Lead Opinion
Ford Motor Company (“Ford”), the defendant in a wrongful-death action pending in the Barbour Circuit Court, petitions this Court for a writ of mandamus directing the trial court to transfer the action to the Montgomery Circuit Court. We grant the petition and issue the writ.
I. Factual Background and Procedural History
On April 5, 2006, Deborah S. Siniard was driving a 1999 Mercury Mountaineer sport-utility vehicle north on Interstate 65 in Montgomery County when the vehicle left the road and rolled over. Siniard died in the accident. Siniard, a Tennessee resident, had purchased the vehicle in Tennessee from a Tennessee dealership, Jim Sloan Ford, Inc. Daniel Siniard, Deborah’s husband and the administrator of her estate, filed an action in the Clayton division of the Barbour Circuit Court against Ford and Jim Sloan Ford, Inc. The trial court granted the motion to dismiss filed by Jim Sloan Ford, Inc., based on lack of personal jurisdiction, leaving only Ford as a defendant.
Siniard’s complaint alleged that the roof, seat, and/or seat-belt system in the vehicle were defective and unreasonably dangerous in their design, manufacture, and/or marketing and that Ford was liable under the Alabama Extended Manufacturer’s Liability Doctrine (“the AEMLD”). Siniard also alleged negligence and wantonness. In paragraph five of the complaint, Siniard averred that “[vjenue is proper pursuant to Ala.Code (1975) § 6-3-7(a)(4).”
In its answer to the complaint, Ford denied the allegation of paragraph five and stated as its 10th defense that “[tjhis Defendant hereby affirmatively pleads improper venue in this case.”
On December 10, 2008, the trial court entered an order denying Ford’s motion to transfer the case. The order provided, in pertinent part:
“This matter comes before the Court upon the motion to transfer [this case] for forum non conveniens filed by the Defendant, Ford Motor Company (‘Ford’). After considering each party’s brief and oral arguments, it is CONSIDERED and ORDERED that Ford’s motion to transfer for forum non conve-niens is DENIED. This Court finds that the Defendant has failed to meet its burden of proof under Ala.Code (1975) § 6-3-21.1. See also, Ex parte Alabama Power Co.,640 So.2d 921 (Ala.1994); Ex parte Independent Life & Accident Ins. Co.,725 So.2d 955 (Ala.1998); Ex parte Suzuki Mobile, Inc.,940 So.2d 1007 (Ala.2006); Ex parte Volvo Trucks North America,954 So.2d 583 (Ala.2006).”
(Capitalization in original.)
Ford filed a petition for a writ of mandamus, asking this Court to order the trial court to transfer the case from the Barbour Circuit Court to the Montgomery Circuit Court.
II. 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. Lawler Mobile Homes, Inc. v. Tarver,492 So.2d 297 , 302 (Ala.1986). ‘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). When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court abused its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.’ Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co.,663 So.2d 932 , 936 (Ala.1995).”
Ex parte National Sec. Ins. Co.,
III. Analysis
Section 6-3-21.1(a), Ala.Code 1975, provides, 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 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.”
Ford contends that both the “convenience of parties and witnesses” and the “interest of justice” warrant the transfer of the action from Barbour County to Montgomery County. We agree.
As noted above, the two state troopers who responded to the accident both testified that it would be more convenient for them to testify in Montgomery County than in the Clayton division of Barbour County. Their affidavits explain that they both live and work in Montgomery County and that testifying in Barbour County would disrupt their work as public servants; Trooper Jarrett further explained that he had supervisory duties that would be disrupted if he were required to go to Barbour County to testify. Ford also notes that Haynes Ambulance of Alabama responded to the accident and that the principal office for Haynes Ambulance is located in Montgomery; Ford asserts that paramedics from Haynes Ambulance, as well as other witnesses who were present at the site of the accident soon after it occurred, will offer testimony regarding their observations as to the position of the decedent’s body, whether the decedent was wearing a seat belt, and other circumstances they observed that may be probative of the manner in which the accident occurred or its cause.
