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Ex parte Consolidated Pipe & Supply Co., Inc.

Supreme Court of Alabama

June 22, 2018

Ex parte Consolidated Pipe & Supply Co., Inc.
v.
The Ohio Casualty Insurance Company et al. In re: Consolidated Pipe & Supply Co., Inc.

          Morgan Circuit Court, CV-17-900357

          PETITION FOR WRIT OF MANDAMUS

          MENDHEIM, JUSTICE.

         Consolidated Pipe & Supply Co., Inc. ("Consolidated Pipe"), petitions this Court for a writ of mandamus directing the Morgan Circuit Court to vacate its September 19, 2017, order transferring this case to the Jackson Circuit Court. We grant the petition.

         I. Facts

         On August 3, 2017, Consolidated Pipe filed the underlying action in the Morgan Circuit Court against The Ohio Casualty Insurance Company ("Ohio Casualty"), Bolt Construction & Excavating, LLC ("Bolt Construction"), and Michael Bolt (hereinafter referred to collectively as "the defendants"). According to Consolidated Pipe's complaint, the West Morgan East Lawrence Water and Sewer Authority ("the Water Authority") contracted with Bolt Construction to perform a public work known as "the Vaughn Bridge Road Water Line Relocation Project No. 14018.00" ("the project"). Bolt Construction also obtained payment bond no. 16069745 ("the bond") from Ohio Casualty as surety to cover the project. As the sole owner of Bolt Construction, Bolt executed the bond contract on behalf of Bolt Construction on March 22, 2016. It is undisputed that the project was located in Morgan County.

         In the course of performing its contract with the Water Authority, Bolt Construction entered into a contract with Consolidated Pipe pursuant to which Consolidated Pipe was to supply materials for use in the project. Bolt executed a guaranty in conjunction with the contract with Consolidated Pipe in which he agreed to unconditionally and personally guarantee full and prompt payment of all sums owed to Consolidated Pipe by Bolt Construction in the event Bolt Construction failed to pay the contracted-for amount. In its complaint, Consolidated Pipe alleges that Bolt Construction failed to pay Consolidated Pipe for the materials it furnished to Bolt Construction for the project, a cost it asserts amounts to $59, 784.38.

         Consolidated Pipe's complaint asserts four counts against Bolt Construction, Bolt, and Ohio Casualty. First, it asserts that Bolt Construction and Ohio Casualty violated Alabama's "little Miller Act," Ala. Code 1975, § 39-1-1 et seq. This count expressly sought recovery under the bond issued by Ohio Casualty. Second, Consolidated Pipe alleges that Bolt Construction breached the supply contract between them. Third, the complaint asserts a claim for money due on open account against Bolt Construction. Finally, the complaint asserts a claim against Bolt alleging breach of the guaranty because Bolt failed to reimburse Consolidated Pipe after Bolt Construction failed to pay the amount owed on the contract for the furnished materials.

         On September 7, 2017, the defendants filed their "Response to Plaintiff's Request for Admission of Facts and Genuineness of Documents." On the same date, the defendants filed a joint motion for a change of venue to Jackson County. In that motion, the defendants contended that Morgan County was an improper venue for the action because Bolt does not reside in Morgan County, Bolt Construction is headquartered in Jackson County, and Ohio Casualty is a foreign corporation with its principal place of business in New Hampshire and it does business by agent in Birmingham, Alabama. The defendants contended that under Rule 82, Ala. R. Civ. P., and § 6-3-7(a), Ala. Code 1975, Morgan County was not a proper venue as to any of the defendants. In the alternative, they asserted that under the doctrine of forum non conveniens, pursuant to § 6-3-21.1(a), Ala. Code 1975, Jackson County was a more convenient forum because Bolt lives there.

         On September 19, 2017, the Morgan Circuit Court granted the defendants' motion to transfer the case to Jackson County -- without conducting a hearing and before Consolidated Pipe had filed a response to the motion. The order stated: "Defendants' Joint Motion to Transfer Venue is GRANTED. The Clerk is directed to transfer the above case to the Circuit Court of Jackson County, Alabama for further proceedings."

         The following day Consolidated Pipe filed a motion seeking vacatur of the transfer order.[1] Consolidated Pipe filed evidentiary submissions with its motion, including an affidavit from Carleen White, the office manager for the Water Authority. White attached to her affidavit an executed copy of the bond contract. The motion also contained several arguments in favor of finding that Morgan County was a proper venue and an argument that Morgan County was the more convenient forum under the doctrine of forum non conveniens.

         On October 3, 2017, the Morgan Circuit Court held a hearing on Consolidated Pipe's motion. On October 12, 2017, the circuit court denied the motion. On October 17, 2017, Consolidated Pipe filed this petition for a writ of mandamus.

         II. Standard of Review

"'A petition for the writ of mandamus is the appropriate means by which to challenge a trial court's order regarding a change of venue. The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows "'"(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 Inverness Constr. Co., 775 So.2d 153, 156 (Ala. 2000) ...

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