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Ex Parte Nichols12/17/1999
James "Red" Nichols; his wife, Ruth Ethel Nichols; Nichols Funeral Services, Inc.; Winston Memorial Services, Inc.; and Vault Services, a partnership (hereinafter collectively referred to as "the Nicholses"), petition for a writ of mandamus directing Judge Thomas A. Woodall of the Jefferson Circuit Court to transfer an action from that court to the Winston Circuit Court. The Nicholses are the defendants in an action filed by Peavey & Brooks International, Inc. ("PBI"), in the Circuit Court of Jefferson County. PBI's complaint arises from its purchase of certain funeral-related businesses and properties, including certain real estate, from the Nicholses. The complaint alleges breach of contract, tortious interference with contractual and business relations, promissory fraud, fraudulent suppression, misappropriation of confidential information and trade secrets, breach of fiduciary duty, and conversion. The complaint also seeks reformation of a promissory note. The Nicholses moved the trial court to transfer the case to Winston County, arguing that Jefferson County was not a proper venue, and arguing, alternatively, under Ala. Code 1975, ยง 6-3-21.1, that Winston County would be a more convenient venue. We conclude that Jefferson County is a proper venue for the action and that a transfer to Winston County is not mandated by the statutory doctrine of forum non conveniens. Therefore, we deny the writ.
I.
James and Ruth Nichols reside in Winston County, where they had been in the funeral business for many years. They had owned the defendant corporations and were the partners in Vault Services. In 1998, they agreed to sell all the assets of their funeral businesses to PBI. These transactions were closed in Jefferson County, after having been negotiated primarily in Winston County. The businesses are operated in Winston County and the business property is located there.
After the closing, the relationship between the Nicholses and PBI soured. On December 4, 1998, PBI filed in the Jefferson Circuit Court the action to which this petition relates. On December 22, 1998, before receiving notice of PBI's action, the Nicholses sued PBI and its individual owners in the Winston Circuit Court, alleging that the defendants had failed to pay a $60,000 promissory note that was due December 8, 1998, and had fraudulently failed to obtain a life insurance policy for which the Nicholses had paid $38,917 in June 1998. PBI moved the Winston County court to stay that action on the basis that PBI had filed its action first, and the court granted that motion. The Nicholses moved the Jefferson County court to transfer PBI's action to Winston County. The court denied that motion and also denied the Nicholses' subsequent "motion to reconsider." This petition followed.
II.
"We note at the outset that the proper remedy for one seeking to avoid the unnecessary expense of a trial in the wrong forum following an adverse ruling on a motion to change venue is a writ of mandamus." Ex parte Jim Walter Homes, Inc., 712 So. 2d 733, 734 (Ala. 1998). A writ of mandamus is an extraordinary remedy, requiring 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. See Ex parte Conference America, Inc., 713 So. 2d 953, 955 (Ala. 1998) (citing Ex parte Edgar, 543 So. 2d 682, 684 (Ala. 1989)). The writ would be appropriate only if it is clear that Jefferson County is an improper venue for PBI's action or that the trial court abused its discretion in refusing to transfer the case for the conveni
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