author: HOUSTON, Justice.

text:
    ALABAMA DEPARTMENT OF TRANSPORTATION v. Phillip Earl PRICE.
    1012132.
    Supreme Court of Alabama.
    Jan. 24, 2003.
    See also 202 F.3d 1303, 207 F.3d 1288, 251 F.3d 1350.

      William H. Pryor, Jr., atty. gen., and Jim R. Ippolito, Jr., asst. atty. gen. and chief counsel, Alabama Department of Transportation; and Susan S. Wagner and Frances Heidt of Berkowitz, Lefkovits, Isom & Kushner, P.C., Birmingham, for appellant.
    J. Victor Price, Tallassee, for appellee.
   HOUSTON, Justice.

The Alabama Department of Transportation (“ALDOT”) appeals the Montgomery Circuit Court’s issuance of a writ of mandamus ordering the appointment of a hearing officer to hear a formal grievance filed against ALDOT by Phillip Earl Price, an ALDOT employee. ALDOT contends that the claim raised in Price’s grievance has already been adjudicated through a settlement reached in federal court. We agree, and we reverse and remand.

I. Facts

The background for this case is Reynolds v. Roberts, No. 85-00665-CV-T-N, a class-action race-discrimination case that has been pending in the United States District Court for the Middle District of Alabama since 1985. The plaintiffs in Reynolds, who are black, allege that the defendants in that case, including ALDOT, discriminated against them in their employment. Reynolds v. Roberts, 202 F.3d 1303, 1306 (11th Cir.2000)(“Reynolds I”). The district court had certified three plaintiff classes of African-Americans. 202 F.3d at 1306. In November 1993, the parties reached a partial settlement of the case and presented a proposed consent decree to the court. 202 F.3d at 1307.

The proposed consent decree provided for broad classwide relief, but left for subsequent trial monetary and nonmonetary claims of individual class members. Reynolds I, 202 F.3d at 1307. It required sweeping changes in ALDOT’s hiring and promotion policies, including changing the procedures for the appointment of employees in various job classifications and an ambitious set of race-conscious hiring and promotional quotas. Id.

In January 1994, before the scheduled fairness hearing, a group of nonblack AL-DOT employees (the “Adams intervenors”) moved to intervene on behalf of themselves and all ALDOT employees who were not part of the plaintiff classes. Reynolds I, 202 F.3d at 1307. The Adams intervenors filed objections to certain race-conscious provisions of the consent decree, such as the quota requirement for all AL-DOT job classifications, claiming that those provisions would adversely affect their interests and would discriminate against them on the basis of race. The district court granted the motion to intervene in February 1994, see Reynolds v. Roberts, 846 F.Supp. 948, 954 (M.D.Ala.1994), and subsequently certified the Adams intervenors as a class. Reynolds I, 202 F.3d at 1307. See also Reynolds v. Roberts, 207 F.3d 1288, 1293 (11th Cir. 2000) (“Reynolds II ”). Phillip Earl Price is a member of the Adams intervenor class.

Because of objections to the proposed consent decree, the parties divided the proposed consent decree into three decrees — Consent Decree I, Consent Decree II, and Consent Decree III. Reynolds II, 207 F.3d at 1293. “Consent Decree I contained the provisions that all sides agreed provided only race-neutral prospective relief. Consent Decrees II and III contained provisions that were acceptable to the plaintiffs and [ALDOT], but opposed as race-conscious by the Adams [i]nterve-nors.” 207 F.3d at 1293. In March 1994, following a fairness hearing, the district court approved and adopted Consent Decree I. Id.

Among other things, Consent Decree I required ALDOT to develop a grievance procedure for its employees. Reynolds II, 207 F.3d at 1294. ALDOT developed the grievance procedure required by Consent Decree I, and the federal district court approved the procedure on August 9, 1995. Jd Price’s grievance was filed pursuant to this grievance procedure.

The grievance procedure was developed to address, among other things, claims by-individual employees that the majority of their working time was spent performing the duties and responsibilities of a higher job classification and that they were thus entitled to reclassification and a salary increase pursuant to Consent Decree I. Reynolds II, 207 F.3d at 1294.

On December 13, 1996, Price filed a grievance alleging that he was performing out-of-classification duties and seeking back pay and/or a provisional appointment to the higher classification, the work of which he says he was performing. By that time, more than 100 such grievances had been filed by black and white ALDOT employees.

In late 1996, ALDOT attempted to resolve grievances filed by three other white employees. Reynolds II, 207 F.3d at 1295. On February 27, 1997, however, the federal district court issued a temporary restraining order, at the request of the black plaintiff classes, enjoining ALDOT from implementing the grievance resolutions for the three white employees. 207 F.3d at 1296. On March 28, 1997, the black plaintiff classes sought an additional preliminary injunction (which the district court treated as a request for a permanent injunction) to prohibit ALDOT from processing any grievances by nonblack employees. Id. at 1296-97.

On March 3, 1998, the federal district court denied the permanent injunction, but instead issued a judgment declaring that ALDOT’s implementation of the grievance resolutions for use by the three white grievants would violate Consent Decree I. Reynolds II, 207 F.3d at 1297. The non-black Adams intervenor class, of which Price is a member, appealed the March 3 order to the United States Court of Appeals for the Eleventh Circuit. Id. Two years later, on March 29, 2000, the Eleventh Circuit vacated the district court’s March 3,1998, order, ruling that the grievance procedure was race-neutral and that it could be used by nonblack employees. Reynolds II, 207 F.3d at 1298,1301.

In April 2001,' the parties presented to the federal district court a settlement agreement for the Adams intervenor class. The settlement agreement recited that the defendants (including ALDOT) were paying $1.45 million “in settlement of ... [a]ll of the individual grievances seeking back-pay or promotions, as listed in [Exhibit] A hereto.” It further provided that “all grievances seeking backpay or promotions, as listed on Exhibit A, shall be dismissed.” Exhibit A to the settlement agreement is a list of the 290 pending grievances filed by members of the Adams intervenor class. Price’s grievance is included on this list of grievances that have been dismissed.

After a fairness hearing and the revision of the settlement agreement, the federal district court issued an order finally approving the settlement agreement on September 26, 2001. The settlement agreement and the order did not permit members of the Adams intervenors to opt out of the settlement.

Price filed a motion in the federal district court in March 2002 to set aside the settlement. That motion was denied without prejudice by agreement of the parties, and no appeal was taken either from the approval of the settlement or from the denial of Price’s motion to set aside the settlement.

Price filed the petition for the writ of mandamus in the present case in the Montgomery Circuit Court on January 15, 1998, before the settlement was reached with Price’s class. Price sought a writ of mandamus directing ALDOT to appoint a hearing officer to hear Price’s December 1996 grievance. At the time Price filed the petition, ALDOT had been enjoined from implementing its three settlements with white grievants. The -plaintiff classes were then seeking to enjoin the use of the grievance process by any nonblack employee. Shortly after Price filed this petition, the federal district court issued its declaratory judgment prohibiting use of the grievance process by nonblack employees.

ALDOT removed this case to the federal district court. The district court remanded the case, however, on the grounds (a) that Price “seeks to invoke only state-law issues” and (b) that the United States Court of Appeals for the Eleventh Circuit had held in Reynolds II that the grievance procedure under Consent Decree I did not “implicate federal law concerns.” Thereafter, Price’s grievance was settled through the court-approved settlement agreement.

As a result of the settlement of the very claims on which Price’s grievance was based, ALDOT’s answer to the petition argued that Price’s petition was due to be dismissed on grounds of res judicata and mootness. A nonjury trial was conducted on May 20, 2002. On July 3, 2002, the Montgomery Circuit Court entered an order granting the petition and requiring ALDOT “to take any and all necessary steps to have Price’s grievance proceed to and through the final step of the grievance procedure.” Although recognizing that the “evidence before the Court as to the partial settlement in the Reynolds case is undisputed,” the order did not address the res judicata effect of the settlement. This appeal is from the July 3, 2002, order.

II. Standard of Review

A trial court should issue a writ of mandamus only upon a proper showing that there is “(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 Integon Corp., 672 So.2d 497, 499 (Ala.1995). Price has no clear legal right to a hearing on his grievance if that hearing is barred by the doctrine of res judicata. Because a trial court’s ruling-on an issue involving res judicata is a pure question of law, we review that ruling de novo. Walker v. Blackwell, 800 So.2d 582, 587 (Ala.2001).

