Ex parte Elizabeth A. Morton.

Rel: 08/29/2014
Notice: This opinion is subject to formal revision before publication in the advance
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
____________________
1130302
____________________
Ex parte Elizabeth A. Morton
PETITION FOR WRIT OF MANDAMUS
(In re: Annie P. Watkins
v.
Elizabeth A. Morton)
(Greene Circuit Court, CV-13-900042)
PARKER, Justice.
Elizabeth A. Morton petitions this Court for a writ of
mandamus directing the Greene Circuit Court to vacate its
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order denying Morton's motion to transfer this case to
Jefferson County on the ground of forum non conveniens and to
enter an order granting the motion. We grant the petition and
issue the writ.
Facts and Procedural History
The relevant facts of this case are undisputed. On
August 26, 2011, Morton, a resident of Greene County, and
Annie P. Watkins, a resident of Jefferson County, were
involved in a motor-vehicle collision in Jefferson County.
Following the collision, Watkins was treated at a hospital in
Jefferson County and subsequently received medical treatment
at four health-care facilities located in Jefferson County.
On August 26, 2013, Watkins filed a complaint in the
Greene Circuit Court against Morton, asserting claims arising
out of the August 26, 2011, motor-vehicle collision. On
September 26, 2013, Morton filed a motion to transfer this
case to the Jefferson Circuit Court pursuant to the doctrine
of forum non conveniens, as codified in § 6-3-21.1(a), Ala.
Code 1975.1 On October 1, 2013, Watkins filed a response. On
1
As she now argues in her petition, Morton argued in her
motion that the interest-of-justice prong of § 6-3-21.1(a)
compelled the Greene Circuit Court to transfer this case to
the Jefferson Circuit Court.
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October 30, 2013, the Greene Circuit Court entered an order
denying Morton's motion, stating: "After review of [Watkins's]
response, the Motion to Transfer Venue of defendant, Elizabeth
A. Morton, is hereby denied on authority of Ex parte Coley,
942 So. 2d 349 ([Ala.] 2006)." On December 11, 2013, Morton
filed this petition for a writ of mandamus.
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.' 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 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)."
3
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Ex parte Pike Fabrication, Inc., 859 So. 2d 1089, 1091 (Ala.
2002).
Discussion
Morton seeks a writ of mandamus directing the Greene
Circuit Court to transfer this case to the Jefferson Circuit
Court pursuant to the forum non conveniens statute, § 6-3-
21.1, which 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 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."
This Court has stated:
"'A party moving for a transfer under § 6–3–21.1
has the initial burden of showing, among other
things, one of two factors: (1) that the transfer is
justified based on the convenience of either the
parties or the witnesses, or (2) that the transfer
is justified "in the interest of justice."' Ex parte
Indiana Mills & Mfg., Inc., 10 So. 3d 536, 539 (Ala.
2008)."
Ex parte Wachovia Bank, N.A., 77 So. 3d 570, 573 (Ala. 2011).
Additionally, this Court has stated that,
"'[w]hen venue is appropriate in more than one
county, the plaintiff's choice of venue is generally
given great deference.' Ex parte Perfection Siding,
Inc., 882 So. 2d 307, 312 (Ala. 2003) (citing Ex
4
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parte Bloodsaw, 648 So. 2d 553, 555 (Ala. 1994)).
See also Ex parte Yocum, 963 So. 2d 600, 602 (Ala.
2007) ('The trial court should give deference to the
plaintiff's choice of a proper forum.')."
Ex parte J & W Enters., LLC, [Ms. 1121423, March 28, 2014] ___
So. 3d ___, ___ (Ala. 2014).
As set forth above, the Greene Circuit Court denied
Morton's motion to transfer this case pursuant to § 6-3-
21.1(a) on the authority of Ex parte Coley, 942 So. 2d 349(Ala. 2006). In Coley, the parents of a deceased passenger,
as her personal representatives, filed a wrongful-death action
in the Jefferson Circuit Court against the driver of the
vehicle following an automobile accident in Perry County. The
defendant filed a motion to transfer the case to the Perry
Circuit Court, arguing, among other things, that the case
should be transferred under the doctrine of forum non
conveniens, as codified in § 6-3-21.1(a). The Jefferson
Circuit Court denied the defendant's motion, and the defendant
filed a petition for a writ of mandamus asking this Court to
direct the Jefferson Circuit Court to transfer the case to the
Perry Circuit Court.