Ford argues that the foregoing considerations are material because, it argues, the purpose of allowing a transfer of a case “for the convenience of parties or witnesses” 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.,
With respect to the “interest-of-justice” provision of § 6 — 3—21.1(a), we have held that “the ‘interest of justice’ require[s] the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.” Ex parte National Sec. Ins. Co.,
“[I]n examining whether it is in the interest of justice to transfer a case, we consider ‘the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.’ ”
Ex parte Indiana Mills & Mfg., Inc.,
In this action, it is undisputed that the accident occurred in Montgomery County, that the authorities that responded and investigated the accident are located in Montgomery County, that relevant witnesses are located in Montgomery County, and that venue is proper in Montgomery County. It is also undisputed that Deborah S. Siniard, the decedent, resided in
This Court recently decided Ex parte Navistar, Inc.,
As in Navistar, in the present case the place where the accident occurred — Montgomery County — has a strong connection to the action. The only connection in Nav-istar between the action and the county in which the action had been filed — Barbour County — was the fact that Navistar sold a large number of trucks to a trucking company whose principal place of business was located in Barbour County. Here, there is no current connection whatsoever between the action and the county in which the action was filed — Barbour County — other than the fact that Siniard filed the action in that county. Simply put, “there is no witness, no document, no transaction, or anything else that would give the action a nexus with [Barbour] County that would justify burdening that county with the trial of the case.” Ex parte National Sec. Ins. Co.,
Siniard complains that the interest-of-justice prong of the forum non conveniens doctrine is the product of “divinely inspired analysis” by this Court that “has no defined parameters that are subjective or objective.” As a result, Siniard states that he “finds himself at a loss as to how to present an argument.”
What Siniard does argue, however, is that Ford “did not meet its burden of proof [of] establishing that § 6-3-21.1 applies to the facts of this case.” Siniard quotes Ex parte Volvo Trucks North America, Inc.,
On appeal, Ford asserts in its petition that, at the time the accident occurred, Ford had a dealership located in Barbour County — Beatty Ford in Clayton, which is no longer in operation — making Barbour County a proper venue under § 6-3-7(a)(4), Ala.Code 1975 (setting venue “in any county in which the [corporate defendant] was doing business by agent at the time of the accrual of the cause of action”).
In support of his position, Siniard cites Ex parte AIG Baker Orange Beach Wharf, L.L.C.,
Although in its answer Ford disputed that Barbour County is a proper venue, it later filed a motion for a change of venue based only on the doctrine of forum non conveniens, which, of course, it was free to do as an alternative to pursuing the allegation in its complaint regarding venue.
The import of Siniard’s argument is that Ford had the burden of proving that venue in Barbour County was proper when the only party that disputed this fact at any time during the procedural history of this case was Ford itself. Put another way, the party that filed this action in Barbour County, that expressly alleged in his complaint that venue was proper in Barbour County, and that never took any different position before the trial court, now complains on appeal that the opposing party failed to prove that venue in Barbour County was proper. Had Siniard made in the trial court the argument he now makes in this Court, he would have been asking the trial court to keep the action in Barbour County on the ground that Barbour County was not a proper venue for the action. This argument defies common sense. It also conflicts with our rules of appellate review because ‘“[t]his Court cannot consider arguments raised for the first time on appeal; our review is restricted to the evidence and arguments considered by the trial court.’ ” Marks v. Tenbrunsel,
Ford has demonstrated that the facts in this case warrant a transfer of the case from Barbour County to Montgomery County “for the convenience of parties and witnesses” and in the “interest of justice.” Siniard offers no meaningful argument to the contrary. Accordingly, we conclude that the trial court exceeded its discretion in denying Ford’s motion for a change of venue based on the doctrine of forum non conveniens.
IV. Conclusion
Section 6-3-21.1(a), Ala.Code 1975, requires the transfer of this action from Barbour County to Montgomery County. We therefore grant Ford’s petition for the writ of mandamus and direct the Barbour Circuit Court to enter an order transferring this action to the Montgomery Circuit Court.