III. Analysis

The doctrine of res judicata will apply to bar a court from considering a claim when the following four elements are present: “(1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both actions.” Equity Res. Mgmt., Inc. v. Vinson, 723 So.2d 634, 636 (Ala.1998). We find each element to be clearly met in this case.

A. A Prior Judgment on the Merits

We have recently held that a class-action settlement can serve as a prior judgment on the merits for res judicata purposes. Providian Nat’l Bank v. Pritchett, 846 So.2d 1072 (Ala.2002)(citing Martin v. Drummond Co., 663 So.2d 937, 947 (Ala.1995)). Accordingly, the federal district court’s September 26, 2001, order approving the settlement of 290 pending grievances—including Price’s— satisfies this element.

Price contends that. he did not receive notice of the settlement until after it was approved. However, this is an argument to be raised, if at all, before the federal district court that approved the settlement and, if necessary, before a federal appellate court.

B. A Judgment Rendered by a Court of Competent Jurisdiction

Although it is not completely clear from his brief, Price appears to argue that the federal district court “evidenced” its lack of jurisdiction to settle his grievance by remanding his petition for a writ'of mandamus to the state court. However, this argument is clearly without merit. The federal district court certainly had jurisdiction to approve the class-action settlement, and its remand of Price’s petition, as stated above, demonstrates nothing other than the district court’s acknowledgment that the administration of the grievance procedure itself was a state issue.

C. Substantial Identity of the Parties The parties in both actions are identical.

D.Same Cause of Action

Price’s dismissed grievance is the same grievance he asserts as the basis for his petition for a writ of mandamus filed in the state court.

IV. Conclusion

Because each of the elements required for the application of the doctrine of res judicata are present, Price is barred from pursuing an additional hearing of his grievance. Consequently, Price had no clear legal right to the writ of mandamus, and the trial court erred in issuing the writ. We reverse the trial court’s judgment issuing the writ and remand the case for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

MOORE, C.J., and LYONS, JOHNSTONE, and WOODALL, JJ., concur.

      . The specifics of the Reynolds case are thoroughly discussed in Reynolds v. Roberts, 251 F.3d 1350 (11th Cir.2001), Reynolds v. Roberts, 207 F.3d 1288 (11th Cir.2000), and Reynolds v. Roberts, 202 F.3d 1303 (11th Cir.2000).

      . Even assuming Price's contention is true, however, it is doubtful that the lack of notice affected Price’s ability to pursue his grievance, because the settlement agreement did not provide for opt-outs. Additionally, the fact that the settlement agreement did not allow Price to opt out of the settlement does not alter the res judicata effect of the settlement, because the right to opt out would have been necessary only with regard to class members who "do not have such contacts with the forum state as would support an exercise of in personam jurisdiction over a defendant.” Martin, 663 So.2d at 941 (construing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985)); see also Adams v. Robertson, 676 So.2d 1265 (Ala.1995).

      . In fact. Price strangely contends that because ALDOT did not appeal the federal district court's order remanding his case (something it could not have done, see 28 U.S.C. § 1447(d)), the remand order is itself a "prior judgment on the merits” and, through the doctrine of res judicata, bars ALDOT from arguing that the Montgomery Circuit Court cannot hear Price’s claims. That argument is completely without merit.


source: Caselaw Access Project

author: JOHNSTONE, Justice. HOUSTON, Justice

license: Public Domain

text:
    Ex parte GOODYEAR TIRE & RUBBER COMPANY. (In re Goodyear Tire & Rubber Company v. David Rowland).
    1012180.
    Supreme Court of Alabama.
    Jan. 24, 2003.

      Howard B. Warren and Jason E. Knowles of Turnbach & Warren, P.C., Gadsden, for petitioner.
    Jack W. Torbert of Torbert & Torbert, P.A., Gadsden, for respondent.
   JOHNSTONE, Justice.

WRIT DENIED. NO OPINION.

MOORE, C.J., and LYONS and WOODALL, JJ., concur.

HOUSTON, J., concurs specially.

HOUSTON, Justice

(concurring specially).

I concur. This Court does not have jurisdiction to decide whether David Rowland was receiving disability benefits from Goodyear Tire & Rubber Company, which Goodyear could then offset against Rowland’s workers’ compensation benefits. See Etheredge v. Genie Indus., Inc., 632 So.2d 1324, 1325 (Ala.1994); Horton v. Horton, 822 So.2d 431, 434 (Ala.Civ.App.2001); Rule 39(a)(1) and (d)(5)(c), Ala. R.App. P.


author: STUART, Justice.

text:
    The NATIONAL AUCTION GROUP, INC. v. Donald D. HAMMETT.
    1012145.
    Supreme Court of Alabama.
    Jan. 31, 2003.

      E. Britton Monroe and Preston B. Davis of Lloyd, Gray & Whitehead, P.C., Birmingham, for appellant.
    Michael L. Jackson and Michael J. Ve-lezis of Wallace, Jordan, Ratliff & Brandt, L.L.C., Birmingham, for appellee.
   STUART, Justice.

The National Auction Group, Inc., is a defendant in an action filed by Donald D. Hammett in the Etowah Circuit Court. National Auction Group appeals from the denial of its motion to compel arbitration. We affirm.

Background

In September 2000, National Auction Group and Ralph Pinson, as president of Grande Ventures Development Co., L.L.C., entered into an “Exclusive Right to Sell Listing Agreement for Real Estate” (hereinafter referred to as the “fisting agreement”). The fisting agreement gave National Auction Group the exclusive right to sell numerous condominium units at the Perdido Grande Condominiums in Orange Beach, Alabama, which units were purportedly owned by Grande Ventures. National Auction Group was to sell the condominiums by absolute auction to be held on December 9, 2000.

Attached to the listing agreement was a separate arbitration agreement; that arbitration agreement provided, in pertinent part:

“1. AGREEMENT. Any dispute(s) pertaining to legal controversies and other matters and questions arising out of or relating to the auction made the subject of this agreement by The National Auction Group, Inc., an Alabama corporation, hereinafter referred to as ‘NAG,’ and the Seller, including but not limited to, the terms of this agreement, representation^], promises, undertakings or covenants made relating to the agreement or any amendments or other documents or legal agreements executed in conjunction with the auction agreement, services provided under the auction agreement, and the validity and construction of this arbitration provision not resolved within Thirty (30) days, shall be resolved solely and exclusively by arbitration in accordance with the commercial rules of [the] America[n] Arbitration Association. The parties agree to be bound by the result as their SOLE remedy.
“2. SCOPE. Arbitration shall apply to ANY dispute between the parties concerning questions of law or fact or both arising out of or relating to this agreement, its performance, or its alleged breach, which is not disposed of by agreement of the parties within Thirty (30) days.”

Ralph Pinson, as president of Grande Ventures, and National Auction Group were the only parties to the listing agreement; those same parties also executed the arbitration agreement.

National Auction Group conducted the auction as scheduled on December 9, 2000. Hammett’s bid was the highest bid for condominium unit 302; the owner of that condominium unit had the use of boat slip 48. Hammett and Ralph Pinson and Julie Pinson (Ralph Pinson and Julie Pinson are hereinafter sometimes referred to as “the Pinsons”) entered into, on that same date, a “Real Estate Purchase and Sale Agreement” (hereinafter referred to as “the purchase agreement”). Pursuant to the terms of the purchase agreement, the Pinsons were to convey to Hammett by warranty deed condominium unit 302 for the sum of $253,600. As required by the purchase agreement, Hammett deposited with the escrow agent the amount of $25,360, representing 10% of the total purchase price.

The purchase agreement expressly mentioned National Auction Group and acknowledged that National Auction Group was involved in the transaction. (After expressly referring to National Auction Group by its full name, the purchase agreement then referred to National Auction Group as the “Auction Company.”) The purchase agreement provided that, in the event Hammett defaulted, National Auction Group would be entitled to retain 50 percent of Hammett’s deposit. The purchase agreement further provided:

“DISCLAIMER AS TO [NATIONAL AUCTION GROUP]: Buyer shall look only to Seller as to all matters regarding this Agreement and the Property. The [National Auction Group] shall not be responsible or liable in any way (i) if Seller fails or refuses to or cannot close title hereunder or (ii) if the Property is affected in any way, is in need of attention or repairs or is in any other way unsatisfactory to Buyer as Buyer may determine before or after closing.”

