author: HARWOOD, Justice.

text:
    Joel DENBO et al. v. Thomas R. DeBRAY and Kaufman and Rothfeder, P.C.
    1041430.
    Supreme Court of Alabama.
    June 30, 2006.

      Clarence L. McDorman, Birmingham, for appellants.
    Robert P. MacKenzie III and Aldos L. Vance of Starnes & Atchison, LLP, Birmingham, for appellees.
   HARWOOD, Justice.

Denbo Iron & Metal Company, Inc. (“Denbo”), and its executive vice president Joel Denbo (“Joel”) sued Thomas R. De-Bray and the law firm in which he was a partner, Kaufman & Rothfeder, P.C. (“K & R”), alleging legal malpractice arising out of K & R’s representation of Denbo. Also named as a plaintiff in the complaint was Tennessee Valley Recycling, LLC, whose only standing in the case was stated by the complaint to be that it had been Denbo’s “operating entity” “since 2000”; accordingly, all references to “Denbo” for periods after 2000 will include Tennessee Valley Recycling. All three plaintiffs will be referred to collectively as “the plaintiffs”; DeBray and K & R will be referred to jointly as “the defendants.” The trial court entered a summary judgment in favor of the defendants in this legal-malpractice action. The plaintiffs appeal; we affirm.

From 1976 to 1979, Denbo shipped scrap batteries and battery plates to a disposal facility located in Leeds, which was operated by Interstate Lead Company (“ILCO”). In the mid-1980’s the United States Environmental Protection Agency (“the EPA”) listed the site as a Superfund site (“the ILCO site”). On October 19, 1993, the EPA notified Denbo that it was a “potential responsible party” with respect to the ILCO site. Joel searched for, but was unable to locate, insurance policies covering the relevant time periods, but he was able to locate certificates of insurance for the years in question. He contacted Den-bo’s former insurance agent to report that he had been notified by the EPA of the potential claim and to request copies of the insurance policies covering the applicable periods. The agent informed Joel that copies of the policies were no longer available. Denbo then retained K & R to represent it in matters relating to the ILCO site (“the ILCO claim”). On December 11, 1993, Joel wrote DeBray, forwarding copies of the certificates of insurance he had located, explaining that the actual policies could not be located by either Denbo or its agent, and stating, “I would like for you to notify these companies of our claim against them and that we expect them to pay our liability.”

The itemized billings from K & R to Denbo for services rendered over the period beginning on October 14, 1993, and ending on October 31, 2000, reflect that throughout that period DeBray and other K & R personnel were working actively on the ILCO claim. The itemized billing entries identify by individual, date, and description numerous telephone conversations, written communications, meetings, conferences, and other contacts and communications between DeBray and other K & R personnel, on the one hand, and Joel and other Denbo personnel, on the other hand, relating specifically to the ILCO claim. Records submitted by Denbo also show that it paid all of those billing statements with its own funds, never seeking payment or reimbursement from any insurance company or inquiring of DeBray or K & R why payment or reimbursement by an insurance company was not forthcoming. According to the plaintiffs’ complaint in their legal-malpractice action, Denbo paid DeBray and K & R “over $104,000.00 in fees and expenses arising out of the EPA claims and [the] Federal lawsuits,” which were instituted in 1998, as hereinafter explained.

Other than as reflected by the detailed billing entries, neither the parties’ appellate briefs nor the record reflects what transpired over the course of the two years following Denbo’s notification by EPA of the ILCO claim in October 1993. The complaint states, however:

“On October 18, 1995, Joel Denbo telephoned DeBray to discuss Denbo’s coverage. Joel Denbo spoke with De-Bray’s paralegal about whether DeBray had notified the insurance companies of the claim and whether coverage would be afforded Denbo. On December 7, 1995, DeBray’s paralegal wrote a letter to Joel Denbo stating that she had gone through the files of Kaufman & Rothfeder to determine whether notice had been sent and coverage would be afforded Denbo. She stated that she could not locate the insurance certificates. On December 11, 1995, Joel Denbo mailed DeBray’s paralegal a second copy of the insurance certificates. He was assured that DeBray would take care of giving notice to the insurance carriers.”

Shortly thereafter DeBray prepared, but never sent, letters to the insurance companies identified by the certificates of insurance, which would have notified them of the claims against Denbo, asserting that “each or all of the insurers may be obligated to provide a defense or indemnify Den-bo Iron pursuant to its individual policy coverage.” Joel states in the affidavit he filed in opposition to the defendants’ motion for a summary judgment that “Mur-ing 1997 DeBray continued to represent Denbo in the ILCO claim. I talked with DeBray by telephone about the insurance matters in 1997, and was again assured that the matters were being timely handled.”

The briefs of the parties and the record are again silent, apart from the dated entries in K & R’s continuing billing statements to Denbo, concerning' what pertinent events might have transpired during 1997 and 1998, up to October 8,1998, when the 'United States of America, on behalf of the EPA, sued Denbo and numerous other companies in federal district court for their alleged contribution of hazardous substances to the ILCO site, seeking damages in excess of $16,000,000, together with other relief. On November 18, 1998, Exide Corporation and Johnston Controls, Inc., filed a separate action in the same federal district court against Denbo and others seeking private damages relating to the ILCO site. The plaintiffs allege in their legal-malpractice complaint against the defendants that “Denbo continued to ask defendants if they had notified the insurance carriers of the claims and litigation. The defendants advised Denbo that the insurance claims were being handled in a timely manner.” Finally, however, on December 2, 1998, Joel, assisted by his cousin, Don Denbo, an insurance agent, met with De-Bray. According to Joel’s affidavit, “[d]ur-ing this meeting DeBray advised he had not yet contacted the comprehensive liability insurance carriers for 1976 through 1980.” Neither Joel’s, affidavit nor any other part of the record discusses his reaction to that revelation; the affidavit simply goes on to state that Don Denbo advised DeBray how to contact the companies; that “DeBray stated that he woulfL take care of the notification to the companies and not to worry about it”; that Don Den-bo then sent DeBray information concerning exactly who to notify and DeBray assured Don Denbo a few days later that “he would take care of the notification”; and that when Joel talked to DeBray on December 29 and December 30,1998, DeBray assured him on each occasion that “the notification was taken care of.” •

The two federal actions were consolidated and, according to Joel’s affidavit, “[i]n October or November 1999 I was amended into the complaint in my individual capacity and it was alleged that I had authority to exercise control over the disposal of hazardous substance , at the ILCO site in 1976 through 1979.” Joel retained DeBray to represent him in his individual capacity in the litigation. The billing records reflect that DeBray and K & R continued to represent Denbo throughout with respect to the ILCO claim and the federal litigation and included within the itemized activities on billing statements are frequent communications and conferences between DeBray and Joel. For example, the billing statement covering the period from June 10, 1998, to June 30, 1999, details numerous such contacts between them, and totals $15,829.72. Denbo paid that statement in two equal payments, one on August 17'and the other on September 10, 1999. K & R’s statement to Denbo for the next billing period, covering activities up to January 5, 2000, totaled $14,898.89, and Denbo paid that statement on February 10, 2000. Another billing statement was issued for services rendered from January 17, 2000, to March 24, 2000, in the amount of $5,177.36; Denbo paid that statement on May 10, 2000. Subsequent billing statements were paid by Denbo on June 10, August 10, September 9, and December 9 of that year. At no time, as far as the record reflects or the plaintiffs suggest, did Joel or Denbo question why no defense or other financial assistance was being provided by any insurance company.

