Ex Parte Wiginton5/7/1999
REL:05/07/1999 EX PARTE DANNY WIGINTON.
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. In 1989, after numerous conversations with Jerold Kennedy, now deceased, the plaintiffs sold their shares in Belmont-Alabama to J.M. Page, Donald S. McNeil, and William R. Collins; and these buyers, or their successors in interest, apparently dissolved the corporation in 1991.
In 1997, in the Madison County Circuit Court, Wiginton, Stevenson, and Joyce sued Page, a resident of Franklin County; Mildred E. Kennedy, a resident of Franklin County and executrix of the estate of Jerold Kennedy, deceased; Belmont-Alabama; two Mississippi corporations by similar names, BHI, Inc. (also dissolved before suit), and Belmont Homes, Inc. (Belmont-Mississippi); and various fictitious defendants. The complaint alleged breach of fiduciary duty, three counts of fraud, and civil conspiracy. 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 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 § 6-3-21.1, Ala. Code 1975, for the convenience of the parties and the witnesses. Following the submission of materials and the oral argument, Judge Fay granted Kennedy and Page's motion to transfer. Judge Fay determined that Franklin County was the proper venue for the action because the individual defendants resided in Franklin County and because Judge Fay could not determine whether the corporate defendants did business in Madison County at the time the alleged causes of action arose. Judge Fay further determined that, even if Madison County were also a proper venue, he would transfer the case pursuant to § 6-3-21.1, Ala. Code 1975, to Franklin County because the individual defendants reside in Franklin County; the manufacturing plant and all records and documents of the corporate defendants were located in Belmont, Mississippi, a town in a county contiguous to Franklin County; and all of the primary witnesses live 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, [Ms. 1961708, August 28, 1998] ___ So. 2d ___, ___ (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).
There are two types of defendants in this case, individual and corporate; and venue as to these two types of defendants is determined under separate statutes. Kennedy and Page are individuals; and, therefore, the venue statute applicable to them is § 6-3-2, Ala. Code 1975, which provides, in pertinent part:
"(a) In proceedings of a legal nature against individuals:
"....
"2. All actions on contracts, except as may be otherwise provided, must be commenced in the county in which the defendant or one of the defendants resides if suc
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