rel: 12/05/2014

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the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2014-2015

____________________

1130805

____________________

Ex parte Progressive Direct Insurance Company

PETITION FOR WRIT Of MANDAMUS

(In re: Ira Sentell Robinson

v.

Amber Nykole Clayton and Progressive Direct Insurance

Company)

(Wilcox Circuit Court, CV-12-900032)

BOLIN, Justice.

Progressive Direct Insurance Company ("Progressive")

petitions this Court for a writ of mandamus directing the

Wilcox Circuit Court to vacate its order dated March 25, 2014,
1130805

denying Progressive's motion to transfer this action from the

Wilcox Circuit Court to the Tuscaloosa Circuit Court and to

enter an order granting the motion. We grant the petition and

issue the writ.

I. Facts and Procedural History 

The underlying action arises out of a motor-vehicle

accident that occurred in Tuscaloosa County on November 11,

2010, between an automobile driven by Ira Sentell Robinson and

an automobile driven by Amber Nykole Clayton. On July 5, 2012,

Robinson filed a complaint in the Wilcox Circuit Court against

Clayton, a resident of Tuscaloosa, and Progressive, a foreign 1

corporation doing business in both Tuscaloosa and Wilcox

Counties. In his complaint Robinson alleged that he was a

resident of Wilcox County and that he had suffered injuries as

a result of the negligent and/or wanton conduct of Clayton

when the vehicle she was driving collided with the vehicle he

was driving. Additionally, Robinson alleged that at the time

of the accident he had a policy of insurance with Progressive,

which included uninsured/underinsured-motorist coverage. 

The claims asserted against Clayton were subsequently 1

dismissed, leaving Progressive as the only defendant.

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On August 8, 2012, Progressive filed a motion to transfer

the action to Tuscaloosa County, alleging that venue in Wilcox

County was improper because, it claimed, the accident occurred

in Tuscaloosa County and both Robinson and Clayton resided in

Tuscaloosa County at the time of the accident. Alternatively,

Progressive claimed that the action was due to be transferred

to Tuscaloosa County on the ground of the doctrine of forum

non conveniens, as that doctrine is codified at Ala. Code

1975, § 6–3–21.1. In support of its motion to transfer,

Progressive attached a copy of the complaint stating that

Robinson resided in Wilcox County and a copy of the Alabama

Uniform Traffic Crash Report, which listed Robinson's address

as 1800 Links Boulevard in Tuscaloosa. 

On May 9, 2013, the trial court entered an order denying

the motion for a change of venue without prejudice.

Progressive asserts that the trial judge "informed counsel for

Progressive verbally he could conduct some additional

discovery, namely regarding the residence of Robinson, and

renew his motion on behalf of Progressive at a later date, if

necessary." (Petition, p. 8.) Robinson does not dispute

Progressive's assertion in this regard. On March 19, 2014,

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Progressive filed a renewed motion to transfer the case to

Tuscaloosa County, reasserting that venue was improper in

Wilcox County. On March 25, 2014, the trial court entered an

order denying Progressive's renewed motion to transfer the

case.

On April 3, 2014, Progressive petitioned this Court for

a writ of mandamus directing the Wilcox Circuit Court to

vacate its March 25, 2014, order denying Progressive's motion

to transfer this action to Tuscaloosa County and to enter an

order transferring the action to Tuscaloosa County. Robinson

filed a motion to dismiss Progressive's petition for a writ of

mandamus, along with a brief in support thereof, arguing that

Progressive's petition is untimely pursuant to Rule 21(a)(3),

Ala. R. App. P., because, he says, the petition was not filed

within 42 days of the May 9, 2013, order denying the first

motion for a change of venue. Specifically, Robinson asserts

that Progressive did not ask the trial court to reconsider the

denial of the its May 9, 2013, order; that the mandamus

petition does not include a statement of circumstances

constituting good cause for this Court's review given the

untimeliness of the petition; and that the renewed motion for

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a change of venue alleges no new arguments, grounds, or other

evidence other than the fact that Robinson has since moved to

Shelby County, Alabama, subsequent to filing his complaint.

It is noted that in Ex parte Jones, 147 So. 3d 415 (Ala.

