Rel: 08/29/2014

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SUPREME COURT OF ALABAMA

SPECIAL TERM, 2014

____________________

1130302

____________________

Ex parte Elizabeth A. Morton

PETITION FOR WRIT OF MANDAMUS

(In re: Annie P. Watkins

v.

Elizabeth A. Morton)

(Greene Circuit Court, CV-13-900042)

PARKER, Justice.

Elizabeth A. Morton petitions this Court for a writ of

mandamus directing the Greene Circuit Court to vacate its
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order denying Morton's motion to transfer this case to

Jefferson County on the ground of forum non conveniens and to

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

issue the writ.

Facts and Procedural History

The relevant facts of this case are undisputed. On

August 26, 2011, Morton, a resident of Greene County, and

Annie P. Watkins, a resident of Jefferson County, were

involved in a motor-vehicle collision in Jefferson County. 

Following the collision, Watkins was treated at a hospital in

Jefferson County and subsequently received medical treatment

at four health-care facilities located in Jefferson County.

On August 26, 2013, Watkins filed a complaint in the

Greene Circuit Court against Morton, asserting claims arising

out of the August 26, 2011, motor-vehicle collision. On

September 26, 2013, Morton filed a motion to transfer this

case to the Jefferson Circuit Court pursuant to the doctrine

of forum non conveniens, as codified in § 6-3-21.1(a), Ala.

Code 1975. On October 1, 2013, Watkins filed a response. On 1

As she now argues in her petition, Morton argued in her 1

motion that the interest-of-justice prong of § 6-3-21.1(a)

compelled the Greene Circuit Court to transfer this case to

the Jefferson Circuit Court.

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October 30, 2013, the Greene Circuit Court entered an order

denying Morton's motion, stating: "After review of [Watkins's]

response, the Motion to Transfer Venue of defendant, Elizabeth

A. Morton, is hereby denied on authority of Ex parte Coley,

942 So. 2d 349 ([Ala.] 2006)." On December 11, 2013, Morton

filed this petition for a writ of mandamus.

Standard of Review

"'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 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)."

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

2002).

Discussion

Morton seeks a writ of mandamus directing the Greene

Circuit Court to transfer this case to the Jefferson Circuit

Court pursuant to the forum non conveniens statute, § 6-3-

21.1, which states, in pertinent part:

"With respect to civil actions filed in an

appropriate venue, any court of general jurisdiction

shall, for the convenience of parties and witnesses,

or in the interest of justice, transfer any civil

action or any claim in any civil action to any court

of general jurisdiction in which the action might

have been properly filed and the case shall proceed

as though originally filed therein."

This Court has stated: 

"'A party moving for a transfer under § 6–3–21.1

has the initial burden of showing, among other

things, one of two factors: (1) that the transfer is

justified based on the convenience of either the

parties or the witnesses, or (2) that the transfer

is justified "in the interest of justice."' Ex parte

Indiana Mills & Mfg., Inc., 10 So. 3d 536, 539 (Ala.

2008)."

Ex parte Wachovia Bank, N.A., 77 So. 3d 570, 573 (Ala. 2011). 

Additionally, this Court has stated that,

"'[w]hen venue is appropriate in more than one

county, the plaintiff's choice of venue is generally

given great deference.' Ex parte Perfection Siding,

Inc., 882 So. 2d 307, 312 (Ala. 2003) (citing Ex

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parte Bloodsaw, 648 So. 2d 553, 555 (Ala. 1994)).

See also Ex parte Yocum, 963 So. 2d 600, 602 (Ala.

2007) ('The trial court should give deference to the

plaintiff's choice of a proper forum.')."

Ex parte J & W Enters., LLC, [Ms. 1121423, March 28, 2014] ___

So. 3d ___, ___ (Ala. 2014).

As set forth above, the Greene Circuit Court denied

Morton's motion to transfer this case pursuant to § 6-3-

21.1(a) on the authority of Ex parte Coley, 942 So. 2d 349

(Ala. 2006). In Coley, the parents of a deceased passenger,

as her personal representatives, filed a wrongful-death action

in the Jefferson Circuit Court against the driver of the

vehicle following an automobile accident in Perry County. The

defendant filed a motion to transfer the case to the Perry

Circuit Court, arguing, among other things, that the case

should be transferred under the doctrine of forum non

conveniens, as codified in § 6-3-21.1(a). The Jefferson

Circuit Court denied the defendant's motion, and the defendant

filed a petition for a writ of mandamus asking this Court to

direct the Jefferson Circuit Court to transfer the case to the

Perry Circuit Court.