(Capitalization in original.) Only the Pin-sons and Hammett signed the purchase agreement; National Auction Group was not a signatory to the purchase agreement.

On October 24, 2001, Hammett sued the Pinsons and National Auction Group. Hammett alleged in his complaint that, after entering into the purchase agreement, he learned that the Pinsons did not own unit 302 in the Perdido Grande Condominiums. He alleged that the true owner of unit 302 had no connection with the Pinsons and that the Pinsons had no authority to include unit 302 in the auction conducted on December 9, 2000. Hammett also alleged that both the Pinsons and National Auction Group knew or should have known before December 9, 2000, the date Hammett placed his bid on the condominium and entered into the purchase agreement, that the Pinsons did not own unit 302.

In his complaint, Hammett alleged that the Pinsons were liable on theories of fraud, suppression, conspiracy, and breach of the purchase agreement. Against National Auction Group, Hammett alleged breach of the purchase agreement, fraud, suppression, negligence, deceit, and conspiracy. A default judgment was entered against the Pinsons; the trial court awarded Hammett $134,114.55 in compensatory damages.

In answer to Hammett’s complaint, National Auction Group filed a “Motion to Stay Proceedings and to Compel Arbitration,” asserting that Hammett was bound by the arbitration agreement signed by National Auction Group in conjunction with the listing agreement. The trial court denied that motion.

National Auction Group appeals, making the following claims:

I. That Hammett’s claims against National Auction Group can be based only upon his status as a third-party beneficiary to the listing agreement between National Auction Group and Ralph Pinson, which contained the arbitration agreement.
II. That the Federal Arbitration Act mandates the enforcement of the arbitration agreement attached to the listing agreement because, it says, the agreement is in writing and evidences a transaction involving commerce.

Standard of Review

A direct appeal is the appropriate manner in which to seek review of a trial court’s order granting or denying a motion to compel arbitration. See Rule 4(d), Ala. R.App. P.; Credit Sales, Inc. v. Crimm, 815 So.2d 540, 544 (Ala.2001); Equifirst Corp. v. Ware, 808 So.2d 1, 4 (Ala.2001). On appeal, this Court’s review of a trial court’s denial of a motion to compel arbitration is de novo. Equifirst Corp., 808 So.2d at 4.

Analysis

As the party seeking to compel arbitration, National Auction Group has the initial burden of proving the existence of a contract calling for arbitration of the claims of the plaintiff, who, in this case, is a nonsignatory to the contract that includes the arbitration agreement. This burden is imposed upon the party seeking to compel arbitration because “ ‘ “a party cannot be required to submit to arbitration any dispute he has not agreed to sub-mit.” ’ ” Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524, 526 (Ala.2001) (quoting Old Republic Ins. Co. v. Lanier, 644 So.2d 1258, 1260 (Ala.1994), quoting in turn AG. Edwards & Sons, Inc. v. Clark, 558 So.2d 858, 362 (Ala.1990)).

National Auction Group argues that although Hammett is not a signatory to the listing agreement — the only contract containing an arbitration agreement — he should be required to arbitrate his claims. National Auction Group argues that because the listing agreement is the only contract to which National Auction Group is a party, and because Hammett’s complaint alleges a breach-of-contract claim, Hammett must be suing National Auction Group in his capacity as a third-party beneficiary of the listing agreement. National Auction Group argues that, therefore, Hammett should be compelled to arbitrate his dispute, because:

“[Hammett’s] breach of contract claim against [National Auction Group] can only be based upon his status as a third-party beneficiary of the Listing Agreement. All of [Hammett’s] other claims against [National Auction Group] also arise from, and cannot be proven without reference to, the Listing Agreement. Moreover, the Listing Agreement was the only contract in effect at the time of the events giving rise to the allegations in [Hammett’s] Complaint.”

(National Auction Group’s Brief, at 11.)

However, Hammett responds that his claims against National Auction Group are not based upon the listing agreement or upon any other contract containing an arbitration agreement. Hammett asserts that his claims arise out of representations made to him concerning the title to unit 302 and arise out of the alleged breach of the purchase agreement. Hammett points out that his complaint does not reference the listing agreement but instead expressly identifies the purchase agreement as the “agreement” made the basis of his complaint and thereby the basis of his breach-of-contract claim.

Our review of the complaint indicates that Hammett is not attempting to “accept the benefits of the Listing Agreement without being bound by all of its terms,” as National Auction Group alleges. (National Auction Group’s Brief, at 11.) See, e.g., Equifirst Corp. v. Ware, supra (the fact that the daughter lived in the mobile home with her mother did not automatically transform the daughter into a third-party beneficiary of the mortgage agreement; the daughter’s tort claims did not seek to enforce any part of the mortgage agreement); Cook’s Pest Control, Inc. v. Boykin, supra (a hospital patient was not a third-party beneficiary of a contract between the hospital and a pest-control company, and the patient was not subject to an arbitration provision contained in that contract where the patient’s negligence claims were independent of the contractual obligations of the hospital and the pest-control company, the patient removed all claims from her complaint that depended upon the contract between the hospital and the pest-control company, and the arbitration provision contained in that contract encompassed only the hospital and the pest-control company). Hammett’s complaint attempts to state claims based only upon National Auction Group’s advertisement of the property to be auctioned, the events surrounding the December 9, 2000, auction, and the relationships and contracts resulting from Hammett’s bid at the auction. Further, the listing agreement is not referenced in the complaint. In fact, the complaint specifically identifies the purchase agreement as the contract made the basis of Hammett’s breach-of-contract claim.

We cannot assume, as National Auction Group urges, that simply because National Auction Group is a signatory to the listing agreement but not to the purchase agreement, Hammett must be suing National Auction Group for an alleged breach of the listing agreement. This is particularly true when Hammett’s complaint expressly states that his breach-of-contract claim is based upon an alleged breach of the purchase agreement, not upon an alleged breach of the listing agreement. Because a plaintiff is in control of his or her complaint, we accept Hammett’s allegations on their face.

We express no opinion on the merits of Hammett’s theory of liability against National Auction Group or the effect of the disclaimer contained in the purchase agreement on Hammett’s right to sue National Auction Group. If the trial court determines that Hammett’s breach-of-contract claim against National Auction Group lacks merit, that claim will be subject to dismissal. However, that issue is not now before us. The only issue before us is whether the trial court properly denied National Auction Group’s motion to compel arbitration. We conclude that National Auction Group’s motion to compel arbitration was properly denied because National Auction Group has failed to establish the existence of any contract by which Hammett agreed to submit to arbitration a dispute with National Auction Group arising out of the auction and sale of unit 802.

The narrow scope of the arbitration agreement attached to the listing agreement also serves as an independent basis for affirming the trial court’s order denying National Auction Group’s motion to compel arbitration. The application of that arbitration agreement is limited to disputes between the parties to the listing agreement concerning questions of law or fact, or both, arising out of or relating to the fisting agreement, the parties’ performance under that agreement, or an alleged breach of that agreement. As we held in Cook’s Pest Control, Inc., supra, the signatory to the arbitration agreement (National Auction Group) is attempting to enforce the arbitration agreement beyond its scope. As Hammett correctly argues, National Auction Group’s motion to compel arbitration fails for this reason as well. See Cook’s Pest Control, 807 So.2d at 527, citing Smith v. Equifax Servs., Inc., 537 So.2d 463, 465 (Ala.1988).

Conclusion

We affirm the trial court’s denial of National Auction Group’s motion to compel arbitration.

AFFIRMED.

MOORE, C.J., and SEE, BROWN, and HARWOOD, JJ., concur.

      . An absolute auction is "[a]n auction in which the property will be sold to the highest bidder, no minimum price will limit bidding, the owner may not withdraw property after the first bid is received, the owner may not reject any bids, and the owner may not nullify the bidding by outbidding all other bidders.” Black’s Law Dictionary 125-26 (7th ed.1999).

      . Count IV of the complaint alleges that National Auction Group breached the purchase agreement. The complaint does not specify exactly how National Auction Group might have breached that agreement, to which it was not a signatory. However, the complaint alleges that National Auction Group advertised unit 302 and boat slip 48 as being for sale to the highest bidder; that National Auction Group knew or should have known that the Pinsons did not own unit 302; and that National Auction Group held itself out as the agent of the sellers of unit 302, who National Auction Group represented were the Pinsons. . The complaint also alleges that National Auction Group failed to honor the purchase agreement.