According to Joel’s affidavit, “[s]ome time in August 2000 DeBray called me and said he thought he could settle the cases in the $150,000.00 range.” DeBray had previously filed separate motions for a summary judgment on behalf of Denbo and Joel in the federal litigation and on August 16, 2000, he filed with the court formal withdrawals of each of those summary-judgment motions, advising the court that Denbo and Joel had each “now settled with the plaintiffs and no longer wishes to pursue [its] [his] motion.” Joel further asserts in his affidavit:

“DeBray sent a proposed settlement agreement sometime in October. De-Bray called me and told me that he had a settlement for $158,000.00 and urged me very strongly to sign. DeBray told me that it would cost me more than it was worth to pursue those arguments in court, and advised of the threat that if I did not sign, the government would not release me personally from the suit, and that I could be held personally responsible for whatever the amount of the judgment ultimately was jointly and severally in the amount of $1.2 million. Under this pressure, I told DeBray that I would sign the settlement, and did sign the settlement. DeBray also advised that I must sign the note on behalf of Denbo. I signed the note for Denbo, based upon the advice I received from DeBray concerning what could happen to me personally if I did not sign the agreement.”

According to Joel’s affidavit, he and Sol Miller, whose separate affidavit explains that “[i]n February 2000 I became employed by Tennessee Valley Recycling, LLC as Chief Manager-Administration,” thereafter attempted to talk to DeBray concerning, the notice to the insurance companies, but DeBray never returned any of their telephone calls or facsimile communications. Joel also states in his affidavit:

“In April and May of 2002 I discovered, through attorney Bill Shinn [Denbo’s regular attorney] and Sol Miller that the insurance companies had never been notified of the claims or the lawsuits, and that they were denying coverage because of late notice and because Denbo had entered into a settlement agreement without notifying the company. The companies were also refusing to pay for the attorney’s fees in the defense of the claims.”

One of the insurers DeBray had been charged with contacting and demanding coverage from was American Liberty Insurance Company. Its representative wrote Shinn on March 6, 2002, to confirm that they had been given notification of the claims and litigation on September 5, 2001, but stating that the insurance policies that would have provided coverage required that “[i]f claim is made or suit is brought against the insured, the insured shall immediately forward to the Company every demand, notice, summons, or other process received by him or his representative.” Furthermore, those insurance policies directed that “[t]he insured shall not, except at his own costs, voluntarily make any payment, assume any obligation, or incur any expenses.... ”

On March 25, 2002, a representative of Statesman Insurance Company wrote Shinn to acknowledge receipt of Shinn’s “tender letter,” which had expressed Shinn’s belief that Statesman had issued Denbo a policy covering the period November 20, 1976, to November 20, 1977. Shinn was advised that a search of Statesman’s records had not discovered any evidence of the policy. Nonetheless, relying on standard policy provisions, Statesman, through its representative, pointed out that Denbo had been bound to provide reasonable notice of the claims and suits for which coverage was being sought and that payments made or obligations assumed by the insured without the consent of the carrier were deemed to be voluntarily incurred and coverage for those payments or obligations therefore precluded. Finally, Statesman referred to the standard policy provision pursuant to which coverage for attorney fees applied only to fees incurred subsequent to the tendering of the claim to the insurer; hence, “[a]ny fees incurred before tender will not be covered.”

For all that appears in the record and the parties’ briefs, the plaintiffs have acquiesced in the insurers’ denials of coverage based on late notice, electing instead to pursue the legal-malpractice action against the defendants. That action was filed on March 26, 2003, but, pursuant to a “tolling agreement” the parties had previously entered into, the action is deemed to have been filed on October 1, 2002. ’

Analysis

The Alabama Legal Services Liability Act, § 6-5-570 et seq., Ala.Code 1975 (“the ALSLA”), applies to all actions against “legal service providers” alleging a breach of their duties in providing legal services. Section 6-5-572(1) provides, in pertinent part:

“A legal service liability action embraces all claims for injuries or damages or wrongful death whether in contract or in tort and whether based on an intentional or- unintentional act or omission. A legal services liability action embraces any form of action in which a litigant may seek légal redress for a wrong or an injury and every legal theory of recovery, whether common law or statutory, available to a litigant in a court in the State of Alabama now or in the future.”

Section 6-5-574 provides:

“(a) All legal service liability actions against a legal service provider must be commenced within two years after the act or omission or failure giving rise to the claim, and not afterwards; provided, that if the cause of action is not discovered and could not reasonably have been discovered within such period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; provided, further, that in no event may the action be commenced more than four years after such act or omission or failure; except, that an act or omission or failure giving rise to a claim which occurred before August 1, 1987, shall not in any event be barred until the expiration of one year from such date.-.
“(b) Subsection (a) of this section shall be subject to all existing provisions of law relating to the computation of statutory periods of limitations for the commencement of actions, namely, Sections 6-2-1, 6-2-2, 6-2-3, ■ 6-2-5, 6-2-6, 6-2-8, 6-2-9, 6-2-10, 6-2-13, 6-2-15, 6-2-16, 6-2-17, 6-2-30, and 6-2-39; provided, that notwithstanding any provisions of such sections, no action shall be commenced more than four years after the act, omission,' or failure complained of; except, that in the case of a minor under four years of age, such minor shall, have until his or her eighth birthday to commence such action.”

(Emphasis added.)

