REL: 10/23/98 EX PARTE SASSER
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 1998-99
1971748
Ex parte Hubert Earl Sasser
PETITION FOR WRIT OF MANDAMUS
(Re: Vincenzo J. Difilippo
v.
Hubert Earl Sasser et al.)
(Jefferson Circuit Court, CV-95-8624)
MADDOX, Justice.
This petition for the writ of mandamus presents a question
involving the venue of a personal-injury action when an insurer of
one of the parties is joined as a defendant. The petition seeks a
writ directing the Jefferson Circuit Court to grant a defendant's
motion to dismiss a personal-injury action, or, in the alternative,
to transfer the action from the Jefferson Circuit Court to the
Houston Circuit Court. For the reasons discussed below, we deny
the petition.
Vincenzo J. Difilippo and Hubert Earl Sasser were involved in
an automobile accident that occurred on March 23, 1994, on Ross
Clark Circle in Dothan, located in Houston County. Difilippo
alleges that Sasser, in an attempt to avoid colliding with a third
vehicle, caused his automobile to collide head-on with Difilippo's
automobile. Difilippo resides in Ozark, which is in Dale County,
and Sasser resides in Houston County.
Difilippo sued Sasser in the Jefferson Circuit Court, on
December 12, 1995, alleging that Sasser had negligently or wantonly
caused or allowed his automobile to collide with Difilippo's
automobile. Difilippo also sued Sasser's sole proprietorship,
Sasser Appliance Repair Service, a business that Sasser had
operated for approximately 20 years in Houston County. Further, he
sued his own insurer, State Farm Mutual Automobile Insurance
Company, alleging that State Farm had improperly refused payment of
benefits that, Difilippo alleges, were due under the provisions of
his uninsured/underinsured motorist policy. State Farm is an
Illinois company that is qualified to do business in Alabama. It
appears from the materials currently before this Court that State
Farm does business by agent in Jefferson County, but it is unclear
from the materials currently before us whether State Farm does
business by agent in Houston County.
On January 17, 1996, Sasser moved the trial court to dismiss
the case, or in the alternative to transfer it to the Houston
Circuit Court. The trial court held a hearing on the motion on
February 21, 1996.[1] On August 22, 1996, it denied the motion.
Sasser's counsel argues that neither he nor his client
received notice from the Jefferson County circuit clerk's office of
the trial court's action on Sasser's motion. Difilippo does not
dispute that assertion. On July 21, 1997, Sasser filed a
supplement to his motion with the trial court, apparently unaware
that his motion had already been denied. In February 1998,
Sasser's counsel telephoned the Jefferson County circuit clerk's
office and was informed that the trial judge had denied the motion
in August 1996. On May 9, 1998, Sasser (or his attorney) received
notice that the case was set for trial. Sasser filed his petition
for the writ of mandamus on July 6, 1998.
The writ of mandamus is a drastic and extraordinary writ. As
this Court has said many times, the writ will issue "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 Alfab, Inc., 586 So. 2d 889, 891 (Ala. 1991), citing Martin
v. Loeb & Co., 349 So. 2d 9 (Ala. 1977). Further, in reviewing a
trial judge's refusal to grant a motion to transfer a case, we will
issue a writ of mandamus directing a transfer only if it is clear
to this Court that the trial judge abused his discretion by
exercising it in an arbitrary and capricious manner. Ex parte City
of Fayette, 611 So. 2d 1032, 1033 (Ala. 1992), overruled on other
grounds, Ex parte Alabama Power Co., 640 So. 2d 921 (Ala. 1994).
In addition to arguing that, on the merits, the writ should
not issue, Difilippo argues that the doctrine of laches should bar
Sasser's request for mandamus relief. Difilippo contends that
Sasser waited two years after filing the motion to dismiss or, in
the alternative, to transfer, before he inquired of the circuit
clerkūs office, and he argues that "[t]his conduct waives (or
creates laches [as to]) any right Sasser had to receive
interlocutory appellate review (via petition for writ of mandamus)
of the denial of his motion to transfer." He cites Ex parte
Johnson, 485 So. 2d 1098 (Ala. 1986), as support for his argument.
In that case, this Court noted a line of cases holding that an
"'unreasonable delay is a ground for dismissing a petition for
[mandamus] relief.'" 485 So. 2d at 1104, quoting Evans v.
Insurance Co. of North America, 349 So. 2d 1099 (Ala. 1977). In
Johnson, however, this Court also held that "[t]he mere passage of
time, without more, will not suffice" to bar the petition. 485 So.
2d at 1105. This Court noted in Johnson that the respondents in
that case had "failed to show any prejudice resulting from the
delay, [and had not] shown the existence of any other circumstances
which would show unreasonableness." Id.
This Court has held that "[l]aches is an equitable principle
and is a defense only to suits in equity, ... or to those
proceedings at law which are controlled by equitable principles
such as [a] mandamus [proceeding]." Ballenger v. Liberty National
Life Insurance Co., 266 Ala. 407, 410, 96 So. 2d 728, 731 (1957).
Further, as Justice Beatty wrote for the Court in Touchstone v.
Peterson, 443 So. 2d 1219, 1226 (Ala. 1983): "To be affected by
laches, the delay must have been with notice of the existence of
the right, resulting in disadvantage, harm, or prejudice to
another, or have operated to bring about changes in conditions and
circumstances so that there can no longer be a safe determination
of the controversy. Thus, special facts which make the delay
culpable must appear." In order for this Court to hold that the
doctrine of laches applies, then, we must first be convinced that
the delay resulted in some harm to the other party.
