Ex parte Progressive Direct Insurance Company. ( 2014 )

rel: 12/05/2014
Notice: This opinion is subject to formal revision before publication in the advance
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2014-2015
____________________
1130805
____________________
Ex parte Progressive Direct Insurance Company
PETITION FOR WRIT Of MANDAMUS
(In re: Ira Sentell Robinson
v.
Amber Nykole Clayton and Progressive Direct Insurance
Company)
(Wilcox Circuit Court, CV-12-900032)
BOLIN, Justice.
Progressive Direct Insurance Company ("Progressive")
petitions this Court for a writ of mandamus directing the
Wilcox Circuit Court to vacate its order dated March 25, 2014,
1130805
denying Progressive's motion to transfer this action from the
Wilcox Circuit Court to the Tuscaloosa Circuit Court and to
enter an order granting the motion. We grant the petition and
issue the writ.
I. Facts and Procedural History
The underlying action arises out of a motor-vehicle
accident that occurred in Tuscaloosa County on November 11,
2010, between an automobile driven by Ira Sentell Robinson and
an automobile driven by Amber Nykole Clayton. On July 5, 2012,
Robinson filed a complaint in the Wilcox Circuit Court against
Clayton, a resident of Tuscaloosa,1 and Progressive, a foreign
corporation doing business in both Tuscaloosa and Wilcox
Counties. In his complaint Robinson alleged that he was a
resident of Wilcox County and that he had suffered injuries as
a result of the negligent and/or wanton conduct of Clayton
when the vehicle she was driving collided with the vehicle he
was driving. Additionally, Robinson alleged that at the time
of the accident he had a policy of insurance with Progressive,
which included uninsured/underinsured-motorist coverage.
1
The claims asserted against Clayton were subsequently
dismissed, leaving Progressive as the only defendant.
2
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On August 8, 2012, Progressive filed a motion to transfer
the action to Tuscaloosa County, alleging that venue in Wilcox
County was improper because, it claimed, the accident occurred
in Tuscaloosa County and both Robinson and Clayton resided in
Tuscaloosa County at the time of the accident. Alternatively,
Progressive claimed that the action was due to be transferred
to Tuscaloosa County on the ground of the doctrine of forum
non conveniens, as that doctrine is codified at Ala. Code
1975, § 6–3–21.1. In support of its motion to transfer,
Progressive attached a copy of the complaint stating that
Robinson resided in Wilcox County and a copy of the Alabama
Uniform Traffic Crash Report, which listed Robinson's address
as 1800 Links Boulevard in Tuscaloosa.
On May 9, 2013, the trial court entered an order denying
the motion for a change of venue without prejudice.
Progressive asserts that the trial judge "informed counsel for
Progressive verbally he could conduct some additional
discovery, namely regarding the residence of Robinson, and
renew his motion on behalf of Progressive at a later date, if
necessary." (Petition, p. 8.) Robinson does not dispute
Progressive's assertion in this regard. On March 19, 2014,
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Progressive filed a renewed motion to transfer the case to
Tuscaloosa County, reasserting that venue was improper in
Wilcox County. On March 25, 2014, the trial court entered an
order denying Progressive's renewed motion to transfer the
case.
On April 3, 2014, Progressive petitioned this Court for
a writ of mandamus directing the Wilcox Circuit Court to
vacate its March 25, 2014, order denying Progressive's motion
to transfer this action to Tuscaloosa County and to enter an
order transferring the action to Tuscaloosa County. Robinson
filed a motion to dismiss Progressive's petition for a writ of
mandamus, along with a brief in support thereof, arguing that
Progressive's petition is untimely pursuant to Rule 21(a)(3),
Ala. R. App. P., because, he says, the petition was not filed
within 42 days of the May 9, 2013, order denying the first
motion for a change of venue. Specifically, Robinson asserts
that Progressive did not ask the trial court to reconsider the
denial of the its May 9, 2013, order; that the mandamus
petition does not include a statement of circumstances
constituting good cause for this Court's review given the
untimeliness of the petition; and that the renewed motion for
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a change of venue alleges no new arguments, grounds, or other
evidence other than the fact that Robinson has since moved to
Shelby County, Alabama, subsequent to filing his complaint.
It is noted that in Ex parte Jones, 147 So. 3d 415 (Ala.
