Ex Parte Overstreet, 748 So. 2d 194 (Ala. 1999). · Go Syfert
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Ex Parte Overstreet, 748 So. 2d 194 (Ala. 1999). Cases Citing This Book View Copy Cite
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cited 7× by 6 distinct cases, 2002–2016 · 2 courts · …if venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper. at p. 196 ✓ Topic ↗
42 citation events (41 in the last 25 years) across 2 distinct courts.
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 21 distinct citers. How cited ↗
discussed Cited as authority (rule) Ex parte Alabama Board of Cosmetology & Barbering
Ala. Civ. App. · 2016 · confidence medium
“If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.” Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999).
discussed Cited as authority (rule) Junkin v. Southeastern Energy Corp.
Ala. · 2016 · confidence medium
P. ‘If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.’ Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999).
discussed Cited as authority (rule) Ex parte WMS, LLC (2×)
Ala. · 2014 · confidence medium
We further note that, “[w]hen ruling on a motion to transfer, the trial court must determine whether venue was proper at the time the action was filed,” Ex parte Canady, 563 So.2d 1024, 1025 (Ala.1990), and that, “[i]f venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.” Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999).
discussed Cited as authority (rule) M.A.G. v. L.W.
Ala. Civ. App. · 2014 · confidence medium
Co., 775 So.2d 153, 156 (Ala.2000) (quoting Ex parte Gates, 675 So.2d 371, 374 (Ala.1996)); Ex parte Pfizer, Inc., 746 So.2d 960, 962 (Ala.1999).’ ” Ex parte Vest, 68 So.3d 881, 884 (Ala.Civ.App.2011) (quoting Ex parte Children’s Hosp. of Alabama, 931 So.2d 1, 5-6 (Ala.2005)). “ ‘The question of proper venue for an action is determined at the commencement of the action.’ ... ‘If venue is not proper at the commencement of the action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.’ ” Ex parte Pike Fabrication, Inc., 85…
discussed Cited as authority (rule) N.M. v. K.M.
Ala. Civ. App. · 2013 · confidence medium
Further, “ ‘[t]he question of proper venue for an action is determined at the commencement of the action.’ ... ‘If venue is not proper at the commencement of the action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.’ ” Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002) (quoting Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001), and Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999)).
examined Cited as authority (rule) Ex Parte Hampton Insurance Agency, 1101211 (Ala. 11-18-2011) (3×) also: Cited "see", Cited "see, e.g."
Ala. · 2011 · confidence medium
P.” Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999) (emphasis added).
discussed Cited as authority (rule) Walden v. Es Capital, 1091474 (Ala. 5-20-2011) (2×)
Ala. · 2011 · confidence medium
“If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.” Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999).
discussed Cited as authority (rule) Hilda Ruffin v. General Motors Acceptance Corporation.
Ala. Civ. App. · 2011 · confidence medium
However, this argument has no merit because, “[a]s [the supreme court] has frequently held, proper venue for an action is determined at the commencement of the action.” Ex parte Overstreet, 748 So.2d 194,196 (Ala.1999).
discussed Cited as authority (rule) Ex Parte Green Tree Financial Corporation, 1090110 (Ala. 1-14-2011) (2×)
Ala. · 2011 · confidence medium
See, e.g., Ex parte Monsanto Co., 794 So.2d 350, 355-356 (Ala.2001) (directing the trial court ‘to dispose of the motion for a change of venue as the first order of business.’); Ex parte Haynes, 924 So.2d 687, 691 (Ala.2005); Ex parte State Farm Mutual, 893 So.2d 1111, 1115 (Ala.2004); Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001); Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999); Hales v. ProEquities, Inc., 885 So.2d 100 (Ala.2003).
discussed Cited as authority (rule) Lugo de Vega v. Shelton (2×)
Ala. · 2010 · confidence medium
In Ex parte Walter Industries, Inc., 879 So.2d 547, 548-49 (Ala.2003), this Court noted: “ ‘The question of proper venue for an action is determined at the commencement of the action.’ Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001). ‘If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.’ Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999).” At the commencement of the instant action Tom Shelton was the only named defendant.
discussed Cited as authority (rule) Ex Parte Chatmon
Ala. Civ. App. · 2007 · confidence medium
The second issue that this court must decide is whether the circumstances of this case warrant the issuance of a writ of mandamus. "`The question of proper venue for an action is determined at the commencement of the action.' Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001). `If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.' Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999). `A petition for a writ of mandamus is the appropriate means for challenging a trial court's refusal to transf…