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This Court held that the defendant had not demonstrated
a clear legal right to have the case transferred under § 6-3-21.1(a):
"It appears that the action 'might have been
properly filed' in Perry County, because the
accident occurred there. See Ala. Code 1975, §
6–3–2. The parties do not argue this point. Thus,
the trial court could properly transfer the case to
Perry County 'for the convenience of parties and
witnesses, or in the interest of justice.' See Ala.
Code 1975, § 6–3–21.1(a). As the [plaintiffs]
correctly point out, [the defendant's] burden was to
show the trial court that Perry County is a
significantly more convenient forum than is
Jefferson County. See Ex parte Perfection Siding,
Inc., 882 So. 2d [307] at 312 [(Ala. 2003)] ('The
defendant must show that his inconvenience and
expense in defending the action in the selected
forum outweigh the plaintiff's right to choose the
forum; that is, the defendant must suggest transfer
to a county that is "significantly more convenient"
than the county in which the action was filed.').
[The defendant's] burden before this Court on
mandamus review is to show that she is clearly
entitled to a transfer to Perry County.
"In support of her contention that a trial in
Perry County would be more convenient for the
witnesses, [the defendant] contends that
"'the Perry County law enforcement
personnel who investigated the accident and
will be called to testify at trial likely
reside in Perry County. At least two key
witnesses expected to be called at the
trial of this case ... are thought to
reside in Perry County.'
"[The defendant's] petition, p. 11. With respect to
the convenience of the parties, [the defendant]
states:
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"'As of June 28, 2005, [the defendant] was
living in Perry County. Lastly it is
believed that the [plaintiffs] still reside
in Florida and have no connection to
Jefferson County.'
"[The defendant's] petition, p. 11.
"[The defendant] has not met her burden. [The
defendant] merely points out that the accident
occurred in Perry County and contends that some of
the witnesses 'likely' or are 'thought to' reside in
Perry County. As for the fact that the [plaintiffs]
reside in Florida, the [plaintiffs] contend that it
is actually more convenient for them to fly into
Birmingham for the trial of the case in Jefferson
County than to travel by automobile to Perry County.
In addition, the [plaintiffs] contend that [the
defendant] now lives in the Birmingham area. [The
defendant] responds that she testified at her
deposition in June 2005 that she considers her home
address to be the farm in Uniontown in Perry County
but that she is 'living out of a suitcase.' The fact
that she is 'living out of a suitcase' does not
support [the defendant's] argument that it would be
significantly inconvenient for her to defend this
case in Jefferson County. Nor do her assertions that
certain witnesses 'might' reside in Perry County or
the fact that the [plaintiffs] reside in Florida
support her argument that Perry County is a
significantly more convenient forum than is
Jefferson County."
942 So. 2d at 355.
Morton argues that Coley addressed only the convenience
prong of § 6-3-21.1(a) and, therefore, is inapposite to her
argument that the interest-of-justice prong of § 6-3-21.1(a)
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compels a transfer of this case to the Jefferson Circuit
Court. We agree that Coley is distinguishable on that basis.
In reviewing this case under the interest-of-justice
prong of § 6-3-21.1(a), we must "determine whether 'the
interest of justice' overrides the deference due the
plaintiff's choice of forum" in the present case. J & W
Enters., ___ So. 3d at ___.2 We hold that it does.
In Ex parte Wachovia, supra, this Court thoroughly
discussed the application of the interest-of-justice prong of
§ 6-3-21.1(a) in several cases involving facts similar to
those presented in this case:
"In its petition for the writ of mandamus,
Wachovia relies solely on the interest-of-justice
prong as a ground for transfer.
"'"[I]n analyzing the interest-of-justice
prong of § 6–3–21.1, this Court focuses on
whether the 'nexus' or 'connection' between
the plaintiff's action and the original
forum is strong enough to warrant burdening
the plaintiff's forum with the action." Ex
parte First Tennessee Bank Nat'l Ass'n, 994
So. 2d [906,] 911 [(Ala. 2008)]....
Further, in 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
2
As this Court noted in J & W Enterprises, "[o]ur inquiry
depends on the facts of the case." ___ So. 3d at ___ (citing
Ex parte ADT Sec. Servs., Inc., 933 So. 2d 343 (Ala. 2006)).
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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 Smiths Water & Sewer
Auth., 982 So. 2d 484, 490 (Ala. 2007).'
"Ex parte Indiana Mills [& Mfg., Inc.], 10 So. 3d
[536] at 540 [(Ala. 2008)]. Thus, the dispositive
question is whether the nexus between this action
and Macon County is 'strong enough to warrant
burdening' Macon County with this action. For the
following reasons, we hold that it is not.
"Lee County is the situs of all the alleged acts
or omissions giving rise to the plaintiffs' claims.
