Ex parte Wiginton9/17/1999
REL:09/17/1999 Ex parte Danny Wiginton
On Application for Rehearing
The opinion of May 7, 1999, is withdrawn and the following is substituted therefor.
The plaintiffs, Danny Wiginton, Ed Stevenson, and Gary Joyce, petition for a writ of mandamus directing the Honorable E. Dwight Fay, Jr., Judge of the Madison County Circuit Court, to vacate his order transferring their action from Madison County to Franklin County. We deny the petition.
In 1987, Wiginton, Stevenson, and Joyce incorporated Belmont Homes, Inc. (Belmont-Alabama) in Madison County, where they resided. In 1989, after various alleged misrepresentations were made to them by Jerold Kennedy, now deceased, the plaintiffs sold their shares in Belmont-Alabama to J.M. Page, Donald S. McNeil, and William R. Collins. These buyers, or their successors in interest, purported to dissolve the corporation in 1991. Kennedy spoke the misrepresentations, if at all, from locations in Mississippi.
In 1997, in the Madison County Circuit Court, Wiginton (then a part-time resident of Madison County) and Stevenson and Joyce (still full-time residents there) sued Page, a resident of Franklin County; Mildred E. Kennedy, a resident of Franklin County and executrix of the estate of Jerold Kennedy, deceased, by virtue of letters testamentary granted in Franklin County; Belmont-Alabama; two Mississippi corporations by similar names -- BHI, Inc. (also dissolved before suit according to the defendants) and Belmont Homes, Inc. (Belmont-Mississippi); and various fictitious defendants. The complaint alleged breach of fiduciary duty, three counts of fraud, and civil conspiracy, all based on the alleged misrepresentations and suppressions relating to the corporate affairs of Belmont-Alabama. The plaintiffs sought compensatory damages, punitive damages, and equitable relief, including the impressment of a constructive trust.
Defendants Kennedy and Page moved to transfer the action from Madison County to Franklin County pursuant to Rule 82(d)(1), Ala. R. Civ. P., on the ground of improper venue or, in the alternative, to transfer the action to Franklin County pursuant to ยง 6-3-21.1, Ala. Code 1975, for the convenience of the parties and witnesses. Following the submission of materials and a hearing before Judge Fay, he granted Kennedy and Page's motion to transfer on both grounds alternatively --that is, for improper venue in Madison County or, if not, then for the convenience of the parties and witnesses in Franklin County.
"A writ of mandamus is an extraordinary remedy that requires the showing of: (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court." Ex parte McNaughton, 728 So. 2d 592, 594 (Ala. 1998). A petition for a writ of mandamus is the proper means for challenging an order transferring an action to another county. Ex parte AU Hotel, Ltd., 677 So. 2d 1160 (Ala. 1996). The appellate courts will sustain the decision of the trial court if it is right for any reason, even one not presented by a party or considered or cited by the trial Judge, Morrison v. Franklin, 655 So. 2d 964 (Ala. 1995), even though the appellate courts will not reverse the trial court on an issue or contention not presented to the trial court for its consideration in making its ruling, Smith v. Equifax Services, Inc., 537 So. 2d 463 (Ala. 1988).
The defendants in this case are of three types: corporations, a natural person (or "individual"), and an executrix. Venue as to these three types of defendants is addressed b
Page 1 2 3 4 5 6 Alabama Personal Injury Attorneys
Personal Injury Lawyers
|