SMITH, Justice.
Valentina Lugo de Vega, the widow of Sylvestre Vega, and Sylvestre Vega, Jr., Valeria Maria Vega, Jesus Eduardo Vega Lugo, and Matthew Luke Vega Lugo, the children of Sylvestre Vega (collectively, "the plaintiffs"), petition this Court for a writ of mandamus directing the Jefferson Circuit Court to vacate its order transferring the plaintiffs' claims against Tom Shelton, James Shelton, and Jay Electric Company, Inc., to Tuscaloosa County (no. 1091491). Defendants John Wilson and Wilson's Diesel Service, L.L.C., on their own behalf and also on behalf of defendants
This action arises from an accident that occurred on August 3, 2007, in which Sylvestre Vega was fatally electrocuted by a generator for a lighting system at a drilling site. At the time of the accident, Vega was employed as a laborer for Capstone Drilling Company at a methane-gas drilling site in Jefferson County. The principal place of business of Capstone Drilling is in Tuscaloosa County.
As a result of the fatal accident, the plaintiffs, residents of Tuscaloosa County, sued Tom Shelton, a resident of Tuscaloosa County, in the Bessemer Division of the Jefferson Circuit Court on October 5, 2007. In the complaint, the plaintiffs alleged that "Tom Shelton is the owner of Capstone Drilling and has been at all times material herein" and that "[Tom Shelton] is responsible, in whole or in part, for the condition of the generator machine." Without specifying the identity of Vega's supervisor at the methane-gas drilling site, the plaintiffs further alleged that "[Vega] was asked by his superior to climb a generator light pole to move the focus of a generator light" and that, "[w]hile climbing the generator light pole, [Vega] came in contact with an energized male plug coming from the generator, which resulted in a fatal electrical current going through his body and resulting in his death." The complaint contains only one count, "Willfulness," which states:
Tom Shelton answered the plaintiffs' complaint on December 11, 2007, raising various defenses, including the affirmative defense "that venue is improper in this court."
In February 2008, the plaintiffs filed a first amended complaint to assert claims against Cowin Equipment Company, Inc. The plaintiffs alleged that Cowin Equipment
In April 2008, the plaintiffs filed a second amended complaint to assert claims against Terex Amida Corporation. The plaintiffs alleged that "the Terex Amida Corporation manufactured, designed, sold, and/or marketed the light generator which electrocuted Sylvestre Vega." The plaintiffs asserted claims against Terex Amida under the AEMLD, as well as claims of negligence and wantonness. The trial court dismissed Terex Amida as a party to the action in August 2009 pursuant to a "stipulation of pro tanto dismissal" filed by Terex Amida.
In May 2008, the trial court entered a scheduling order, setting the discovery deadline for June 1, 2009, the dispositive-motion deadline for July 1, 2009, and the trial date for October 19, 2009.
In August 2008, the plaintiffs filed a third amended complaint to assert claims against James Shelton and Jay Electric Company. The plaintiffs alleged that "[James Shelton] is the owner of Capstone Drilling Company" and that "[he] had electrical work done on his company's light plant generator which electrocuted Sylvestre Vega." Like the claim against Tom Shelton, the plaintiffs alleged a willfulness claim against James Shelton "pursuant to Alabama Code § 25-5-11 for the willful conduct in removing, failing to maintain, and/or failing to install proper guarding (the male and female plugs) on the light plant generator." The plaintiffs also alleged that "Jay Electric Company, Inc., performed electrical work on the light generator," and they alleged claims of negligence and wantonness against Jay Electric. James Shelton and Jay Electric answered the plaintiffs' complaint on October 28, 2008, and November 6, 2008, respectively, each raising the affirmative defense "that venue is improper in this court."
In February 2009, the plaintiffs filed a fourth amended complaint to assert claims against Burgess Equipment Repair, LLC. The plaintiffs alleged that "Burgess Equipment Repair, LLC, did electrical work on the light generator in 2007 and that said work was a result in the failure to maintain and/or failure to install proper electrical circuitry and plugs." The plaintiffs asserted negligence and wantonness claims against Burgess Equipment Repair based upon its servicing the generator. Burgess Equipment is not a party in the petitions before this Court.