Any allegedly unauthorized withdrawals were made
from a Wachovia branch in Lee County. Police
investigation of the matter was conducted in Lee
County. Lee County is Floyd's place of residence, as
well as the location of Unique [Image Pro Car Care,
Floyd's business]. Thus, Lee County is the place
where all the injury alleged in the complaint
occurred. Although it is not a talisman, the fact
that the injury occurred in the proposed transferee
county is often assigned considerable weight in an
interest-of-justice analysis. See Ex parte Autauga
Heating & Cooling, LLC, 58 So. 3d 745, 748 (Ala.
2010) ('"[T]his Court has held that 'litigation
should be handled in the forum where the injury
occurred.'"' (quoting Ex parte Indiana Mills, 10 So.
3d at 540)); Ex parte McKenzie Oil, Inc., 13 So. 3d
346, 349 (Ala. 2008) (same).
"In short, nothing material to this case
transpired in Macon County. Macon County's sole
material contact with this case is that the two
individual defendants ... reside there. Recent cases
decided under the interest-of-justice prong are
dispositive.
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"In Ex parte Autauga Heating & Cooling, LLC, for
example, this Court issued a writ of mandamus
directing the Montgomery Circuit Court –- in the
interest of justice –- to transfer the action to
Elmore County. 58 So. 3d at 747. That case arose out
of an automobile accident involving Lori Lee Wright,
a resident of Elmore County, and Richard Alexander
Rogers, a resident of Montgomery County. The vehicle
being operated by Rogers at the time of the accident
was owned by Autauga Heating & Cooling, LLC
('Autauga'), which had its principal place of
business in Autauga County. The accident occurred in
Elmore County, and Wright received treatment at the
scene of the accident from emergency medical
personnel who lived in Elmore County. 58 So. 3d at
749. When an action was brought against Rogers in
the county of his residence, Rogers sought the
removal of the action to Elmore County, the situs of
the alleged acts or omissions and the place of the
injury.
"This Court concluded that a transfer of the
case was required. In so doing, we said:
"'Although we agree with Wright that
the case has a connection with Montgomery
County because Rogers is a resident of
Montgomery County and [Autauga] may have
some business connections there, ... the
overall connection between Montgomery
County and this case is weak and ... the
connection between the case and Elmore
County is strong.
"'... Besides the fact that Rogers is
a resident of Montgomery County, there was
no other evidence before the trial court
indicating a connection between the case
and Montgomery County.
"'....
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"'The accident underlying this action
occurred in Elmore County, and the
emergency personnel who responded to the
accident were from Elmore County. The
plaintiff herself is a resident of Elmore
County. This Court sees no need to burden
Montgomery County, with its weak connection
to the case, with an action that arose in
Elmore County simply because the individual
defendant resides in Montgomery County and
the corporate defendant does some business
there.'
"58 So. 3d at 750 (emphasis added).
"In so holding, this Court relied on and
discussed Ex parte Indiana Mills & Manufacturing,
Inc.:
"'This Court addressed similar facts
in Ex parte Indiana Mills & Manufacturing,
Inc., supra. In Indiana Mills, the decedent
was driving a garbage truck in Lee County
owned by his employer when the raised rear
door of the truck struck an overhead
railroad trestle, causing the truck to
crash. The decedent was killed when he was
ejected from the truck. His widow filed a
complaint in Macon County against the
manufacturers of the garbage truck and the
seat belts in the truck and three employees
of the decedent's employer. The employer's
principal place of business was in
Tallapoosa County. The employer conducted
business in Macon County, and one of the
individual defendants lived in Macon
County. The defendants moved the trial
court to transfer the case to Lee County
based on the doctrine of forum non
conveniens. The trial court denied that
motion, and the defendants petitioned this
Court for mandamus relief.
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"'This Court granted the defendants'
mandamus petition and ordered the trial
court to transfer the case from Macon
County to Lee County based on the "interest
of justice" prong of § 6–3–21.1. In doing
so, this Court noted that the accident
occurred in Lee County, that the
law-enforcement and emergency personnel who
had responded to the accident were based
out of Lee County, that the chief deputy
coroner who investigated the decedent's
death did his work in Lee County, and that
the records and documents of the fire
department that responded to the accident
were located in Lee County. Comparing this
to the fact that only one of the individual
defendants resided in Macon County and that
the employer conducted business there,
there being no other relevant facts
involving Macon County, this Court held
that the nexus between Lee County and the
case was strong, that the nexus between
Macon County and the case was weak, and
that the trial court thus had exceeded its
discretion in refusing to transfer the case
to Lee County.'
