rel: 12/05/2014

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter . Readers are requested to notify the Reporter of Decisions , Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter
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# SUPRE ME CO URT O F ALA BAMA

OCTOB ER TE RM, 2 014-2 015

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_____ _____ _____ _____ Ex pa rte P rogre ssive Dire ct In suran ce Co mpany

PETIT ION F OR WR IT Of MAND AMUS (In r e: Ir a Sen tell Robin son

v. Amber Nyko le Cl ayton and Progr essiv e Dir ect I nsura nce Compa ny) (Wilc ox Ci rcuit Cour t, CV -12-9 00032 ) BOLIN , Jus tice. Progr essiv e Direc t Insur ance C o mpany ("Pro gress ive") petit ions this Court for a w r i t of manda mus direc ting the Wilco x Circu it Court to vacat e its order dated March 25, 2014,11308 05

denyi ng Progr essiv e's motio n to trans fer this actio n from the Wilco x Circu it Court to the Tusca loosa Circu i t C ourt and to enter an order grant ing the motio n. We grant the petit ion and issue the writ.

I. F acts and P roced ural Histo ry The under lying actio n ar ises out of a motor -vehi cle accid ent that occur red in T u s c a loosa Count y on Novem ber 11, 2010, betwe en an autom obile drive n by Ira Sente ll Robin son and

an autom obile drive n by Am ber N ykole Clay ton. O n J u l y 5 , 2 0 1 2 , Robin son filed a compl aint in the Wilco x Circu it Court again st Clayt on, a resid ent of Tusca loosa , and Progr essiv e, a forei gn 1
corpo ratio n doing busin ess in both Tusca l o o s a and Wilco x Count ies. In his compl aint Robi n s o n a l leged that he was a resid ent of Wilco x Count y and that he had suffe red injur ies as

a resul t of the n e g l igent and/o r wanto n condu ct of Clayt on when the vehic le she was drivi ng colli ded with the vehic le he

was drivi ng. Addit ional ly, Robin son alleg ed that at the time of the accid ent he had a polic y of insur ance with Progr essiv e, which incl uded unins ured/ under insur ed-mo toris t cov erage .

The claim s asser ted again st C layto n were subse quent ly 1 dismi ssed, leav ing P rogre ssive as t he on ly de fenda nt. 211308 05

On Augus t 8, 2012, Progr essiv e filed a motio n to trans fer the actio n to Tusca loosa Count y, alleg ing that venue in Wilco x Count y was impro per becau se, it claim ed, the accid ent occur red in Tusca loosa Count y and both Robin son and Clayt on resid ed in Tusca loosa Count y at the time of the accid ent. Alter nativ ely, Progr essiv e claim ed that the actio n was due to be trans ferre d to Tusca loosa Count y on t h e groun d of the doctr ine of forum

non conve ni e n s , a s that doctr ine is codif ied at Ala. Code 1975, § 6–3–2 1.1. I n s u pport of its motio n to trans fer, Progr essiv e attac he d a copy of the compl aint stati ng that Robin son r e sided in Wilco x Count y and a copy of the Alaba ma Unifo rm Traff ic Crash Repor t, which liste d Robin son's addre ss as 18 00 Li nks B oulev ard i n Tus caloo sa. On May 9, 2013, the trial cour t ent ered an or der d enyin g the motio n for a chan g e o f venue witho ut preju dice. Progr essiv e asser ts that the trial judge "info rmed couns el for Progr essiv e verba lly he could condu c t some addit ional disco very, namel y regar ding the resid ence of Robin son, and

renew his motio n on behal f of Progr essiv e at a later date, if

neces sary. " (Peti tion, p. 8.) Robin son does not d isput e Progr essiv e's asser tion in t h i s regar d. On March 19, 2014,