2013), the petitioner moved unsuccessfully for a summary
judgment on grounds of immunity; this Court denied his
petition for a writ of mandamus as untimely pursuant to Rule
21(a)(3), Ala. R. App. P. The petitioner unsuccessfully filed
a "renewed" motion for a summary judgment asserting no new
grounds, argument, evidence, or change in the applicable law.
The petitioner then filed a subsequent petition for a writ of
mandamus with this Court. We denied the second petition,
concluding that to allow the petitioner to petition this Court
for a writ of mandamus would in essence grant the petitioner
a second bite at appellate review because this Court had
already determined that the previously filed mandamus petition
challenging the denial of his first summary-judgment motion
was untimely and that to allow the second petition would
undermine the spirit and purpose of Rule 21(a)(3) and render
that rule meaningless. In this case, however, Progressive is
not seeking a second bite at appellate review because
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Progressive did not appeal the May 9, 2013, order. Instead,
Progressive represents that the trial judge orally allowed it
the option to renew its motion to transfer after conducting
additional discovery relating to where Robinson resided at the
time of the accident. Robinson does not dispute in his motion
to dismiss that the trial court gave Progressive the option to
renew its motion to transfer the action. Accordingly, because
Progressive is seeking appellate review of the trial court's
March 25, 2014, order, we conclude that its petition for a
writ of mandamus was timely under Rule 21(a)(3).
II. Standard of Review
In Ex parte Pike Fabrication, Inc., 859 So. 2d 1089, 1091
(Ala. 2002), we stated the standard of review for the denial
of a motion for a change of venue as follows:
"'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.' Ex
parte Alabama Great Southern R.R., 788 So. 2d 886,
888 (Ala. 2000). '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).
Moreover, our review is limited to those facts that
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were before the trial court. Ex parte National Sec.
Ins. Co., 727 So. 2d 788, 789 (Ala. 1998).
"'The burden of proving improper venue is on the
party raising the issue and on review of an order
transferring or refusing to transfer, a writ of
mandamus will not be granted unless there is a clear
showing of error on the part of the trial judge.' Ex
parte Finance America Corp., 507 So. 2d 458, 460
(Ala. 1987). In addition, this Court is bound by the
record, and it cannot consider a statement or
evidence in a party's brief that was not before the
trial court. Ex parte American Res. Ins. Co., 663
So. 2d 932, 936 (Ala. 1995)."
III. Discussion
"When ruling on a motion to transfer, the trial court must
determine whether venue was proper at the time the action was
filed." Ex parte Canady, 563 So. 2d 1024, 1025 (Ala. 1990).
Venue of actions against corporations is governed by § 6-
3-7, Ala. Code 1975, which 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
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the cause of action, if such corporation does
business by agent in the county of the plaintiff's
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.)
It is undisputed that, at the time of the accident giving
rise to this action, Robinson was working in Tuscaloosa, where
he stayed during the week at an apartment located at 1800
Links Boulevard, and that he returned on the weekends to his
parents' home in Wilcox County. Robinson maintains that venue
was proper in Wilcox County under § 6-3-7(3) because, he says,
he has always lived in Wilcox County and Progressive does
business in Wilcox County. Progressive, on the other hand,
argues that venue is improper in Wilcox County under § 6-3-
7(3) because, it says, the events giving rise to the action
occurred in Tuscaloosa County and Robinson resided in
Tuscaloosa County at the time; thus, Progressive contends that
the only venue appropriate for filing the action would have
been Tuscaloosa County. It is undisputed that Progressive
does business by agent in both Tuscaloosa and Wilcox Counties.
Accordingly, Wilcox County would be an appropriate venue for
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this action pursuant to § 6-3-7(3), provided Robinson resided
there at the time of the accident. See Ex parte Blount, 665
So. 2d 205, 208 (Ala. 1995)("[V]enue for a personal injury
action against a corporate defendant is proper in either the
county where the injury occurred or the county where the
plaintiff resides, if the defendant does business in that
county.").
In Ex parte Coley, 942 So. 2d 349 (Ala. 2006), this Court
elaborated regarding the terms "residence" and "domicile" in
the context of determining venue:
"'Generally, the terms "residence" and
"domicile" are not considered
synonymous.... However, when determining
venue, most jurisdictions, including
Alabama, do consider the terms
synonymous.... The terms denote the place
where the person is deemed in law to live
and may not always be the place where the
person is actually dwelling.'