      . Count V alleges that National Auction Group misrepresented that unit 302 was to be sold to the highest bidder and that the Pin-sons owned unit 302.

      . Count VI alleges that National Auction Group suppressed from Hammett the fact that the Pinsons did not own unit 302.

      . Count VII alleges that National Auction Group negligently failed to perform a title search and/or to obtain proper title information for the condominium units it was auctioning.

      . Count IX alleges that National Auction Group and the Pinsons conspired to damage the potential purchasers at the auction by misrepresenting to, or suppressing from, them material facts.

      . Neither the Pinsons nor the judgment entered against them are involved in this appeal.

      . Hammett contends that the basis for his breach-of-contract claim against National Auction Group is that National Auction Group, although not a party to the purchase agreement, was a third-party beneficiary of that agreement. Therefore, Hammett argues, National Auction Group may be subject to liability for the Pinsons' default under that agreement.


author: HARWOOD, Justice.

text:
    Ex parte FONTAINE TRAILER COMPANY and Ex parte International Truck and Engine Corporation. (In re Angela Taylor, on behalf of and as next friend and mother of Freddie Curry, Jr., a minor; et al. v. Charles Thomas Parker, individually; et al.).
    1011767 and 1011814.
    Supreme Court of Alabama.
    Jan. 31, 2003.

      Andrew B. Johnson and Jeffrey M. Anderson of Bradley Arant Rose & White, LLP, Birmingham; and Charles A. Stewart III of Bradley Arant Rose & White, LLP, Montgomery, for petitioner Fontaine Trailer Company.
    De Martenson, James R. Shaw, and David L. Brown of Huie, Fernambucq & Stewart, LLP, Birmingham, for petitioner International Truck and Engine Corporation.
    Benjamin E. Baker, Jr., of Beasley, Allen, Crow, Methvin, Portis & Miles, P.C., Montgomery, for respondent Angela Taylor.
   HARWOOD, Justice.

The petitioners, Fontaine Trader Company (“Fontaine”) and International Truck and Engine Corporation (“International”), defendants in an action pending in the Wilcox Circuit Court, seek a writ of mandamus from this Court .ordering the trial court to transfer the underlying case to the Winston Circuit Court. The background of the case, and the parties and claims involved in it, are as follows.

On February 22, 2001, Freddie Curry (“Curry”) was killed in a vehicular collision that occurred in Orange County, Texas. At the time of his death he was a resident of Wilcox County, Alabama, and was driving a tractor-trailer truck for his employer, Hornady Truck Line, Inc. (“Hornady”), an Alabama corporation. Hornady was the owner of the tractor-trailer unit. The other vehicle involved in the collision was another tractor-trailer truck operated by Charles Thomas Parker (“Parker”), who was likewise an employee of Hornady. International had manufactured the truck-tractor driven by Curry, and Fontaine had manufactured the trailer component. On July 2, 2001, an action was filed in the Wilcox Circuit Court “pursuant to the Wrongful Death Statute and the Survival Statute of Texas.” The plaintiffs were Angela Taylor, suing on behalf of her and Curry’s son, Freddie Curry, Jr., a minor; Kimberly Murphy, suing individually as Curry’s daughter and also as the proposed administratrix of his estate; and Richard Curry, suing as Curry’s father. Freddie Curry, Jr., was a resident of Butler County, Alabama, but Murphy and Richard Curry are residents of Wilcox County. The defendants were Parker, Hornady, International, and Fontaine. Parker is a resident of Georgia; Hornady is an Alabama corporation, with its home office located in Monroeville, Alabama; International is a Delaware corporation having its principal place of business in Illinois; and Fontaine is also a Delaware corporation, but its principal place of business is in Haleyville in Winston County, Alabama. The plaintiffs asserted various claims of negligence and wantonness against Parker and Hor-nady and product-liability claims against International and Fontaine. The plaintiffs also made a claim on behalf of Freddie Curry, Jr., against “the defendants” for workers’ compensation benefits. That latter claim was subsequently focused so as to target only Hornady. Although International and Fontaine initially challenged the “standing” of the plaintiffs other than Angela Taylor to bring claims against them under Texas law, that issue is not presented in their petitions to this Court. Rather, they seek relief pursuant only to that aspect of their respective change-of-venue motions filed in the trial court seeking a transfer of the action from the Wilcox Circuit Court to the Winston Circuit Court, where Fontaine had its principal place of business. They contend that venue is improper as to them in Wilcox County under the controlling venue statute, § 6-3-7, Ala.Code 1975. Subsection (a) of that Code section provides as follows:

“(a) All civil actions against corporations may be brought in any of the following counties:
• “(1) In the county in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of real property that is the subject of the actions is situated; or
“(2) In the county of the corporation’s principal office in this state; or
“(3) In the county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiffs residence; or
“(4) if subdivisions (1), (2), or (3) do not apply, in any county in which the corporation was doing business by agent at the time of the accrual of the cause of action.”

in their petitions for a writ of mandamus, International and Fontaine argue that subsection (a)(1) would not apply, because the vehicular collision and Curry’s resulting death occurred in Texas; that (a)(2) would apply as to Fontaine, but would make -venue proper only in Winston County; that (a)(3) would not apply to either International or Fontaine because neither does business by agent in Wilcox County; and that (a)(4) would not apply because neither was doing business by agent in Wilcox County at the time of the accrual of the cause of action. They both moved the trial court to transfer the case to Winston County.

Hornady and Parker filed with the trial court a motion to dismiss, asserting that the, Alabama Workers’ Compensation Act provided the exclusive remedy as to them, and stating generally “[tjhese Defendants also contend that venue in Wilcox County is improper.” No explanatory averment was made and, in particular, there was no assertion that Hornady did not do business in Wilcox County. Initially, by order of October 10, 2001, the trial judge granted the motion as to Hornady and denied it as to Parker, but he subsequently vacated that order and “reinstated” the tort claims asserted against Hornady under theories of negligence, willfulness, recklessness, and wantonness; vicarious liability and negligent entrustment; negligent maintenance and repair; and negligent supervision, hiring, and' training. Hornady remains a defendant in the case. On April 5, 2002, Hornady petitioned this Court for a writ of mandamus directing the trial court to grant its motion to dismiss, asserting as- its sole ground the exclusivity-of-remedy rule of the Alabama Workers’ Compensation Act. No issue of venue was raised by that petition. It was denied on May 9, 2002, without an opinion, (No. 1011318), and Hornady’s motion for reconsideration was denied on June 27, 2002, again without an opinion. Hornady has not joined in the present petitions for writs of mandamus filed by International and Fontaine.

“The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.” Ex parte Finance America Corp., 507 So.2d 458, 460 (Ala.1987). “ ‘The burden of proof on factual issues in a venue dispute is upon the party or' parties challenging venue in the forum.’ Ex parte Wiginton, 743 So.2d 1071, 1074 (Ala. 1999).” Ex parte Jim Burke Auto., Inc., 776 So.2d 118, 121 (Ala.2000). As noted earlier, a petitioner for a writ of mandamus is obliged to provide with the petition “copies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the petition.” Rule 21(a), Ala. R.App. P. In the event the petition is not denied, the respondent is directed to file an answer to the petition, which provides the respondent with an “opportunity to supplement the ‘record’ by attaching exhibits of its own.... ” Ex parte Miltope Corp., 522 So.2d 272, 273 (Ala.1988). In considering a mandamus petition relating to a ruling on a motion for a change of venue, “[o]ur review is ... limited to those facts that were before the trial court.” Ex parte National Sec. Ins. Co., 727 So.2d 788, 789 (Ala.1998). See also Ex parte American Res. Ins. Co., 663 So.2d 932 (Ala.1995), and Ex parte Moore, 642 So.2d 457 (Ala.1994). Although in Ex parte Miltope Corp., supra, the phrase quoted above continued- on to say that the supplementing exhibits filed by the respondent “should ordinarily include only matters submitted to the trial court,” 522 So.2d at 273 (emphasis supplied), the circumstances of that case were sufficiently unique so as to warrant a partial suspension of the rule to allow the respondent to submit to this Court affidavits that had not been before the trial court at the time of its ruling. Specifically, in that case “the trial court ruled in [the respondents’] favor before the time set for hearing on the motion for change of venue, and before [the respondent] submitted its evidence in opposition, thus obviating the necessity for [the respondent] to submit any such evidence.” 522 So.2d at 273. In the present case, no party was “cut off’ from placing pertinent matters before the trial court; we, therefore, adhere to the rule that we will consider only those facts that were before the trial court at the time it made its ruling.