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Progr essiv e fil e d a renew ed motio n to trans fer the case to Tusca loosa Count y, reass ertin g that venue wa s impro per in Wilco x Count y. On March 25, 2014, the trial court enter ed an order denyi ng Progr essiv e's renew ed motio n to trans fer the

case. On April 3, 2014, Progr essiv e petit ioned t h i s Court for

a writ of manda mus direc ting the Wilco x Circu it Court to vacat e its March 25, 2014, order denyi ng Progr essiv e's motio n to trans fer this acti o n t o T uscal oosa Count y and to enter an order trans ferri ng the actio n to Tusca loosa Count y. Robin son filed a motio n to dismi ss Progr essiv e's petit ion for a writ of manda mus, along with a brief in suppo rt there of, argui ng that Progr essiv e's petit ion is untim ely pursu ant to Rule 21(a) (3), Ala. R. App. P., becau se, he says, the petit ion was not filed withi n 42 days o f the May 9, 2013, order denyi ng the first motio n for a chang e of ve n u e . Speci fical ly, Robin son asser ts that Progr essiv e did not ask the trial court to recon sider the denia l of the its M a y 9, 2013, order ; that the manda mus petit ion does not inclu de a state ment of circu mstan ces

co nstit uting good cause for this Court 's revie w given the untim eline ss of the petit ion; and that the renew ed motio n for

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a chang e of venue alleg es no new argum ents, groun ds, or other evide nce other than the fact that Robin son has since moved to Shelb y Count y, Alaba ma, subse quent to fil i n g his compl aint.
I t i s n oted that in Ex parte Jones , 147 So. 3d 415 ( A l a . 2013) , the petit ioner moved unsuc cessf ull y f or a summa ry judgm ent on groun ds of immun ity; t h i s Court denie d his petit ion for a writ of manda mus as un t i m e l y pursu ant to Rule 21(a) (3), Ala. R. App. P. The petit ioner unsuc cessf ully filed

a "rene wed" mot i o n f or a summa ry judgm ent asser ting no new groun ds, argum ent, evide nce, or chang e in the appli cable law. The petit ioner then filed a subse quent petit ion for a writ of manda mus with this Court . We denie d the s e cond petit ion, concl uding that to allow the petit ioner to petit ion this Court for a writ of manda mus would in essen ce grant the petit ioner

a secon d bite at appel late revie w becau se this Court had alrea dy deter mined that the previ ously filed manda mus petit ion chall engin g the denia l of his first summa ry- j u d g ment motio n

was untim ely and that to allow th e secon d petit ion would

u n dermi ne the spiri t and purpo se of Rule 21(a) (3) and rende r that rule meani ngles s. In this case, howev er, Progr es s i v e is not seeki n g a secon d bite at appel late revie w becau se

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Progr essiv e did not appea l t h e M ay 9, 2013, order . Inste ad, Progr essiv e repre sents that the trial judge orall y allow ed it the optio n to renew its motio n to trans fe r a fter condu cting addit ional disco very relat ing to where Robin son resid ed at the time of the accid ent. Robin son does not dispu te in his motio n to dismi ss that the trial court gave Progr essiv e the optio n to

renew its motio n to trans fer the actio n. Accor dingl y, becau se Progr essiv e is seeki ng appel l a t e r eview of the trial court 's March 25, 2014, o r d e r , we concl ude that its petit ion for a writ of ma ndamu s was time ly un der R ule 2 1(a)( 3). II. S tanda rd of Revi ew In Ex parte Pike Fabri catio n, Inc., 859 So. 2d 1089, 1091 (Ala. 2002) , we state d the stand ard of revie w for t h e d e nial of a motio n for a ch ange of ve nue a s fol lows:

