Ex Parte Smiths Water and Sewer Authority

982 So. 2d 484, 2007 WL 2687396
CourtSupreme Court of Alabama
DecidedSeptember 14, 2007
Docket1050329
StatusPublished
Cited by34 cases

This text of 982 So. 2d 484 (Ex Parte Smiths Water and Sewer Authority) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex Parte Smiths Water and Sewer Authority, 982 So. 2d 484, 2007 WL 2687396 (Ala. 2007).

Opinion

982 So.2d 484 (2007)

Ex parte SMITHS WATER AND SEWER AUTHORITY
(In re Michael S. Bowden and Charles Webb
v.
Smiths Water and Sewer Authority).

1050329.

Supreme Court of Alabama.

September 14, 2007.

*485 W.F. Horsley and Joshua J. Jackson of Samford & Denson, LLP, Opelika, for petitioner.

James R. McKoon, Jr., Phenix City, for respondents.

PETITION FOR WRIT OF MANDAMUS

PARKER, Justice.

I. Background

The plaintiffs, Michael S. Bowden and Charles Webb, are real-estate developers and, at the time they filed the underlying action, were developing properties in southeastern Lee County. Smiths Water and Sewer Authority ("Smiths"), the defendant below, is a water and sewer authority organized under §§ 11-88-1 through -135, Code of Alabama 1975. In 2001, Smiths acquired a sewer trunk line that had been constructed by and serves the citizens of the City of Phenix City ("the City"). Smiths collects an impact fee from each customer who uses the line and pays the City to treat the sewage in this line.

Bowden alleges that in 2004 he approached Smiths in regard to fees that would be charged in the event he were to access the trunk line to service a 200-unit *486 apartment complex he was planning to construct near the line. Bowden alleges that Smiths informed him that he would have to pay $100,000 in water-impact fees and $335,000 in sewer-impact fees. Webb alleges that he also approached Smiths in regard to fees that would be charged in the event he were to access the line to service a different 200-unit apartment complex in the same general area. Webb alleges that Smiths informed him that he would have to pay total impact — water and sewer — fees of $500,000.

On April 27, 2005, Bowden and Webb sued Smiths in the Russell Circuit Court, alleging that the impact fees Smiths quoted each of them for service from the trunk line are unreasonable, unlawful, and disproportionate to fees charged by other water and sewer authorities in surrounding counties. They seek an order permanently enjoining Smiths from collecting impact fees, sewage rates, or other rates or fees, however named, that exceed the true cost of the services provided, and such other relief as the trial court may deem just and proper.

Smiths filed a motion to transfer the case to the Lee Circuit Court, pursuant to Code of Alabama 1975, § 6-3-21.1. The Russell Circuit Court denied Smiths' motion to transfer.

Smiths filed this petition for the writ of mandamus, asking this Court to direct the Russell Circuit Court to transfer this case to the Lee Circuit Court. We grant the petition and issue the writ.

II. Standard of Review

This Court stated in Ex parte Williford, 902 So.2d 658, 661-62 (Ala.2004):

"Our standard of review of a petition for a writ of mandamus is well settled: `Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.' Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995)."

In Ex parte National Security Insurance Co., 727 So.2d 788, 789 (Ala.1998), this Court stated that "[t]he proper method for obtaining a review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus." And in Ex parte Integon Corp., 672 So.2d 497, 499 (Ala.1995), this Court stated that "[w]hen we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court abused its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner."

III. Analysis

Smiths argues that the case should be transferred to Lee County because the proposed developments are in Lee County, the sewer trunk line is in Lee County, Smiths is incorporated in Lee County, Smiths' office is in Lee County, Bowden and Webb reside in Lee County, and Lee County will be substantially affected by this case whereas Russell County will be affected very little, if at all. Smiths also notes that although Bowden's and Webb's real-estate offices are in Russell County, they have sued in their individual capacities. Bowden and Webb argue that the convenience of the parties dictates that the case remain in Russell County, because, they say, the parties and the witnesses they expect to call live closer to the Russell County courthouse than to the Lee County courthouse, the sewer line and the proposed developments are closer to the Russell County courthouse, and the papers and exhibits that will be used in the trial *487 are closer to the Russell County courthouse.

The geographical aspects of the two counties come to bear on the arguments of the parties. Lee County and Russell County border each other, Lee County to the north and Russell County to the south. Phenix City, the county seat of Russell County, is in the extreme northeast corner of Russell County; in fact, the northern and western portions of Phenix City are in Lee County. Opelika, the county seat of Lee County, is in the north-central portion of Lee County. Consequently, although the proposed developments are in southeastern Lee County, they are approximately 24 miles from the Lee County courthouse and approximately 5 miles from the Russell County courthouse. Bowden's and Webb's residences, the residence of witness Eric Landsdon, and the Smiths office are all in southeastern Lee County near the proposed developments and considerably closer to the Russell County courthouse than to the Lee County courthouse.

Before this Court can decide whether this case should have been transferred to the Lee Circuit Court, we must first determine whether venue for the case was proper in the Russell Circuit Court. The Russell Circuit Court cannot transfer a case that was not properly before it. Code of Alabama 1975, § 6-3-21.1, the forum non conveniens statute, provides in pertinent part:

"(a) With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein."

Section 6-3-21.1 authorizes a transfer only of cases "filed in an appropriate venue." As the Court of Civil Appeals noted in Ex parte Ford Motor Credit Co., 561 So.2d 244, 246-47 (Ala.Civ.App.1990):

"`[Section 6-3-21.1] contemplates proper venue in more than one Alabama county. It contemplates transfer of venue from a county in Alabama where venue is proper to another county within the state where the venue is also proper, but more convenient for the parties and witnesses [or in the interest of justice].'"

(Quoting Ex parte Southern Ry., 556 So.2d 1082, 1086 (Ala.1989).)

In this case, all the parties agree that venue for the case is proper in the Russell Circuit Court. Section 6-3-7, Code of Alabama 1975, provides:

"(a) All civil actions against corporations may be brought in any of the following counties:

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Bluebook (online)
982 So. 2d 484, 2007 WL 2687396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-smiths-water-and-sewer-authority-ala-2007.