In Floyd v. Massey & Stotser, P.C., 807 So.2d 508, 511 (Ala.2001), we explained:

“This Court has held that ‘the time limits imposed by [§ 6-5-574(a) ] are to be measured from the date of the accrual of a cause of action and not from the date of the occurrence of the act or omission.’ Michael v. Beasley, 583 So.2d 245, 252 (Ala.1991). In discussing the point at which an action ‘accrues,’ this Court has stated:
“ ‘ “The statute ... will not begin to run until some injury occurs which gives rise to a maintainable cause of action. Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979); Corona Coal Co. v. Hendon, 213 Ala. 323, 104 So. 799 (1925); West Pratt Coal Co. v. Dorman, 161 Ala. 389, 49 So. 849 (1909).... In actions such as the case at bar, the act complained of does not itself inflict a legal injury at the time it is done, but plaintiffs injury only follows as a result and a subsequent development of the defendant’s act. ‘In such cases, the cause of action “accrues,” and the statute of limitation begins to run, “when and only when, the damages are sustained.” ’ Garrett v. Raytheon Co., 368 So.2d at 519. See also, Kelly v. Shropshire, 199 Ala. 602, 75 So. 291 (1917).” ’
“Cofield v. Smith, 495 So.2d 61, 62 (Ala.1986) (quoting Payne v. Alabama Cemetery Ass’n, Inc., 413 So.2d 1067 (Ala.1982)).”
“However, in the lead opinion in Ex parte Panell, 756 So.2d 862, 865 (Ala.1999), Justice See, joined by Chief Justice Hooper and Justice Maddox, stated that the Michael and Cofield line of cases had ignored ‘the significance of the “act or omission or failure” language of § 6-5-574(a).’ That lead opinion further stated that ‘a legal-malpractice cause of action accrues, and the statute-of-limitations period begins to run, when “the act or omission or failure giving rise to the claim’ occurs, and not when the client first suffers actual damage.” ’ Id. at 868.”

Although Ex parte Panell, 756 So.2d 862 (Ala.1999), was a plurality opinion, one of the dissenters in that case, Justice Cook, subsequently authored Ex parte Seabol, 782 So.2d 212 (Ala.2000). The Ex parte Seabol opinion contains the statement: “Under § 6-5-574, ‘a legal-malpractice cause of action accrues and the statute-of-limitations period begins to run, when “the act or omission or failure giving rise to the claim” occurs, and not when the client first suffers actual damage.’ Ex parte Panell, 756 So.2d 862, 868 (Ala.1999).” 782 So.2d at 214. Five Justices concurred fully in the opinion and two others concurred in the portion of the opinion in which that statement appears. More recently, four members of the Court reaffirmed the holding of Ex parte Seabol, but a fifth concurred only in the result in the case, reiterating his view expressed in his special writing in Ex paHe Panell to the effect that the limitations period of the ALSLA would begin to run on the date injury or harm occurred, not on the date of the occurrence of the act that caused the injury or harm. Dennis v. Northeutt, 887 So.2d 219, 222 (Ala.2004) (Lyons, J., concurring in the result).

In its thorough and thoughtful order granting the defendants’ summary-judgment motion, the trial court acknowledged the apparent “split of authority” in our caselaw concerning when the statute of limitations for a legal-malpractice action will begin to run, referring both to the “occurrence” approach of Ex parte Panell, supra, and what the trial court referred to as the “damage” approach of Michael v. Beasley, 583 So.2d 245 (Ala.1991). As did this Court in Floyd v. Massey & Stotser, supra, the trial judge concluded that it was unnecessary to elect between the two approaches because, he reasoned, the limitations period would pose a bar under either scenario, given the undisputed facts of the case. Responding to the plaintiffs’ motion to alter, amend, or vacate its summary-judgment order, the trial court expanded upon its original rationale in an amendment to its order, but otherwise denied the motion.

We agree with the trial court that the limitations period of the ALSLA bars the plaintiffs’ legal-malpractice action against the defendants, regardless of which approach is used.

Applying the “occurrence” rule, the plaintiffs’ legal-malpractice action would be barred under the first clause of § 6-5-574(a) if “the act or omission or failure giving rise to the claim” occurred more than two years before October 1, 2002. Given DeBray’s repeated failure to provide the insurance carrier notification of the ILCO claim before October 1, 2000, and his commitment of Denbo and Joel to a settlement on August 16, 2000, we need not concern ourselves with pinpointing “the” omission during that time frame that served to trigger the running of the two-year period of limitations. Suffice it to say that the two-year limitations period had clearly run on the plaintiffs’ legal-malpractice claims under the “occurrence” approach before October 1, 2002.

Of course, § 6-5-574(a) goes on to provide that “if the cause of action is not discovered and could not reasonably have been discovered within such [two-year] period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.” Although Joel’s affidavit states that it was “[i]n April and May of 2002” when he discovered that the insurance companies had never been notified, the aforementioned letters from the insurance carriers to Shinn, written on March 6 and March 25, 2002, respectively, establish that the discovery had occurred earlier. Likewise, Sol Miller states in his affidavit that “[o]n March 15, 2002,1 wrote DeBray, and advised that the insurance companies were denying they had notice .... ” Accordingly, the action filed October 1, 2002, was outside the six-month extension of time afforded by the first proviso of § 6-5-574(a).

Finally, the second proviso of § 6-5-574(a) states that “in no event may the action be commenced more than four years after such act or omission or failure.” That absolute four-year bar is reiterated in subsection (b). Although the plaintiffs undertook to challenge the constitutionality of the four-year absolute “cutoff’ in their motion to alter, amend, or vacate the summary judgment, the trial court properly noted in its amendment to that order that the constitutional attack was untimely, and it consequently rejected their challenge. No constitutional challenge to the enforcement of the four-year bar is asserted on appeal, and that absolute bar, independent of all else, serves to preclude plaintiffs’ legal-malpractice action when the “occurrence” approach is employed.

Alternatively, under the “accrual” or “damage” rule of Michael v. Beasley, supra, the limitations period of the ALSLA begins to run as soon as the plaintiff sustains a legal injury. Sirote & Permutt v. Bennett, 776 So.2d 40, 45 (Ala.2000). “The limitations period begins to run when the plaintiff first suffers ‘legal injury,’ not when the plaintiff may later pay damages or suffer some compounding of the original injury.... Even if the plaintiff is ignorant of the injury at the time (except in fraud cases), the limitations period begins to run.” Mississippi Valley Title Ins. Co. v. Hooper, 707 So.2d 209, 213 (Ala.1997) (citations omitted).

In their legal-malpractice action, the plaintiffs claim as damages the attorney fees they paid K & R, which, they contend, would have been covered under their insurance policies had the defendants not failed to timely notify the insurance companies of the claims against them and had Denbo and Joel not been led by DeBray to breach the insurance contracts by entering into the settlement agreement without first notifying the insurance companies. Given what we have explained concerning the sequence of K & R’s billings for attorney fees relating to the ILCO claim and the subsequent federal litigation, and Den-bo’s payment of that claim out of its own funds without any contribution by any insurance company, it is clear that the plaintiffs experienced their first legal damage at a point in time before October 1, 2000, i.e., more than two years before they instituted their legal-malpractice action on October 1, 2002. That is true even if the plaintiffs were ignorant of that injury at the time. Mississippi Valley Title Ins. Co., supra. The same can be said of the “damage” the plaintiffs incurred by De-Bray’s commitment, on their behalf, to a settlement on August 16, 2000.

What has previously been said concerning the unavailability of the six-month extension period provided by the second clause of § 6-5-574(a) in the context of the “occurrence” rule is equally applicable to an “accrual” or “damage” approach.