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This Court held that the defendant had not demonstrated

a clear legal right to have the case transferred under § 6-3-21.1(a):

"It appears that the action 'might have been

properly filed' in Perry County, because the

accident occurred there. See Ala. Code 1975, §

6–3–2. The parties do not argue this point. Thus,

the trial court could properly transfer the case to

Perry County 'for the convenience of parties and

witnesses, or in the interest of justice.' See Ala.

Code 1975, § 6–3–21.1(a). As the [plaintiffs]

correctly point out, [the defendant's] burden was to

show the trial court that Perry County is a

significantly more convenient forum than is

Jefferson County. See Ex parte Perfection Siding,

Inc., 882 So. 2d [307] at 312 [(Ala. 2003)] ('The

defendant must show that his inconvenience and

expense in defending the action in the selected

forum outweigh the plaintiff's right to choose the

forum; that is, the defendant must suggest transfer

to a county that is "significantly more convenient"

than the county in which the action was filed.').

[The defendant's] burden before this Court on

mandamus review is to show that she is clearly

entitled to a transfer to Perry County.

"In support of her contention that a trial in

Perry County would be more convenient for the

witnesses, [the defendant] contends that

"'the Perry County law enforcement

personnel who investigated the accident and

will be called to testify at trial likely

reside in Perry County. At least two key

witnesses expected to be called at the

trial of this case ... are thought to

reside in Perry County.'

"[The defendant's] petition, p. 11. With respect to

the convenience of the parties, [the defendant]

states:

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"'As of June 28, 2005, [the defendant] was

living in Perry County. Lastly it is

believed that the [plaintiffs] still reside

in Florida and have no connection to

Jefferson County.'

"[The defendant's] petition, p. 11.

"[The defendant] has not met her burden. [The

defendant] merely points out that the accident

occurred in Perry County and contends that some of

the witnesses 'likely' or are 'thought to' reside in

Perry County. As for the fact that the [plaintiffs]

reside in Florida, the [plaintiffs] contend that it

is actually more convenient for them to fly into

Birmingham for the trial of the case in Jefferson

County than to travel by automobile to Perry County.

In addition, the [plaintiffs] contend that [the

defendant] now lives in the Birmingham area. [The

defendant] responds that she testified at her

deposition in June 2005 that she considers her home

address to be the farm in Uniontown in Perry County

but that she is 'living out of a suitcase.' The fact

that she is 'living out of a suitcase' does not

support [the defendant's] argument that it would be

significantly inconvenient for her to defend this

case in Jefferson County. Nor do her assertions that

certain witnesses 'might' reside in Perry County or

the fact that the [plaintiffs] reside in Florida

support her argument that Perry County is a

significantly more convenient forum than is

Jefferson County."

942 So. 2d at 355.

Morton argues that Coley addressed only the convenience

prong of § 6-3-21.1(a) and, therefore, is inapposite to her

argument that the interest-of-justice prong of § 6-3-21.1(a)

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compels a transfer of this case to the Jefferson Circuit

Court. We agree that Coley is distinguishable on that basis.

In reviewing this case under the interest-of-justice

prong of § 6-3-21.1(a), we must "determine whether 'the

interest of justice' overrides the deference due the

plaintiff's choice of forum" in the present case. J & W

Enters., ___ So. 3d at ___. We hold that it does. 2

In Ex parte Wachovia, supra, this Court thoroughly

discussed the application of the interest-of-justice prong of

§ 6-3-21.1(a) in several cases involving facts similar to

those presented in this case:

"In its petition for the writ of mandamus,

Wachovia relies solely on the interest-of-justice

prong as a ground for transfer.

"'"[I]n analyzing the interest-of-justice

prong of § 6–3–21.1, this Court focuses on

whether the 'nexus' or 'connection' between

the plaintiff's action and the original

forum is strong enough to warrant burdening

the plaintiff's forum with the action." Ex

parte First Tennessee Bank Nat'l Ass'n, 994

So. 2d [906,] 911 [(Ala. 2008)]....

Further, in examining whether it is in the

interest of justice to transfer a case, we

consider "the burden of piling court

services and resources upon the people of

As this Court noted in J & W Enterprises, "[o]ur inquiry 2

depends on the facts of the case." ___ So. 3d at ___ (citing

Ex parte ADT Sec. Servs., Inc., 933 So. 2d 343 (Ala. 2006)).

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a county that is not affected by the case

and ... the interest of the people of a

county to have a case that arises in their

county tried close to public view in their

county." Ex parte Smiths Water & Sewer

Auth., 982 So. 2d 484, 490 (Ala. 2007).'

"Ex parte Indiana Mills [& Mfg., Inc.], 10 So. 3d

[536] at 540 [(Ala. 2008)]. Thus, the dispositive

question is whether the nexus between this action

and Macon County is 'strong enough to warrant

burdening' Macon County with this action. For the

following reasons, we hold that it is not.

