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Ex parte Seriana

Supreme Court of Alabama

March 1, 2019

Ex parte Tim Seriana
v.
Joe Todd Stevens and Joe Stevens, LLC In re: Tim Seriana

          Calhoun Circuit Court, CV-15-900517

          PETITION FOR WRIT OF MANDAMUS

          WISE, JUSTICE.

         Tim Seriana, the remaining plaintiff below, filed a petition for a writ of mandamus requesting that this Court order the Calhoun Circuit Court to vacate its October 23, 2018, order granting the motion for a change of venue filed by Joe Stevens, LLC ("Stevens"), one of defendants below. We grant the petition and issue the writ.

         Facts and Procedural History

         On September 24, 2015, Seriana and his wife, Karen Seriana, sued Joe Todd Stevens and various fictitiously named defendants in the Calhoun Circuit Court. The complaint alleged that Joe Todd Stevens was a contractor who did business in northeast Alabama. The complaint further alleged:

"5. In the early morning hours of March 14, 2014, the plaintiff, Tim Seriana, was traversing the premises of his employer, Alabama Speciality Products, Inc. In the hours preceding the plaintiff's course of pedestrian travel, Joe Todd Stevens and/or fictitious party defendants constructed and/or participated in certain landscaping and/or earth removal so as to create an exposed ditch, hole and/or other excavated area. The defendants, both named and fictitious, failed to barricade, recover and/or otherwise light the area[, ] thus giving rise to a hazardous, dangerous and/or otherwise altered condition.
"6. While taking his usual pedestrian course from his vehicle to his place of work, plaintiff, Tim Seriana, was caused to fall into the ditch and/or hole and/or excavated area created by the defendants, both named and fictitious.
"7. Plaintiff alleges that the ditch and/or hole and/or excavated area was created without notice to the plaintiff and without warning to the plaintiff. Furthermore, the ditch, hole and/or excavated area was neither barricaded, 'roped off,' illuminated and/or otherwise recovered or restored to its original condition so as to warn the plaintiff and/or others of the danger and risk of injury."

         In the section designating the fictitiously named defendants, the complaint indicated that the Alabama Speciality Products, Inc., facility, where the injury occurred, was located in Munford, Alabama, which is in Talladega County. Seriana alleged that he suffered injuries and damage as a result of the fall. Seriana asserted that the defendants' actions constituted negligence, willfulness, wantonness, and/or recklessness and that their actions also constituted "a violation of rules, regulations and guidelines governing the conduct of the defendants, both named and fictitious." Karen asserted a claim alleging loss of consortium. On August 19, 2016, the plaintiffs filed an "Amendment to Complaint to More Particularly Identify Defendant Party." The amended complaint alleged:

"15. That the defendant, Joe Stevens, LLC., is an entity owned exclusively by defendant Joe Todd Stevens. Joe Stevens, LLC., contracted with plaintiff, Tim Seriana's, employer, Alabama Speciality Products, Inc., to excavate and/or otherwise perform certain construction activities on the property of Alabama Speciality Products, Inc.
"16. Although Alabama Speciality Products, Inc., paid Joe Todd Stevens for services that Joe Stevens, LLC., and Joe Todd Stevens provided to Alabama Speciality Products, Inc., Joe Todd Stevens has identified Joe Stevens, LLC., as the entity that, by agreement, performed the services at [the] Alabama Speciality Products, Inc., facility.
"Therefore, pursuant to provisions of [Ala. R. Civ. P.] 15(c)(3), plaintiffs amend their complaint to identify, on the basis of information provided by Joe Todd Stevens, Joe Stevens, LLC., as a proper party defendant to respond to claims made the basis of this litigation."

         On August 23, 2016, the trial court entered an order allowing the amendment to the complaint. On August 14, 2017, Stevens filed an answer, and, on June 13, 2018, the plaintiffs moved to dismiss Karen's loss-of-consortium claim.

         On October 18, 2018, Stevens filed a motion for a change of venue from Calhoun County to Talladega County. In its motion, Stevens alleged:

"1. The plaintiffs inadvertently filed the case in Calhoun County, Alabama instead of ...

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