From what is currently before this Court, it appears
uncontradicted that the trial judge told the parties that he would
withhold ruling on the motion to dismiss or to transfer, so that
settlement negotiations could proceed (see note 1), and it does not
appear that there was any discussion of limiting that forbearance
for a specific period. In view of the fact that it does not appear
that Difilippo has suffered any prejudice as a result of any delay
by Sasser in filing this petition for mandamus relief, and the fact
that Difilippo has not argued that he suffered a detriment as a
result of the delay, we will not apply the doctrine of laches in
this case.
Having determined that the doctrine of laches does not bar
Sasser's mandamus petition, we consider the substantive issues
raised by it. First, Sasser argues that venue of Difilippo's
action was not proper in Jefferson County. Second, he argues that,
even if venue was proper in Jefferson County, the trial court
abused its discretion in refusing to transfer the action in
accordance with 6-3-21.1, Ala. Code 1975, the "forum non
conveniens statute."
To determine whether venue of Difilippo's action was proper in
Jefferson County, we look to the procedural posture of the action
when it was filed. Elmore County Comm'n v. Ragona, 540 So. 2d 720,
725 (Ala. 1989).
Difilippo filed his complaint in the Jefferson County Circuit
Court on December 12, 1995, naming Sasser, Sasser Appliance Repair
Service, State Farm Mutual Automobile Insurance Company, and
several fictitiously named parties as defendants. Where claims
against multiple defendants are joined in the same action, venue is
proper with regard to all claims if it is proper with regard to any
of the claims. Rule 82(c), Ala. R. Civ. P.; Ex parte Owen, 437 So.
2d 476, 480 (Ala. 1983). Whether venue for this action was proper
in Jefferson County depends on whether venue there was proper as to
any of the defendants. It appears undisputed that if Hubert Sasser
and Sasser Appliance Repair Service had been the only defendants
then Jefferson County would not have been a proper venue. The
primary question presented here, then, is whether the presence of
State Farm as a defendant made a proper venue for this action.
Section 6-3-5(a), Ala. Code 1975, provides:
"Any person, firm or corporation that issues
policies or certificates of insurance of any kind shall
be subject to a civil action on any such policy or
certificate in the county where the holder of the policy
or certificate resides, and the summons may be executed
by serving a copy of the summons and complaint upon any
officer or agent of the insurer; provided, however, that
an action against a foreign insurance corporation shall
be commenced only in a county where it does business."
(Emphasis supplied.) From the materials before this Court, it is
apparent that State Farm does business in Jefferson County.
However, nothing in the materials before this Court indicates that
State Farm does business by agent in any county of this State other
than Jefferson County. This Court might take judicial notice of
the fact that State Farm is a large corporation doing business in
many locations within the State of Alabama, and we might be
justified in determining that State Farm probably does business by
agent in Houston County. We elect not to make that determination,
however, in light of the fact that the burden is upon the party
seeking a transfer based on improper venue to prove that venue is
improper in the forum in which the action was originally brought.
Ex parte Nelson, 448 So. 2d 339, 340 (Ala. 1984). The record
before us does not show that Jefferson County is an improper venue.
Sasserūs next argues that, even if venue is proper in
Jefferson County, the trial judge abused his discretion in denying
Sasserūs motion to transfer under the provisions of 6-3-21.1(a).
That Code section provides:
"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."
Sasser argues that the case should be transferred under this
section because: (1) he lives in Houston County; (2) the accident
occurred in Houston County; (3) the police officer who filed the
accident report lives in Geneva County, which adjoins Houston
County; (4) the wrecking company that towed the vehicles is located
in Houston County; (5) the company that repaired his vehicle is
located in Houston County; and (6) medical-service providers who
treated the parties are likely to be located there.
Difilippo rebuts Sasser's argument by pointing out that Sasser
was treated by a physician at the University of Alabama Medical
Center in Birmingham. Further, Sasser argues that the police
officer who filed the accident report is not likely to be a key
witness, because he arrived on the scene only after the accident
had occurred and he has not been shown to qualify as an accident-
reconstruction expert.
It appears that one of the defendants, State Farm, does
business by agent in Jefferson County. Thus, that county is a
proper venue as to all defendants. The writ of mandamus is an
extraordinary remedy that will issue only if the petitioner has a
clear legal right to the relief sought. Given the law and the
facts discussed above, we cannot hold that the trial judge abused
his discretion. Ex parte Alfab, Inc., 586 So. 2d at 891; cf. Ex
parte First Family Financial Services, Inc., [Ms. 1961134, June 19,
1998] ___ So. 2d ___ (Ala. 1998), and Ex parte Independent Life &
Accident Insurance Co., [Ms. 1971126, September 11, 1998] ___ So.
2d ___ (Ala. 1998) (two cases in which this Court issued writs of
mandamus, applying the interest-of-justice prong of 6-3-21.1
where the nexus between the lawsuit and the initial forum was more
tenuous than the nexus between Difilippo's lawsuit and Jefferson
County appears to be).
WRIT DENIED.
Hooper, C.J., and Shores, Kennedy, and See, JJ., concur.
1. Sasser states in his "Supplemental Brief in Support of
Petitionerūs Petition for Writ of Mandamus" that the trial judge
told the parties that he would withhold a ruling on that motion in
order that settlement negotiations might proceed. Difilippo does
not dispute that the trial judge told the parties that.