"Lee County is the situs of all the alleged acts

or omissions giving rise to the plaintiffs' claims.

Any allegedly unauthorized withdrawals were made

from a Wachovia branch in Lee County. Police

investigation of the matter was conducted in Lee

County. Lee County is Floyd's place of residence, as

well as the location of Unique [Image Pro Car Care,

Floyd's business]. Thus, Lee County is the place

where all the injury alleged in the complaint

occurred. Although it is not a talisman, the fact

that the injury occurred in the proposed transferee

county is often assigned considerable weight in an

interest-of-justice analysis. See Ex parte Autauga

Heating & Cooling, LLC, 58 So. 3d 745, 748 (Ala.

2010) ('"[T]his Court has held that 'litigation

should be handled in the forum where the injury

occurred.'"' (quoting Ex parte Indiana Mills, 10 So.

3d at 540)); Ex parte McKenzie Oil, Inc., 13 So. 3d

346, 349 (Ala. 2008) (same).

"In short, nothing material to this case

transpired in Macon County. Macon County's sole

material contact with this case is that the two

individual defendants ... reside there. Recent cases

decided under the interest-of-justice prong are

dispositive.

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"In Ex parte Autauga Heating & Cooling, LLC, for

example, this Court issued a writ of mandamus

directing the Montgomery Circuit Court –- in the

interest of justice –- to transfer the action to

Elmore County. 58 So. 3d at 747. That case arose out

of an automobile accident involving Lori Lee Wright,

a resident of Elmore County, and Richard Alexander

Rogers, a resident of Montgomery County. The vehicle

being operated by Rogers at the time of the accident

was owned by Autauga Heating & Cooling, LLC

('Autauga'), which had its principal place of

business in Autauga County. The accident occurred in

Elmore County, and Wright received treatment at the

scene of the accident from emergency medical

personnel who lived in Elmore County. 58 So. 3d at

749. When an action was brought against Rogers in

the county of his residence, Rogers sought the

removal of the action to Elmore County, the situs of

the alleged acts or omissions and the place of the

injury.

"This Court concluded that a transfer of the

case was required. In so doing, we said:

"'Although we agree with Wright that

the case has a connection with Montgomery

County because Rogers is a resident of

Montgomery County and [Autauga] may have

some business connections there, ... the

overall connection between Montgomery

County and this case is weak and ... the

connection between the case and Elmore

County is strong.

"'... Besides the fact that Rogers is

a resident of Montgomery County, there was

no other evidence before the trial court

indicating a connection between the case

and Montgomery County.

"'....

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"'The accident underlying this action

occurred in Elmore County, and the

emergency personnel who responded to the

accident were from Elmore County. The

plaintiff herself is a resident of Elmore

County. This Court sees no need to burden

Montgomery County, with its weak connection

to the case, with an action that arose in

Elmore County simply because the individual

defendant resides in Montgomery County and

the corporate defendant does some business

there.'

"58 So. 3d at 750 (emphasis added).

"In so holding, this Court relied on and

discussed Ex parte Indiana Mills & Manufacturing,

Inc.:

"'This Court addressed similar facts

in Ex parte Indiana Mills & Manufacturing,

Inc., supra. In Indiana Mills, the decedent

was driving a garbage truck in Lee County

owned by his employer when the raised rear

door of the truck struck an overhead

railroad trestle, causing the truck to

crash. The decedent was killed when he was

ejected from the truck. His widow filed a

complaint in Macon County against the

manufacturers of the garbage truck and the

seat belts in the truck and three employees

of the decedent's employer. The employer's

principal place of business was in

Tallapoosa County. The employer conducted

business in Macon County, and one of the

individual defendants lived in Macon

County. The defendants moved the trial

court to transfer the case to Lee County

based on the doctrine of forum non

conveniens. The trial court denied that

motion, and the defendants petitioned this

Court for mandamus relief.

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"'This Court granted the defendants'

mandamus petition and ordered the trial

court to transfer the case from Macon

County to Lee County based on the "interest

of justice" prong of § 6–3–21.1. In doing

so, this Court noted that the accident

occurred in Lee County, that the

law-enforcement and emergency personnel who

had responded to the accident were based

out of Lee County, that the chief deputy

coroner who investigated the decedent's

death did his work in Lee County, and that

the records and documents of the fire

department that responded to the accident

were located in Lee County. Comparing this

to the fact that only one of the individual

defendants resided in Macon County and that

the employer conducted business there,

there being no other relevant facts

involving Macon County, this Court held

that the nexus between Lee County and the

case was strong, that the nexus between

Macon County and the case was weak, and

that the trial court thus had exceeded its

discretion in refusing to transfer the case

to Lee County.'

