LLC,
Facts and Procedural History
The underlying action commenced when Fish Market filed a declaratory-judgment action against Riverfront in the Etowah Circuit Court. Riverfront filed a motion challenging venue, arguing that a forum-selection clause in a lease between the parties required Fish Market’s action to be filed in Tuscaloosa County. The parties disputed whether the lease containing the forum-selection clause was properly entered into; the Etowah Circuit Court was called upon to decide whether the lease containing the clause was a product of a “meeting of the minds” between the parties. The court apparently agreed with Fish Market, that there had been no meeting of the minds, and refused to transfer/ the action. Riverfront petitioned for mandamus relief; Fish Market raised that same meeting-of-the-minds argument in response to the mandamus petition.
The main opinion in Riverfront I is essentially divided into two parts: the first discusses whether there was a meeting of the minds as to the lease. Specifically, Fish Market argued that there was no meeting of the minds, which argument this Court rejected.
' “We conclude that Fish Market, the party opposing enforcement of the forum-selection clause, failed to present any evidence below or any argument before this Court ‘ “that enforcement of the [forum-selection] clause would be unfair on the basis that the [lease] ‘“[w]as affected by fraud, undue influence, or overweening bargaining power or ,.. [that] enforcement would be unreasonable on the basis that the selected forum [the Tuscaloosa Circuit Court] would be seriously inconvenient.””””
Riverfront I,
Following the transfer, Fish Market filed in the Tuscaloosa Circuit Court a motion seeking to transfer the action back to the Etowah Circuit Court on the basis of, among other things, the doctrine of forum non conveniens. See Ala.Code 1975, § 6-3-21.1(a) (“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 interést 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.”). Specifically, Fish Market contended that “Tuscaloosa County would be a seriously inconvenient forum and would effectively deny [Fish Market]
The Tuscaloosa Circuit Court, following a hearing, granted Fish Market’s motion on two alternate theories:
“This Court finds that [ (1) ] the forum-selection clause in the contract is unenforceable because Tuscaloosa County would be a seriously inconvenient forum. Further, [ (2) ] under Ala.Code [1975,] 6-3-21.1, Etowah County is more convenient for the parties and witnesses and it is in the interest of justice for the case to be transferred.”
(Emphasis added.) In response, Riverfront filed the instant petition for a writ of mandamus; we subsequently ordered answers and briefs.
Discussion
After explaining how this case is eligible for mandamus review, Riverfront’s entire argument on the merits of the petition is as follows:
“Alabama law requires a trial court’s strict compliance with the mandate of an appellate court. [Ex parte] Edwards, 727 So.2d [792,] 794 [ (Ala.1998) ] (holding that when an appellate court remands a case, the trial court’s authority is limited to compliance with the directions provided by the appellate court). ‘The appellate court’s decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate.’ Ex parte Alabama Power Co.,431 So.2d 151 (Ala.1983). On remand, the trial court’s duty is to comply with the mandate and it may not revisit or resurrect issues decided by the appellate court. Gray v. Reynolds,553 So.2d 79 , 81 (Ala.1989). Accord Jones v. Regions Bank,25 So.3d 427 , 438 (Ala.2009); Ex parte Mobil Oil Corp.,613 So.2d 350 , 352 (Ala.1993)(‘On remand, a trial court is not free to reconsider issues finally decided by the appellate court and must comply with the appellate mandate.’); Erbe v. Eady,447 So.2d 778 , 779 (Ala.Civ.App.1984) (‘[t]he trial court is not free to reconsider issues finally decided in the mandate’).
“In Riverfront I, this Court finally decided the issue of enforceability of the forum-selection clause. After considering the fairness and reasonableness of the forum-selection clause (i.e, whether venue in Tuscaloosa Circuit Court would be ‘seriously inconvenient’), this Court held that the foruni-selection clause is enforceable and mandated transfer of the Lawsuit to Tuscaloosa County. [The trial court’s] Order considers the same issue that was decided by this Court — enforceability of the forum-selection clause — and reaches a contrary conclusion. In stark contrast to the Riverfront I mandate, [the trial court’s] Order held that the forum-selection clause is unenforceable on the grounds that it is unreasonable (‘seriously inconvenient’) and transferred the Lawsuit from Tuscaloosa County.
“[The trial court’s] Order simply cannot be squared with the mandate from Riverfront I. This Court’s instructions were clear and concise: because Riverfront has a ‘clear legal right to the enforcement of the forum-selection clause’ the Court required the transfer of the Lawsuit ‘to the Tuscaloosa Circuit Court, the forum agreed to in the lease.’ Riverfront I[, 129 So.3d] at 1015. The Court’s instructions did not allow for*1177 reconsideration of its final determination. Therefore, the Court should grant the writ arid compel [the trial court] to vacate the Order.”
Petition, at 15-17.
