June 5, 2015
Ex parte Quality Carriers, Inc., and Bennie Hugh Orcutt;
Quality Carriers, Inc., Bennie Hugh Orcutt, and Desmond Rachard Woods In re: Robert Speer, as administrator of the Estate of Kimberly Shonta Livingston, deceased
(Dallas Circuit Court, CV-14-900079).
Justice. Stuart, Bolin, Parker, Shaw, Main, and Bryan, JJ.,
concur. Moore, C.J., dissents.
FOR WRIT OF MANDAMUS
Carriers, Inc., and Bennie Hugh Orcutt, two of the defendants
below, filed a petition for a writ of mandamus requesting
this Court to direct the Dallas Circuit Court to vacate its
order denying their motion to transfer the underlying action
to the Autauga Circuit Court and to enter an order granting
the motion. We grant the petition and issue the writ.
and Procedural History
February 9, 2014, Desmond Rachard Woods was driving
northbound on Interstate 65 in Autauga County in a Ford Crown
Victoria automobile; Kimberly Shonta Livingston, Tory Danta
Cooper, Marquita Shonay Speer (" Marquita" ), and
Aaron Randall Jones were passengers in the automobile. The
automobile Woods was driving had a mechanical problem and
stalled in the right travel lane; it was nighttime, and the
lights on the automobile were not on. Woods, Cooper, and
Jones got out of the automobile and started looking under the
hood. Livingston and Marquita remained in the automobile.
who was employed by Quality Carriers, was also traveling
northbound on Interstate 65 in a tractor-trailer rig that was
owned by Quality Carriers. The tractor-trailer rig Orcutt was
driving collided with the back of the automobile, which was
stalled in the roadway. Both vehicles caught fire. Livingston
and Marquita, who were in the automobile when it caught fire,
were pronounced dead at the scene by Malvin O. Barber, the
Autauga County coroner. Woods and Cooper were transported to
Prattville Hospital. According
to the accident report, marijuana was found on Woods's
person at the hospital. At the time the accident report was
filed, toxicology results were pending to determine whether
Woods was under the influence of marijuana at the time of the
deputy sheriff who was the first responder to the scene
worked in Autauga County. Additionally, a member of the
Autauga County Rescue Squad also responded to the scene and
assisted in the care of the injured individuals. The Autauga
County coroner also responded to the scene and pronounced
Livingston and Marquita dead. Kenneth Barber and Catherine
Ricketts, who were both assistant Autauga County coroners,
also responded to the scene. In his affidavit, Kenneth Barber
stated that he was also the chief of the Marbury Volunteer
Fire Department (" MVFD" ); that he was a resident
of Autauga County; and that he directed the MVFD's work
and assisted with the pronouncements of death in this case.
In her affidavit, Ricketts stated that she was also the
assistant chief of the MVFD; that she also assisted in the
pronouncements of death; and that she also assisted with
and Marquita were both residents of Autauga County. At all
material times, Orcutt was a resident of Pensacola, Florida.
Quality Carriers is an Illinois corporation, with its
principal place of business in Tampa, Florida. Quality
Carriers has never been an Alabama corporation and has never
had its principal place of business in Alabama.
March 19, 2014, Robert Speer (" Speer" ), as
administrator of Livingston's estate, filed a complaint
in the Dallas Circuit Court against Quality Carriers, Orcutt,
and Woods. Speer, a resident of Autauga County, asserted
claims of negligence and wantonness against all the
defendants. With regard to Woods, Speer asserted that Woods
had negligently and wantonly failed to move his automobile
out of the lane of traffic, which resulted in the collision.
He asserted that Woods had breached his duty of care by
" failing to pay proper attention to the roadway and the
traffic, failing to obey the laws and rules of the State of
Alabama, failing to control the vehicle in order to avoid a
collision, and failing to move his vehicle out of the lanes
of traffic when stalled which resulted in a collision.