Likewise, the four-year absolute bar of § 6-5-574(a) and (b) is applicable, given that the plaintiffs suffered their first legal damage, in the form of their payment of “uncovered” attorney fees, more than four years before October 1, 2002.

The plaintiffs attempt to escape the bar of the ALSLA by invoking the protection of Ala.Code 1975, § 6-2-3, as made available under § 6 — 5—574(b).

“In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action.”

§ 6-2-3.

To the extent that this Code section might otherwise be applicable, we agree with the assessment of the trial court: regardless of when Joel might be deemed to have earlier discovered De-Bray’s fraud with respect to his repeated assurances that the liability insurance carriers were being notified of the ILCO claim, Joel could not reasonably rely on that state of affairs after he acquired actual knowledge from DeBray himself on December 2, 1998, that all those prior assurances were false. See Foremost Ins. Co. v. Parham, 693 So.2d 409 (Ala.1997), reinstituting the “reasonable reliance” standard for evaluating such reliance. As a matter of law, Joel’s purported reliance on DeBray’s renewed assurances was unreasonable, particularly in light of the fact that Denbo continued over the next two years to be billed substantial amounts by K & R for services manifestly related to the federal litigation, and Denbo paid all of those billings out of its own pocket without attempting any independent verification that the insurance carriers had been properly notified. It is true that “[t]he statute of limitations is tolled as to a fraud claim if, after discovery of the fraudulent act and inquiry, the plaintiff is misinformed or falsely informed by the defendant and the plaintiff reasonably relies on the defendant’s misrepresentation. Foremost Ins. Co. v. Parham, 693 So.2d 409 (Ala.1997).” Ex parte Alabama Farmers Coop., Inc., 911 So.2d 696, 703 (Ala.2004).

In this case, Joel was not misinformed or falsely informed by DeBray on December 2, 1998, concerning DeBray’s earlier fraudulent acts and omissions; on the contrary, DeBray admitted that his assurances to Joel over the course of almost five years had been untrue. Moreover, any renewed reliance by Joel on DeBray’s renewed assurances was not reasonable, as a matter of law, given what Joel then knew. Even if Joel’s renewed reliance might be deemed to have been reasonable initially, it could not have continued to be reasonable over the course of the next two years leading up to a point in time two years before October 1, 2002, given the substantial attorney fees for which Denbo was being billed over that period, which it was paying with full knowledge that no insurance company was funding or reimbursing the fees or otherwise providing a defense in the federal litigation. Likewise, any reliance that might have initially been reasonable immediately following December 2, 1998, would not have continued to be reasonable past August 2000, when De-Bray advised Joel that he and Denbo should commit to a settlement of approximately $150,000, which Joel and Denbo would be expected to pay.

Therefore, because the plaintiffs’ legal-malpractice action is time-barred under all features of § 6-5-574, regardless of whether the “occurrence” approach or the “accrual” or “damage” approach is employed, and because the parties have not argued that one or the other of those two lines of authority must be repudiated and overruled, we need not further address that issue in this case.

Joel argues on appeal that the summary judgment did not address his individual claim against DeBray and K & R based on the fact that “DeBray did not notify the insurance carriers, American and Statesman, of the amended complaint naming Joel in his individual capacity at any time” following Joel’s joinder in the federal litigation in October or November 1999. (Denbo and Joel’s brief, p. 44.) No such claim is separately asserted by the plaintiffs’ complaint, however; the plaintiffs simply assert that the defendants failed to give timely notice to the insurance companies of claims against Denbo and to demand coverage for Denbo for those claims. Accordingly, the trial court’s summary-judgment order properly analyzed the issues for each of the plaintiffs, and Joel shows no error in that regard, given the state of the record.

Accordingly, we affirm the summary judgment.

AFFIRMED.

SEE, LYONS, WOODALL, STUART, SMITH, and BOLIN, JJ., concur.

NABERS, C.J., and PARKER, J., concur in the result.


source: Caselaw Access Project

author:
HARWOOD, Justice.
     HARWOOD, Justice.

license: Public Domain

text:
    Donna Jo Chapman ALEXANDER v. Chad A. BURCH et al.
    1041961.
    Supreme Court of Alabama.
    Aug. 4, 2006.
    Opinion on Return to Remand Sept. 1, 2006.

      Roger M. Monroe and Jamie Alisa Tharp, Montgomery, for appellant.
    David A. Lee and J. Alex Wyatt III of Parsons, Lee & Juliano, P.C., Birmingham, for appellee.

      . Chad A. Burch died while this case was pending in the trial court, leaving John Burton Farley, Jr., as the only named defendant.

   HARWOOD, Justice.

This appeal involves the judicial enforcement of a settlement agreement. We remand the cause for clarification of the trial court’s order.

' In the underlying action, Donna Jo Chapman Alexander retained Gadsden attorney Gary Bone to represent her, on a contingent-fee basis, in recovering damages for personal injuries she received in an automobile accident. Bone filed an action on her behalf in the Etowah Circuit Court. He associated Birmingham attorney Ted Mann to handle certain aspects of the case. Under their agreed-upon division of labor, only Bone had direct communications with Alexander, and Mann handled all of the negotiations and other communications with Birmingham attorney David A. Lee, who had been engaged by the liability insurance carrier for defendant John Burton Farley, Jr., to represent him.

After extended negotiations between Lee and Mann and consultations between Mann and Bone, Lee tendered his “final” settlement offer of $60,000. Mann relayed that offer to Bone, who subsequently advised Mann that Alexander had agreed to accept it. Just what communications Bone had with Alexander about the settlement offer is at the heart of this appeál.

After Mann contacted Lee and told him that the $60,000 offer had been accepted, Lee procured a settlement check from the insurance carrier and tendered it to Mann along with a joint motion for dismissal of the action with prejudice and a general release to be executed by Alexander. Alexander, however, declined to proceed with the settlement, at some point insisting that she had not authorized it. Mann and Bone withdrew from representing her and filed a notice of a claim of an attorney’s lien for their fees and expenses.

On May 21, 2005, Lee, on behalf of the defendant, filed a motion seeking to enforce the settlement agreement, reciting the pertinent underlying facts as known to Lee. The circuit judge to whom the pending personal-injury action was assigned scheduled the motion for hearing on August 16, 2005; when that hearing convened, Alexander, Bone, Mann, and Lee were in attendance. Although no one was placed under oath, the judge developed each person’s version of the pertinent facts by careful questioning and otherwise afforded each participant an opportunity to describe in detail everything he or she wanted the judge to know about the underlying case and the various communications concerning settlement. The factual recitations of Mann and Lee concerning their dealings with one another, and the factual recitations of Mann and Bone concerning their dealings with one another, were undisputed. Clearly Mann understood from Bone that Alexander had authorized the settlement and Mann and Lee, in turn, understood that they had entered into a binding settlement.

