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Rel: 09/28/2012

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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2012 _________________________ 1110319 _________________________ Ex parte Shirley Spencer and Christy Gee PETITION FOR WRIT OF MANDAMUS (In re: Shirley Spencer and Christy Gee v. S. Boyd, Inc., et al.) (Greene Circuit Court, CV-08-900042) PARKER, Justice. Shirley Spencer and Christy Gee petition this Court for a writ of mandamus directing the Greene Circuit Court to

1110319 vacate its judgment granting the motion of K & K Excavating, LLC ("K & K"), to enforce a forum-selection clause and

transferring the petitioners' action against K & K to the Tuscaloosa Circuit Court. Facts and Procedural History On February 27, 2007, Spencer contracted with K & K for the installation of a septic system at the petitioners' house in Eutaw. The petitioners separately contracted with S. Boyd, Inc. ("Boyd"), to conduct the excavation work necessary to install the septic system. It is undisputed that the work of

installing the septic system was performed under a written agreement between Spencer and K & K ("the contract"). The

contract included a forum-selection clause, which states that "[v]enue and jurisdiction shall strictly and only be in the courts of Tuscaloosa County, Alabama." Following the installation of the septic system, the petitioners allege, they "began experiencing problems and noticing defects, incomplete work, inadequate work and other problems with their septic system and land." As a result, on

July 30, 2008, the petitioners sued K & K and Boyd, along with several fictitiously named defendants, in the Greene Circuit

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1110319 Court, alleging breach of contract; breach of express

warranty; breach of implied warranty of fitness, habitability, and merchantability; and negligence, under numerous theories. The petitioners filed an amended complaint on December 30, 2008, adding Richard Stephen Boyd, the owner of Boyd, as a defendant (Boyd and Richard Stephen Boyd are hereinafter referred to collectively as "the Boyd defendants"). On October 17, 2008, K & K answered the petitioners' complaint, asserting improper venue as a defense.

Specifically, K & K argued that the forum-selection clause in the contract was applicable to the petitioners' claims. On

the same day, K & K also initiated the discovery process by submitting its first set of interrogatories and request for the production of documents, including a request for the production of "[a]ny and all contracts and warranties [the petitioners] claim[ed] were breached by any defendant."

Extensive discovery ensued, including depositions taken by all parties and a motion to compel the petitioners to respond to K & K's interrogatories and request for the production of documents. During the discovery process, K & K also

subpoenaed nonparties.

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1110319 On July 22, 2009, the Boyd defendants answered the

petitioners' amended complaint; the Boyd defendants made no argument concerning forum. On November 4, 2010 -- more than two years after K & K had filed its answer to the petitioners' complaint, in which K & K invoked the forum-selection clause -- K & K filed its motion entitled "motion to transfer venue or, in the

alternative, motion to enforce forum selection clause" ("the transfer motion"). On January 27, 2011, following numerous pretrial

conferences, the Greene Circuit Court set the case for a trial scheduled for April 4, 2011. On February 15, 2011, the petitioners filed a response to the transfer motion arguing that K & K had waived its right to invoke the forum-selection clause as a result of K & K's failure to timely file the transfer motion. The petitioners

also argued that they would be prejudiced if their case was transferred out of the Greene Circuit Court because the case had already been set for trial and a transfer of the case would result in an unnecessary delay. The transfer motion was set for a hearing on March 23, 2011. On March 14, 2011, the

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1110319 parties filed a motion to continue the March 23, 2011, hearing on the transfer motion to allow the parties to attempt to mediate the case; this motion was also presented before the Greene Circuit Court on the day of the hearing. The parties The

also filed a motion to continue the April 4, 2011, trial. trial court granted both motions on March 29, 2011.

When mediation of the case proved unsuccessful, the Greene Circuit Court ordered another pretrial conference to be held on August 25, 2011. On August 23, 2011, K & K filed a

reply brief in support of the transfer motion; the petitioners responded. At the August 25, 2011, pretrial conference, the

Greene Circuit Court heard oral argument on the transfer motion. On August 31, 2011, the Boyd defendants filed a On October 30, 2011, the

motion to join the transfer motion.

Greene Circuit Court entered an order granting the transfer motion as to K & K and severing the petitioners' claims against K & K from those asserted against the Boyd defendants; the Greene Circuit Court denied the transfer motion as to the Boyd defendants. On November 17, 2011, Mr. Boyd filed a "suggestion of bankruptcy" in the Greene Circuit Court, which stated:

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1110319 "COMES NOW the Defendant, Richard Stephen Boyd ('Boyd'), and suggests the filing of a Petition for Relief pursuant to Chapter 13 in the United States Bankruptcy Court for the Northern District of Alabama. The Chapter 13 Petition was filed on or about September 9, 2011 .... Boyd further suggests that this action has been stayed by operation of Title 11 U.S.C.

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