SHAW, Justice.
In separate petitions, Hampton Insurance Agency ("Hampton") and Ginger A. Spencer (case no. 1101211) and Acceptance Indemnity Insurance Company ("Acceptance") and Ashland General Agency, Inc. ("Ashland") (case no. 1101226), the defendants in an action filed in the Hale Circuit Court by Mary Alice Patton d/b/a Hole in the Wall Lounge alleging that they failed to procure insurance coverage, petition this Court for writs of mandamus directing the trial court to transfer the underlying action to the Tuscaloosa Circuit Court. Because of the identical nature of the mandamus relief sought, we have consolidated the two petitions for the purpose of issuing one opinion. We grant the petitions and issue the writs.
In November 2008, Patton purchased from Spencer, an independent insurance agent who was doing business in Tuscaloosa County as Hampton,
In May 2009, the building in which Patton operated the lounge was destroyed by fire. Upon filing an insurance claim associated with the damage to the lounge, Patton was informed that her insurance policy did not include coverage for property damage. As a result, on August 18, 2009, Patton sued Hampton and fictitiously named "Defendants A, B, and C,"
Patton subsequently amended her complaint to add numerous additional counts and to name Spencer, Ashland, and Acceptance as defendants. Thereafter, Hampton renewed its initial motion seeking a transfer of the case to Tuscaloosa County, which Spencer, Acceptance, and Ashland joined. Hampton, Spencer, Acceptance, and Ashland also subsequently—and repeatedly —filed supplemental materials, including both information disclosed during discovery and recently released decisions of this Court, in support of the requested transfer, which Patton continued to oppose.
On June 15, 2011, following a hearing, the trial court entered an order denying the requested transfer based on its conclusion that venue in Hale County was proper at the time Patton originally filed her action against Hampton. Specifically, the trial court concluded that § 6-3-6, Ala. Code 1975,
The instant petitions were filed on July 21, 2011; this Court ordered answers and briefs.
Ex parte Perfection Siding, Inc., 882 So.2d at 309-10.
In their respective petitions, the petitioners contend that venue was improper in Hale County at the time the underlying litigation commenced and that the trial court, therefore, erred in denying their motions to transfer the action to Tuscaloosa County. Specifically, relying on this Court's recent decision in Ex parte Hughes, 51 So.3d 1016 (Ala.2010), they maintain that § 6-3-2, Ala.Code 1975, the venue provision applicable to actions against individuals, clearly applies to sole proprietorships such as Hampton and that, therefore, venue is proper in Tuscaloosa County where Spencer resides and where all actions related to procurement of the subject insurance indisputably occurred. The petitioners further contend that the subsequent amendment of Patton's complaint to name Acceptance and Ashland as defendants, which amendment they argue was not in keeping with the rules of fictitious-party practice, was insufficient to cure the improper venue at the beginning of the action and, thus, did not defeat the trial court's mandate to transfer the action pursuant to Rule 82(d), Ala. R. Civ. P.,
Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999) (emphasis added).
This Court, in determining the appropriate venue provision in actions initiated against a sole proprietorship, stated the following in Ex parte Hughes, supra:
51 So.3d at 1018-19 (footnote omitted).
In the present case, Spencer presented undisputed affidavit testimony demonstrating that Hampton is an unincorporated entity she operates as a sole proprietorship in Tuscaloosa County, where she also resides. That evidence brings this case squarely within this Court's holding in Ex parte Hughes. Because Hampton, a sole proprietorship, was the only named defendant at the time the action was filed, the venue provisions governing individuals applied, and venue was proper either "in the county of [Spencer d/b/a Hampton's] residence or in the county in which the act or
Having determined that, at the time of Patton's original filing, venue was improper in Hale County, we now consider whether Patton's amendment substituting Acceptance and Ashland as named defendants related back to the commencement of her action and was, therefore, sufficient to render Hale County a proper venue for the action. We conclude that it was not.
As noted above, "[t]he question of proper venue for an action is determined at the commencement of the action." Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001). It is also well established that
Ex parte Lugo de Vega, 65 So.3d 886, 892 (Ala.2010). See also Overstreet, 748 So.2d at 197 (recognizing that, "[i]n Ex parte Smith, 423 So.2d 844 (Ala.1982), this Court held that the substitution of a party for a fictitiously named party would relate back to the date of the commencement of the action for the purpose of determining proper venue"). However, in order for the relation-back doctrine to apply, a party must comply with the requirements of Rule 9(h), Ala. R. Civ. P. See Columbia Eng'g Int'l, Ltd. v. Espey, 429 So.2d 955, 958-59 (Ala.1983) ("[A] plaintiff, in order to invoke the relation back principles of Rules 9(h) and 15(c), [Ala. R. Civ. P.,] must meet the following criteria: 1) Plaintiff must state a cause of action against the fictitious party in the body of the original complaint; and 2) plaintiff must be ignorant of the identity of the fictitious party, in the sense of having no knowledge at the time of the filing that the later named party was in fact the party intended to be sued.").