discussed Cited as authority (rule) United States Steel Corp. v. Chatmon
Ala. Civ. App. · 2007 · confidence medium
The second issue that this court must decide is whether the circumstances of this case warrant the issuance of a writ of mandamus. “ ‘The question of proper venue for an action is determined at the commencement of the action.’ Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001). ‘If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.’ Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999). ‘A petition for a writ of mandamus is the appropriate means for challenging a trial court’s re…
discussed Cited as authority (rule) Ex Parte Haynes Downard Andra & Jones, LLP
Ala. · 2005 · confidence medium
Standard of Review "`The question of proper venue for an action is determined at the commencement of the action.' Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001). `If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.' Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999). `A petition for a writ of mandamus is the appropriate means for challenging a trial court's refusal to transfer an action and such a petition is due to be granted if the petitioner makes a clear showing of error on the pa…
discussed Cited as authority (rule) Little v. Southeastern Commercial Finance
Ala. · 2005 · confidence medium
Standard of Review “ ‘The question of proper venue for an action is determined at the commencement of the action.’ Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001). ‘If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.’ Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999). ‘A petition for a writ of mandamus is the appropriate means for challenging a trial court’s refusal to transfer an action and such a petition is due to be granted if the petitioner makes a clear showing of …
discussed Cited as authority (rule) Lowery v. Honeywell International, Inc.
Ala. · 2004 · confidence medium
Standard of Review In Ex parte Walter Industries, Inc., 879 So.2d 547 (Ala.2003), we addressed the standard of review of a ruling on a venue matter: “ ‘The question of proper venue for an action is determined at the commencement of the action.’ Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001). ‘If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.’ Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999). ‘A petition for a writ of mandamus is the appropriate means for challenging a …
discussed Cited as authority (rule) Ex Parte Hanna Steel Corp.
Ala. · 2004 · confidence medium
Standard of Review In Ex parte Walter Industries, Inc., 879 So.2d 547 (Ala.2003), we addressed the standard of review of a ruling on a venue matter: "`The question of proper venue for an action is determined at the commencement of the action.' Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001). `If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.' Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999). `A petition for a writ of mandamus is the appropriate means for challenging a trial court's…
discussed Cited as authority (rule) Ex Parte Daimlerchrysler Corp.
Ala. · 2004 · confidence medium
Standard of Review In Ex parte Walter Industries, Inc., 879 So.2d 547 (Ala.2003), we addressed the standard of review in the context of the proper venue for an action. “ ‘The question of proper venue for an action is determined at the commencement of the action.’ Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001). ‘If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.’ Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999). ‘A petition for a writ of mandamus is the appropriate means…
discussed Cited as authority (rule) Ex Parte DaimlerChrysler Corp.
Ala. · 2004 · confidence medium
Standard of Review In Ex parte Walter Industries, Inc., 879 So.2d 547 (Ala.2003), we addressed the standard of review in the context of the proper venue for an action. "`The question of proper venue for an action is determined at the commencement of the action.' Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001). `If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper.' Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999). `A petition for a writ of mandamus is the appropriate means for challeng…
discussed Cited as authority (rule) Ex Parte Walter Industries, Inc.
Ala. · 2003 · confidence medium
"If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper." Ex parte Overstreet, 748 So.2d 194, 196 (Ala.1999).
cited Cited as authority (rule) Ex Parte Pike Fabrication, Inc.
Ala. · 2002 · confidence medium
Ex parte Overstreet , 748 So.2d at 196.
discussed Cited "see" Nicholas v. Jim Walter Homes, Inc.
Ala. · 2002 · signal: see · confidence high
See Ex parte Overstreet, 748 So.2d 194 , 196-97 (Ala.l999)(holding that the “act or omission” complained of in a conversion action takes place where the alleged wrongful taking or retention of ownership occurs).
Retrieving the full opinion text from the archive…
Ex parte Ronnie W. OVERSTREET, Sr. (Re Arrow Construction, Inc.
v.
Ronnie W. Overstreet, Sr., et al.).
1981180.
Supreme Court of Alabama.
Oct 22, 1999.
748 So. 2d 194
Maddox.
Cited by 30 opinions  |  Published