PETITION GRANTED; WRIT ISSUED.
Notes
. Ford initially removed this action to federal court and filed its answer in that court.
. Armstead later filed another affidavit, however, in which she stated that it would not be inconvenient for her to travel to either county.
. Ford asserts in its brief that, “upon information and belief,” none of the witnesses needed for trial are residents of Barbour County.
. Ford's statement in its memorandum brief in support of its motion for a change of venue that it “does not do business by agent" in Barbour County does not necessarily contradict this assertion because the dealership may have ceased its operation before Ford filed its motion.
. This is evident from the fact that nothing prevents a defendant from pleading both grounds in the alternative, see Rule 8(e)(2), Ala. R. Civ. P., or from filing a motion to transfer based on both grounds as alternative arguments, see, e.g., Ex parte National Sec. Ins. Co.,
.Compare Ex parte Associates Fin. Servs. Co. of Alabama, Inc.,
. In his opposition to Ford’s motion to transfer the case, Siniard contended that Ford failed "to meet [its] burden of proof under § 6-3-21.1,” not because it did not demonstrate that Barbour County was a proper venue, but because Ford allegedly failed "to establish that Montgomery County is a 'significantly' more convenient venue so as to override [Siniard’s] right to choose [his] forum."
Concurrence Opinion
(concurring in the result).
I concur in the result on the ground that a transfer of this action to Montgomery County should have been ordered under the “convenience-of-parties-and-witnesses” provision of § 6-3-21.1(a), Ala.Code 1975. I write separately to express concerns relating to the interplay between the applicable venue statute, § 6-3-7, Ala.Code 1975, and the “interest-of-justice” provision of § 6-3-21.1(a).
Relatively recent decisions of this Court interpreting § 6-3-7(a)(l) appear to have forced defendants in some cases to resort
Section 6-3-7(a), Ala.Code 1975, provides:
“(a) 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 plaintiffs 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.”
(Emphasis added.) By its terms, § 6-3-7(a)(4) applies to make venue proper in a county in which the defendant corporation was “doing business by agent” only if subsection (1), (2), or (3) does not apply. I suggest that a plain reading of § 6-3-7(a)(1) in a case such as this would lead to the conclusion that the county in which the accident occurred and in which the plaintiff was injured is a proper venue for the action under that provision and therefore that § 6-3-7(a)(4) is not applicable.
In pertinent part, § 6-3-7(a)(l) simply states that venue is proper against a corporate defendant “[i]n the county in which a substantial part of the events ... giving rise to the claim occurred.” Put plainly, the “rollover” of Deborah Siniard’s vehicle was an “event[ ] ... giving rise to the claim” in this action. This “event” occurred in Montgomery County. In my view, therefore, venue was proper in Montgomery County, which, in turn, rendered venue improper in Barbour County.
Because of our decision in Ex parte Suzuki Mobile, Inc.,
“ ‘Section 6-3-7(a)(l) provides that a civil action against a corporation may be brought “[i]n the county in which a substantial part of the events or omissions giving rise to the claim occurred.” We construe “the events or omissions giving rise to the claim ” to be a clear reference to the wrongful acts or omissions of the corporate defendant.’ ”
In Ex parte First Family Financial Services, Inc.,
In this case, Ford does not seek a transfer based on improper venue, nor does it ask us to revisit our holding in Suzuki For purposes of this case, therefore, I must accept, as does the main opinion, the propriety of venue in Barbour County. I concur in the result because I believe that the defendant’s motion for a change of venue should have been granted under the convenience-of-parties-and-witnesses provision of § 6-3-21.1(a).
. The same impetus for the invocation of the interest-of-justice prong of § 6-3-21.1(a) existed in Ex parte Navistar, Inc.,
. The views expressed by Justice Maddox on behalf of the Court in First Family Financial Services are consistent with the notion that venue statutes such as § 6-3-7 reflect a legislative determination that the statutorily prescribed locations are generally and presumptively just and appropriate.