Bone told the judge at the hearing that he had communicated the $60,000 offer to Alexander and that she had initially rejected it, but then had told him that she would think about it for a couple of days. Bone stated that at the end of that time, Alexander telephoned him to ask if the offer was the best he could do, and, after he told her that it was, she said, “[I]f that’s all you can do, then do it.” Bone then telephoned Mann and told him Alexander had accepted the settlement offer. Bone explained that after Mann forwarded the settlement check and attendant paperwork to him, he notified Alexander to come to his office to conclude the matter, and she agreed to do so. She never came in, however, and Bone eventually elected to withdraw from representing her. He could not recall any conversation he had had with her before he decided to withdraw in which she might have explained to him the reason for her failure to follow through with the settlement.

Alexander gave the court an entirely different version of the communications, or lack of communications, between her and Bone during that time frame. She adamantly and repeatedly insisted to the trial judge that she had never heard of the $60,000 settlement offer before her attorneys accepted it, that she had never discussed any such settlement figure with Bone, that she would never have agreed to a settlement for that amount, that she never accepted it, and that she never authorized Bone to settle her personal-injury action for that amount. She stated further that she had had no idea that her case had supposedly been settled until she received some correspondence from Mann and telephoned him.

Thus, the trial judge was confronted with the diametrically opposed versions of the facts by Bone and Alexander as to whether Bone had contacted Alexander about the $60,000, settlement offer and what communications had ensued between them.

At the conclusion of the hearing the trial judge undertook to explain to Alexander, who was appearing pro se, the judge’s understanding of the law that applied to the situation before him. Because the judge’s lengthy statement in that regard, including exchanges between the judge and Alexander and the judge and Lee, is critical to our analysis of the proper disposition of this appeal, we set it out at length:

“THE COURT: Let me explain to you the law in this case, ma’am, as best I can. I’ve never run into a situation quite like this before.
“MS. ALEXANDER: Uh-huh.
“THE COURT: But under Alabama law, when an attorney is representing an individual and, you know, they have the authority under Alabama law to act for that individual.
“That’s the only way the system can work. And everybody in this room, you know — And I’m not being flippant about this when I say this, but I mean, the attorneys in this room all agree that they indicated to Mr, Lee, who talked to his insurance company and everything, and they settled this case for sixty thousand dollars.
“There’s no question that happened. I mean, the question before the Court is your conversation with Mr. Bone, because as Mr. Mann stated, you didn’t talk to Ted Mann. I know y’all have a little dispute about a conversation you had, but that’s not really the main issue in the Court today. I think you agree with that.
“MS. ALEXANDER: Right.
“THE COURT: I think the conversation you had with Mr. Lee is not really the main issue in the court today.
“MS. ALEXANDER: Right.
“THE COURT: This issue in this Court today is the conversations that you had with Mr. Bone.
“MS. ALEXANDER: Yes, sir.
“THE COURT: You agree with me on that, do you not?
“MS. ALEXANDER: Yes, sir. Which was not — it was never an agreement of no settlement as far as—
“THE COURT: But Alabama law tells a Court and tells a judge that if a lawyer acting on behalf of a client settles a case, the court has to enforce that settlement
if the lawyer states to the Court that that is the settlement of the case.
“I' mean, David [Lee], is that your understanding of the law?
“MR. LEE: Yes, sir.
“THE COURT: I mean, I’ve been down this road on motion to enforce settlements before. Normally, what has happened is the client is upset with the amount, you know, later on.
“I’ve never had a case where the client comes in and tells me she didn’t agree to anything.
“Ma’am, I’m not disputing anything you’re saying or Mr. Bone. I want you to understand that. And when I’m making this ruling, I want you to understand that I’m not sitting here passing judgment on the truth and veracity of you or Mr. Bone.
“And I’m not asking these gentlemen [referring to Bone and Mann], because I know they have a personal interest in the case, David [referring to Lee]. That’s why I’m asking you. Am I correct — is it your understanding in the law that if an attorney makes a settlement, that the Court is to enforce the settlement?
“MR. LEE: Yes, sir. I think that’s a correct statement of the law.
“THE COURT: And I want Mrs. Alexander to understand that. I mean, this is a small town. We know each other. These lawyers practice before me all the time. I know David Lee. But, I mean, he hasn’t been before me. I know his law partners real well.
“In fact, one of them lives with me almost up here in cases. But I want you . to understand the reason that this Court is saying what it’s saying, and I want to make sure that I’m quoting the law correctly, because I’ve been down this road on motions to enforce — many, times over the years. • •
“I’ve just never had one where somebody has come in and told me the lawyer is just flat out telling an untruth, which is what you’re telling me today.
“Now, the ruling of this Court is that this settlement is going to be enforced ....
“THE COURT: All right. So, I’m directing that you — Mr. Lee, I’m directing that you draw up an order that this settlement is enforced and that this money will be paid into the Circuit Clerk’s Office....”

In Warner v. Pony Express Courier Corp., 675 So.2d 1317, 1320 (Ala.Civ.App.1996), the Court of Civil Appeals accurately summarized the caselaw on point as to this issue:

“In Hawk v. Biggio, 372 So.2d 303 (Ala.1979), a party argued that the evidence failed to show that his attorney had the authority to agree to a settlement. The trial court concluded that § 34-3-21, Ala.Code 1975, gave an attorney the authority, as a matter of law, to make a settlement for his client. That section provides:
“ ‘An attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such case, made in writing, or by an entry to be made on the minutes of the court.’
“The supreme court reversed, holding that § 34-3-21 was not dispositive of the issue. Instead, the court concluded, it is always a question of fact whether an attorney has the authority to make a settlement on behalf of his client. ‘[0]ur cases have consistently held that whether an attorney has authority to bind his client by an agreement to settle the case by consent is a question of fact.’ Blackwell v. Adams, 467 So.2d 680, 684 (Ala.1985).
“ ‘An attorney may not consent to a final disposition of his client’s case without express authority. Although an attorney of record is presumed to have his client’s authority to compromise and settle litigation, a judgment entered upon an agreement by the attorney may be set aside on affirmative proof that the attorney had no right to consent to its entry.’ Blackwell v. Adams, 467 So.2d at 684-85 (quoting Bradford Exchange v. Trein’s Exchange, 600 F.2d 99, 102 (7th Cir.1979)). ‘[A]n attorney in this state may not “compromise” his “client’s cause of action” except on the “express authority of the client.” ’ K.P. v. Reed, 626 So.2d 1241, 1242-43 (Ala.1992).
“In Daniel v. Scott, 455 So.2d 30 (Ala.Civ.App.1984), this court summarized the ‘appropriate law of Alabama upon the power of an attorney to compromise’ his client’s claim, as follows:
“ ‘An attorney cannot settle a client’s action or claim or prejudice a client’s rights without authorization from the client. The power to compromise a demand does not arise from the power to sue or from an attorney’s general authority which is usually limited in both duty and authority to the vigilant prosecution or defense of the rights of the client. The authority to settle is not incidental, but it is essential that an attorney have express, special authority from his client to do so. A person dealing with an attorney must ascertain the extent of the attorney’s authority to compromise the client’s claim. “An attorney employed to represent a litigant in the prosecution or defense of a suit is a special agent of his client and has no implied or inherent authority or right to compromise and settle it.” An agent’s apparent authority must be founded upon the conduct of the principal and not upon the conduct of the agent.’
“Daniel v. Scott, 455 So.2d at 32-33 (quoting Crawford v. Tucker, 258 Ala. 658, 663, 64 So.2d 411, 416 (1953)).”