In July 2009, the plaintiffs filed a fifth amended complaint to assert claims against the Wilson defendants. The plaintiffs alleged that the Wilson defendants "did electrical work on the light generator in 2007 and that said work was a result in the failure to maintain and/or failure to install proper electrical circuitry and plugs." The plaintiffs asserted negligence and wantonness claims against the Wilson defendants based upon the Wilson defendants' servicing of the generator.
In August 2009, Tom Shelton and James Shelton moved for a summary judgment. From all that appears before this Court, that motion is still pending in the trial court.
The Wilson defendants answered the complaint on September 8, 2009. The Wilson defendants did not specifically assert that venue in Jefferson County was improper. Rather, the Wilson defendants
On September 9, 2009, the day after the Wilson defendants answered the complaint, the trial court entered an amended scheduling order, stating that "amendments to the pleadings must be filed within 90 days of the date of this Order; otherwise, only [by] leave of [the] court," and setting the discovery deadline for June 1, 2010, and the trial date for August 23, 2010.
On January 5, 2010, nearly four months after answering the complaint, the Wilson defendants moved for a change of venue to Tuscaloosa County under Rule 82(b)(1)(A), Ala. R. Civ. P. The Wilson defendants asserted that venue in Jefferson County was improper because, they argued, venue in Jefferson County was improper as to the only defendant named at the commencement of the action, Tom Shelton.
On February 11, 2010, the plaintiffs responded to the Wilson defendants' motion for a change of venue and moved to strike the amended answer of the Wilson defendants on the ground that it was untimely. See Rule 15(a), Ala. R. Civ. P. (requiring a party to obtain leave of court to amend a pleading less than 42 days before a trial setting). The next day, February 12, 2010, the trial court denied the plaintiffs' motion to strike the Wilson defendants' amended answer and ordered the Wilson defendants to reply to the plaintiffs' response to the motion for a change of venue by February 26, 2010. The Wilson defendants then moved the trial court to stay the briefing on the motion for a change of venue until the deposition of John Wilson occurred. In the motion, the Wilson defendants asserted that "[c]ounsel for plaintiffs expressed a need to depose John Wilson in order to fully respond to the venue issue before this court." The trial court granted the motion to stay.
On May 28, 2010, the Wilson defendants replied to the plaintiffs' response to the motion for a change of venue of the action. Then on June 1, 2010, Jay Electric also moved the trial court for a change of venue
On June 18, 2010, the trial court held a hearing on the motions for a change of venue. After the hearing, the trial court entered an order, stating:
The plaintiffs have timely petitioned this Court for a writ of mandamus directing the Jefferson Circuit Court to vacate its order transferring their claims against Tom Shelton, James Shelton, and Jay Electric to Tuscaloosa County.
Ex parte Children's Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala.2005).
Applying the general rules to a petition for a writ of mandamus challenging a ruling related to venue, this Court has held: "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). "Our review is limited to only those facts that were before the trial court." Ex parte Kane, 989 So.2d 509, 511 (Ala.2008).
The plaintiffs contend that Tom Shelton, James Shelton, and Jay Electric each waived the right to contest venue in Jefferson County as a matter of law because, they say, the motions to change venue under Rule 82(d)(1), Ala. R. Civ. P., "came far too late." The plaintiffs' petition,
We first consider whether venue in Jefferson County is proper. In Ex parte Walter Industries, Inc., 879 So.2d 547, 548-49 (Ala.2003), this Court noted:
At the commencement of the instant action Tom Shelton was the only named defendant. Therefore, if venue in Jefferson County was improper to him, "then, upon motion of [a] defendant, the action must be transferred to a court where venue would be proper." Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999). Later amendments to the complaint to add parties or claims, with the exception of substituting the true name of a fictitiously named party, are not considered in determining whether venue is improper at the commencement of the action. See Rule 15(c)(4) ("relation back is permitted by principles applicable to fictitious party practice pursuant to Rule 9(h)").