"'The prope r metho d for obtai ning revie w of a denia l of a motio n for a chan ge of venue in a civil actio n is to petit ion for the writ of manda m u s . ' Ex parte A l a bama Great South ern R.R., 788 So. 2d 886, 888 (Ala. 2000) . ' M andam us is a drast ic and extra ordin ary writ, to be issue d only where there is (1) a clear legal right in the petit ioner to t he order sough t; (2) an imper ative duty upon the respo ndent to perfo rm, accom panie d by a refus al to do so; (3) the lack of anoth er adequ ate remed y; and (4) prope rly invok ed juris dicti on of the court .' Ex parte Integ on Corp. , 672 So. 2d 497, 499 (Al a . 1995) . Moreo ver, our revie w is limit e d t o t hose facts that

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were befor e the trial court . Ex parte Natio nal Sec. Ins. Co., 727 S o. 2d 788, 789 (Ala. 1998 ). "'The burde n of provi ng impro per venue is on the party raisi ng the issue and on revie w of an order trans ferri ng or refus ing to trans fer, a wr i t of manda mus will not be grant ed unles s there is a clear showi ng of error on the part of the trial judge .' Ex parte Finan ce Ameri ca Corp. , 507 So. 2d 458, 460 (Ala. 1987) . In addit ion, this Court is bound by the recor d, and it canno t consi der a state ment or evide nce in a party 's brief that w a s not befor e the trial c o u r t . Ex parte Ameri can Res. Ins. Co., 663 So. 2 d 932 , 936 (Ala . 199 5)." III. Disc ussio n "When rulin g on a motio n to trans fer, the trial court must deter mine wheth er venue was prope r at the time the actio n was filed ." E x par te Ca nady, 563 So. 2 d 102 4, 10 25 (A la. 1 990). Venue of actio ns again st corpo ratio ns is gover ned by § 6- 3-7, Ala. Code 1975, whic h pro vides :

"(a) All civil actio ns again st corpo ratio ns may be br ought in a ny of the follo wing count ies: "(1) In the count y in which a subst antia l part of the e v e nts or omiss ions givin g rise to the claim occur red, or a subst antia l part of real prope rty that is th e sub ject of th e act ion i s sit uated ; or

" ( 2 ) I n t h e c o u n t y o f t h e c o r p o r a t i o n ' s princ ipal offic e in this state ; or "(3) In th e count y in which the plain tiff resid ed, or if the plain tiff is an entit y other than an indiv idual , where the plain tiff had its princ ipal offic e in this state , at the time of the acc r u al of

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the cause of actio n, if such corpo ratio n does busin ess by agent in the count y of the plain tiff' s resid ence; or

" ( 4 ) I f s u b d i v i s i ons (1), (2), or (3) d o n o t apply , in any count y in which the corpo rat ion was doing busin ess by agent at the time of the accru al of the c ause of ac tion. " (Emph asis added .) It is undis puted that, at the time of the accid ent givin g rise to this actio n, Robin son was worki ng in Tusca loosa , where he staye d dur i n g the week at an apart ment locat ed at 1800 Links Boule vard, a n d t h a t he retur ned on the weeke nds to his paren ts' home in Wilco x Count y. Robin son maint ains that venue

was prope r in Wilco x Count y under § 6-3-7 (3) becau se, he says, he has alway s lived in Wilco x C o u n t y and Progr essiv e does b u s iness in Wilco x Count y. Progr essiv e, on the other hand , argue s that venue is impro per in Wilco x Count y under § 6 -3- 7(3) becau se, it says, the event s givin g rise to t h e actio n

occur red in Tusca loosa Cou n t y and Robin son resid ed in Tusca loosa Count y at the time; thus, Progr essiv e conte nds that the only venue appro priat e for filin g t h e actio n would have been Tusca loosa Count y. It is undis puted that Progr essiv e does busin ess by agent in both Tusca loosa and Wilco x Count ies. Accor dingl y, Wilco x Count y would be an ap p r o p r iate venue for