I believe that the first paragraph 'more or less accurately states the law: A'trial court must comply with an appellate court mandate, Ex parte Edwards,
Riverfront I is a plurality opinion. Before deciding the issue of the enforceability of the forum-selection clause, i.e., whether it was fair and whether the selected forum (Tuscaloosa County) would be seriously inconvenient, the main opinion decided the issue whether there was a “meeting of minds” with respect to the lease that contained the forum-selection clause. That discussion ends at the bottom of page 1013 of the main,.opinion. The next page,
In his special writing concurring in the result in.:Riverfront / Justice Murdock “respectfully decline[d] ... to join the discussion in note 2 and the accompanying text of the main opinion as- to whether the clause [was an outbound forum-selection clause or. an inbound forum-selection clause].” In the next paragraph, he stated: “it appears, to me that, the only question presented, in this case is the one presented by. the position taken by [Fish Market] that the forum-selection clause ... was not a function of ‘a clear meeting of the minds between the parties.’”
“I fully agree with the statement in the main opinion that ‘Fish Market has not directed this Court’s attention to any authority indicating that the ... testimony of an undisputed signatory to a contract stating simply that he never received an original copy of the contract demonstrates that the parties had not mutually assented to the terms of the contract.’”''
An opinion of this Court joined by less than five Justices is not a “decision” of this Court. See Rule 16(b), Ala. R.App. P. (“The concurrence of five justices in the determination of any cause shall be necessary and sufficient thereto.... ”); First Nat’l Bank of Mobile v. Bailes,
■ The main opinion here states that “a majority of this Court” agreed that Tuscaloosa was not a seriously inconvenient forum. It cites Riverfront I,
The main opinion here takes the position that a transfer to the Etowah Circuit Court would “abrogate this Court’s mandate” in Riverfront I.
In any event, Fish Market argued, and the Tuscaloosa Circuit Court addressed, an alternate theory for transferring the case not discussed in Riverfront I: That the doctrine of forum non conveniens found in Ala.Code 1975, § 6-3-21.1, required a transfer.
Further, Riverfront wholly fails even to address the fact that the Tuscaloosa Circuit Court transferred this case pursuant to § 6-3-21.1. Fish Market argues that Riverfront did not show a clear legal right for relief on this issue because it makes no argument in its mandamus petition.
“The burden of establishing a clear legal right to the relief sought rests with the petitioner. [Ex parte Cincinnati Insurance Cos.,806 So.2d 376 , 379 (Ala.2001) ]. It is not this Court’s function to do independent research to determine whether a petitioner for a writ of mandamus has established a clear legal right.”
Ex parte Metropolitan Prop. & Cas. Ins. Co.,
The main opinion curiously states that Riverfront was not, in its mandamus petition, required to challenge the trial court’s application of § 6-3-21.1. Why not? Although the trial court’s application of § 6-3-21.1 might be incorrect, the very purpose of mandamus review is for a petitioner to point out a lower court’s error, not for this Court to independently search for such error. The main opinion in this case stands for the following proposition: A petitioner for a writ of mandamus need not raise, argue, or even mention a lower court’s error if, in fact, this Court’s own independent research and analysis shows that the lower court erred.
‘ It is true that Fish Market should not be rewarded for belatedly arguing the lack of convenience of the parties after the action was transferred following Riverfront I. That said, Riverfront has not shown a decision of this Court establishing the law of • the case on the issue of. the relative convenience of the forums. Under the particular facts of this case, the Court should not prevent Fish Market from getting a “second bite at the apple” by making Riverfront’s case for it. Riverfront has not shown “a clear legal right to the order sought” or “an imperative duty upon the respondent to perform.” Ex parte BOC,
, The main opinion sets out the correct standard of review.
. The "mandate" cases cited by Riverfront all involve the context of the failure of trial courts whose judgments had previously been reversed to follow the mandate issued to them. In the present case, this Court issued a writ of mandamus to the Etowah Circuit Court; the Tuscáloosa Circuit . Court was not. the recipient of our writ. Riverfront cites no authority for the proposition that a writ of mandamus to one circuit court binds a different circuit courf that was not a respondent in the mandamus proceedings.
. There is an exception. Rule 16(b), Ala. R.App. P., provides that when, by reason of disqualification, the' number of Justices competent to sit in the determination of a cause is reduced, a majority shall suffice, but'at least four Justices must concur. The concurrence of four Justices of a seven-member court "would suffice” as a majority only when the Court is reduced to seven members' by reason of disqualification. See Ex parte State of Alabama,
. Section 6-3-21.1(a) states, in pertinent part: "[A]ny 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....” This Code section “is ‘compulsory,’ Ex parte Sawyer,
. Fish Market also contends that Riverfront failed to preserve the forum non 'Conveniens challenge because it did not address it in the trial court. .