Therefore, we must first determine whether venue as to Tom Shelton, the original defendant, is proper in Jefferson County. We look to § 6-3-2, Ala.Code 1975, which governs the proper venue in civil actions against individuals. Section 6-3-2(a)(3) provides that venue in "proceedings of a legal nature against individuals" is proper in either the county in which the defendant resides or "in the county in which the act or omission complained of may have been done or may have occurred." See also Rule 82(b)(1)(A), Ala. R. Civ. P. Here, it is undisputed that Tom Shelton resides in Tuscaloosa County; therefore, the issue is whether the "act or omission complained of" in the initial complaint may have occurred in Jefferson County.
As referenced above, the initial complaint contained only one count, willfulness, against Tom Shelton. The plaintiffs specifically alleged that "plaintiff[s] bring[] suit against the Defendant Tom Shelton pursuant to Alabama Code § 25-5-11 for his willful conduct in removing, failing to maintain, and/or failing to install
In moving for a change of venue, the Sheltons and Jay Electric argued that all the acts or omissions alleged against Tom Shelton occurred in Tuscaloosa County because, they said, "neither James Shelton [n]or Tom Shelton worked on the subject crew" with Vega and that, "while the injury may have occurred [in Jefferson County], all of the acts or omissions made the basis of this case occurred in Tuscaloosa County." Further, in support of their motion for a change of venue, the Sheltons submitted an affidavit of James Shelton in which he testified that "at the time of [Vega's] fatal accident of August 3, 2007... neither my son, Tom Shelton, nor I were present at the job site." The plaintiffs have not disputed this contention. Further, in the Sheltons' motion for a summary judgment, filed more than nine months before the Sheltons moved for a change of venue to Tuscaloosa County, the Sheltons asserted that "Tom Shelton has repeatedly stated that he is not, and has never been, involved in the maintenance of the light plants; neither does he have knowledge of when and how the wires were reversed."
The plaintiffs have not disputed the assertion that Tom Shelton was not in Jefferson County when the accident occurred. Rather, the plaintiffs took the following position in the trial court:
This argument fails because the "acts or omissions complained of" in the initial complaint are based upon the "willful and intentional" conduct of Tom Shelton, and the trial court had no evidence before it that such conduct occurred in Jefferson County. Under § 6-3-7, "the inquiry is not the location of the injury, but the location of the events or omissions giving rise to the claim." See Ex parte Suzuki Mobile, Inc., 940 So.2d 1007, 1009-10 (Ala.2006). Because Tom Shelton has demonstrated that he took no action related to the generator in Jefferson County, we conclude that venue in Jefferson County was improper. See Ex parte Children's Hospital of Alabama, 931 So.2d at 7 n. 6.
In Ex parte Starr, this Court held: "The first time the defendant raised the venue issue came some nine months after the complaint was filed. This is not a timely objection under Alabama Rules of Civil Procedure, Rule 82." 419 So.2d at 223. In that case, the defendant moved to set aside a default judgment against him on the ground that his "failure to file an answer was due to inadvertence or mistake." Id. The trial court set aside the default judgment, and the plaintiffs challenged its ruling by a petition for a writ of mandamus to this Court. After this Court denied the plaintiffs' petition for a writ of mandamus, the defendant moved the trial court to transfer the action under Rule 82. The trial court denied the motion on the basis that it was untimely filed, and the defendant then petitioned this Court for a writ of mandamus directing the trial court to transfer the action. This Court denied the petition, concluding that, "[u]nder these facts, we hold that [the defendant's] objection to venue comes too late." 419 So.2d at 223. In explaining its decision, this Court noted that the defendant had "put the plaintiffs to considerable expense, both in terms of time and money, and has sought and received relief from a default judgment" and that "[o]nly after the plaintiffs failed in this Court to have the judgment reinstated did he raise the venue issue." Id.