[*195] Robert E. Sasser, Tamara A. Stidham, and Craig M. Stephens of Sirote & Permutt, P.C., Montgomery; and Ronnie E. Keahey, Grove Hill, for petitioner.

A. Wesley Pitters, Montgomery, for respondent.

MADDOX, Justice.

Ronnie W. Overstreet, Sr., is a defendant in an action pending in the Montgomery County Circuit Court. He petitions for a writ of mandamus directing the trial judge to vacate his order denying Overstreet's motion for a change of venue and directing the trial judge to grant the motion and transfer this case to the Clarke County Circuit Court. For the reasons discussed below, we grant the petition and issue the writ.

Facts and Procedural History

Overstreet had been employed by Arrow Construction, Inc. ("Arrow"), the plaintiff in the action pending in the Montgomery Circuit Court. Arrow is a construction company that builds "heavy" construction projects, such as highways.[1] Arrow is an Alabama corporation with its principal place of business in Montgomery County. Overstreet lives on a farm near Jackson, in Clarke County.

Overstreet was the superintendent in charge of several of Arrow's construction projects in south Alabama. Because of the proximity of Overstreet's farm to those project sites, his farm served as a temporary storage location for construction equipment alleged by Arrow to be its property. In June 1998, according to Arrow's complaint, the south Alabama construction projects were completed and Arrow asked Overstreet to return its equipment. Arrow alleges that Overstreet failed to do so.

On January 22, 1999, Arrow sued Overstreet in the Montgomery Circuit Court, alleging that he had converted to his own use, and had wrongfully detained, Arrow's property. Arrow also named two fictitious defendants in its complaint and alleged that they had "combined and concurred with" Overstreet in converting and wrongfully detaining Arrow's property. On February 22, 1999, Overstreet moved for a change of venue. As grounds for a change of venue, Overstreet asserted that he was a resident of Clarke County and that the property that was the subject of Arrow's action was located in Clarke County. The trial judge denied Overstreet's motion for a change of venue.

On April 8, 1999, Arrow amended its complaint to list "DJ's Ground Maintenance" and "Ronnie Overstreet, Sr., d/b/a DJ's Ground Maintenance" as additional defendants. Shortly thereafter, Overstreet filed this petition for the writ of mandamus, asking this Court to order the trial court to transfer Arrow's lawsuit to the Clarke Circuit Court.

[*196] Standard of Review

The writ of mandamus is an extraordinary remedy, and one seeking that writ must show: "(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 Alfab, Inc., 586 So.2d 889, 891 (Ala.1991). It is also well settled that "[i]n cases involving the exercise of discretion by a lower court, a writ of mandamus may issue to compel the exercise of that discretion [but that] it may not issue to control the exercise of discretion except in a case of abuse." Ex parte Ben-Acadia, Ltd., 566 So.2d 486, 488 (Ala. 1990) (emphasis added).

Discussion

As this Court has frequently held, proper venue for an action is determined at the commencement of the action. Ex parte Mitchell, 690 So.2d 356 (Ala. 1997); Ex parte Parker, 413 So.2d 1105 (Ala.1982); Ex parte Wilson, 408 So.2d 94 (Ala.1981); see also Rule 82(d)(1), Ala. R. Civ. P. If venue is not proper at the commencement of an action, then, upon motion of the defendant, the action must be transferred to a court where venue would be proper. Parker, supra; Rule 82(d)(1), Ala. R. Civ. P.

Section 6-3-2, Ala.Code 1975, governs venue of actions against individuals. It provides that such an action must be brought in the county of the defendant's residence or "in the county in which the act or omission complained of may have been done or may have occurred." § 6-3-2(a)(3); see also Rule 82(b)(1)(A), Ala. R. Civ. P. That Code section applies to cases, such as this one, in which a plaintiff alleges conversion of property. Ex parte Sierra Dev., Inc., 652 So.2d 251 (Ala.1994). Further, in a detinue action, venue is proper in any county where the property sued for may be found in the possession of the defendant. Jones v. Norman Fountain Contractor, Inc., 435 So.2d 729 (Ala.1983).

