Rivers v. KKE, LLC (Ex parte KKE, LLC)

295 So.3d 26

EX PARTE KKE, LLC, and Ronny Sanders

(In re: DeWillis Rivers, as father of Londyn Rivers, deceased, and Keisha Rivers, as the personal representative of the Estates of Tarlanda Davenport, deceased, and Makiyah Davenport, deceased

v.KKE, LLC, et al.)

1180074

Supreme Court of Alabama.

September 13, 2019

Robert E. Cooper and Justin I. Hale of Stockham, Cooper & Potts, P.C., Birmingham; and Robert H. Turner, Sr., of Turner, Turner & Bryant, LLC, Marion, for petitioners.

Frank M. Wilson of Copeland, Franco, Screws & Gill, P.A., Montgomery; and Griffin Sikes, Jr., Montgomery, for respondents.

MITCHELL, Justice.

Ronny Sanders and his employer KKE, LLC, seek to transfer a wrongful-death case filed against them in Bibb County to Chilton County, where the automobile accident giving rise to the case occurred. We deny their petition.

Facts and Procedural History

KKE is a trucking company with its principal place of business in Bibb County. On June 8, 2016, Sanders, a Bibb County resident, was driving a logging truck owned by KKE eastbound on U.S. Highway 82 in Chilton County when the truck collided with a westbound vehicle being driven by Destini Davis. Davis and her three passengers –– Londyn Rivers, Tarlanda Davenport, and Makiyah Davenport –– were killed in the collision.

On September 19, 2017, DeWillis Rivers, as the father of Londyn Rivers, and Keisha Rivers, as the personal representative of the estates of Tarlanda and Makiyah Davenport, sued Sanders, KKE, and fictitiously named defendants in the Bibb Circuit Court. The Riverses alleged that Sanders was operating the logging truck in a negligent and wanton manner at the time of the accident and that KKE had acted negligently in hiring, training, and supervising Sanders. Sanders and KKE moved the trial court to transfer the action to the Chilton Circuit Court under § 6-3-21.1, Ala. Code 1975, Alabama's forum non conveniens statute, arguing that the transfer was required both "for the convenience of parties and witnesses" and "in the interest of justice." Sanders and KKE emphasized the following facts in their motion to transfer:

(1) The accident that gave rise to the action occurred in Chilton County;

(2) The Riverses are both residents of Montgomery County;

(3) The Alabama State Trooper who investigated the accident is based in Montgomery County; and

(4) The Chilton Circuit Court had already adjudicated another action stemming from the same automobile accident, an interpleader action filed by the insurer of the vehicle struck by the KKE logging truck for the purpose of determining who should receive the proceeds of the policy covering that vehicle.

The Riverses opposed the motion to transfer and submitted to the trial court two affidavits from individuals who had witnessed Sanders driving at what they considered to be an excessive rate of speed several minutes before the accident. Both witnesses lived in Montgomery County, where they were employed by the Alabama Department of Transportation. They both stated in their affidavits that they traveled throughout the state as part of their jobs and that there was no significant difference to them between traveling to Bibb County or to Chilton County for the purpose of testifying.

On September 10, 2018, the trial court denied the motion to transfer without providing a rationale for the denial. On October 22, 2018, Sanders and KKE petitioned this Court for a writ of mandamus directing the trial court to vacate its order denying their motion to transfer and to enter a new order granting that motion.

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. Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297, 302 (Ala. 1986). "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). "When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court [exceeded] its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner." Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So. 2d 932, 936 (Ala. 1995).’ "

Ex parte Southeast Alabama Timber Harvesting, LLC, 94 So. 3d 371, 373 (Ala. 2012) (quoting Ex parte National Sec. Ins. Co., 727 So. 2d 788, 789 (Ala. 1998) ).

Analysis

It is undisputed that Bibb County is an appropriate venue for the Riverses' action because Sanders is a Bibb County resident and KKE's principal place of business is in Bibb County. See §§ 6-3-2 and 6-3-7, Ala. Code 1975 (setting forth the rules governing venue in actions against individuals and actions against corporations, respectively). Because the accident underlying this action occurred in Chilton County, there is similarly no dispute that Chilton County would be an appropriate venue as well. Importantly, however, "[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).

