author: MAIN, Justice.

text:
    Ex parte CITY OF MONTGOMERY. (In re Sabrina Jackson, as administratrix of the Estate of Tony Lewis, Jr., deceased v. City of Montgomery and QCHC, Inc., a/k/a Quality Correctional Health Care) Ex parte QCHC, Inc., a/k/a Quality Correctional Health Care. (In re Sabrina Jackson, as administratrix of the Estate of Tony Lewis, Jr., deceased v. City of Montgomery and QCHC, Inc., a/k/a Quality Correctional Health Care).
    1150439 and 1150452.
    Supreme Court of Alabama.
    June 10, 2016.

      Stacy Lott Reed and Michael D. Brymer, City of Montgomery Legal Department, for petitioner City of Montgomery.
    R. Jordan Wood and Jonathan M. Hooks of Christian & Small, LLP, Birmingham, for petitioner QCHC, Inc., a/k/a Quality Correctional Health Care.
    Julian L. McPhillips, Jr., of McPhillips Shinbaum, LLP, Montgomery, for respondent.
   MAIN, Justice.

Sabrina Jackson, as the administratrix of the estate of Tony Lewis, Jr., deceased, filed a verified petition in the Montgomery Circuit Court, pursuant to Rule 27(a), Ala. R. Civ. P., requesting preaction discovery from the City of Montgomery (“the City”) and QCHC, Inc., a/k/a Quality Correctional Health Care (“Quality”) (hereinafter referred to collectively as “the defendants”). The circuit court granted that petition. The defendants have separately petitioned this Court for a writ of mandamus directing the circuit court to vacate its order and to dismiss Jackson’s Rule 27(a) petition. We grant the petitions and issue the writs.

Facts and Procedural History

On March 31, 2015, Jackson, as the ad-ministratrix of Lewis’s estate, filed a verified petition for preaction discovery pursuant to Rule 27(a), Ala. R. Civ. P. That petition stated that Lewis was being held in the Montgomery municipal jail when he died unexpectedly on the night of January 12, 2015, or the early morning hours of January 13, 2015. According to the petition, the City is responsible for the operation of the jail and Quality is a private contractor that provided health-care personnel to attend to the medical needs of the inmates who were incarcerated- in the jail. Jackson’s Rule 27(a) petition alleged:

“Based upon information and affidavits from other inmates who were held in the Montgomery-Municipal Jail at the same time as decedent, the Petitioner believes jail authorities and health care personnel were negligent and deliberately indifferent to the medical needs of Tony Lewis, and thereby denied the decedent Tony Lewis, Jr. treatment needed to save his life, if said treatment had been administered promptly.”

The petition further alleged that the City had “negligently allowed dangerous drugs to be brought into its municipal jail and negligently failed to monitor its inmates carefully enough to make sure such drugs were not used.” The petition also stated that Jackson “believes that '[Lewi's] was given some medication by the health[-]care personnel, which may have caused him to stop breathing,” and that this act “may have amounted to negligent malpractice and/or deliberate indifference to Mr. Lewis’s medical needs.” The petition alleged that Jackson’s “ability to protect Mr. Lewis’s rights may be substantially damaged if [Jackson] is not allowed t'o obtain the information requested in the attached interrogatories and requests for production.” The petition further alleged that “a cause of action or causes of action may exist against [the defendants] and potentially other persons or entities.” According to the petition, allowing preaction discovery “would benefit all parties by allowing the production of relevant and material information, records, and documents, and may disclose the identity of other proper parties to this lawsuit, and would, further serve to prevent a frivolous lawsuit in the event no such claim or claims exist.” Jackson’s requests for production included, among other things, Lewis’s medical records, any documents referencing Lewis, any complaints made against Quality or the City in the last 5 years concerning inmate health care, personnel files of the individuals who had treated Lewis, the name and cause of death for any inmate who has died in the Montgomery municipal jail in the last 10 years, and any video footage recorded in the Montgomery municipal jail on January 11-13, 2015.