Further, Defendant Woods was not fit to safely operate a
motor vehicle at the time of the incident in question."
also asserted claims of negligent entrustment, negligent
hiring, and negligent supervision against Quality Carriers.
Woods subsequently answered the complaint and filed
cross-claims against Quality Carriers and Orcutt.
12, 2014, Quality Carriers and Orcutt filed a motion to
transfer the action from Dallas County to Autauga County
based on the doctrine of forum non conveniens, as codified in
§ 6-3-21.1, Ala. Code 1975. On August 19, 2014, Speer
filed his first amended complaint and a response in
opposition to the motion to transfer. In his amended
complaint, Speer amended his negligence and wantonness claims
against Woods to add the allegation that Woods had "
negligently and wantonly inspected his vehicle." On
August 19, 2014, Woods filed a " Joinder in Opposition
to the Motion to Transfer Venue." On October 15, 2014,
the trial court denied the motion to transfer. This petition
" A petition for a writ of mandamus is the appropriate
'method for obtaining review of a denial of a motion for
a change of venue' pursuant to § 6-3-21.1. Ex parte
National Sec. Ins. Co., 727 So.2d 788, 789 (Ala. 1998). ...
" '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).
Although we review a ruling on a motion to transfer to
determine whether the trial court exceeded its discretion in
granting or denying the motion, id., where 'the
convenience of the parties and witnesses or the interest of
justice would be best served by a transfer, § 6-3-21.1,
Ala. Code 1975, compels the trial court to transfer the
action to the alternative forum.' Ex parte First
Tennessee Bank Nat'l Ass'n, 994 So.2d 906, 912 (Ala.
2008) (emphasis added)."
Ex parte Wachovia Bank, N.A., 77 So.3d 570, 573
Carriers and Orcutt argue that the trial court exceeded its
discretion in denying their motion to transfer the action
from Dallas County to Autauga County. Specifically, they
contend that Autauga County has a strong connection to the
case because all the material events that gave rise to
Speer's claims occurred there. In contrast, Quality
Carriers and Orcutt assert, Dallas County has, at best, only
a tenuous connection to the case -- namely, the facts that
Woods resides there and that maintenance on the automobile
Woods was driving at the time of the accident may or may not
have been performed in Dallas County. Quality Carriers and
Orcutt assert that the interest-of-justice prong of
Alabama's forum non conveniens statute mandates a
transfer to Autauga County.
Carriers and Orcutt have filed a motion to strike certain
exhibits attached to the responses to the mandamus petition
that were filed by Speer and Woods and to strike any
arguments based upon those exhibits because those exhibits
were not before the trial court at the time the trial court
ruled on the motion to transfer. Neither Speer nor Woods has
disputed the assertions of Quality Carriers and Orcutt in
this regard. Additionally, it does not appear that Exhibits
2-11 to Speer's response or Exhibits 10-12 to Woods's
response were before the trial court when it ruled on the
motion to transfer.
" It is well settled that, 'in a mandamus
proceeding, this Court will not consider evidence not
presented to the trial court.' Ex parte Cincinnati
Ins. Co., 51 So.3d 298, 310 (Ala. 2010). See Ex
parte Ford Motor Credit Co., 772 So.2d 437, 442 (Ala.
2000) ('" On review by mandamus, we must look only
at those facts before the trial court." '
(quoting Ex parte Baker, 459 So.2d 873, 876 (Ala.
1984))). '[T]his Court is bound by the [materials before
it], and it cannot consider a statement or evidence in a
party's brief that was not before the trial court.'