Based on these principles, we conclude that the proper venue for Arrow's action is (1) the county of the defendant's residence; (2) "the county in which the act or omission complained of may have been done or may have occurred," § 6-3-2(a)(3), Ala.Code 1975; or (3) the county where the property that is the subject of the detinue count is located. The question, then, is whether Montgomery County falls within any of these three categories. If it does not, then it is not a proper venue. We will first address this question as it relates to Overstreet, who was the only named defendant at the time the action was filed. If Montgomery County was not a proper venue at the time Arrow filed its action, then we will address the question whether Arrow's amendment purporting to add new defendants made Montgomery County a proper venue.

Does Montgomery County fall within the first category? That is, is Montgomery County Overstreet's county of residence? It appears undisputed that Overstreet is a resident of Clarke County. In fact, Arrow's complaint states: "Defendant Ronnie Overstreet is over the age of [19 years] and a resident of Jackson, Clark[e] County, Alabama." It is clear that Montgomery County is not the county of Overstreet's residence.

Does Montgomery County fall within the second category? That is, did "the act or omission complained of" occur in Montgomery County? Arrow argues that Overstreet took the property in question from Montgomery County. It is evident, however, from Arrow's statement of facts included in its response brief (see n. 1), that such was not the case. Arrow's brief states: "The equipment [was] taken from Montgomery to construction sites in the Baldwin [County] and Mobile County area, with the understanding that Mr. Overstreet would allow the company to keep or store [it] on his farm in Jackson and [that] upon completion of the projects he[*197] would return [the equipment] to Montgomery." (Brief of Respondent at 4-5; emphasis added.) Thus, it is apparent that Arrow made no objection when the equipment was taken from its Montgomery facility, because it was being taken to south Alabama to be used there on Arrow's construction projects. Further, it appears that the equipment was stored for a period at Overstreet's farm in Clarke County with the full knowledge and consent of Arrow. It was apparently only after those projects were completed that, according to Arrow, Overstreet refused to return property that was being stored at his farm and that the dispute between Arrow and Overstreet arose. Therefore, it appears that the "act or omission" complained of took place in Clarke County, rather than Montgomery County.

Does Montgomery County fall within the third category? That is, is the property that is the subject of the detinue count located in Montgomery County? It appears undisputed that, since Arrow filed its action, the property at issue has been located in Clarke County.

Based on this analysis, we must conclude that at the commencement of Arrow's action Montgomery County was not a proper venue for that action.

Did Arrow's amendment purporting to add additional defendants after the action was filed make Montgomery County a proper venue?[2] Overstreet argues that it did not. Arrow does not argue this point in its brief.

We conclude that Overstreet is correct. In Ex parte Smith, 423 So.2d 844 (Ala. 1982), this Court held that the substitution of a party for a fictitiously named party would relate back to the date of the commencement of the action for the purpose of determining proper venue. However, this Court also held that the addition of a new party, as distinguished from the substitution of a party for a previously named fictitious party, would not relate back for purposes of determining proper venue. Arrow did list two fictitious parties in its complaint. When it amended its complaint, however, it purported to add "DJ Ground Maintenance" and "Ronnie Overstreet, Sr., d/b/a DJ's Ground Maintenance," as additional defendants; it did not purport to substitute them for the fictitiously named parties. Thus, even assuming the amendment had the effect of adding additional parties, that amendment did not relate back to the date of the filing of the complaint and did not make Montgomery County a proper venue.

Conclusion

We conclude that Overstreet has met the requirements for the issuance of the writ of mandamus. Montgomery County is not a proper venue for Arrow's action, and it was, therefore, an abuse of discretion for the trial judge to deny Overstreet's motion for a change of venue. Accordingly, we direct the trial judge to vacate his order denying Overstreet's motion for a change of venue, and we further direct the trial judge to grant the motion and transfer the underlying case to the Clarke Circuit Court.

PETITION GRANTED; WRIT ISSUED.

HOOPER, C.J., and COOK, LYONS, and JOHNSTONE, JJ., concur.

1 Because we are considering a petition for the writ of mandamus, we do not have a thorough transcript upon which to base our review of the legal arguments presented. In accordance with Rule 21(a), Ala. R.App. P., however, Overstreet's petition "contain[s] a statement of the facts [Overstreet considered] necessary to an understanding of the issues presented by the application." Further, in compliance with this Court's order of June 15, 1999, Arrow has filed a response brief, which also includes a statement of facts. This Court has considered the facts as stated by both parties.
2 Arrow alleges that the defendants it purported to add do business in Montgomery County.