The trial court actually entered five successive rulings: As already noted, on October 10, 2001, it granted Hornady’s dismissal motion while denying Parker’s motion. On November 20, 2001, it denied the motions of International and Fontaine for a dismissal, a change of venue, and/or severance. In that order the court took the position that “under Rule 82 of the Ala. R. Civ. Pro., venue that is proper as to one defendant is proper as to all defendants” and concluded that, venue being proper as to Hornady (and Parker who was then still in the case), venue in Wilcox County was proper as to all defendants. The court noted that the plaintiffs claimed that Hor-nady “does business by agent in Wilcox County,” which would satisfy venue as to it pursuant to § 6-3-7(a)(3) and that “[t]he Defendants have presented no evidence to establish that Hornady Truck Line, Inc., does not do business in Wilcox County.” Noting that the party challenging venue has the burden of showing that venue in the forum was improper, the court concluded that “the defendants have failed to meet their burden in this regard,” finding, as a result, that “venue is proper in Wilcox County as to Defendant Hornady Truck Line, Inc.” On December 26, 2001, however, the court entered an order vacating the November 20, 2001, order, noting that the parties had represented to it that they “would have taken the deposition of Charles Parker and firmed up the facts relative to the Court’s in personam jurisdiction over him on January 30, 2002.” The court set the matter for final argument on January 31, 2002. On February 12, 2002, the court vacated its October 10, 2001, order granting Hornady’s motion to dismiss and reinstated certain tort claims asserted against Hornady. Finally, on May 10, 2002, the court entered an order denying “[t]he Defendants’ motions to dismiss, motions to change venue, and motions to sever,” but ordering separate trials on the tort claims and on the workers’ compensation claims.

With respect to the facts we will consider in reviewing these petitions, it is appropriate to note the following: In support of their position that venue is proper in Wilcox County, the plaintiffs seek to have us consider a deposition taken of International’s “product integrity engineer,” on July 12, 2002; some materials retrieved from International’s Internet Web site on July 26, 2002; and an invoice from Earnest Boyd d/b/a Pine Hill Supply, in Pine Hill, Wilcox County, Alabama, bearing a logo reading “International Parts & Service-Associate Dealer.” In its brief in response to the plaintiffs’ answer to its petition, International submits as exhibits an affidavit from Ernest Boyd and a “second” deposition of Parker taken August 8, 2002. An earlier deposition of Parker, taken January 9, 2002, is already a part of the materials submitted as exhibits to International’s petition.

With the exception of the Pine Hill Supply invoice, the dates of those new submissions all show on their face that they were not generated until after the trial court’s last order, dated May 10, 2002 (entered by the court clerk on May 17, 2002). The Pine Hill Supply invoice was never presented to the trial court, as far as any of the materials submitted to us suggest, and the plaintiffs do not so suggest. Thus, we disregard all of these “after-the-fact” materials in our analysis of the petitions for writs of mandamus.

In its submissions to the trial court, International contended that “none of the corporate Defendants do business by agent in Wilcox County.” Fontaine likewise asserted that neither it nor International did business by agent or otherwise in Wilcox County and that “even if the court were to consider Hornady Truck Line as a proper defendant, upon information and belief, Hornady does not do business by agent within Wilcox County, Alabama, either.” Although International and Fontaine carried their initial burden of showing that they did not do business in Wilcox County, by properly submitted affidavits to that effect, as far as we can tell from the materials before us no proof was ever offered concerning whether Hornady did or did not do business in Wilcox County. As noted, Hornady itself made an initial, naked assertion in its motion to dismiss that venue in Wilcox County was improper, but it never specifically asserted that it did not do business in Wilcox County. Furthermore, Hornady apparently abandoned its venue challenge after its motion to dismiss was denied by the trial court and this Court denied its petition for a writ of mandamus. International states in a footnote to its “reply” brief that “[n]o evidence was shown at the trial court level that the Defendant, Hornady Truck Line, did business by agent in Wilcox County.” However, it may be equally stated that “no evidence was shown at the trial court level that Defendant, Hornady Truck Line, did not do business by agent in Wilcox County.” The burden of proof in that regard being upon International and Fontaine, our review must proceed upon the assumption that venue was proper as to Hornady in Wilcox County.

The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is by way of a petition for a writ of mandamus. Ex parte Alabama Great Southern R.R., 788 So.2d 886 (Ala.2000).

“Mandamus is a drastic and extraordinary remedy and is appropriate only when the petitioner can show (1) a clear legal right 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) the properly invoked jurisdiction of the court.”

Ex parte State ex rel. C.M., 828 So.2d 291, 293 (Ala.2002). The plaintiffs’ position with regard to the propriety of venue in Wilcox County as to International and Fontaine is that, because venue is proper as to Hornady, it is derivatively proper as to Fontaine and International pursuant to Rule 82(c), Ala. R. Civ. P. Rule 82(c) states:

“(c) Where several claims or parties have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought. Whenever an action has been commenced in a proper county, additional claims and parties may be joined, pursuant to Rules 13, 14, 22, and 24, as ancillary thereto, without regard to whether that county would be a proper venue for an independent action on such claims or against such parties.”

International and Fontaine argue to the contrary, asserting that this procedural rule cannot be allowed to affect their right to insist upon a venue proper under § 6-3-7.

Helpful to a better understanding of the respective rationales for the positions taken by the parties, and also to our analysis and disposition of the issues presented, is the following chronology of pertinent constitutional provisions, statutes, Rule 82, and caselaw.

Before it was amended in 1988, § 232, Art. XII, Ala. Const, of 1901, provided, in pertinent part:

“No foreign corporation shall do any business in this state without having at least one known place of business and an authorized agent or agents therein, and without filing with the secretary of state a certified copy of its articles of incorporation or association. Such corporation may be sued in any county where it does business, by service of process upon an agent anywhere in the state.”

The current version of § 6-3-7, Ala.Code 1975, as set out earlier in this opinion, was enacted by the Legislature effective July 24, 1999. The version of that Code section in effect before that amendment read as follows:

“A foreign corporation may be sued in any county in which it does business by agent, and a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose; provided, that all actions against a domestic corporation for personal injury must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiffs residence.”

(Emphasis supplied.) That version of § 6-3-7 appeared in the Code of Alabama in essentially the same form for over 100 years preceding its 1999 revision.

Section 232 of the Constitution “has been held to be mandatory and restrictive, not permissive; that is, a qualified foreign corporation may be sued only where it is doing business at the time suit is filed.” Ex parte Miltope Corp., supra, 522 So.2d at 272.

In 1973, the Alabama Rules of Civil Procedure were adopted, including Rule 82(c). On December 27, 1973, Amendment 328 to the Constitution was ratified. Section 6.11 of that amendment provides:

“The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein; and .provided, further, that the right of trial by jury as at common law and declared by section 11 of the Constitution of Alabama 1901 shall be preserved to the parties inviolate. These rules may be changed by a general act of statewide application.”

In Roland Pugh Mining Co. v. Smith, 388 So.2d 977 (Ala.1980), eight members of this Court held that, in an action for personal injuries against two domestic corporations, Rule 82(c) would serve to make venue proper in a county where the two domestic corporations did not do business by agent, because venue was otherwise proper in that county as to a defendant foreign corporation. The Court noted that Rule 82(c) “is subject to the limitation that a foreign corporation may not be sued in a county in which it does not do business, regardless of whether it is sued jointly with someone as to whom venue is good in that county,” because of the limitation found in § 232 of the Constitution, but that “ ‘[tjhere is no constitutional provision prohibiting a suit against a domestic corporation in a county where it is not doing business.’ ” 388 So.2d at 978-79 (quoting Louisville & N.R.R. v. Strickland, 219 Ala. 581, 585, 122 So. 693, 697 (1929)). The domestic-corporation defendants had argued that the proviso in § 6-3-7 relating to personal-injury actions, utilizing the imperative term “must,” was “mandatory and compels the conclusion that all actions for personal injury against a domestic corporation must be brought either in the county where the injury occurred, or where the plaintiff resides if the corporation does business by agent in the latter county.” 388 So.2d at 979. The Roland Pugh Court agreed that the defendants’ interpretation was “a correct interpretation of the statute where a domestic corporation is the sole defendant.” 388 So.2d at 979. The Court held, however, that where a domestic corporation was joined as a defendant in a case brought in a venue not proper as to it but proper as to one or more of its code-fendants, the situation was different. The Court cited, and quoted from, cases it had decided in 1906 and 1929, establishing the rule that an action could be brought against a domestic corporation not doing business in the forum county when venue was proper in that county for an individual joint defendant. The Court quoted Louisville & N.R.R., 219 Ala. at 585, 122 So. at 697, for the proposition that “ ‘[fit is immaterial in this respect whether the joint defendant properly sued in the county is an individual or a corporation388 So.2d at 979. Accordingly, the Court concluded that Rule 82(c) “simply restates the statutes as heretofore construed by this Court.” 388 So.2d at 979.

