In Ex parte AIG Baker Orange Beach Wharf, [Ms. 1071345] (Ala. Jan. 9, 2009), the Alabama Supreme Court held than an order transferring a case based on forum non conveniens is only proper where venue is proper in the original county. If venue is improper in the original county, then a transfer based on forum non conveniens is inappropriate, and the case would have to be sent back to the original county, even though venue is not proper there.
A group of tenants filed an action against AIG in Jefferson County. Venue, however, was not proper in Jefferson County. AIG answered, but did not object to Jefferson County as an improper venue. AIG also asserted counterclaims against some of the tenants.
The tenants then moved to transfer venue pursuant to Ala. Code 6-3-21.1(a), the forum non conveniens statute, asserting that Baldwin County would be more convenient and that the transfer would be in the interest of justice. AIG objected to the transfer, arguing that because venue was improper in Jefferson County, the forum non conveniens statute did not apply. The tenants argued that AIG waived its right to say that venue was improper in Jefferson County because it did not object to venue.
The trial court granted the motion to transfer, and ordered the case transferred to Baldwin County. The Supreme Court reversed. The Supreme Court reaffirmed the proposition that, by its terms, the non conveniens statute only applies where the action was filed in a county in which venue was appropriate. Slip Op. pp. 7-8. The Court also noted that case law indicates that the venue must be proper at the time of filing for the forum non conveniens statute to apply. Slip Op. p. 8. Thus, because it is undisputed that venue in Jefferson County was inappropriate, the forum non conveniens statute has no application and cannot support a transfer.
The Supreme Court also rejected the tenants’ argument that AIG waived the right to say that venue was improper when it failed to object to venue in its answer. The Supreme Court determined that becuase the forum non conveniens statute says that it applies only when the case is "filed in an appropriate venue," post-filing actions, such as the failure to object to venue, does not allow the statute to be invoked when it is not authorized by the legislature.
Therefore, the trial court exceeded its discretion in transferring the case, and the sent was sent back to the original, albeit improper, venue.
Justice Murdock wrote a dissenting opinion, with which Chief Justice Cobb concurred.