"Ex parte Sides, 594 So. 2d 93, 95 (Ala. 1992)
(citing Ex parte Weissinger, 247 Ala. 113, 22 So. 2d
510 (1945)). Thus, our focus is on where Coley was
domiciled, not on where she actually resided, at the
time of the accident.
"'A person's domicile is that place in
which his habitation is fixed, without any
present intention of removing, and it
embraces (1) the fact of residence and (2)
the intention to remain. As a general
proposition a person can have but one
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domicile, and when once acquired is
presumed to continue until a new one is
gained facto et animo,2 and what state of
facts constitutes a change of domicile is a
mixed question of law and fact.'
"Weissinger, 247 Ala. at 117, 22 So. 2d at 514.
"....
"'A change of domicile cannot be
inferred from an absence, temporary in
character, and attended with the requisite
intention to return. To the fact of
residence in the new locality there must be
the added element of the animus manendi3
before it can be said that the former
domicile has been abandoned. The intention
to return is usually of controlling
importance in the determination of the
whole question.... Or ... there must be an
absence of any present intention of not
residing in the new domicile permanently or
for an indefinite time.'
"Weissinger, 247 Ala. at 117, 22 So. 2d at 513.
"_____________________
"2'Facto et animo' means 'in fact and intent.'
Black's Law Dictionary 630 (8th ed. 2004).
"3'Animus manendi' means '[t]he intention to
remain; the intention to establish a permanent
residence.' Black's Law Dictionary 97 (8th ed.
2004)."
942 So. 2d at 352-53.
Like the focus in Ex parte Coley, our focus in this case
"is on where [Robinson] was domiciled, not on where [he]
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actually resided, at the time of the accident." 942 So. 2d at
352. As the movant, Progressive had the burden of making a
prima facie showing that "[Robinson] had abandoned [Wilcox]
County as [his] county of residence and reestablished
permanent residence in [Tuscaloosa] County." 942 So. 2d at
353. Once Progressive carried its burden, the burden shifted
to Robinson to rebut the prima facie showing. See Ex parte
Pike Fabrication, 859 So. 2d at 1092.
Progressive asserted in its motion for a change of venue
that Robinson represented to Officer Darryl Bethea, who
investigated the accident, that he lived at "1800 Links
Boulevard" in Tuscaloosa; that the Uniform Traffic Crash
Report listed Robinson's address as 1800 Links Boulevard in
Tuscaloosa; that Robinson sought treatment in Tuscaloosa
County for the injuries he sustained in the accident; that
Robinson represented to his health-care providers that he was
a resident of Tuscaloosa County; that the Progressive policy
of automobile-liability insurance issued to Robinson showed
his address as 1800 Links Boulevard in Tuscaloosa; that
Robinson purchased his license-plate tag in Tuscaloosa County
using the 1800 Links Boulevard address; that Robinson listed
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the 1800 Links Boulevard address on his Alabama Department of
Transportation permit while he was working for a trucking
company located in Tuscaloosa County; that Robinson obtained
a marriage license in Tuscaloosa County in 2008 because, he
said, he did not want to get married in Wilcox County; that,
following the accident, Robinson had his vehicle towed to
"Pop's Shop" in Tuscaloosa; that Robinson registered to vote
in Tuscaloosa County in either 2008 or 2009, using the 1800
Links Boulevard address; and that the custody arrangement for
Robinson's minor daughter was determined by a Tuscaloosa
County Court in either 2009 or 2010. Robinson also testified
in his deposition that, in 2007, he used the 1800 Links
Boulevard address for setting up his business, Robinson
Trucking--a sole proprietorship. He testified specifically
that the 1800 Links Boulevard address was the address he
"always used."
To rebut Progressive's prima facie showing, Robinson
asserted in his response that he has always lived in Wilcox
County with his parents; that, at the time of the accident, he
and his minor daughter were living with his parents in their
house in Wilcox County; that his daughter attended school in
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Wilcox County; that he has never permanently resided at 1800
Links Boulevard in Tuscaloosa; that the 1800 Links Boulevard
address was an apartment his father had owned, rented, and/or
leased in Tuscaloosa for the purpose of attending football
games and for other family activities; that he stayed at the
apartment only temporarily during the workweek, returning to
Wilcox County on the weekends; and that he did not return to
Tuscaloosa after the accident.2 Other than Robinson's
assertion that he has always lived in Wilcox County, the only
other essential fact that he offers in rebuttal is that his
daughter resides with his parents in Wilcox County and attends
school there.