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this actio n pursu ant to § 6-3-7 (3), provi ded Robin son resid ed there at the time of the accid ent. See Ex parte Bloun t, 665 So. 2d 205, 208 ( A l a . 1995) ("[V] enue for a perso nal injur y

a c tion again st a corpo rate defen dant is prope r in eithe r the count y where the injur y occur red or the c ounty where the pla intif f resid es, if the defen dant does busin ess in that count y."). In Ex parte Coley , 942 So. 2d 349 (Ala. 2006) , this Court elabo rated regar ding t h e terms "resi dence " and "domi cile" in the c ontex t of deter minin g ven ue:

"'Gen erall y, the terms "resi dence " and
" d o m i c i l e " a r e n o t c o n s i d e r e d synon ymous .... Howev er, when deter minin g venue , most juris d ictio ns, inclu ding Alaba ma, do consi de r t h e t erms syno n y mous. ... The terms denot e the place where the perso n is deeme d in law to l ive and may not alway s be the place where the perso n is actua lly d welli ng.' "Ex parte Sides , 594 So . 2 d 93, 95 (Ala. 1992) (citi ng Ex parte Weiss inger , 247 Ala. 113, 22 So. 2d 510 (1945 )). Thus, our focu s i s o n where Coley was domic iled, not on where she actua lly resid ed, at the time of th e acc ident
. "'A perso n's domi c i l e is that place in which his habit a tion is fixed , witho ut any p resen t inten tion of remov ing, and i t embra ces (1) the fact of resid ence an d (2) the inte n t ion to remai n. As a gener al propo sitio n a p erson can have but one
911308 05 d o micil e, and when once acqui red is presu med to conti nue until a new one is g ained facto et animo , and what state of 2 facts const itute s a chang e of domic ile is a mixed ques tion of la w and fact .' "Weis singe r, 24 7 Ala . at 117, 22 So . 2d at 51 4. ".... "'A chang e of dom i c i l e canno t be infer red from an absen ce, tempo rary i n chara cter, an d atten ded with the requi site int entio n to retur n. To the fact of resid ence in the new local ity there must be the a d ded eleme nt of the animu s manen di 3 b e f ore it can be said that the forme r domic i l e has been aband oned. The inten tion to retur n is usual ly of c ontro lling impor tance in t he deter minat ion of the whole quest ion..
. . Or ... there must be an absen ce of any p r e s e nt inten tion of not resid ing in the new domic ile perma nentl y or for a n ind efini te ti me.' "Weis singe r, 24 7 Ala . at 117, 22 So . 2d at 51 3. "____

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" ' Facto et animo ' means 'in fact and inten t. ' 2 Black 's La w Dic tiona ry 63 0 (8t h ed. 2004 ).

" 'Anim us manen di' means '[t] h e inten tion to 3 remai n; the inten tion to estab lish a perma nent resid ence. ' Black 's L a w Dicti onary 97 (8th ed. 2004) ." 942 S o. 2d at 3 52-53 . Like the focus in Ex parte Coley , our focus in this case "is o n where [Robi nson] was domic iled, not on where [he]

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actua lly resid ed, at the time of the accid ent." 942 So. 2d at 352. As the movan t, Progr essiv e had the burd e n of makin g a prima facie showi ng that "[Rob inson ] had a b a n doned [Wilc ox] Count y as [his] count y of resid ence and r e e stabl ished perma nent resid ence in [Tusc aloos a ] Count y." 942 So. 2d at 353. Once Progr essiv e carri ed its burde n, the burde n shift ed to Robin son to rebut the p r i ma facie showi ng. See Ex parte Pike Fabri catio n, 85 9 So. 2d a t 109 2. Progr essiv e asserted in i ts mo tion for a chan ge of venue that Robin son repre sente d to Offi c e r D arryl Bethe a, who inves tigat ed the accid ent, that he lived at " 1 8 00 Links Boule vard" in Tusca loosa ; that the Unifo r m T raffi c Crash R e p o r t liste d Robin son's addre ss as 1800 Links Boule vard in
T u s c aloos a; that Robin son sough t treat ment in Tusca loosa Count y for the i n j u r ies he susta ined in the accid ent; that Robin son repre sente d to his healt h-car e provi ders that he was

a resid ent of Tus c a l o o sa Count y; that the Progr essiv e polic y of autom obile -liab ility insur ance issue d to Robin son showe d his addre ss as 1800 Links Boule v a rd in Tusca loosa ; that Robin son purch ased his licen se-pl ate tag in Tusca loosa Count y using the 1800 Links Boule vard addre ss; that R o b i n son liste d

