Opinion
1210276
09-09-2022
EX PARTE C&M EQUIPMENT, INC., and David Manning (In re: S.P. Petroleum Equipment Sales & Service, LLC v. David Manning and C&M Equipment, Inc.)
Joseph H. Driver, C. Steven Ball, and Robert D. Windsor of Carr Allison, Birmingham, for petitioners. Ted L. Mann of Mann & Potter, P.C., Birmingham, for respondent.
Joseph H. Driver, C. Steven Ball, and Robert D. Windsor of Carr Allison, Birmingham, for petitioners.
Ted L. Mann of Mann & Potter, P.C., Birmingham, for respondent.
WISE, Justice.
Petition Denied. No Opinion.
Shaw, Bryan, Mendheim, and Stewart, JJ., concur.
Parker, C.J., and Sellers, J., dissent.
Mitchell, J., dissents, with opinion, which Bolin, J., joins.
Bolin, J., concurs.
MITCHELL, Justice (dissenting).
I respectfully dissent from the Court’s decision to deny the mandamus petition filed by David Manning and C&M Equipment, Inc. ("C&M") (collectively referred to as "the C&M defendants"). It is clear from the materials before us that the C&M defendants met their burden of showing that venue in this case is inappropriate in Macon County, and the speculative, conclusory affidavits submitted by S.P. Petroleum Equipment Sales & Service, LLC ("S.P. Petroleum"), did nothing to rebut that showing. Accordingly, I would grant the petition and issue a writ directing that the case be transferred from the Macon Circuit Court to the Lee Circuit Court, where venue is proper.
Background
S.P. Petroleum sued the C&M defendants in the Macon Circuit Court, alleging that its former employee Manning had taken confidential information from S.P. Petroleum and that Manning’s new employer C&M had, then used that information to undercut S.P. Petroleum when bidding on projects that both companies sought. The C&M defendants moved the trial court to transfer the action to Lee County, submitting affidavits from Manning and C&M’s president indicating that (1) none of the parties were residents of or had their principal place of business in Macon County and (2) none of the wrongful acts alleged to have been committed by Manning or C&M were committed in Macon County. Accordingly, they argued, venue was not proper in Macon County under either § 6-3-2, Ala. Code 1975 (the statute governing venue of claims against individual defendants), or § 6-8-7, Ala. Code 1975 (the statute governing venue of claims against corporate defendants).
S.P. Petroleum responded by submitting affidavits from its owner and former office manager asserting that the C&M defendants had used information that Manning had wrongfully obtained to submit bids undercutting S.P. Petroleum’s bids for projects with three specific Macon County businesses -- Becks Turf Farm, Lake Martin, Inc., and Walters Gas and Grocery -- and that S.P. Petroleum had lost those bids as a result. Therefore, S.P. Petroleum argued, venue was proper in Macon County under either § 6-3-2(a)(3) (providing that an action against an individual "may be commenced … in the county in which the act or omission complained of may have been done or may have occurred") or § 6-3-7(a)(1) (providing that an action against a corporation "may be brought … [i]n the county in which a substantial part of the events or omissions giving rise to the claim occurred ….").
The C&M defendants countered by filing another affidavit from C&M’s president in which he swore that C&M had never bid on or performed any work for Becks Turf Farm, Lake Martin, Inc., or Walters Gas and Grocery. The C&M defendants further moved the trial court to strike the affidavits submitted by S.P. Petroleum because, the C&M defendants argued, those affidavits were based on mere speculation as opposed to personal knowledge of the underlying facts. The materials before us do not indicate whether the trial court ruled on the C&M defendants’ motion to strike, but following a hearing, it denied the motion to transfer the action. The C&M defendants then petitioned this Court for a writ of mandamus directing the tidal court to vacate its order denying their motion and to enter an order transferring this action to Lee County.
Analysis
While it’s not clear whether the trial court ruled on the C&M defendants’ motion to strike, it’s clear that their motion should have been granted. Although the affidavits submitted by S.P. Petroleum summarily recite that they are based on personal knowledge, it is not apparent how the affiants could know what projects C&M had bid on or the specific details of those bids, especially when a basic presumption underlying most bidding processes is that parties do not know the details of other bids. In the absence of any foundational explanation from the affiants as to how they acquired personal knowledge of that information, it appears that they are simply speculating that S.P. Petroleum’s loss of business stems from Manning’s alleged appropriation of confidential information. The C&M defendants’ motion to strike those affidavits should therefore have been granted. See Sooudi v. Century Plaza Co., 622 So. 2d 1275, 1278 (Ala. 1993) ("Affidavits must contain statements based upon the personal knowledge of the affiant, and mere speculation and statements of subjective beliefs are not the equivalent of personal knowledge.").
Consequently, when the trial court ruled on the C&M defendants’ motion to transfer the action, the only evidence properly before the court indicated that none of the parties resided in or had their principal place of business in Macon County and that the C&M defendants had committed no relevant acts or omissions in Macon County. In the absence of any conflicting evidence, the C&M defendants’ motion to transfer the action should have been granted. See Ex parte Pike Fabrication, Inc., 859 So. 2d 1089, 1092-93 (Ala. 2002) (holding that motion to transfer the action should have been granted when the plaintiff failed to submit any evidence countering the defendant’s prima facie showing that venue was improper in the plaintiff’s chosen forum).
The trial court held a hearing on the C&M defendants’ motion to transfer the action; a transcript of that hearing is not included in the materials before us. But hearings on motions to transfer do not typically include witnesses and the presentation of evidence; indeed, the Alabama Code specifically contemplates that at least some such motions will be decided on the basis of only affidavit testimony. See § 6-3-20, Ala. Code 1975 ("Either party to a civil action may move the court to change the venue at any time before final trial, making affidavit that for causes set forth, he cannot have a fair and impartial trial in the county where the action is pending. The court may direct a change to the nearest county free from proper objection by either party, to be determined by affidavits …." (emphasis added)); 77 Am. Jur. 2d Venue § 66 (2016) ("The determination of a motion or other application for a change of venue is ordinarily made upon the sufficiency of the affidavits filed in support of the motion."); see also Ex parte Wayne Farms, LLC, 210 So. 3d 586, 590 (Ala. 2016) (quoting trial court's order denying a motion to transfer the action in which it noted that it had reviewed the affidavit and other evidence submitted by the parties and had considered ‘ "the arguments of the parties at the hearing’ ").