rel: 12/05/2014




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         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,1 and Progressive, a foreign

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.



     1
     The claims asserted against Clayton were subsequently
dismissed, leaving Progressive as the only defendant.
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1130805

      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


                                      5
1130805

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


                              6
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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1130805

    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

                                8
1130805

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,2 and what state of
          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.

    "_____________________

         "2'Facto et animo' means 'in fact and intent.'
    Black's Law Dictionary 630 (8th ed. 2004).

         "3'Animus manendi' means '[t]he intention to
    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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1130805

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


                                       11
1130805

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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1130805

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.2   Other   than   Robinson's

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

     2
     As noted, the accident in this case occurred on November
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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1130805

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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1130805

           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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1130805

    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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