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the 1800 Links Boule vard addre ss on his Alaba ma Depar tment of Trans porta tion permi t while he was worki ng f or a truck ing compa ny l o c ated in Tusca loosa Count y; that Robin son obtai ned

a marri age licen se in Tusca loosa Coun t y in 2008 becau se, he said, he did not want to get marri ed in Wilco x Count y ; t h at, fol lowin g the accid ent, Robin son had his vehic le towed to "Pop' s Shop" in Tusca loosa ; that Robi n s o n regis tered to vote in Tusca loosa Count y i n eithe r 2008 or 2009, using the 1800 Links Boule vard addre ss; and that the custo dy arran gemen t for Robin son's minor daugh ter w a s deter mined by a Tusca loosa Count y Court in eithe r 2009 or 2010. Robin son also testi fied in h is depos ition that, in 2007, he used the 1800 Links Boule vard addr e s s f or setti ng up his busin ess, Robin son Truck ing-- a sol e propr ietor ship. He testi fied speci fical ly that the 1800 Links Boule vard addre ss was the addre ss he "alwa ys us ed." To rebut Progr essiv e's prima facie showi ng, Robin son

asser ted in his respo nse that he has alw a y s lived in Wilco x Count y with his paren ts; that, at the time of the accid ent, he

a nd his minor daugh ter were livin g with his paren ts i n t h e i r house in Wilco x Count y; that his daugh ter att e nded schoo l in

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Wilco x Count y; that he ha s never perma nentl y resid ed at 1800 Links Boule vard i n T u s caloo sa; that the 1800 Links Boule vard addre ss was an apart ment his fathe r had owned , rente d, and/o r lease d in Tusca loosa for the purpo se of atten ding footb all g ames and for other famil y activ ities ; that he staye d a t t h e apart ment only tempo raril y durin g the workw ee k , retur ning to Wilco x Count y on the weeke nds; and th a t h e did not retur n to Tusca loosa a f t e r the accid ent. Other than Robin son's 2

asser tion that he has alway s lived in Wilco x Count y, the only other essen ti a l fact that he offer s in rebut tal is that his daugh ter resid es with his paren ts in Wilco x Count y and atten ds schoo l the re. We concl ude that Progr essiv e met its burde n of proof in demon strat ing not only that Robin son had estab lishe d resid ency in Tusca loosa Count y (fact o et animo ), but also that h e had the inten tion of resid ing there perma nentl y (anim us manen di). By Robin son's own admis sion, the 1800 Links Boule vard addre ss

was the addre ss he "alwa ys used. " Robin s o n admit ted that he

As noted , the accid ent in this case occur red on Novem ber 2 11, 2 010. Alth ough Robin son a ssert ed th at he neve r ret urned to Tusca loosa after the accid ent, he testi fied that the "leas e [on the apart ment at 1800 Links Boule vard] was u p in 2010. " Progr essiv e notes that Rob i n s o n moved to Caler a, Alaba ma, short ly af ter f iling his compl aint in th is ca se. 1311308 05

