Seaborn v. Michelin North America, Inc. , 2010 Ala. LEXIS 142 ( 2010 )

LYONS, Justice

(concurring specially).

I concur fully in the main opinion. I write specially to observe that there is room for improvement in the clarity of Rule 82(d)(2)(C)(iii) (“A defense of improper venue under this rule is waived if a motion to transfer is not served within the time limits of subsections (d)(2)(C)(i)-(ii) of this rule.”) (Emphasis added.) Does the emphasized portion refer to Rule 82(d) in its entirety, thereby including Rule 82(d)(1), which addresses improper venue as of the commencement of the action, or only to Rule 82(d)(2), which addresses improper venue arising after commencement of the action?

I plead guilty to contributing to the confusion because I, as a member of the Advisory Committee on the Alabama Rules of Civil Procedure, had the laboring oar in drafting this portion of Rule 82, added by amendment in 1982. It never occurred to me that the waiver provided for in Rule 82(d)(2)(C)(iii) would apply beyond the circumstances of Rule 82(d) (2) (C) (i)-(ii), dealing exclusively with improper venue arising after the commencement of the action. My recollection is corroborated by the Committee Comments to Rule 82 as Amended Effective March 1, 1982, which I also wrote, stating, “So as to eliminate any potential for abuse by reason of undue delay in seeking a transfer which becomes available under Rule 82(d)(2), certain time limits in which action must be taken are prescribed by Rule 82(d)(2)(C).” (Emphasis added.) Ex parte Movie Gallery, Inc., 31 So.3d 104 (Ala.2009), is consistent with the foregoing view limiting the applicability of Rule 82(d)(2)(C)(iii) to circumstances where venue becomes improper after commencement of the action, the subject matter of Rule 82(d)(2). For the sake of clarity, I recommend that the Advisory Committee on the Alabama Rules of Civil Procedure consider amending Rule 82(d)(2)(C)(iii) to read as follows:

“(iii) Waiver. A defense of improper venue under subdivision (d)(2) of this rule is waived if a motion to transfer is not served within the time limits of subsections (d)(2)(C)(i)-(ii).”