2013), the petitioner moved unsuccessfully for a summary

judgment on grounds of immunity; this Court denied his

petition for a writ of mandamus as untimely pursuant to Rule

21(a)(3), Ala. R. App. P. The petitioner unsuccessfully filed

a "renewed" motion for a summary judgment asserting no new

grounds, argument, evidence, or change in the applicable law. 

The petitioner then filed a subsequent petition for a writ of

mandamus with this Court. We denied the second petition,

concluding that to allow the petitioner to petition this Court

for a writ of mandamus would in essence grant the petitioner

a second bite at appellate review because this Court had

already determined that the previously filed mandamus petition

challenging the denial of his first summary-judgment motion

was untimely and that to allow the second petition would

undermine the spirit and purpose of Rule 21(a)(3) and render

that rule meaningless. In this case, however, Progressive is

not seeking a second bite at appellate review because

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Progressive did not appeal the May 9, 2013, order. Instead,

Progressive represents that the trial judge orally allowed it

the option to renew its motion to transfer after conducting

additional discovery relating to where Robinson resided at the

time of the accident. Robinson does not dispute in his motion

to dismiss that the trial court gave Progressive the option to

renew its motion to transfer the action. Accordingly, because

Progressive is seeking appellate review of the trial court's

March 25, 2014, order, we conclude that its petition for a

writ of mandamus was timely under Rule 21(a)(3).

II. Standard of Review

In Ex parte Pike Fabrication, Inc., 859 So. 2d 1089, 1091

(Ala. 2002), we stated the standard of review for the denial

of a motion for a change of venue as follows:

"'The proper method for obtaining review of a

denial of a motion for a change of venue in a civil

action is to petition for the writ of mandamus.' Ex

parte Alabama Great Southern R.R., 788 So. 2d 886,

888 (Ala. 2000). '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).

Moreover, our review is limited to those facts that

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1130805

were before the trial court. Ex parte National Sec.

Ins. Co., 727 So. 2d 788, 789 (Ala. 1998).

"'The burden of proving improper venue is on the

party raising the issue and on review of an order

transferring or refusing to transfer, a writ of

mandamus will not be granted unless there is a clear

showing of error on the part of the trial judge.' Ex

parte Finance America Corp., 507 So. 2d 458, 460

(Ala. 1987). In addition, this Court is bound by the

record, and it cannot consider a statement or

evidence in a party's brief that was not before the

trial court. Ex parte American Res. Ins. Co., 663

So. 2d 932, 936 (Ala. 1995)."

III. Discussion

"When ruling on a motion to transfer, the trial court must

determine whether venue was proper at the time the action was

filed." Ex parte Canady, 563 So. 2d 1024, 1025 (Ala. 1990).

Venue of actions against corporations is governed by § 6-

3-7, Ala. Code 1975, which provides:

"(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

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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 action."

(Emphasis added.)

It is undisputed that, at the time of the accident giving

rise to this action, Robinson was working in Tuscaloosa, where

he stayed during the week at an apartment located at 1800

Links Boulevard, and that he returned on the weekends to his

parents' home in Wilcox County. Robinson maintains that venue

was proper in Wilcox County under § 6-3-7(3) because, he says,

he has always lived in Wilcox County and Progressive does

business in Wilcox County. Progressive, on the other hand,

argues that venue is improper in Wilcox County under § 6-3-

7(3) because, it says, the events giving rise to the action

occurred in Tuscaloosa County and Robinson resided in

Tuscaloosa County at the time; thus, Progressive contends that

the only venue appropriate for filing the action would have

been Tuscaloosa County. It is undisputed that Progressive

does business by agent in both Tuscaloosa and Wilcox Counties. 

Accordingly, Wilcox County would be an appropriate venue for

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this action pursuant to § 6-3-7(3), provided Robinson resided

there at the time of the accident. See Ex parte Blount, 665

So. 2d 205, 208 (Ala. 1995)("[V]enue for a personal injury

action against a corporate defendant is proper in either the

county where the injury occurred or the county where the

plaintiff resides, if the defendant does business in that

county.").

In Ex parte Coley, 942 So. 2d 349 (Ala. 2006), this Court

elaborated regarding the terms "residence" and "domicile" in

the context of determining venue:

"'Generally, the terms "residence" and

"domicile" are not considered

synonymous.... However, when determining

venue, most jurisdictions, including

Alabama, do consider the terms

synonymous.... The terms denote the place

where the person is deemed in law to live

and may not always be the place where the

person is actually dwelling.'