"Ex parte Autauga Heating & Cooling, 58 So. 3d at
750 (discussing Ex parte Indiana Mills) (emphasis
added).
"In this case, as in Autauga Heating & Cooling
and Indiana Mills, the injury occurred in the county
to which the transfer is sought. Here, as in Autauga
Heating & Cooling and Indiana Mills, no material act
or omission occurred in the forum county. As in
Indiana Mills, the official investigation of the
incident was in the county to which the transfer was
sought –- here, Lee County."
77 So. 3d at 573-75.
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As in Wachovia, Ex parte Autauga Heating & Cooling, LLC,
58 So. 3d 745 (Ala. 2010), and Ex parte Indiana Mills &
Manufacturing, Inc., 10 So. 3d 536 (Ala. 2008), Watkins's
injury occurred in the county to which transfer is sought –-
Jefferson County; Watkins is also a resident of Jefferson
County and received treatment in four separate medical
facilities located in Jefferson County. Additionally, as in
Wachovia and Indiana Mills, the official investigation of the
incident was conducted in the county to which the transfer is
sought. Furthermore, as in Wachovia, Autauga Heating &
Cooling, and Indiana Mills, no material act or omission
occurred in Greene County.
Watkins argues that Wachovia, Autauga Heating & Cooling,
and Indiana Mills are distinguishable because each of those
cases involved multiple defendants residing in both the forum
and transferee counties. Although the number and residency of
the defendants may affect an interest-of-justice analysis
under § 6-3-21.1(a), the fact that the above cases involved
multiple defendants does not render them inapposite to the
present case involving only one defendant. Considering the
similarities between the above cases and the present one, that
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factual distinction in this case –- that Morton is the sole
defendant –- is de minimis. See, e.g., Wachovia, 77 So. 3d at
575 ("As in [Autauga Heating & Cooling and Indiana Mills], the
only material connection with the forum county is a
defendant's residence. To be sure, in this case two
defendants reside in the forum county, rather than one. Given
the posture of this case, however, that distinction is
inconsequential.").
For the reasons explained above, Jefferson County has a
significantly stronger connection to this case than does
Greene County, which is connected to this case only by the
fact that Morton resides there –- a connection this Court has
characterized as "weak." See Autauga Heating & Cooling, 58
So. 3d at 750 ("This Court sees no need to burden Montgomery
County, with its weak connection to the case, with an action
that arose in Elmore County simply because the individual
defendant resides in Montgomery County and the corporate
defendant does some business there."); Indiana Mills, 10 So.
3d at 542 ("We see no need for Macon County, with its weak
connection with this case, to be burdened with an action that
arose in Lee County simply because one of several defendants
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resides there. Instead, Lee County clearly has a strong
connection with this case. See Ex parte Verbena United
Methodist Church, 953 So. 2d 395, 400 (Ala. 2006) (holding
that the 'weak nexus' with the county in which an action was
filed did not 'justify burdening' that county with the trial
of that action; thus, the doctrine of forum non conveniens
required the case be transferred to a county that had 'a much
stronger nexus')."). Accordingly, the interest of justice
overrides Watkins's choice of forum. Therefore, Morton has a
clear legal right to the relief she seeks.
Conclusion
Morton has met her burden of showing that transfer of
this action to Jefferson County is justified in the interest
of justice. The trial court exceeded its discretion,
therefore, in denying the motion to transfer the case. Morton
is entitled to a writ of mandamus directing the trial court to
grant her motion; thus, we grant the petition and issue the
writ.
PETITION GRANTED; WRIT ISSUED.
Stuart, Bolin, Shaw, Main, Wise, and Bryan, JJ., concur.
Moore, C.J., and Murdock, J., dissent.
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MURDOCK, Justice (dissenting).
For the reasons explained in my special writings in
Ex parte Wachovia Bank, N.A., 77 So. 3d 570, 576-78 (Ala.
2011) (Murdock, J., dissenting), and Ex parte Autauga Heating
& Cooling, LLC, 58 So. 3d 745, 751-52 (Ala. 2010)
(Murdock, J., dissenting), I disagree with the proposition
that Elizabeth A. Morton is entitled to a transfer of this
action to Jefferson County based on the "interest-of-justice
prong" of § 6-3-21.1, Ala. Code 1975. Additionally, I am
concerned that, notwithstanding its acceptance of Ex parte
Coley, 942 So. 2d 349 (Ala. 2006), as a case decided under the
convenience prong of § 6-3-21.1, some portions of the main
opinion could be read as further expanding the field of
operation of the interest-of-justice prong to include certain
convenience-prong factors.
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