This principle was reaffirmed in Ex parte Hideaway Harbor Resort, Inc., 533 So.2d 563, 564-65 (Ala.1988):

“Domestic corporations may be joined with other parties pursuant to Rule 82(c) and sued in counties other than those where they are doing business at the time of the suit or were doing business at the time the cause of action arose. In Ex parte Owen, 437 So.2d 476 (Ala.1983), [which cited Roland Pugh Mining Co. as its authority] a domestic corporation doing business in DeKalb County was held to be properly joined in an action brought in Houston County, where venue was proper as to certain of the defendants in the case. Similarly, in Ex parte Charles Bell Pontiac-Buick-Cadillac-GMC, Inc., 496 So.2d 774 (Ala.1986), this Court held that a domestic corporation doing business only in Macon County was properly joined in Montgomery County through Rule 82(c), because another individual defendant in the case was properly sued in Montgomery County.”

Therefore, the Hideaway Harbor Court concluded that venue was proper in Walker County in the breach-of-contract and fraud action because Hideaway Harbor, a domestic corporation, “was joined with other parties pursuant to Rule 82(c), and it is undisputed that venue was proper as to those other parties in Walker County.” 533 So.2d at 565. The Court noted two cases cited by Hideaway Harbor as contrary to that proposition, but distinguished them on the basis that

“[t]he corporation was the only defendant in those two cases; because no other defendants were involved in those actions, the provisions for the joinder of claims did not apply. Transfer was, therefore, proper in those cases, on a showing that the defendants were not doing business in the county in which they were sued.”

533 So.2d at 565. See also Ex parte Sierra Dev., Inc., 652 So.2d 251, 253 (Ala.1994) (“‘[d]omestic corporations may be joined with other parties pursuant to Rule 82(c) and sued in counties other than those where they are doing business at the time of the suit or were doing business at the time the cause of action arose’ ” (quoting Hideaway Harbor, 533 So.2d at 564^65)).

Pursuant to enabling legislation introduced in 1987 and ratified April 1, 1988, § 232, Ala. Const, of 1901, was amended by Amendment No. 473 to read, in pertinent part, as follows:

“Any foreign corporation, whether or not such corporation has qualified to do business in this state by filing with the secretary of state a certified copy of its articles of incorporation or association may be sued only in those counties where such suit would be allowed if the said foreign corporation were a domestic corporation.”

“The Alabama Constitution of 1901, as amended by Amendment No. 473, makes venue the same for domestic and foreign corporations and requires that they be treated identically for venue purposes.” Ex parte Allen, 655 So.2d 962, 963 (Ala.1995). In Ex parte Walker, 554 So.2d 996 (Ala.1989), this Court was called upon to consider the interaction of Amendment No. 473; § 6-3-7, Ala.Code 1975, as it read in 1989; and Rule 82(c). The case involved a personal-injury claim filed in the Macon Circuit Court against an individual who was a resident of Macon County and American Honda Motor Company, a foreign corporation having its principal place of business in California. The plaintiffs were residents of Montgomery County and the underlying automobile accident occurred in Autauga County. American Honda moved to transfer the case to the Autauga Circuit Court, submitting an affidavit attesting that American Honda had never done business in Macon County. Because there was no dispute that venue was proper in Macon County as to the individual defendant, the plaintiffs contended that venue was also proper there as to American Honda. American Honda argued that the combined effect of § 232, as amended by Amendment No. 473, and § 6-3-7 was to place proper venue only in Autauga County, where the injury occurred, or Montgomery County, where the plaintiff resided. In disagreeing with American Honda’s position, this Court stated:

“Proper venue with respect to a foreign corporate defendant in Alabama is determined by Ala. Const.1901, as amended, § 232, and Ala.Code 1975, § 6-3-7. Before the adoption in 1987 of Amendment 473, amending § 232, that section allowed suit against a foreign corporation only ‘in [a] county where [the foreign corporation] does business,’ even if the foreign corporation was a co-defendant with a domestic corporation. Ex parte Harrington Mfg. Co., 414 So.2d 74 (Ala.1982). Amendment No. 473, however, changed § 232, in part, to allow suit against a foreign corporation ‘only in those counties where such suit would be allowed if the said foreign corporation were a domestic corporation.’ (Emphasis added [in Walker].)
“In Ex parte Hideaway Harbor Resort, Inc., 533 So.2d 563 (Ala.1988), a domestic corporation, organized and registered to do business in Winston County, was a co-defendant with various individuals and foreign corporations in suits filed in Walker County. Although the other defendants were properly sued in Walker County, Hideaway contended that venue in Walker County was improper as to it, and moved to have the cases transferred to Winston County. The trial judge refused, and this Court denied Hideaway’s petition for a writ of mandamus ordering the trial court to transfer.
“In refusing Hideaway the relief it sought, we held:
“ ‘We agree with the respondents that Rule 82(c)[, AR.Civ.P.,] controls in this situation....
“ ‘Domestic corporations may be joined with other parties pursuant to Rule 82(c) and sued in counties other than those where they are doing business at the time of the suit or were doing business at the time the cause of action arose. In Ex parte Owen, 437 So.2d 476 (Ala.1983), a domestic corporation doing business in DeKalb County was held to be properly joined in an action brought in Houston County, where venue was proper as to certain other defendants in the case. Similarly, in Ex parte Charles Bell Pontiac-Buickr-Cadillac-GMC, Inc., 496 So.2d 774 (Ala.1986), this Court held that a domestic corporation doing business only in Macon County was properly joined in Montgomery County through Rule 82(c), because another individual defendant in the ease was properly sued in Montgomery County.
“ We hold that venue was proper in the cases at bar in Walker County because, although Hideaway is a domestic corporation, it was joined with other parties pursuant to Rule 82(c), and it is undisputed that venue was proper as to those other parties in Walker County.’
“Ex parte Hideaway Resort, Inc., 533 So.2d at 564-65.
“While the Hideaway decision deals with the question of proper venue in the context of a domestic corporation seeking a transfer, we think its holding is applicable to and dispositive of the instant case, where a foreign corporation maintains that venue is improper as to it. The 1987 amendment to § 232 specifically authorizes suit against a foreign corporation ‘only in those counties where suit would be allowed if the said foreign corporation were a domestic corporation.’ (Emphasis added [in Walker].)
“Under the facts of the instant case, then, American Honda may be sued in the counties where suit would be allowed if American Honda were an Alabama corporation. Therefore, because American Honda is a co-defendant with other defendants pursuant to Rule 82(c), and because venue is proper as to those other defendants in Macon County, venue is proper in Macon County as to American Honda.
“We hold that the trial court erred in granting American Honda’s motion to transfer. The Walkers’ petition for a writ of mandamus ordering the trial court to set aside its order of transfer is due to be, and it is hereby, granted.”