We conclude that Progressive met its burden of proof in
demonstrating not only that Robinson had established residency
in Tuscaloosa County (facto et animo), but also that he had
the intention of residing there permanently (animus manendi).
By Robinson's own admission, the 1800 Links Boulevard address
was the address he "always used." Robinson admitted that he
2
As noted, the accident in this case occurred on November
11, 2010. Although Robinson asserted that he never returned
to Tuscaloosa after the accident, he testified that the "lease
[on the apartment at 1800 Links Boulevard] was up in 2010."
Progressive notes that Robinson moved to Calera, Alabama,
shortly after filing his complaint in this case.
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had represented to Progressive, to his employers, to medical
providers, to the State of Alabama, to the Alabama Department
of Transportation, to the Tuscaloosa Police Department, and to
the County of Tuscaloosa that he lawfully resided in
Tuscaloosa. Those admissions clearly demonstrate that
Robinson not only physically resided in Tuscaloosa County
during the workweek but also had the intention to remain there
permanently, thereby abandoning Wilcox County as his former
domicile. Another significant and compelling indication of
Robinson's intent to establish his domicile in Tuscaloosa
County is the fact that he registered to vote there in either
2008 or 2009. See, e.g., Harris v. McKenzie, 703 So. 2d 309,
311 (Ala. 1997), in which this Court stated:
"Registration to vote is a 'potent consideration' for
a court to take into account when determining one's
domicile. Ambrose v. Vandeford, 277 Ala. 66, 70, 167
So. 2d 149, 153 (1964). See also Parr v. Shoemaker,
545 So. 2d 37 (Ala. 1989), and Wilkerson v. Lee, 236
Ala. 104, 181 So. 296 (1938). '[V]oting is indicative
of intention with respect to the question [of
domicile] and is regarded as importantly bearing upon
the place of domicile.' Ex parte Weissinger, 247
Ala. 113, 117, 22 So. 2d 510, 514 (1945).
Furthermore,
"'Exercising the right of elective
franchise, dependent upon citizenship and
domicile, is regarded as having weight in
settling the question of a person's legal
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residence. Such act is a deliberate public
assertion of the fact of residence and is
said to have decided preponderance in a
doubtful case upon the place the elector
claims as, or believes to be, his
residence.'
"Weissinger, 247 Ala. at 117–18, 22 So. 2d at 514."
(Emphasis added.)
Because the foregoing evidence overwhelmingly indicates
that, at the time of the accident giving rise to this action,
Robinson was permanently residing in Tuscaloosa County, he
could not rely on § 6-3-7(3) as establishing venue in Wilcox
County, where he filed his complaint against Progressive.
Accordingly, the trial court exceeded its discretion in
denying Progressive's motion to transfer the action to
Tuscaloosa County. Moreover, because venue was improper in
Wilcox County, the doctrine of forum non conveniens, §
6–3–21.1, Ala. Code 1975, has no application in this case.
See Ex parte Townsend, 589 So. 2d 711, 714 (Ala. 1991) ("[The]
doctrine [of forum non conveniens] has a field of operation
only where the action is commenced in a county in which venue
is appropriate.").
IV. Conclusion
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If venue for an action is shown to be improper, the action
must be transferred. Ex parte Overstreet, 748 So. 2d 194
(Ala. 1999). We hold that, based on the evidence before the
trial court at the time of its ruling, the court should have
granted Progressive's motion for a change of venue, and we
direct the trial court to vacate its order denying the motion
and to transfer the action to Tuscaloosa County. Because
under § 6-3-7, Ala. Code 1975, venue was improper in Wilcox
County, we pretermit discussion of Progressive's alternative
argument that the action should be transferred based on § 6-3-
21.1, Ala. Code 1975, the forum non conveniens statute.
MOTION TO DISMISS DENIED; PETITION GRANTED; WRIT ISSUED.
Stuart, Parker, Shaw, Main, Wise, and Bryan, JJ., concur.
Murdock, J., concurs in the result.
Moore, C.J., dissents.
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