Section 6-3-21.1(a) mandates the transfer of an action from the plaintiff's chosen venue to another appropriate venue if a defendant makes one of two showings:

"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."

(Emphasis added.) See also Ex parte Masonite Corp., 789 So. 2d 830, 831 (Ala. 2001) (" ‘A defendant moving for a transfer under § 6–3–21.1 has the initial burden of showing that the transfer is justified, based on the convenience of the parties and witnesses or based on the interest of justice.’ " (quoting Ex parte National Sec. Ins. Co., 727 So. 2d at 789 )). Sanders and KKE argue that the transfer of the Riverses' action from Bibb County to Chilton County is required both "for the convenience of parties and witnesses" and "in the interest of justice." We consider these arguments in turn.

A. Convenience of Parties and Witnesses

One purpose of the forum non conveniens doctrine is to spare parties and witnesses the unnecessary expense and inconvenience of litigating and testifying in a distant forum. Ex parte Kane, 989 So. 2d 509, 512 (Ala. 2008). This Court has explained:

"The burden of proof under [the forum non conveniens ] doctrine is on the defendant to prove to the satisfaction of the trial court that the defendant's inconvenience and expense of defending the action in the venue selected by the plaintiff are such that the plaintiff's right to choose the forum is overcome. Stated differently, the transferee forum must be significantly more convenient than the forum in which the action is filed by the plaintiff, to justify transfer."

Ex parte New England Mut. Life Ins. Co., 663 So. 2d 952, 956 (Ala. 1995) (emphasis added). In this case, Sanders is a resident of Bibb County and KKE is headquartered in Bibb County. The Riverses and three potential witnesses live in Montgomery County. No party lives in Chilton County, and neither side has identified any potential witnesses from Chilton County. Sanders and KKE nevertheless argue that Chilton County would be a significantly more convenient forum than Bibb County because Chilton County is closer to Montgomery County. Accordingly, they argue, the potential witnesses who are also state employees –– the Alabama State Trooper who investigated the accident and the two Alabama Department of Transportation employees who witnessed Sanders's driving –– would be away from their state jobs for less time if the action is transferred to Chilton County.

Sanders and KKE cite two decisions of this Court in support of their argument: Ex parte Tier 1 Trucking, LLC, 222 So. 3d 1107 (Ala. 2016), and Ex parte Bama Concrete, 8 So. 3d 295 (Ala. 2008). In Tier 1 Trucking, this Court held that an action should be transferred from a county where only the plaintiffs resided to another county in which one of the defendants and some potential witnesses resided. 222 So. 3d at 1108. Tier 1 Trucking, however, is not on point. First, this Court's holding in that case was based on the interest-of-justice ground of § 6–3–21.1, not the convenience-of-parties-and-witnesses ground. Second, the underlying action in Tier 1 Trucking was transferred to a county in which one of the defendants and multiple potential witnesses resided. In contrast, Sanders and KKE seek to have the Riverses' action transferred to a forum in which no parties or witnesses reside.

Bama Concrete is also of limited assistance to Sanders and KKE. Although the Court in that case stated in its conclusion that "the ‘interest of justice’ and the ‘convenience of parties and witnesses’ require[d] the transfer of [the] action from Greene County to Tuscaloosa County," 8 So. 3d at 299, the analysis that precedes that conclusion is focused almost exclusively on the interest-of-justice ground of § 6–3–21.1. Moreover, as in Tier 1 Trucking, the Court in Bama Concrete ordered the action transferred to a county in which a defendant and multiple witnesses resided, 8 So. 3d at 296, not a county in which no parties or potential witnesses resided.

Sanders and KKE have not established that Chilton County is a significantly more convenient forum than Bibb County. Sanders is a resident of Bibb County and KKE's principal place of business is there. While they would prefer...