Alabama Appellate Opinions Released March 1, 2019
We are committed to sharing decisions and providing legal updates that may be beneficial to you and your teams. Included below are summaries of cases recently released by Alabama Appellate Courts. Please reach out to any member of our Appellate Practice  group with any questions.

Warm regards,
Team Huie

Alabama Appellate Opinions Released 
March 1, 2019
Alabama Supreme Court
Court Vacates Order Granting Change of Venue

Ex parte Tim Seriana

In Ex parte Tim Seriana , the plaintiff, Tim Seriana sued Joe Stevens, LLC (“Stevens”), a contractor, and various other fictitious defendants in the Circuit Court of Calhoun, Alabama. The plaintiff alleged he was injured after falling into a hole located on the premises of his employer while walking from his vehicle to his place of work. The plaintiff further alleged the hole was created by Stevens during construction activity on the premises. In the section designating the fictitious defendants, the complaint indicated that the facility where the injury occurred was in Munford, Alabama, which is in Talladega County. More than a year after filing its Answer, Stevens filed a motion to transfer venue to Talladega County, Alabama, arguing the plaintiff inadvertently filed suit in Calhoun County, the parties resided in Talladega County, and the accident occurred in Talladega County. The trial court granted Stevens’ motion and transferred the case to Talladega County. The plaintiff filed a petition for a writ of mandamus requesting the Alabama Supreme Court to vacate the trial court’s order.

On appeal, the plaintiff argued the trial court erred in transferring the case to Talladega County because Stevens waived any objection it might have had to venue in Calhoun County when it filed its Answer without raising the defense of improper venue. The Alabama Supreme Court agreed with the plaintiff. In granting the plaintiff’s petition, the Court held Stevens “did not raise the defense of improper venue in its answer” and therefore “did not preserve its right to file a motion for change of venue in accordance with Rule 12(h), Ala. R. Civ. P. 
Court Enforces Outbound Forum-Selection Clause After Finding It Fair and Reasonable

Ex parte International Paper Co., Pidgeon, Harris, & Blenis

Under Alabama law, outbound forum-selection clauses are enforceable “unless the party that challenges the clause clearly establishes that it would be unfair or unreasonable under the circumstances” to enforce the clause. In Ex parte International Paper Co. , a threshold issue before the Alabama Supreme Court was whether one party’s larger corporate structure and financial position in relation to the other party to a forum-selection clause were sufficient to establish the agreement as “unfair” or “unreasonable.”

The clause at issue was contained in an agreement between International Paper Company (“IPC”) and John R. Dailey (“Dailey”) on behalf of JRD Land Contracting and Land Clearing, Inc. (“JRD C&L”) known as the “International Paper Company Pine Hill Mill Waste Services Agreement” (“the water services agreement”). Caterpillar Financial Services Corporation (“Caterpillar”), which had entered into various loan and guaranty agreements with Dailey, sued Dailey in Wilcox Circuit Court for breach of contract and breach of the guarantees. A few months after Caterpillar filed suit, IPC provided Dailey with 30 days written notice of its intent to terminate the water services agreement.

Dailey and JRD C&L filed a third-party complaint alleging breach of contract against IPC. Dailey also contended that the termination of the water services agreement “essentially bankrupted” JRD C&L. IPC filed a motion to dismiss the third-party complaint for improper venue because the outbound forum selection clause provided that Tennessee courts would have exclusive jurisdiction over any disputes arising out of or relating to the water services agreement. The trial court denied the motion. IPC filed a petition for a writ of mandamus requesting the Alabama Supreme Court to direct the trial court to vacate its order and dismiss the third-party complaint.

On appeal, the third-party plaintiffs argued it would be unfair to enforce the forum-selection clause against them due to IPC’s “overweening bargaining power” and its size in comparison to JRD C&L. The Court rejected this argument, emphasizing that even when a party to a forum-selection clause is a large company, that fact alone does not establish “overweening bargaining power.” The third-party plaintiffs argued further that the forum-selection clause was unreasonable because Tennessee would be a “massively inconvenient forum,” primarily based on travel costs. The Court rejected that argument, noting that distance of travel does not establish a forum as unreasonable. Thus, the Court granted IPC’s petition and directed the trial court to dismiss the third-party plaintiff’s complaint against IPC. 
Alabama Court of Civil Appeals
"The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind."  ~Abraham Lincoln
No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.
Huie: Stand Firm