See also Goodwyn, Mills & Cawood, Inc. v. Markel Ins. Co., 911 So.2d 1044, 1049 (Ala.2004); and Roberson v. State ex rel. Smith, 842 So.2d 709, 711-12 (Ala.Civ.App.2002).

In her brief to this Court, Alexander cites Blackwell v. Adams, 467 So.2d 680 (Ala.1985), Warner v. Pony Express Courier Corp., supra, and Crawford v. Tucker, 258 Ala. 658, 64 So.2d 411 (1953), in arguing that an attorney may not consent to final disposition of a client’s case without the client’s express authority and that a judgment entered on the basis of a settlement agreement entered into by an attorney may be set aside on affirmative proof that the attorney had no authorization to consent to the agreement. In the brief Lee has filed with this Court on behalf of the defendant, Lee argues that because “both Mr. Mann and Mr. Bone testified that they had authority from [Alexander] to settle the case for $60,000,” the ore tenus rule comes into play; under that rule “a trial court’s ruling based upon ore tenus evidence must be affirmed ‘if, under any reasonable aspect of the testimony there is credible evidence to support the judgment.’ Pforr v. Intercorp., Inc., 577 So.2d 1291, 1293 (Ala.1991).” The argument is then advanced, “Clearly, the trial court heard testimony from both of [Alexander’s] former attorneys substantiating the trial court’s conclusion that they had authority to settle the present action and enter into the settlement agreement in question.” (Lee’s brief, p. 11.) In that regard, Lee points out that the formal order entered by the trial court confirming its bench ruling that the $60,000 settlement was due to be enforced (which order was drafted by Lee and submitted to the court at the court’s request) notes the dispute between Bone and Alexander about settlement authority and then states “[b]ased upon the representations made at the hearing on the Motion to Enforce Settlement Agreement and based upon the applicable law of the State of Alabama the Court finds that the defendant’s Motion to Enforce Settlement Agreement is due to be GRANTED.” In essence, Lee argues that the trial judge resolved the conflict in the “ore tenus testimony” of Bone and Alexander and concluded that Alexander had in fact given her attorneys authority to settle her personal-injury case for $60,000. The trial judge did not expressly make any such finding, however, and although “where the trial court fails to make a specific finding of fact as to whether a party’s attorney is authorized to enter into a stipulation or compromise, such a finding is implicit in the trial court’s order” (Roberson, 842 So.2d at 712), the trial judge’s explanations to Alexander at the conclusion of the hearing appear affirmatively to state that he was forgoing making any finding concerning whether Bone had authority from Alexander to accept the offer as unnecessary to his holding.

If the judge had actually made a finding accepting Bone’s version of the disputed facts, or if the state of the record was such that a finding to that effect could be deemed implicit in the trial court’s order, we would affirm. The judge was entrusted with making the credibility choice as between Bone and Alexander, and there were collateral circumstances brought to the judge’s attention, which we need not discuss in this opinion, that would tend to support Bone’s explanation of what had transpired.

Given the way the record stands, however, we elect to remand the case to afford the trial judge an opportunity to clarify his statements at the hearing concerning the controlling law and perhaps to reconcile them with the text of his written order. If the trial judge advises this Court on return to remand that he in fact made no finding in the final analysis concerning whether Bone had authorization from Alexander to accept a $60,000 settlement, then we will reverse his order and again remand with instructions that that necessary determination be made. On the other hand, if on return to remand the trial judge explains that he had meant to convey in his formal order that he had ultimately found that Bone had indeed received authorization from Alexander to accept the $60,000 settlement, the order now appealed from will be affirmed.

Accordingly, we remand with instructions for the trial court to explain on return to remand the intent and meaning of his final order with regard to a finding of fact of whether Bone was authorized by Alexander to accept the $60,000 settlement. The trial court shall provide that clarification to this Court within 28 days after the date this opinion is released.

REMANDED WITH INSTRUCTIONS.

NABERS, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

On Return to Remand

HARWOOD, Justice.

On August 4, 2006, we remanded this case to the Etowah Circuit Court for that court to clarify whether it had made a factual finding as to whether Gary Bone, an attorney representing Donna Jo Chapman Alexander, the plaintiff in a personal-injury action, was authorized to accept a settlement on behalf of Alexander. On August 14, 2006, the circuit judge who had conducted the August 16, 2005, hearing referenced in our August 4, 2006, opinion, and who had entered the order referenced in that opinion, filed with this Court the following order on return to remand:

“By decision released August 4, 2006, Justice Harwood, speaking for a unanimous Supreme Court, issued the following order to the undersigned:
“ ‘Accordingly, we remand with instructions for the trial court to explain on return to remand the intent and meaning of his final order with regard to a finding of fact of whether Bone was authorized by Alexander to accept the $60,000 settlement.’
“Per the above direction from the Supreme Court, the undersigned finds as follows:
“As stated in the transcript of the earlier hearing, the undersigned did NOT make a finding concerning whether Bone had authorization from Alexander to accept a $60,000 settlement.
“In reading the Supreme Court decision, the undersigned finds that the above statement was all the Supreme Court directed the undersigned to address at this time and the undersigned will await further instructions from the Court.”

Given that the trial judge advises us that he made no finding as to whether Bone had authorization from Alexander to accept the $60,000 settlement, and consistent with our explanation on original deliverance of the options available to us, depending upon the trial judge’s response on return to remand, we hereby reverse the trial court’s order and remand the case with instructions that the trial judge make the necessary determination as to whether Bone had authorization from Alexander to accept the $60,000 settlement. The trial judge may conduct such further hearings as he might deem appropriate, solely within his discretion. In that regard, we noted on original deliverance that none of the participants in the August 16, 2005, hearing had been placed under oath, but that that procedural omission was not raised by any of the parties either before the trial court or on appeal to this Court.

REVERSED AND REMANDED WITH INSTRUCTIONS.

NABERS, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and PARKER, JJ., concur.

      . This case was originally assigned to another Justice on this Court; it was reassigned to Justice Harwood on July 13, 2006.

