Venue - Forum Selection Provision

Ex parte Consolidated Pipe & Supply Co., Inc., [Ms. 1170050, June 22, 2018] __ So. 3d __ (Ala. 2018).

This unanimous en banc decision by Justice Mendheim issues a writ of mandamus directing the Morgan Circuit Court to vacate its transfer of this action to the Jackson Circuit Court.

Consolidated Pipe supplied materials to Bolt Construction and Excavating, LLC (Bolt Construction) to construct a public work in Morgan County known as the “Vaughn Bridge Road Water Line Relocation Project.” Ms. *2. Ohio Casualty was Bolt Construction’s surety on the project. Consolidated Pipe brought a number of claims, including a claim that Bolt Construction and Ohio Casualty violated Alabama’s little Miller Act; this count expressly sought recovery under the bond issued by Ohio Casualty. Ms. *3.

The defendants filed a motion for change of venue to Jackson County contending that Bolt Construction is headquartered in Jackson County and Ohio Casualty is a foreign corporation so that venue was not proper against any defendant. Ms. *4. The Court noted that Bolt contracted with Ohio Casualty to obtain the bond “because of a legal requirement for public-works projects that is intended to provide a remedy for suppliers on such projects because suppliers cannot file a materialman’s or mechanic’s lien against public property for nonpayment.” Ms. *9.

In opposing the motion to transfer venue, Consolidated Pipe pointed to paragraph 11 of the bond contract which provides “no suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the location in which the Work or part of the Work is located ....” Ms. *9. The Court noted that it was undisputed that the public-works project in question was located in Morgan County. Accordingly, the Court held that the circuit court had exceeded its discretion in transferring venue to Jackson County because per the terms of the bond contract, the only proper venue was Morgan County where the case was originally filed. Ms. *13.

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