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Ex parte Walter Industries6/6/2003
h are filed in the wrong division -- either in the Bessemer Division or in the Birmingham Division -- "are subject to transfer to the proper division pursuant to the provisions of § 12-11-11, [Ala.] Code 1975." Glenn v. Wilson, 455 So. 2d 2, 4 (Ala. 1984). Nonetheless, where the trial judge does not order such a transfer on his or her own volition, the right of a defendant to have the case transferred between divisions can be waived and lost if the defendant proceeds inconsistently with that option. See Central of Georgia Ry., 243 Ala. at 513, 10 So. 2d at 750; Glenn v. Wilson, 455 So. 2d at 4-5.
In the present cases, as far as is revealed in the respective petitions, briefs, and answer filed by the parties, no one asked the trial judge to transfer either case to the Birmingham Division. Rather, the defendants sought a transfer only to Tuscaloosa County, and the two plaintiffs sought only to have their cases remain in the Bessemer Division. Unlike Ms. Knox, Ms. Adams mentions § 12-11-11 to this Court, stating in her answer to the petition for the writ of mandamus filed by Walter Industries, Inc., and Black Warrior Methane Corporation that "if this Court determines that venue is improper because of the Bessemer Act, then this action should be transferred to the Birmingham Division pursuant to the case law interpreting the Act and Alabama Code § 12-11- 11 (for actions commenced in the wrong 'division' of a county)." Such a request, apparently never made to the trial court, comes too late to alter the right of the defendants to have the cases transferred to Tuscaloosa County. See § 6-3-21, Ala. Code 1975 ("A defendant in a civil action may move for a transfer of venue as provided in the Alabama Rules of Civil Procedure."), and Rule 82(d)(3), Ala. R. Civ. P. ("In the event the venue of the action is ... improper and venue is appropriate in more than one other court, ... multiple defendants, by unanimous agreement, shall have the right to select such other court to which the action shall be transferred ...."). Even if we assume that venue could properly have been laid in the Birmingham Division of the Jefferson Circuit Court for either or both cases, Tuscaloosa County is indisputably also a proper venue, as the main opinion explains.
LYONS, Justice (dissenting).
In Ex parte Central of Georgia Railway, 243 Ala. 508, 512, 10 So. 2d 746, 750 (1942), this Court held: "Clearly all suits maintainable in Jefferson County under the general venue statutes are still maintainable in that county." Sarah June Adams, the plaintiff in case no. 1011467, argues that because venue is good in Jefferson County and because the action was brought in Jefferson County, albeit in the Bessemer Cutoff, the defendants' privilege of selecting another county to which the action should be transferred pursuant to Rule 82(d)(3), Ala. R. Civ. P., has not yet accrued. I was almost persuaded by this argument; however, I find § 6-3-7(d), Ala. Code 1975, to be an insurmountable obstacle.
Section 6-3-7(d), amended in 1999, provides as follows:
"(d) Notwithstanding Section 6-3-10, or any local laws relating to venue, in any county having two courthouses, the divisions shall be treated as two separate judicial districts for purposes of venue and for purposes of any change or transfer of venue, unless the jury venire is drawn from throughout the entire county."
(Emphasis added.)
At first I was troubled by the reference in § 6-3-7(d) to "two separate judicial districts" as opposed to "two separate judicial circuits" or "two separate counties." However, in Ex parte Longmire, 584 So. 2d 503 (Ala. 1991), this Court construed a local act creating separate divisions in St. Clair
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