had repre sente d to Progr e s s i v e , to his emplo yers, to medic al provi ders, to the State of Alaba ma, to the Alaba ma Depar tment of Trans porta tion, to the Tusca loosa Polic e Depar tment , and to the Count y of Tusca loosa that h e l awful ly resid ed in Tusca loosa . Thos e admis sions clear ly demon strat e that Rob i nson not only physi cally resid ed in Tusca loosa Count y durin g the workw eek but also had the inten tion to remai n there perma nentl y, there by a b a n donin g Wilco x Count y as his forme r domic ile. Anoth e r s i gnifi cant and compe lling indic ation of Robin son's inten t t o estab lish his domic ile in Tusca loosa Count y is the fact that he regis tered to vote there in eithe r 2008 or 2009. See, e.g., Harri s v. McKen zie, 703 So. 2d 309, 311 ( Ala. 1997) , in which this Cour t sta ted: "Regi strat ion to vote is a 'pote nt consi derat ion' for a c o u r t to take into accou nt when deter minin g one's domic ile. Ambro se v. Vande ford, 277 Ala. 66, 70, 167 So. 2d 149, 153 (1964 ). See also Parr v. Shoem aker, 545 So. 2d 37 (Ala. 1989) , and Wilke rson v. Lee, 236 Ala. 104, 181 So. 296 (1938 ). '[V]o ting is indic ative of inten tion with respe ct to the quest ion [of domic ile] and is regar ded as impor tantl y beari ng upon the place o f d o micil e.' Ex parte Weiss inger , 247 Ala . 113, 117, 22 So. 2d 510, 514 (1945 ). Furth ermor e, "'Exe rcisi ng the right of elect ive franc hise, depen dent upon cit izens hip and domic ile, is regar ded as havin g weigh t in settl ing the qu estio n of a perso n's legal

1411308 05 resid en c e. Such act is a delib erate publi c asser tio n of the fact of resid ence and is s aid to have decid ed prepo ndera nce i n a doubt ful case upon the place the elect or claim s as, or belie ve s t o be, his resid ence. ' "Weis singe r, 24 7 Ala . at 117–1 8, 22 So. 2d at 514. " (Emph asis added .) Becau se the foreg oing evide nce overw helmi ngly i n dicat es that, at the time of the accid ent givin g rise to this actio n, Robin son was perma nentl y resid ing in Tusca loosa Count y, he could not rely on § 6

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- 7(3) as estab lishi ng venue in Wilco x Count y, where he file d his compl aint again st Progr essiv e. A c cordi ngly, the trial court excee ded its discr etio n i n denyi ng Progr essiv e's motio n to trans fer the actio n to T u s c a l oosa Count y. Moreo ver, becau se venue was impro per i n Wilco x C o u nty, the doctr ine of forum non conve niens , § 6–3–2 1.1, Ala. Code 1975, has no appli catio n in th i s case. See Ex parte Towns end, 589 So. 2d 711, 714 (Ala. 1991) ("[Th e] doctr ine [of forum non conve niens ] has a f i e l d of opera tion only where the actio n is comme nced in a count y in which venue is ap propr iate. "). IV. Concl usion

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If venue for an actio n is shown to be impro per, the actio n must be trans ferre d. Ex parte Overs treet , 7 4 8 So. 2d 194 (Ala. 199 9 ) . We hold that, based on the evide nce befor e the t r i a l court at the time of its rulin g, the court shoul d have grant ed Progr es s i v e ' s motio n for a chang e of venue , and we direc t the trial court to vacat e its order denyi ng the motio n and to t r a n s f e r the actio n to Tusca loosa Count y. Becau se under § 6-3-7 , Ala. C o d e 1975, venue was impro per in Wilco x Count y, we prete rmit d iscus sion of Progr essiv e's alter nativ e argum ent that the actio n shoul d be trans ferre d based on § 6-3- 21.1, Ala. Code 1975 , the foru m non conv enien s sta tute. MOTIO N TO DISMI SS DE NIED; PETI TION GRANT ED; WRIT ISSUED . Stuar t, Parke r, Shaw, Main, Wise, and Bryan , JJ., concu r. Murdo ck, J ., co ncurs in t he re sult. Moore , C.J ., di ssent s.

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