      . Alexander also argues in her brief that § 34-3-21, Ala.Code 1975, set out in the excerpt from Warner v. Pony Express Courier Corp. quoted above, would serve to preclude enforcement of the settlement because “[i]t is clear from the record that the oral agreement at issue here was not made in open court or during a pretrial conference and was not entered into in the minutes of open court.” Because that argument was never presented to the trial court, we do not consider it to have been preserved for the purposes of this appeal. Alexander is represented by new counsel in this appeal.


author: MURDOCK, Judge. PITTMAN, Judge,

text:
    Ex parte Douglas W. CHATMON. (In re United States Steel Corporation v. Douglas W. Chatmon).
    2050314.
    Court of Civil Appeals of Alabama.
    Jan. 12, 2007.
    Rehearing Denied April 27, 2007.

      Samuel Maples of Thomason, Maples & Allsup, L.L.C., Bessemer, for petitioner.
    Neil Richard Clement and Amelia Robinson Killebrew of Adams & Reese/Lange Simpson, LLP, Birmingham, for respondent.
   MURDOCK, Judge.

This is a declaratory-judgment action concerning workers’ compensation benefits. Douglas W. Chatmon petitions this court for a writ of mandamus directing the Birmingham Division of the Jefferson Circuit Court to transfer this case to the Bessemer Division of the Jefferson Circuit Court. We grant the petition and issue the writ.

In May 2004, Chatmon retired from his employment with United States Steel Corporation (“U.S. Steel”). On August 10, 2004, U.S. Steel received a letter from Chatmon’s attorney claiming that Chatmon had sustained a work-related injury to his back due to gradual deterioration or cumulative physical stress. Chatmon claimed that this injury arose out of his employment with U.S. Steel. Chatmon had been employed at a U.S. Steel facility located within the Bessemer Division.

On August 16, 2004, U.S. Steel filed an action (“the Birmingham action”) against Chatmon in the Birmingham Division seeking a judgment declaring that Chat-mon’s alleged injuries did not arise out of or in the course of his employment with U.S. Steel and that U.S. Steel did not owe any workers’ compensation benefits to Chatmon.

On August 18, 2004, Chatmon filed an action (“the Bessemer action”) against U.S. Steel in the Bessemer Division seeking workers’ compensation benefits with respect to his alleged back injuries.

On August 19, 2004, Chatmon filed a motion to dismiss the Birmingham action, alleging (1) that U.S. Steel’s complaint failed to state a claim upon which relief could be granted, (2) that a workers’ compensation action was pending in the Bessemer Division, which was the proper venue for such an action, and (3) that all claims advanced in the Birmingham action could be asserted in the Bessemer action. The only relief sought in this motion was the dismissal of the Birmingham action; the motion did not request that the Birmingham action be transferred to the Bessemer Division.

U.S. Steel filed a response to Chatmon’s motion to dismiss. On November 27, 2004, the trial court in the Birmingham action denied Chatmon’s motion to dismiss.

On October 14, 2005, Chatmon filed a motion in the Birmingham action requesting that the trial court transfer the action to the Bessemer Division, arguing that Act No. 213, Ala. Local Acts 1919 (“the Bessemer Act”), required the transfer of the action to the Bessemer Division, which had exclusive venue over actions arising within the Bessemer Division. On December 5, 2005, U.S. Steel filed a response arguing that, pursuant to Ala.Code 1975, § 6-2-3(b), venue was proper in the Birmingham Division because Chatmon resided there.

On December 8, 2005, the trial court in the Birmingham action denied Chatmon’s motion to transfer. Chatmon filed this petition for a writ of mandamus within 42 days after the entry of the order denying his motion to transfer.

Chatmon contends that the trial court erred in denying his motion to transfer because, he says, this action arose in the Bessemer Division and the Bessemer Division is therefore the exclusive venue for this action.

U.S. Steel contends (1) that Chatmon’s petition was untimely because it was filed more than one year after the trial court denied Chatmon’s initial motion to dismiss and (2) that venue is proper in the Birmingham Division under Ala.Code 1975, § 6 — 3—2(b), because Chatmon resides within the Birmingham Division.

The threshold question to be decided is whether Chatmon’s mandamus petition is timely. Rule 21(a)(3), Ala. R.App. P., governs the time for filing mandamus petitions, and it provides, in pertinent part:

“The petition [for a writ of mandamus] shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking review of an order of a trial court ... shall be the same as the time for taking an appeal. If a petition is filed outside this presumptively reasonable time, it shall include a statement of circumstances constituting good cause for the appellate court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time.”

Citing Ex parte Troutman Sanders, LLP, 866 So.2d 547 (Ala.2003), and Ex parte Pelham Tank Lines, Inc., 898 So.2d 733 (Ala.2004), U.S. Steel argues (1) that Chatmon’s petition is untimely because it was filed more than 42 days after the denial in November 2004 of Chatmon’s initial motion to dismiss and (2) that Chat-mon’s October 2005 motion to transfer should be disregarded because it was in effect a “motion to reconsider” that did not extend the time for filing a mandamus petition.

In Troutman Sanders, the defendants filed a motion to dismiss on the ground of forum non conveniens. After this motion was denied, the defendants filed a “motion to reconsider,” which was also denied. Within 42 days after the denial of the “motion to reconsider,” but more than 42 days after the denial of the motion to dismiss, the defendants filed a petition for a writ of mandamus. Our Supreme Court held that the filing of an interlocutory “motion to reconsider” did not extend the time for filing a petition for a writ of mandamus and that the petition was therefore untimely. 866 So.2d at 550.

U.S. Steel’s argument fails because the motion at issue in this case is not a motion to reconsider the trial court’s 2004 order refusing to dismiss U.S. Steel’s action. The order for which Chatmon seeks review is the order of December 8, 2005, which denied Chatmon’s October 2005 motion to transfer the action. Chatmon’s petition was filed within 42 days after the issuance of the order denying the October 2005 motion to transfer.

In Ex parte Daniels, 941 So.2d 251 (Ala.2006), our Supreme Court determined that a petition for a writ of mandamus seeking a transfer of the action was timely when filed in response to a trial-court order denying a motion to transfer, rather than in response to a previous trial-court order denying a motion to dismiss for failure to state a claim. The initial motion, to dismiss the action, did not assert that venue was improper. Our Supreme Court held that, after the issuance of the first order, the defendants “could not have sought a writ of mandamus directing the trial court to transfer the case because the trial court’s order did not address a request to transfer.” Ex parte Daniels, 941 So.2d at 258.

Similarly, in this case, Chatmon could not have sought a writ of mandamus in November 2004 directing the trial court to transfer the action. Although Chatmon’s August 2004 motion did assert that the Bessemer Division was the proper venue for his action, that motion did not request a transfer of the Birmingham action to the Bessemer Division. Thus, we conclude that Chatmon’s petition was timely because it was filed within 42 days after the entry of the December 8, 2005, order, which is the order for which Chatmon seeks review.