Ex parte Pike Fabrication[, Inc.], 859
So.2d [1089, 1091 [(Ala. 2002)]. Accordingly, we have not
considered those exhibits attached to Tinney's answer in
response to the mandamus petition. See Ex parte Pike
Fabrication, 859 So.2d at 1091, and Verbena United
Methodist Church, 953 So.2d 395, 399 (Ala. 2006)
(refusing to consider an affidavit submitted in opposition to
a mandamus petition because the affidavit was not before the
trial court when that court rendered the decision under
Ex parte East Alabama Med. Ctr., 109 So.3d 1114,
1117-18 (Ala. 2012) (emphasis
added). Accordingly, we grant Quality Carriers' and
Orcutt's motion to strike Exhibits 2-11 to Speer's
response and Exhibits 10-12 to Woods's response, and we
will not consider those exhibits or any arguments based on
6-3-21.1, 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."
" Historically, the plaintiff has had the initial choice
of venue under the system established by the legislature for
determining venue. Before the enactment of § 6-3-21.1 by
the Alabama Legislature in 1987, a plaintiff's choice of
venue could not be disturbed on the basis of convenience to
the parties or the witnesses or in the interest of justice.
With the adoption of § 6-3-21.1, trial courts now have
'the power and the duty to transfer a cause when "
the interest of justice" requires a transfer.'
Ex parte First Family Fin. Servs., Inc., 718 So.2d
658, 660 (Ala. 1998) (emphasis added). In First Family, this
Court noted that an argument that trial judges have almost
unlimited discretion in determining whether a case should be
transferred under § 6-3-21.1 'must be considered in
light of the fact that the Legislature used the word "
shall" instead of the word " may" in §
6-3-21.1.' 718 So.2d at 660. This Court has further held
that 'Alabama's forum non conveniens statute is
compulsory.' Ex parte Sawyer, 892 So.2d 898, 905
n.9 (Ala. 2004)."
Ex parte Autauga Heating & Cooling, LLC, 58 So.3d
745, 748-49 (Ala. 2010).
" The 'interest of justice' prong of §
6-3-21.1 requires '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., 727 So.2d [788,] 790
[(Ala. 1998)]. Therefore, 'in 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). Additionally, this Court has held that
'litigation should be handled in the forum where the
injury occurred.' Ex parte Fuller, 955 So.2d
414, 416 (Ala. 2006). 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 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,
540 (Ala. 2008).
parties do not dispute that the complaint was filed in an
appropriate venue, namely, Dallas County. Likewise, they do
not dispute that the action could properly have been filed in
Autauga County. However, they do dispute whether
the interest-of-justice prong of § 6-3-21.1 requires a
transfer of this case from Dallas County to Autauga County.
case, Quality Carriers and Orcutt have established that
Autauga County has a stronger connection to the claims in
this case than has Dallas County. The accident from which all
the claims in this case arise occurred in Autauga County. The
deputy sheriff who was the first responder to the scene lives
and works in Autauga County. A member of the Autauga County
Rescue Squad, who was also an Autauga County resident,
responded to the scene and assisted in the care of the
injured individuals. The Autauga County coroner, who is also
an Autauga County resident, responded to the scene and
pronounced Livingston and Marquita dead. Kenneth Barber and
Ricketts, the assistant Autauga County coroners and the chief
and assistant chief, respectively, of the MVFD who had
assisted in the pronouncements of death in this case and had
directed and worked with the MVFD on the scene, both work and
live in Autauga County. Both Alabama State Troopers who
responded to the scene were assigned to the Montgomery post
of the Alabama State Troopers, which covers Montgomery,
Autauga, Chilton, Elmore, and Lowndes Counties; they did not
patrol in Dallas County. One of the State Troopers was a
resident of Autauga County. The accident report indicates
that Woods and Cooper, who had also been a passenger in the
automobile, were both taken to the hospital in Prattville,
which is in Autauga County. The accident report also
indicates that, while Woods was at the hospital, marijuana
was found on his person.
victims who died in the fire, Livingston and Marquita, were
residents of Autauga County. The accident report indicated
that Cooper was also a resident of Autauga County.