"Ex parte Sides, 594 So. 2d 93, 95 (Ala. 1992)

(citing Ex parte Weissinger, 247 Ala. 113, 22 So. 2d

510 (1945)). Thus, our focus is on where Coley was

domiciled, not on where she actually resided, at the

time of the accident.

"'A person's domicile is that place in

which his habitation is fixed, without any

present intention of removing, and it

embraces (1) the fact of residence and (2)

the intention to remain. As a general

proposition a person can have but one

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1130805

domicile, and when once acquired is

presumed to continue until a new one is

gained facto et animo, and what state of 2

facts constitutes a change of domicile is a

mixed question of law and fact.'

"Weissinger, 247 Ala. at 117, 22 So. 2d at 514.

"....

"'A change of domicile cannot be

inferred from an absence, temporary in

character, and attended with the requisite

intention to return. To the fact of

residence in the new locality there must be

the added element of the animus manendi3

before it can be said that the former

domicile has been abandoned. The intention

to return is usually of controlling

importance in the determination of the

whole question.... Or ... there must be an

absence of any present intention of not

residing in the new domicile permanently or

for an indefinite time.'

"Weissinger, 247 Ala. at 117, 22 So. 2d at 513.

"_____________________

" 'Facto et animo' means 'in fact and intent.' 2

Black's Law Dictionary 630 (8th ed. 2004).

" 'Animus manendi' means '[t]he intention to 3

remain; the intention to establish a permanent

residence.' Black's Law Dictionary 97 (8th ed.

2004)."

942 So. 2d at 352-53. 

Like the focus in Ex parte Coley, our focus in this case

"is on where [Robinson] was domiciled, not on where [he]

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actually resided, at the time of the accident." 942 So. 2d at

352. As the movant, Progressive had the burden of making a

prima facie showing that "[Robinson] had abandoned [Wilcox]

County as [his] county of residence and reestablished

permanent residence in [Tuscaloosa] County." 942 So. 2d at

353. Once Progressive carried its burden, the burden shifted

to Robinson to rebut the prima facie showing. See Ex parte

Pike Fabrication, 859 So. 2d at 1092. 

Progressive asserted in its motion for a change of venue

that Robinson represented to Officer Darryl Bethea, who

investigated the accident, that he lived at "1800 Links

Boulevard" in Tuscaloosa; that the Uniform Traffic Crash

Report listed Robinson's address as 1800 Links Boulevard in

Tuscaloosa; that Robinson sought treatment in Tuscaloosa

County for the injuries he sustained in the accident; that

Robinson represented to his health-care providers that he was

a resident of Tuscaloosa County; that the Progressive policy

of automobile-liability insurance issued to Robinson showed

his address as 1800 Links Boulevard in Tuscaloosa; that

Robinson purchased his license-plate tag in Tuscaloosa County

using the 1800 Links Boulevard address; that Robinson listed

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the 1800 Links Boulevard address on his Alabama Department of

Transportation permit while he was working for a trucking

company located in Tuscaloosa County; that Robinson obtained

a marriage license in Tuscaloosa County in 2008 because, he

said, he did not want to get married in Wilcox County; that,

following the accident, Robinson had his vehicle towed to

"Pop's Shop" in Tuscaloosa; that Robinson registered to vote

in Tuscaloosa County in either 2008 or 2009, using the 1800

Links Boulevard address; and that the custody arrangement for

Robinson's minor daughter was determined by a Tuscaloosa

County Court in either 2009 or 2010. Robinson also testified

in his deposition that, in 2007, he used the 1800 Links

Boulevard address for setting up his business, Robinson

Trucking--a sole proprietorship. He testified specifically

that the 1800 Links Boulevard address was the address he

"always used." 

To rebut Progressive's prima facie showing, Robinson

asserted in his response that he has always lived in Wilcox

County with his parents; that, at the time of the accident, he

and his minor daughter were living with his parents in their

house in Wilcox County; that his daughter attended school in

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Wilcox County; that he has never permanently resided at 1800

Links Boulevard in Tuscaloosa; that the 1800 Links Boulevard

address was an apartment his father had owned, rented, and/or

leased in Tuscaloosa for the purpose of attending football

games and for other family activities; that he stayed at the

apartment only temporarily during the workweek, returning to

Wilcox County on the weekends; and that he did not return to

Tuscaloosa after the accident. Other than Robinson's 2

assertion that he has always lived in Wilcox County, the only

other essential fact that he offers in rebuttal is that his

daughter resides with his parents in Wilcox County and attends

school there.