"Ex parte Autauga Heating & Cooling, 58 So. 3d at

750 (discussing Ex parte Indiana Mills) (emphasis

added).

"In this case, as in Autauga Heating & Cooling

and Indiana Mills, the injury occurred in the county

to which the transfer is sought. Here, as in Autauga

Heating & Cooling and Indiana Mills, no material act

or omission occurred in the forum county. As in

Indiana Mills, the official investigation of the

incident was in the county to which the transfer was

sought –- here, Lee County."

77 So. 3d at 573-75.

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As in Wachovia, Ex parte Autauga Heating & Cooling, LLC,

58 So. 3d 745 (Ala. 2010), and Ex parte Indiana Mills &

Manufacturing, Inc., 10 So. 3d 536 (Ala. 2008), Watkins's

injury occurred in the county to which transfer is sought –-

Jefferson County; Watkins is also a resident of Jefferson

County and received treatment in four separate medical

facilities located in Jefferson County. Additionally, as in

Wachovia and Indiana Mills, the official investigation of the

incident was conducted in the county to which the transfer is

sought. Furthermore, as in Wachovia, Autauga Heating &

Cooling, and Indiana Mills, no material act or omission

occurred in Greene County.

Watkins argues that Wachovia, Autauga Heating & Cooling,

and Indiana Mills are distinguishable because each of those

cases involved multiple defendants residing in both the forum

and transferee counties. Although the number and residency of

the defendants may affect an interest-of-justice analysis

under § 6-3-21.1(a), the fact that the above cases involved

multiple defendants does not render them inapposite to the

present case involving only one defendant. Considering the

similarities between the above cases and the present one, that

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factual distinction in this case –- that Morton is the sole

defendant –- is de minimis. See, e.g., Wachovia, 77 So. 3d at

575 ("As in [Autauga Heating & Cooling and Indiana Mills], the

only material connection with the forum county is a

defendant's residence. To be sure, in this case two

defendants reside in the forum county, rather than one. Given

the posture of this case, however, that distinction is

inconsequential.").

For the reasons explained above, Jefferson County has a

significantly stronger connection to this case than does

Greene County, which is connected to this case only by the

fact that Morton resides there –- a connection this Court has

characterized as "weak." See Autauga Heating & Cooling, 58

So. 3d at 750 ("This Court sees no need to burden Montgomery

County, with its weak connection to the case, with an action

that arose in Elmore County simply because the individual

defendant resides in Montgomery County and the corporate

defendant does some business there."); Indiana Mills, 10 So.

3d at 542 ("We see no need for Macon County, with its weak

connection with this case, to be burdened with an action that

arose in Lee County simply because one of several defendants

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resides there. Instead, Lee County clearly has a strong

connection with this case. See Ex parte Verbena United

Methodist Church, 953 So. 2d 395, 400 (Ala. 2006) (holding

that the 'weak nexus' with the county in which an action was

filed did not 'justify burdening' that county with the trial

of that action; thus, the doctrine of forum non conveniens

required the case be transferred to a county that had 'a much

stronger nexus')."). Accordingly, the interest of justice

overrides Watkins's choice of forum. Therefore, Morton has a

clear legal right to the relief she seeks.

Conclusion

Morton has met her burden of showing that transfer of

this action to Jefferson County is justified in the interest

of justice. The trial court exceeded its discretion,

therefore, in denying the motion to transfer the case. Morton

is entitled to a writ of mandamus directing the trial court to

grant her motion; thus, we grant the petition and issue the

writ.

PETITION GRANTED; WRIT ISSUED.

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

Moore, C.J., and Murdock, J., dissent.

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MURDOCK, Justice (dissenting).

For the reasons explained in my special writings in

Ex parte Wachovia Bank, N.A., 77 So. 3d 570, 576-78 (Ala.

2011) (Murdock, J., dissenting), and Ex parte Autauga Heating

& Cooling, LLC, 58 So. 3d 745, 751-52 (Ala. 2010)

(Murdock, J., dissenting), I disagree with the proposition

that Elizabeth A. Morton is entitled to a transfer of this

action to Jefferson County based on the "interest-of-justice

prong" of § 6-3-21.1, Ala. Code 1975. Additionally, I am

concerned that, notwithstanding its acceptance of Ex parte

Coley, 942 So. 2d 349 (Ala. 2006), as a case decided under the

convenience prong of § 6-3-21.1, some portions of the main

opinion could be read as further expanding the field of

operation of the interest-of-justice prong to include certain

convenience-prong factors.

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