554 So.2d at 998-99.

In their petitions, International and Fontaine urge this Court to overrule Ex parte Walker, and to adopt the rationale of Justice Maddox’s dissent in that case. Justice Maddox had this to say:

“If I understand the reasoning of the majority, it is based upon the reasoning that, even though Amendment No. 473 states that a suit can be filed against a foreign corporation ‘only in those counties where such suit would be allowed if said foreign corporation were a domestic corporation’ and even though § 6-3-7[, Ala.Code 1975,] provides that ‘all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiffs residence,’ this Court’s Rule 82(c), Ala. R. Civ. P., is controlling.
“The power of this Court, by a rule of procedure, to affect the venue of actions has always been troubling. Amendment 328, § 6.11, which grants this Court rule-making power, specifically states ‘that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit or district courts or venue of actions therein.’ (Emphasis added [in Walker].) Section 6.11 also provides that the rules adopted by the Court ‘may be changed by a general act of statewide application.’
“The so-called ‘tort reform’ legislation, a general act of statewide application, dealt significantly with the question of the proper venue of civil lawsuits. This action is controlled by some of that legislation, and the trial court was well within its power to order the transfer of this action to Autauga County, in my judgment, on two grounds: (1) The foreign corporation was not doing business by agent in Macon County, and had not done business by agent in the county, and (2) Section 6-3-21.1 (adopting the doctrine of forum non conveniens) authorized a transfer even if venue was otherwise proper in Macon County.
“Because of the pervasive action by the Legislature in the field of venue of civil actions, I question the continued viability of Rule 82(c), Ala. R. Civ. P., and the cases construing it, some of which I have authored.
“It appears to me that the Legislature has preempted the field of venue of civil actions, and that any rule of this Court that would authorize a contrary result would itself be in contravention of the Constitution.

554 So.2d at 999-1000.

More recently, in a series of cases addressing special venue provisions incorporated by the Legislature in general statutes of statewide application, this Court has concluded that the respective enactments evidenced a clear intent by the Legislature to exercise the authority accorded it by § 6.11 of Amendment No. 328, pursuant to which any rules promulgated by this Court governing the administration of courts, and the practice and procedure in all courts, “may be changed by a general act of statewide application.” In Ex parte Alabama Power Co., 640 So.2d 921 (Ala.1994), the Court held that Ala.Code 1975, § 6-3-11, which provides that venue for all civil actions “for damages for personal injury, death, or property damage filed against a county or against a municipality shall be in the county or in the county within which the municipality is located or in the county in which the act or omission complained of occurred,” prevented resort to Rule 82(c). (Emphasis supplied.) The enactment of that special venue provision in 1987 was held to have “effectively prevented the application of the venue provision of Rule 82(c) to claims against municipalities, because that rule clearly conflicts with the legislative mandate of § 6 — 3—11.” 640 So.2d at 924. In Ex parte McDonald, 804 So.2d 204 (Ala.2001), the Court reached the same result regarding the provision in § 6-3-11 for venue when a county is sued as a defendant. In Ex parte Kennedy, 656 So.2d 365 (Ala.1995), and Ex parte Father Walter Memorial Child Care Center, 656 So.2d 369 (Ala.1995), decided the same day, the Court héld that the 1987 general statute of statewide application subsequently codified as Ala.Code 1975, § 6-5-546, represented another example of the Legislature’s resort to its authority under Amendment No. 328, § 6.11, Ala. Const, of 1901, to change Rule 82(e) as to a particular situation. Section 6-5-546 uses mandatory language, just as does § 6-3-11, in providing that medical-malpractice actions against a health-care provider “must be brought in, the county wherein the act or omission constituting the alleged breach of the standard of care by the defendant actually occurred.” (Emphasis supplied.) Stating that the “legislative intent” behind that language was clear, the Court concluded that “any action against a health care provider based on an alleged breach of the standard of care must be brought in the county where the act or omission complained of actually occurred,” and that “[a]s to those cases in which § 6-5-546 is applicable, ... its provisions supersede the provisions of Rule 82(c).” Kennedy, supra, 656 So.2d at 368. In Ex parte City of Greensboro, 730 So.2d 157 (Ala.1999), relying on Ex parte Alabama Power Co., supra, the Court reaffirmed its position that .Rule 82(c) would not apply to claims against municipalities, because that rule clearly conflicted with the legislative mandate of § 6-3-11. Finally, in Ex parte Rowan, 774 So.2d 530 (Ala.2000), the Court held that the special venue provisions of Ala.Code 1975, § 35-10-30(b), requiring that all actions for the recovery of the statutory penalty for failure of a mortgagee to file a . satisfaction of record of a mortgage paid in full “shall be' brought in the county where such mortgage or other instrument is recorded,” precluded resort to Rule 82(c). (Emphasis supplied.) (Four members of the Court, concurring in the main opinion, relied on the proscription in § 6.11 of Amendment No. 828 against the use of procedural rules to “abridge, enlarge, or modify the substantive right of any party,” concluding that the venue provision was a substantive right because it was a part of a “statute of creation.” 774 So.2d at 532. Justice Houston, concurring in the result, deemed the better rationale to be a rebanee on that portion of § 6.11 providing “that such rules shall not ... affect ... venue of actions ...774 So.2d at 533.)

In its petition and its reply brief in this Court, Fontaine quotes from a footnote in Ex parte Blount, 665 So.2d 205, 208 n. 1 (Ala.1995), containing the statement “[moreover, Rule 82(c) does not apply to corporations.... ” That statement, however, was pure dictum as to the issues in Blount and was made in the context of a discussion of the circumstances in Ex parte Townsend, 589 So.2d 711 (Ala.1991). In Townsend, Rule 82(c) was never implicated because venue was improper as to all of the defendants; there was, consequently, no occasion to consider pendent venue. In Blount, the plaintiffs son was killed in a bicycle accident in Madison County. The plaintiff, a resident of Baldwin County, filed a wrongful-death action in Baldwin County against an individual, three foreign corporations, and his own uninsured-/un-derinsured-motorist insurance carrier. The individual and one of the foreign corporations moved to transfer the action to Madison County, where the accident occurred. The trial court granted that motion, but this Court granted the plaintiffs petition and issued a writ of mandamus, ordering the case transferred back to Baldwin County. The Court noted that a special venue statute, § 6-3-5, Ala.Code 1975, allowed for the insurance carrier to be sued in Baldwin County, as the county “ ‘where the holder of the pobcy or certificate resides.’ ” 665 So.2d at 207. Given that venue was thus proper as to one defendant, venue was held to be proper also as to the individual defendant pursuant to Rule 82(c). As to the three defendants who were foreign corporations, the Court noted that the interaction between § 6-3-7, Ala. Code 1975, and Amendment No. 473 to § 232 was such that 6-3-7 would apply to the foreign corporate defendants. The result was that the wrongful-death action, being one for “personal injuries” under § 6-3-7, could be brought, pursuant to the proviso, against a domestic corporation “in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of plaintiff’s residence.” (Emphasis supplied.) This Court held that venue was proper as to the three corporate defendants under the alternative venue provision of § 6-3-7 emphasized above.

The statement in the footnote in Ex parte Blount that “Rule 82(c) does not apply to corporations,” 665 So.2d at 208 n. 1, was erroneous in its overbreadth even before the 1999 revision of § 6-3-7, because as discussed earher, this Court had held on numerous occasions that Rule 82(c) could serve to control venue for a domestic corporate defendant. Blount does contain some analysis pertinent to the treatment of the issues in this case, however. In Blount, the petitioning foreign corporation argued that the plaintiff had failed to present evidence before the trial court to show that any of the three corporate defendants did business in Baldwin County and that, therefore, venue was proper only in Madison County, where the injury occurred. Rejecting that argument, this Court pointed out:

“It was not Blount’s burden to prove that the defendants did business in Baldwin County, until the defendants first established as a basis for the transfer that they did not do business there. Because the defendants failed to carry their burden of proof, the burden never shifted to Blount.”

665 So.2d at 209.

In the present case, International and Fontaine did prove that they did not do business in Wilcox County but there was no proof submitted to the trial court as to whether Hornady did, or did not, do business in that county. Consequently, as previously discussed, International and Fon-taine failed to carry their burden of proof in that regard, and the burden never shifted to the plaintiffs.

