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
1130302

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 1975.1    On October 1, 2013, Watkins filed a response.           On

    1
     As she now argues in her petition, Morton argued in her
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 ___.2         We hold that it does.

    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

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

              "'....


                             10
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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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