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 transfer an action and such a petition is due to be granted if the petitioner makes a clear showing of error on the part of the trial court.’ Ex parte Alabama Power Co., 640 So.2d 921, 922 (Ala.1994).”

Ex parte Walter Indus., Inc., 879 So.2d 547, 548-49 (Ala.2003).

Section 2 of the Bessemer Act provides, in pertinent part:

“The said Circuit Court of the Tenth Judicial Circuit, holding at Bessemer, as in this Act provided, shall have, exercise and possess all of the jurisdiction and the powers which are now or which may hereafter be conferred by law on the several Circuit Courts of this State, which said jurisdiction and powers shall be exclusive in, limited to, and extend over that portion of the territory of the County of Jefferson, which is included in the following precincts, to-wit: [listing the precincts composing the Bessemer Division], as said precincts are at present constituted, and from and over the above mentioned and described territory all jurisdiction and powers heretofore or now exercised or existing therein by the Circuit Court of the Tenth Judicial Circuit, as now held at Birmingham, is hereby expressly excluded.”

Section 2 of the Bessemer Act contains no language that would appear to limit the cases in which venue is appropriate in the Bessemer Division only to those cases in which the cause of action arises in that division. To the contrary, the Bessemer Act provides that the Bessemer Division “shall have, exercise and possess all of the jurisdiction and the powers which are now or which may hereafter be conferred by law on the several Circuit Courts of this State.” In Ex parte Central of Georgia Railway Co., 243 Ala. 508, 10 So.2d 746 (1942), however, our Supreme Court interpreted Section 2 of the Bessemer Act to mean that “the court at Bessemer has exclusive jurisdiction of all civil actions at law upon causes of action arising in the territorial jurisdiction of that court, and such jurisdiction is limited to suits upon causes of action arising within such territory.” 243 Ala. at 513, 10 So.2d at 750 (quoted with approval in Ex parte Walter Indus., Inc., 879 So.2d at 550). This court, of course, is bound by the decisions of our Supreme Court. Lisenby v. Simms, 688 So.2d 864, 867 (Ala.Civ.App.1997).

More recently, a majority of our Supreme Court reaffirmed the approach reflected in Ex parte Central of Georgia Railway, stating:

“In [Ex parte Alabama Mobile Homes, Inc., 468 So.2d 156 (Ala.1985)], this Court employed a two-step analysis to determine whether an action should be brought in the Bessemer Division. First, we must determine whether Jefferson County is the proper venue for the action. Id. at 161. If the case was properly brought in Jefferson County, then
“ ‘we must determine which of the two divisions the case should have been filed in. An action must be brought in Bessemer if it “arises” within the territorial boundaries of the Bessemer Cutoff. Local Act No. 213, § 2, p. 62, Ala. Acts 1919. All suits maintainable in Jefferson County which do not arise in Bessemer should be brought in the Birmingham Division.’
468 So.2d at 161-62.”

Ex parte Walter Indus., Inc., 879 So.2d at 553 (emphasis omitted). Accordingly, under the decisions of our Supreme Court, the dispositive question in the present case is limited to whether the action arose in the territory of the Bessemer Division.

A tort claim for bodily injury arises where the injury occurs. Ex parte Birmingham Southern R.R., 473 So.2d 500, 501 (Ala.1985) (a Federal Employers’ Liability Act action should have been filed in the Bessemer Division because the injuries occurred there); Ex parte Walter Indus., Inc., 879 So.2d at 553 (action to recover for wrongful death from a mining accident “arose” in Tuscaloosa County, where decedents were killed); Winn-Dixie Montgomery, Inc. v. Bryant, 421 So.2d 1254, 1256 (Ala.1982) (noting, in a case involving the Bessemer Act, that “a case arises wherever the alleged wrong occurs”); and Ex parte Central of Georgia Ry., 243 Ala. at 511, 10 So.2d at 748 (a wrongful-death action arose at the time and place of the injury causing the death). Thus, Chatmon’s claim for workers’ compensation benefits arose in the Bessemer Division, where he was employed and where the injury allegedly occurred.

Based on the foregoing, we are constrained to hold that venue as to U.S. Steel’s action must be set in the Bessemer Division of Jefferson County. Therefore, pursuant to Ala.Code 1975, § 12-11-11, we direct the trial court to transfer this case to the Bessemer Division.

PETITION GRANTED; WRIT ISSUED.

CRAWLEY, P.J., and THOMPSON and BRYAN, JJ., concur.

PITTMAN, J., concurs specially.

PITTMAN, Judge,

concurring specially.

I concur in the main opinion. I write specially to note that this case arguably differs from Ex parte Daniels, 941 So.2d 251 (Ala.2006), in that Chatmon, in his August 2004 motion to dismiss, did assert that the Bessemer Division was “the proper place of venue for this action.” However, according to our Supreme Court, improper venue is not a valid basis for the dismissal of a case if the case is capable of being transferred to “a court where venue would be proper.” See Boshell v. Jasper Police Dep’t, 558 So.2d 898, 899 (Ala.1989). Thus, the trial court’s November 2004 denial of the remedy of dismissal, which was the only remedy sought in Chatmon’s August 2004 motion, was proper even though, as the main opinion amply demonstrates, U.S. Steel’s action was brought in an improper venue. For that reason, I cannot agree with U.S. Steel’s position that Chat-mon’s October 2005 motion to transfer im-permissibly sought “reconsideration” of the trial court’s November 2004 decision not to dismiss the action so as to render Chatmon’s mandamus petition presumptively untimely under Rule 21(a), Ala. R.App. P., and Ex parte Troutman Sanders, LLP, 866 So.2d 547 (Ala.2003).

      . Chatmon’s October 2005 motion was Chat-mon's first and only motion requesting a transfer of the action.

      . The claims at issue in Ex parte Daniels were against officers of the Alabama Department of Corrections. Section 6-3-9, Ala.Code 1975, allows an action of that nature to be transferred to Montgomery County at any time before trial. See Ex parte Daniels, supra.

      .We note that U.S. Steel does not argue (1) that the October 2005 motion to transfer was precluded by the denial of Chatmon’s prior motion to dismiss or (2) that Chatmon waived any right to a transfer of the action based upon improper venue by failing to request such a transfer in his initial motion to dismiss. See generally, e.g., Rules 12(b)(3) and 12(h)(1), Ala. R. Civ. P.

      . One apparent, but seemingly inappropriate, result of this interpretation is that a case in which a cause of action arises in some county other than Jefferson County, and in which venue is proper in Jefferson County only because of the residence of a party in the Bessemer Division of Jefferson County, and indeed where the party’s residence in the Bessemer Division is the only circumstance tying the lawsuit to Jefferson County, nonetheless must be brought in the Birmingham Division of the county.

      . Thus, a court reviewing a hypothetical petition for a writ of mandamus challenging the trial court’s November 2004 order might well have determined that no "imperative duty upon the respondent to perform” existed (see generally Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991)).