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Ex parte Kia Motors America11/21/2003
ty to have live testimony in Alabama from these nonparty witnesses in the liability phase of this action, we believe, clearly favors dismissal pursuant to § 6-5-430, Ala. Code 1975. Section 6-5-430 authorizes the trial court to condition its dismissal upon a defendant's consent to jurisdiction in the transferee forum and waiver of any defense based on the statute of limitations. A dismissal pursuant to § 6-5-430 without providing for the right of a plaintiff to refile would be contrary to the interests of justice, one of the factors to be considered in ordering such a dismissal. As previously noted, Kia and Emerald have filed in this Court a notice of consent to jurisdiction and waiver of the statute of limitations, thereby obviating the need for judicial action to protect the respondents from the assertion of defenses based on jurisdiction and limitations periods upon refiling in Jackson County, Florida.
Conclusion
We hold that the trial court exceeded its discretion in failing to dismiss the actions pursuant to § 6-5-430, Ala. Code 1975. Therefore, we grant the petition and order the trial court to dismiss these actions so that they can be refiled in Jackson County, Florida.
PETITION GRANTED; WRIT ISSUED.
Houston, Lyons, Brown, Johnstone, Harwood, and Stuart, JJ., concur.
Moore, C.J., and See and Woodall, JJ., dissent.
SEE, Justice (dissenting).
I respectfully dissent from the majority opinion holding that the trial court exceeded its discretion in failing to dismiss this case pursuant to Alabama's forum non conveniens statute, § 6-5-430, Ala. Code 1975.
The forum non conveniens statute provides, in pertinent part:
"Whenever ... a claim, either upon contract or in tort[,] has arisen outside this state against any person or corporation ... and ... upon motion of any defendant, it is shown that there exists a more appropriate forum outside this state, ... the court must dismiss the action without prejudice. ..."
§ 6-5-430, Ala. Code 1975. I agree with the majority that, for the forum non conveniens statute to apply, all of the claims in the present case must have arisen outside Alabama. However, I submit that Kia and Emerald have not met their burden of showing that the respondents' breach-of-warranty claim against Emerald arose outside this State.
Where a breach-of-warranty claim arises for purposes of determining venue is a question of first impression in Alabama. The majority opinion concludes that the breach-of-warranty claim against Emerald arose in Florida because, under the statute of limitations, the cause of action for breach of warranty accrued when the accident occurred there. In reaching this conclusion, the majority likens the word "arisen" in the forum non conveniens statute to the word "accrue" in the statute of limitations. The statute of limitations provides that "a cause of action for damages for injury to the person in the case of consumer goods shall accrue when the injury occurs." § 7-2-725(2), Ala. Code 1975. However, the words "arisen" and "accrue" are not synonymous. "Arisen" is used to describe the location of a cause of action, whereas "accrue" is used to describe the initial point in time when a cause of action may be asserted.
Although Alabama courts have not addressed this issue, other state courts have. Under Florida law, "a cause of action is deemed to have 'accrued' for venue purposes 'where the act of default occurs.'" Stanfield v. DeStefano, 300 So. 2d 712, 713 (Fla. Dist. Ct. App. 1974) (citations omitted). "In the case of an action for breach of warranty, [venue] is controlled ... by the place ... where the breach too
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