We conclude that Progressive met its burden of proof in

demonstrating not only that Robinson had established residency

in Tuscaloosa County (facto et animo), but also that he had

the intention of residing there permanently (animus manendi). 

By Robinson's own admission, the 1800 Links Boulevard address

was the address he "always used." Robinson admitted that he

As noted, the accident in this case occurred on November 2

11, 2010. Although Robinson asserted that he never returned

to Tuscaloosa after the accident, he testified that the "lease

[on the apartment at 1800 Links Boulevard] was up in 2010." 

Progressive notes that Robinson moved to Calera, Alabama,

shortly after filing his complaint in this case. 

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had represented to Progressive, to his employers, to medical

providers, to the State of Alabama, to the Alabama Department

of Transportation, to the Tuscaloosa Police Department, and to

the County of Tuscaloosa that he lawfully resided in

Tuscaloosa. Those admissions clearly demonstrate that

Robinson not only physically resided in Tuscaloosa County

during the workweek but also had the intention to remain there

permanently, thereby abandoning Wilcox County as his former

domicile. Another significant and compelling indication of

Robinson's intent to establish his domicile in Tuscaloosa

County is the fact that he registered to vote there in either

2008 or 2009. See, e.g., Harris v. McKenzie, 703 So. 2d 309,

311 (Ala. 1997), in which this Court stated:

"Registration to vote is a 'potent consideration' for

a court to take into account when determining one's

domicile. Ambrose v. Vandeford, 277 Ala. 66, 70, 167

So. 2d 149, 153 (1964). See also Parr v. Shoemaker,

545 So. 2d 37 (Ala. 1989), and Wilkerson v. Lee, 236

Ala. 104, 181 So. 296 (1938). '[V]oting is indicative

of intention with respect to the question [of

domicile] and is regarded as importantly bearing upon

the place of domicile.' Ex parte Weissinger, 247

Ala. 113, 117, 22 So. 2d 510, 514 (1945).

Furthermore,

"'Exercising the right of elective

franchise, dependent upon citizenship and

domicile, is regarded as having weight in

settling the question of a person's legal

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residence. Such act is a deliberate public

assertion of the fact of residence and is

said to have decided preponderance in a

doubtful case upon the place the elector

claims as, or believes to be, his

residence.'

"Weissinger, 247 Ala. at 117–18, 22 So. 2d at 514." 

(Emphasis added.) 

Because the foregoing evidence overwhelmingly indicates

that, at the time of the accident giving rise to this action,

Robinson was permanently residing in Tuscaloosa County, he

could not rely on § 6-3-7(3) as establishing venue in Wilcox

County, where he filed his complaint against Progressive. 

Accordingly, the trial court exceeded its discretion in

denying Progressive's motion to transfer the action to

Tuscaloosa County. Moreover, because venue was improper in

Wilcox County, the doctrine of forum non conveniens, §

6–3–21.1, Ala. Code 1975, has no application in this case.

See Ex parte Townsend, 589 So. 2d 711, 714 (Ala. 1991) ("[The]

doctrine [of forum non conveniens] has a field of operation

only where the action is commenced in a county in which venue

is appropriate.").

IV. Conclusion

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If venue for an action is shown to be improper, the action

must be transferred. Ex parte Overstreet, 748 So. 2d 194

(Ala. 1999). We hold that, based on the evidence before the

trial court at the time of its ruling, the court should have

granted Progressive's motion for a change of venue, and we

direct the trial court to vacate its order denying the motion

and to transfer the action to Tuscaloosa County. Because

under § 6-3-7, Ala. Code 1975, venue was improper in Wilcox

County, we pretermit discussion of Progressive's alternative

argument that the action should be transferred based on § 6-3-

21.1, Ala. Code 1975, the forum non conveniens statute.

MOTION TO DISMISS DENIED; PETITION GRANTED; WRIT ISSUED.

Stuart, Parker, Shaw, Main, Wise, and Bryan, JJ., concur.

Murdock, J., concurs in the result.

Moore, C.J., dissents.

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