Little v. State

44 So. 3d 1070, 2010 Ala. LEXIS 26, 2010 WL 675604
CourtSupreme Court of Alabama
DecidedFebruary 26, 2010
Docket1090026
StatusPublished
Cited by2 cases

This text of 44 So. 3d 1070 (Little v. State) 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
Little v. State, 44 So. 3d 1070, 2010 Ala. LEXIS 26, 2010 WL 675604 (Ala. 2010).

Opinion

PARKER, Justice.

The State of Alabama and Governor Bob Riley, who was sued in his official capacity (hereinafter referred to collectively as “the State defendants”), petition this Court for a writ of mandamus directing the Baldwin Circuit Court to transfer an action filed by E. Lamar Little and Surfside Development Corporation, a Mississippi corporation (hereinafter referred to collectively as “Surfside”), to Montgomery County, where, they argue, venue is proper. For the reasons presented below, we issue the writ.

Background

On June 5, 2009, Surfside filed an action in the Baldwin Circuit Court seeking to recover real property it had conveyed to the State by a warranty deed dated September 20, 1962. The deed contains a provision that the land was conveyed subject to its use

“solely for the construction and maintenance of a residence for the Governor of the State of Alabama. Any attempted sale, or use of said parcel of land for any other purpose shall, without further notice, cause the said parcel of land to revert to the Grantor, its successors and assigns.”

Surfside’s complaint stated that the property had not been devoted to its intended purposes since 1996 and that the above reversionary clause should, therefore, be given effect and all title and interest in the land should revert to Surfside.

On July 14, 2009, the State defendants moved the Baldwin Circuit Court for a change of venue to Montgomery County, arguing:

“Where an official of the state is a defendant, venue is proper only in Montgomery County, ‘absent specific statutory authority to the contrary or waiver of objection to venue’ and ‘even where the case arguably is one involving real estate in another county.’ See, Ex parte Neely, 653 So.2d 945 (Ala.1995); Ex parte Alabama Power Co., 640 So.2d 921 (Ala.1994); Ex parte City of Birmingham, 507 So.2d 471 (Ala.1987); Alabama Youth Services Board v. Ellis, 350 So.2d 405 (Ala.1977); Boswell v. Citronelle-Mobile Gathering, Inc., 292 Ala. 344, 294 So.2d 428 (1974); Tri-State Corp. v. State ex rel. Gallion, 272 Ala. 41, 128 So.2d 505 (1961).”

Surfside responded to the State defendants’ motion for a change of venue, arguing that venue is proper in Baldwin County because “the real property which is the subject matter of this action is located in Baldwin County.” In support of its argument, Surfside cited § 6-3-2, Ala. Code 1975,1 and Wesson v. Wesson, 514 So.2d 947 (Ala.1987) (holding that where title to real property is at issue, the real property is the subject matter of the lawsuit and the action must be brought where the real property is located), and Davidson v. Brown, 215 Ala. 205, 209, 110 So. 384, 386-87 (1926)(holding that a suit to cancel a deed is properly brought in the county where the real property is located). Although admitting that the general rule is that an action against a State agency or against a State official in his or her official capacity is properly maintained in the county of the official residence of the agency or official, Surfside argued in its re[1072]*1072sponse to the State defendants’ motion that the courts have found numerous exceptions to the general rule:

“In Boswell v. Citronelle-Mobile Gathering, Inc., [292 Ala. 344,] 294 So.2d 428 (1974), the court recognized an exception to the general rule for instances in which an alternative forum was provided by statute. In [Ex parte ] Dothan-Houston County Airport Authority, [282 Ala. 316,] 211 So.2d 451 (1968), the court found an exception to the general rule where the governmental agency by its actions waives objections to venue. In AU Hotel, LTD v. Martin, 677 So.2d 1160 (Ala.1996), the court created another exception, holding that the joint-defendant venue principle established by Rule 82 of the Alabama Rules of Civil Procedure, allowing for an action to be maintained against all defendants if venue was proper as to one defendant, applied to governmental agencies. The court noted that, where a governmental officer was sued in his individual capacity as well in his official capacity, venue could properly lie in a county other than that of the employee’s official residence. Id.
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“Pursuant to Alabama law, an action such as the present one is a local action or in rem action, rather than a transitory or in personam action. As such, venue is proper in Baldwin County. The Defendants have failed to meet then-burden of proof, and thus, a transfer of venue is not warranted. The Defendants’ motion should be denied.”

Without providing its reasoning, the Baldwin Circuit Court denied the State defendants’ motion for a change of venue on August 25, 2009. The State defendants then filed this petition for a writ of mandamus directing the Baldwin Circuit Court to vacate its order denying their motion for a change of venue.

Standard of Review

“Our standard of review in mandamus cases 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).... We apply the abuse-of-discretion standard when considering a mandamus petition challenging a venue ruling, and we will not issue the writ unless the trial court exercised its discretion in an arbitrary and capricious manner. Id.’

Ex parte Kia Motors America, Inc., 881 So.2d 396, 399 (Ala.2003) (quoting Ex parte Brookwood Health Servs., Inc., 781 So.2d 954, 956-57 (Ala.2000)).

Legal analysis

This Court has stated:

“Agencies and officers of the state must be sued in the county of their official residence absent specific statutory authority to the contrary or waiver of objection to venue. Hardin v. Fullilove Excavating Co., 353 So.2d 779 (Ala. 1977); Boswell v. Citronelle-Mobile Gathering, Inc., 292 Ala. 344, 294 So.2d 428 (1974); Tri-State Corp. v. State, 272 Ala. 41, 128 So.2d 505 (1961). This rule is adhered to even where the case arguably is one involving real estate in another county. Tri-State Corp., supra; Alabama Youth Services Board v. Ellis, 350 So.2d 405, 408 (Ala.1977): ‘Moreover, the allegations in this case pertaining to the location of real estate in Jef[1073]*1073ferson County, while they may resolve a venue question in an ordinary case, do not control a case such as this where the action is one against a state agency.’ ”

Ex parte City of Birmingham, 507 So.2d 471, 474 (Ala.1987).2

Thus, two exceptions have been propounded to the general rule that State officials must be sued in the county of their official residency: specific statutory authority that allows venue to be placed elsewhere, as was the case in Boswell v. Citronelle-Mobile Gathering, Inc., 292 Ala. 344, 294 So.2d 428 (1974), and a waiver of venue by the defendant, as in Hardin v. Fullilove Excavating Co., 353 So.2d 779 (Ala.1977).

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Related

In re Board of Water and Sewer Commissioners of Mobile
272 So. 3d 635 (Supreme Court of Alabama, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
44 So. 3d 1070, 2010 Ala. LEXIS 26, 2010 WL 675604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/little-v-state-ala-2010.