Act No. 99-249, which amended § 6-3-7, Ala.Code 1975, so as to reconstitute it into the version set forth earlier in this opinion, stipulated that “[t]his act shall apply to all civil actions commenced or filed after the effective date of this act,” i.e., after July 24, 1999. Until today, this Court has had no occasion to consider the interaction between the “new” § 6-3-7 and Rule 82(c), Ala. R. Civ. P. It is readily apparent, however, that the new § 6-3-7 eliminates the distinctions appearing in the former version between venue for foreign corporations and venue for domestic corporations. In conformity with the provision of Amendment No. 473 that foreign corporations “may be sued only in those counties where such suit would be allowed if the said foreign corporation were a domestic corporation,” § 6-3-7 now provides the same venue rules for both foreign and domestic corporations. Furthermore, whereas the former § 6-3-7 stated that “all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiffs residence” (emphasis supplied), the amended version applies to “[a]ll civil actions against corporations,” across the board, without any special treatment for personal-injury actions. Rather, the current version of § 6-3-7 states that “[a]ll civil actions against corporations may be brought in any of the following counties” (emphasis supplied). When § 6-3-7 was rewritten in 1999, there existed the well-established body of law discussed above, establishing clearly that a domestic corporation might be sued in a county in which it did not do business by agent, despite the strictures of former 6-3-7 in that regard, by virtue of the pendent venue allowed by Rule 82(c). It is an ingrained principle of statutory construction that “[t]he Legislature is presumed to be aware of existing law and judicial interpretation when it adopts a statute. Ex parte Louisville & N.R.R., 398 So.2d 291, 296 (Ala.1981).” Carson v. City of Prichard, 709 So.2d 1199, 1206 (Ala.1998). “ ‘It is a settled rule that in the adoption of the Code the Legislature is presumed to have known the fixed judicial construction preexisting statutes had received, and the substantial re-enactment of such statutes is a legislative adoption of that construction.’ ” Wood-Dickerson Supply Co. v. Cocciola, 153 Ala. 555, 557, 45 So. 192, 192 (1907) (quoting Morrison v. Stevenson, 69 Ala. 448, 450 (1881)). “It is a familiar principle of statutory interpretation that the Legislature, in enacting new legislation, is presumed to know the existing law.” Blue Cross & Blue Shield of Alabama, Inc. v. Nielsen, 714 So.2d 293, 297 (Ala.1998). Nothing in the language of § 6-3-7 as rewritten by the Legislature in 1999 suggests that the Legislature was attempting to change the well-established principle that venue as to domestic corporations was subject to the application of Rule 82(c).

International and Fontaine draw our attention to the statement contained in the “Committee Comments on 1973 Adoption” of Rule 82, that “subdivision (c) cannot be applied in a suit against a foreign corporation so as to violate the constitution.” They also point to references to that particular comment in Ex parte Alabama Power Co., supra, 640 So.2d at 924, and Ex parte Father Walter Memorial Child Care Center, supra, 656 So.2d at 371. Suffice it to say that the committee comments were made before § 232 of the Constitution had been revised by Amendment No. 473 so as to remove the unique venue status theretofore constitutionally accorded foreign corporations, substituting the rule that a foreign corporation could be sued in any county where an action would be “allowed” if the foreign corporation were a domestic corporation. As discussed, there is a well-developed body of precedent from this Court “allowing” an action to be brought against a domestic corporation in a venue otherwise improper as to it, so long as venue is proper as to one or more of its joint defendants. In this case, venue is proper in Wilcox County as to Hornady under § 6-3-7(a)(3) because Wilcox is the county in which three of the plaintiffs reside (i.e., Curry’s daughter, suing as such and also in her capacity as putative admin-istratrix, and Curry’s father) and is the county in which Hornady is deemed, for the reasons discussed above, to have been doing business by agent. Thus, if International and Fontaine were domestic corporations, they could be joined as defendants with Hornady in Wilcox County pursuant to Rule 82(c). See Roland Pugh Mining Co., Ex parte Owen, Ex parte Charles Bell Pontiac-Buick-Cadillac-GMC, Inc., 496 So.2d 774 (Ala.1986), Ex parte Hideaway Harbor Resort, and Ex parte Walker. As expressed in Roland Pugh Mining Co., whereas § 232, Ala. Const, of 1901, was deemed to afford a foreign corporation the constitutional right to be sued only in a county where it did business, “ ‘[tjhere is no constitutional provision prohibiting a suit against a domestic corporation in a county where it is not doing business.’ ” 388 So.2d at 979 (quoting Louisville & N.R.R. v. Strickland, 219 Ala. at 585, 122 So. at 697). With the advent of Amendment No. 473, a foreign corporation may be sued in any county where the suit “would be allowed” if the foreign corporation had been a domestic corporation.

International makes the argument that “we must assume that the Alabama legislature was aware of Rule 82(c) and purposely did not include Rule 82(c)’s joinder provisions in the revised venue statute.” Subsection (c) of revised § 6-3-7 does take note of Rule 82(c), however, stating that “[ajnything to the contrary in Rule 82(c) of the Alabama Rules of Civil Procedure notwithstanding, in any action against a corporation, venue must be proper as to each and every named plaintiff joined in the action, unless the plaintiffs shall establish” various conditions, all of which, although not challenged by International or Fontaine, are present in this case. Accordingly, not only must we “assume that the Alabama legislature was aware of Rule 82(c),” we have express confirmation of that fact. We do not draw the same inference from that fact as does International, however. Rather, we deem it to be a reasonable implication from the totality of § 6-3-7 that the Legislature, although explicitly aware of Rule 82(c), and presumably. aware of the long-standing judicial application of it so as to “allow” the actions against a domestic corporation in counties where they were not doing business by agent, chose to allow that well-established principle to continue unaffected.

In summary, when § 6-3-7 was rewritten in 1999, eliminating the mandatory proviso in its predecessor, but preserving the concepts that venue as to a domestic corporation (and a foreign corporation) would be proper in the county where the injury occurred or in the county where the plaintiff resided if the corporation did business by agent in that county and that a corporation might be sued in any county in which it did business by agent at the time the cause of action arose, there existed an unbroken line of cases allowing domestic corporations to be sued in any county where venue was proper as to a codefen-dant. Amendment No. 473 to § 232, Ala. Const, of 1901, eliminated the disparate treatment of foreign and domestic corporations for venue purposes, providing that foreign corporations could be sued in any county “where such suit would be allowed if the said foreign corporation were a domestic corporation.” When Amendment No. 473 was proposed in 1987 and ratified in 1988, actions against a domestic corporation were allowed in any county where venue was proper as to a codefendant pursuant to Rule 82(c). Section 6-3-7 carried forward the constitutional revamping pursuant to which all corporations would be subject to the venue rules applicable to domestic corporations. Given the procedural posture of this case before the trial court, venue was to be presumed proper as to Hornady in Wilcox County. According to International and Fontaine the same venue treatment as would be proper if they were domestic corporations and recognizing that venue would have been allowed in Wilcox County pursuant to Rule 82(c) if they had been domestic corporations, venue became proper as to them. Rule 82(c) does not “affect the ... venue of actions,” in violation of Amendment No. 328, § 6.11 of the Constitution, but rather, at the time of its promulgation in 1973, it simply stated the existing rule of practice. Although the Legislature is authorized by § 6.11 to change any rule of procedure by a general act of statewide application, we do not find any clear legislative intent evidenced by the 1999 revision of § 6-3-7 to change the established effect and application of Rule 82(c). Rather, given the Legislature’s knowledge of that effect and application at the time it revised § 6-3-7 so as to bring forward some of the venue principles established by its predecessor, it may be assumed the Legislature intended to allow the established practice to continue. Certainly nothing in the text of § 6-3-7 as revised indicates any intent on the part of the Legislature to change that established practice.

Consequently, under the set of facts presented by the materials submitted to us in this case, venue was proper as to Hornady and, pursuant to the pendent venue provision of Rule 82(c), proper as to International and Fontaine, the same as if they were domestic corporations. Accordingly, we deny their petitions.for a writ of mandamus ordering the trial court to transfer the case to Winston County.

PETITIONS DENIED.

HOUSTON, SEE, LYONS, BROWN, JOHNSTONE, WOODALL, and STUART, JJ., concur.

MOORE, C.J., concurs in the result.

      . See Tex. Civ. Prac. & Rem. Code Ann., § 71.001 et seq., and § 71.021 (Vernon 1997).

      . There are references in the briefs to this Court to the effect that Parker has been dismissed as a defendant, but none of the "copies of any order or opinion or parts of the record that would be essential to an understanding of the matters set forth in the' petition,” as prescribed by Rule 21(a) of the Alabama Rules of Appellate Procedure, confirm that fact. Nonetheless, in the various filings and submissions with this Court, the parties never allude to any continuing involvement of Parker in the case, and they do not predicate any of their arguments on his status as a continuing codefendant.

      . Although no copy of any motion challenging the circuit court’s in personam jurisdiction as to Parker is included in the submissions to this Court, indirect references reflect that such a challenge was made.

      “1 See, e.g., Ex parte Hideaway Harbor Resort, Inc., 533 So.2d 563 (Ala.1988).”