As explained in Ex parte Griffin, 4 So.3d 430 (Ala.2008), a case Patton cites in her response to the petitions:
4 So.3d at 436. See also McGhee v. Martin, 892 So.2d 398, 410-11 (Ala.Civ.App. 2004) (noting that Rule 9(h) allows relation back only for the benefit of "`[t]he diligent plaintiff who is truly ignorant of the defendant's identity at the time of filing the
Patton added Acceptance and Ashland as defendants after Hampton's initial motion seeking a change of venue was filed. Although Patton contends, in her response to the instant petitions, that "[she] was ignorant of the identity of Ashland and Acceptance at the time of the filing of the original complaint," we find that claim untenable. Specifically, we note, as do the petitioners, that Acceptance was identified on the face of Patton's original complaint as the company from whom Hampton procured the subject coverage on Patton's behalf. Therefore, we agree with the petitioners that there can be no argument that Patton either "`ha[d] no knowledge' of [Acceptance and/or Ashland's] identit[ies] at the time the complaint was filed" or that she "used due diligence in attempting to discover the identit[ies] of the fictitiously named part[ies]." Griffin, 4 So.3d at 436.
In addition, we note that, as reflected on documentation attached to her amended complaint, a policy-change endorsement reinstating Patton's policy, dated April 27, 2009—which date is before the fire at Patton's lounge and the resulting litigation— identified Acceptance as Patton's insurance company and Ashland as Acceptance's "authorized representative."
Moreover, although Patton contends that her amended complaint properly substituted Acceptance and Ashland for fictitiously named defendants included in her original complaint, the language of her amended complaint appears to belie Patton's argument in this regard. Specifically, in her brief to this Court, Patton states that "[o]n October 16, 2009, approximately two months after the filing of the original complaint, [Patton] filed an amended complaint substituting Acceptance. . ., Ashland . . ., and . . . Spencer for the fictitious parties alleged in the original complaint." Patton's response brief, at p. 2. However, the pleading reveals that although Acceptance and Ashland were added as defendants and numerous causes of action were asserted against them, there is nothing to suggest that their addition was a substitution of the true names of fictitiously named defendants A-C, as Patton argues. In fact, we note both the absence of any language in the amended complaint expressing the alleged intended "substitution" and the fact that, despite the purported substitution, fictitiously named defendants AC remained as parties in Patton's amended complaint. Thus, as of the filing of that amended pleading, all defendants that were purportedly fictitiously named at the commencement of Patton's suit were still apparently unknown to Patton. Therefore, whatever arguments Patton may advance in this respect, her amended complaint seems to support the petitioners' argument that her amendment did not effect a substitution of named defendants for previously identified fictitiously named defendants but, rather, merely added new defendants. See Overstreet, 748 So.2d at
Even assuming, however, that Patton took the proper procedural steps to substitute Acceptance and Ashland for defendants described fictitiously in her original complaint, we conclude that Patton possessed, before the filing date of that pleading, sufficient information to put her on notice, with the exercise of due diligence, that Acceptance and Ashland were the parties "who assisted [Hampton], and failed to procure . . . full coverage insurance.. . ." See supra n. 2. It is undisputed that Patton was provided documentation identifying both Acceptance and Ashland before she filed her original complaint. We, therefore, disagree with the argument that she was "truly ignorant" at the time her initial complaint was filed of their identities or of their role in issuing her policy. See also Pearson v. Brooks, 883 So.2d 185, 187-88 (Ala.2003) (concluding that, based on plaintiff's knowledge of names and job titles of coworkers, she "could not have reasonably been ignorant of their identities"), and Miller v. Norwood Clinic, Inc., 577 So.2d 860, 865 (Ala.1991) (concluding that medical records in plaintiff's possession prior to filing of original complaint revealed knowledge sufficient to identify supposed fictitiously named defendants as "parties intended to be sued"). Instead, it appears that, at the time of her initial complaint, Patton knew the identities of both Acceptance and Ashland, as well as their respective roles in the issuance of the policy that allegedly provided insufficient insurance coverage, or, at the very least, that, in the exercise of due diligence, that information was easily ascertainable by Patton. Cf. Ex parte Nationwide Ins. Co., 991 So.2d 1287, 1291 (Ala.2008) ("conclud[ing] that [plaintiff's] amendment to substitute Nationwide for a fictitiously named defendant [did] not relate back to the date of her original complaint because she knew or should have known Nationwide's identity" as her insurer or "could have discovered Nationwide's identity and the existence of . . . coverage simply by examining her policy"), and Ex parte Ismail, 78 So.3d 399, 405 (Ala.2011) (finding that, where plaintiffs possessed medical records identifying treating physician before they filed original complaint, "[they] did not exercise due diligence . . . before filing their complaint, in identifying [physician] as the proper party to be sued"). Given those circumstances, we conclude, as we did in Pearson, supra, that it was "unreasonable to believe that [Patton] was ignorant of [Ashland's] and [Acceptance's] identities as required to proceed under the fictitious-party practice allowed by Rule 9(h)." 883 So.2d at 188.
Because Acceptance and Ashland were not properly substituted for fictitiously named defendants included in Patton's original complaint, for purposes of establishing venue Patton's amendment did not relate back to the date of her original complaint and did not render Hale County, an improper venue at the commencement of the action, a proper venue. Instead, for purposes of establishing venue at the commencement of the instant action, Hampton was the sole defendant. Because, under § 6-3-2, venue in Hale County was improper as to Hampton, a sole proprietorship, the trial court exceeded its discretion in denying the motions to transfer the case to Tuscaloosa County, where venue was proper. Ex parte Perfection Siding, Inc., 882 So.2d at 309-10. In light of the foregoing, we conclude that the petitioners have met the requirements for the issuance
1101211—PETITION GRANTED; WRIT ISSUED.
1101226—PETITION GRANTED; WRIT ISSUED.
MALONE, C.J., and STUART, PARKER, and WISE, JJ., concur.