Additionally, the accident report indicates that Kuambe Woods
was the owner of the automobile and that he was a resident of
Autauga County. Finally, Speer is also a resident of Autauga
contrast, Woods was the only resident of Dallas County. In
his amended complaint, Speer added a claim that Woods
had negligently and wantonly failed to inspect and maintain
the automobile. In his affidavit attached to Speer's
opposition to the motion to transfer, Woods does not state
that he owned the automobile. Rather, he merely refers to
" the vehicle we were traveling in on the night in
question." Woods goes on to make the bare assertion that
" [a]ny maintenance on the subject vehicle would have
occurred in Dallas County." Based on this assertion,
" All of the maintenance of the vehicle occurred in
Dallas County. Thus, documents and witnesses having
information about the maintenance of the car will be in
was no evidence presented to the trial court to establish
that Woods owned the automobile. In fact, the accident report
indicated that Kuambe, who was a resident of Autauga County,
was the owner of the automobile in which Woods, Livingston,
and the others were traveling on the night in question.
Additionally, Quality Carriers and Orcutt attached to their
reply to Speer's opposition to the motion to transfer and
their reply to Woods's joinder in the motion to transfer
a copy of Speer's responses to Quality Carriers'
first interrogatories. In his response, Speer listed Kuambe
as a potential witness and stated: " Kuambe Woods:
vehicle owner, may have knowledge concerning the
Woods does not include any facts regarding how long he had
been in possession of the automobile or any assertions that
the automobile in question had ever been located in Dallas
County. Rather, the only facts that were presented to the
trial court indicated that the vehicle and its occupants were
traveling from Livingston's home in Autauga County to
there was no evidence to establish that any maintenance had
actually been performed on the automobile in Dallas County.
Neither Speer nor Woods presented any evidence indicating
that there were actually any witnesses in Dallas County who
would testify as to any maintenance that had been performed
on the automobile or that any documents actually existed in
Dallas County regarding maintenance of the automobile.
on the foregoing, Dallas County has only a very weak overall
connection to this case, while Autauga County has a much
stronger connection. See Ex parte Manning, [Ms.
1131152, Dec. 5, 2014] 170 So.3d 638 (Ala. 2014); Ex parte
Morton, [Ms. 1130302, Aug. 29, 2014] 167 So.3d 295 (Ala.
2014); Ex parte State Farm Mut. Auto. Ins. Co., 149
So.3d 1082 (Ala. 2014); and Ex parte Indiana Mills & Mfg.,
Inc., supra. Therefore, the interest-of-justice prong of the
forum non conveniens statute requires that the action be
transferred to Autauga County.
above-stated reasons, we conclude that the trial court
exceeded its discretion in denying Quality Carriers and
Orcutt's motion for a transfer based on the
interest-of-justice prong of the forum non conveniens
statute. Accordingly, we grant the petition for the writ of
mandamus and direct the trial court, in the interest of
justice, to enter an order transferring the case from the
Dallas Circuit Court to the Autauga Circuit
TO STRIKE GRANTED; PETITION GRANTED; WRIT ISSUED.
Stuart, Bolin, Parker, Shaw, Main, and Bryan, JJ., concur.
With regard to venue of actions against
individuals, § 6-3-2, Ala. Code 1975, provides, in
" (a) In proceedings of a legal nature against
" (3) All other personal actions [than for the
recovery of land or on contracts], if the defendant or one of
the defendants has within the state a permanent residence,
may be commenced in the county of such residence or in the
county in which the act or omission complained of may have
been done or may have occurred."
With regard to venue of actions against foreign and
domestic corporations, § 6-3-7, Ala. Code 1975,
provides, in pertinent part:
" (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 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
Rule 82(c), Ala. R. Civ. P., provides, in pertinent
" Where several claims or parties have been
joined, the suit may be brought in any county in which any
one of the claims could properly have been
Based on our disposition of the "
interest of justice" prong of the forum non conveniens,
we pretermit any argument regarding the " convenience of
the parties and witnesses" prong.