Ex parte International Paper Company, Janet Pridgeon, Joni Harris, and Shawn Blenis
JRD Contracting, Inc., et al. In re: Caterpillar Financial Services Corporation
PETITION FOR WRIT OF MANDAMUS Wilcox Circuit Court,
Paper Company ("International Paper") and three of
its employees--Janet Pridgeon, Joni Harris, and Shawn Blenis
(hereinafter referred to collectively as
"IPC")--the defendants in a third-party action
pending below, petition this Court for a writ of mandamus
directing the Wilcox Circuit Court to vacate its order
denying IPC's motion to dismiss the action against it
without prejudice based on improper venue. We grant the
petition and issue the writ.
and Procedural History
2015, Caterpillar Financial Services Corporation
("Caterpillar") entered into various loan and
guaranty agreements with JRD Contracting, Inc.
("JRD"), and its president, John R. Dailey, Jr.
("Dailey"), for the purchase of certain equipment.
That equipment was to serve as collateral for the loans
between Caterpillar and JRD. According to Caterpillar, JRD
and Dailey failed to pay the amounts due under the loan
agreements, and, in September 2015 and again in December
2015, Caterpillar notified JRD and Dailey of its intention to
accelerate the loans and to make demand for the return of the
summer of 2016, Dailey, on behalf of JRD Land Contracting and
Land Clearing, Inc. ("JRD C&L"),  signed an
agreement with International Paper called the
"International Paper Company Pine Hill Mill Waste
Services Agreement" ("the waste-services
agreement"), in which JRD C&L agreed to dispose of
International Paper's waste at its Pine Hill Mill for a
period of five years.
in 2016, Caterpillar sued JRD and Dailey in the Wilcox
Circuit Court alleging a claim of detinue and seeking damages
for breach of contract and breach of the guarantees.
Caterpillar alleged that the defendants failed to pay amounts
owed on their loans, and it sought to recover possession of
the equipment held as collateral.
performing work for International Paper under the
waste-services agreement for eight months, JRD C&L
received a letter from International Paper on April 6, 2017,
providing 30 days' written notice of International
Paper's intent to terminate the waste-services agreement.
2017, JRD and Dailey filed in the pending Wilcox Circuit
Court action a third-party complaint against IPC and
fictitiously named defendants. In their complaint, JRD and
Dailey sought a declaratory judgment and damages on claims of
breach of contract, promissory estoppel, fraud, work and
labor done, and indemnity. According to JRD and Dailey, in an
effort to perform the obligations under the waste-services
agreement, they hired additional labor and also leased,
purchased, and financed various items of equipment from third
parties, including Caterpillar. They alleged that they
acquired that equipment and entered into those loan
agreements only in reliance on International Paper's
alleged assurance that they would be compensated for their
work over a five-year period. When International Paper
terminated that agreement, JRD and Dailey alleged, they could
no longer afford to pay the loans from their lenders,
including Caterpillar, although they had already defaulted on
some of those loans.
that same month, JRD and Dailey moved the trial court to add
JRD C&L as a defendant to the action involving
Caterpillar. According to JRD and Dailey, adding JRD C&L
as a defendant was proper because JRD C&L had possession
of the equipment that Caterpillar was seeking to recover. JRD
C&L was also, as noted above, the signatory to the
waste-services agreement with International Paper, which was
at issue in the third-party action. The trial court granted
that motion. Thereafter, JRD, Dailey, and JRD C&L filed
an amended third- party complaint adding JRD C&L as a
third-party plaintiff (JRD, Dailey, and JRD C&L are
hereinafter referred to collectively as "the third-party
2017, IPC moved, pursuant to Rule 12(b)(3), Ala. R. Civ. P.,
to dismiss the third-party complaint based on improper venue.
According to IPC, the waste-services agreement contained an
outbound forum-selection clause that provided that the courts
of Tennessee would have jurisdiction over any disputes
arising out of or relating to that agreement. IPC also
challenged whether JRD or Dailey had a right to bring the
third-party action because, it argued, the third-party action
had nothing to do with the transactions underlying
trial court did not rule on IPC's motion to dismiss, and
IPC petitioned this Court for a writ of mandamus directing
the trial court to rule on the motion. On April 27, 2018,
this Court granted IPC's petition and directed the trial
court to address the merits of IPC's motion. See Ex
parte International Paper Co., [Ms. 1170458, April 27,
2018]__ So. 3d__ (Ala. 2018). On November 7, 2018, the trial
court denied the motion, and IPC filed the present petition.
"'"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).'
"Ex parte CTB, Inc., 782 So.2d 188');">782 So.2d 188');">782 So.2d 188');">782 So.2d 188, 190 (Ala.
2000). In Ex parte CTB, this Court established that
a petition for a writ of mandamus is the proper vehicle for
obtaining review of an order denying enforcement of an
'outbound' forum-selection clause when it is
presented in a motion to dismiss. Indeed, an attempt to seek
enforcement of the outbound forum-selection clause is
properly presented in a motion to dismiss without prejudice,
pursuant to Rule 12(b)(3), Ala. R. Civ. P., for contractually
improper venue. Additionally, we note that a party may submit
evidentiary matters to support a motion to dismiss that
attacks venue. Williams v. Skysite Communications
Corp., 781 So.2d 241 (Ala. Civ. App. 2000), quoting
Crowe v. City of Athens, 733 So.2d 447, 449 (Ala.
Civ. App. 1999)."
Ex parte D.M. White Constr. Co., 806 So.2d 370');">806 So.2d 370, 372
(Ala. 2001). Further, "a trial court's ruling on the
question of enforcing a forum-selection clause" will be
vacated if the court exceeded its discretion. Id.
argues that, generally, outbound forum-selection clauses are
enforceable in Alabama and that the third-party plaintiffs
did not establish that the enforcement of the clause would be
unfair or unreasonable. According to IPC, because the
third-party plaintiffs failed to meet their burden, the
outbound forum-selection clause should be enforced. For the
reasons discussed below, we agree.
well established that an outbound forum-selection clause
"'will be "upheld unless the party challenging
the clause clearly establishes that it would be unfair or
unreasonable under the circumstances to hold the parties to
their bargain." Ex parte CTB, Inc., 782 So.2d
[188, ] 190-91 [(Ala. 2000)]. The showing is sufficient where
it is clearly established "'(1) that enforcement of
the forum selection clause would be unfair on the basis
that the contract [was] affected by fraud, undue influence,
or overweening bargaining power or (2) that enforcement would
be unreasonable on the basis that the chosen ... forum would
be seriously inconvenient for the trial of the
action.'" Id. at 191 ....'
"Ex parte Leasecomm Corp., 886 So.2d [58, ]
62-63 [(Ala. 2003)] (emphasis omitted). The Court has noted
that '[t]he burden on the challenging party is difficult
to meet.' Ex parte D.M. White Constr. Co., ...