In Ex parte Movie Gallery, the plaintiff sued the defendants in the Montgomery County, asserting claims of slander and intentional inference with business relationships. For unknown reasons, the plaintiff agreed to extend the defendants' time in which to answer the complaint. The defendants then answered the complaint, raising the defense of improper venue, and, nearly two months after answering the complaint, the defendants moved for a change of venue. The trial
In Ex parte Michelin, the plaintiff filed an AEMLD action against the defendants in Barbour County. The defendants answered the complaint, raising the defense of improper venue. The plaintiff then filed first and second amended complaints, which the defendants answered, each time raising the defense of improper venue. Two and a half months after the defendants answered the plaintiff's second amended complaint, the defendants moved to transfer the action to Autauga County. The trial court denied the motion to transfer the action, and the defendants then petitioned this Court for a writ of mandamus directing the trial court to transfer the action.
In responding to the petition, the plaintiff argued that the defendants' motion for a change of venue was untimely because, the plaintiff said, the defendants were neither vigilant nor diligent in moving to transfer the action. Specifically, the plaintiff asserted that the defendants had "`waited over seven (7) months before [they] sought to transfer venue under Rule 82 despite knowing that venue was improper when [they were] was first served with the Complaint.'" 56 So.3d at 611 (quoting the plaintiff's petition). This Court held that the defendants' motion for a change of venue was timely. Relying on Ex parte Movie Gallery, this Court held that the passage of two and a half months between the time the defendants answered the second amended complaint and the filing of the motion for a change of venue did not render the motion untimely. In supporting the holding, this Court noted that "[a] defendant may need at least some time to marshal evidence to prove the allegation that venue is improper," 56 So.3d at 611, and cited 14D Charles Alan Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 3829 (2007): "On occasion a party who has raised a proper objection to venue will make use of discovery before pressing for a decision on the venue objection. The service of interrogatories and the taking of depositions is not, in itself, a waiver of the venue defense." This Court summarized its holding as follows:
56 So.3d at 612.
Under the facts of this case, we conclude that the motions for a change of venue
We note that the Sheltons and Jay Electric argue that they necessarily waited until the deposition of John Wilson occurred in May 2010 before moving for a change of venue, because, they say, John Wilson was "most critical to the issue of venue." Sheltons' brief, at p. 14. We disagree. As discussed in detail above, venue in Jefferson County was clearly improper at the commencement of this action, and the testimony of John Wilson was unnecessary in demonstrating that venue was improper in Jefferson County. The plaintiffs alleged a claim against Tom Shelton for his alleged acts and omissions related to the generator, and, upon receipt of the complaint, he should have been immediately aware that he had not engaged in any willful conduct related to the generator in Jefferson County and, therefore, that venue in Jefferson County was improper.
Because the motions to transfer the action to Tuscaloosa County filed by the Sheltons and Jay Electric were untimely, the plaintiffs have a clear legal right to an order vacating the trial court's order granting those motions.
The Wilson defendants also petition this Court for a writ of mandamus directing the trial court to transfer the plaintiffs' claims against them to Tuscaloosa County. As referenced above, the trial court denied the Wilson defendants' motion for a change of venue on the ground that they "waived their right to transfer by not timely filing a request for the same."
Rule 12(h)(1), Ala. R. Civ. P., states:
Here, the Wilson defendants neither raised the defense of improper venue by motion under Rule 12 nor included the defense of
Based on the foregoing, the plaintiffs' petition for the writ of mandamus is granted, and the Wilson defendants' petition for the writ of mandamus is denied.
1091491—PETITION GRANTED; WRIT ISSUED.
1091495—PETITION DENIED.
COBB, C.J., and WOODALL, PARKER, and SHAW, JJ., concur.
Crawford v. Sundback, 678 So.2d 1057, 1059 (Ala. 1996). Here, the plaintiffs did not state causes of action against fictitiously named parties.
Ex parte Children's Hosp. of Alabama, 931 So.2d at 7 n. 6. Our conclusion that venue was improper in Jefferson County under the applicable venue laws necessarily pretermits consideration of whether venue was proper in the Bessemer Division.