On May 6, 2015, Quality responded to Jackson’s petition. Quality argued that Jackson was seeking information that was not allowed under Rule 27, Ala. R. Civ. P., and asked the circuit court to deny Jackson’s petition. Nevertheless, Quality stated that it was willing to voluntarily provide Lewis’s medical records to Jackson on the condition that Jackson agree to a protective order prohibiting the use or disclosure of the medical records except for the purposes of evaluating any claims available to Jackson and of using the medical records in any resulting litigation.

On May 8, 2015, Jackson filed a motion in which she consented to a “reasonable protective order” and invited Quality’s counsel to send such an order to Jackson’s counsel for review. On May 15, 2015, Jackson replied to Quality’s response to her Rule 27 petition. In her reply, Jackson conceded that interrogatories are not allowed under Rule 27. Jackson also stated that she would accept Quality’s offer to voluntarily provide Lewis’s medical records. In addition to those medical records, Jackson continued to seek the production of other documents or recordings related to Lewis.

On August 3, 2015, the circuit court issued an order stating, in pertinent part:

“On June 5, 2015, the Petitioner filed a ‘Motion to Compel City of Montgomery to Answer Verified Rule 27 Pre-Filing Discovery.’ On the same date, the Petitioner also filed an ‘Amended Complaint.’ According to the court record, Respondent-City of Montgomery was not served until June 10, 2015, with the pre-suit discovery Petition and the ‘Amended Complaint.’ On June 24, 2015, the Respondent-City of Montgomery filed its objection to the Petitioner’s motion to compel arguing it was not served until June 10, 2015, and the motion to compel was improperly filed since Ala. R. Civ. Pro. 27(a)(2) requires a Ala. R. Civ. Pro. 27 petition seeking pre-suit discovery be served in compliance with Ala. R. Civ. Pro. 4(c). After service of the petition is perfected, a respondent is afforded at least thirty (30) days to respond to the petition. Ala. R. Civ. Pro. 27(a)(2).
“On July 2, 2015, this Court conducted a hearing on Petitioner’s motion to compel and the City of Montgomery’s response. At the hearing were Petitioner’s counsel; counsel for Respondent-City of Montgomery; and counsel for Respondent-[Quality]. Petitioner’s counsel effectively withdrew his motion to compel. Therefore, Petitioner’s Motion to Compel is DENIED as MOOT. During the hearing, question arose regarding the procedural posture of the case since the Ala. R. Civ. Pro. 27 pre-suit discovery petition has not been disposed of, but the Petitioner has subsequently filed an ‘amended complaint’ despite not filing an original complaint.
“Ala. R. Civ. Pro. 3(a) states: ‘A civil action is commenced by filing a complaint with the court.’ Additionally, Ala. R. Civ. Pro. 7(a) states: ‘There shall be a complaint.’ In Arrington v. Courtyard Citiflats, LLC, 191 So.3d 787 (Ala. 2015), the Alabama Supreme Court noted a ‘civil action is commenced by filing a complaint....’ No rule or present caselaw allows for a Rule 27 pre-suit discovery petition to ‘convert’ into a complaint much less an amended complaint. Therefore, the Petitioner’s ‘Amended Complaint’ is STRICKEN from the record. Once pre-suit discovery is completed, the Petitioner can decide what, if any, causes of action [she] may have against the Respondents. Then, the Petitioner may commence a civil action by following Ala. R. Civ. Pro. 3(a) and 7(a).
“Because Petitioner’s Rule 27 pre-suit discovery petition has not yet been heard by this court, the court gives the Respondents thirty (30) days from the date of this order to respond in accordance with Ala. R. Civ. Pro. 27(a)(2) at which point this court will set a hearing on the petition and the responses to determine if pre-suit discovery will be ordered.
“In conclusion, it is hereby ordered that the ‘Amended Complaint’ improperly filed by the Petitioner is STRICKEN FROM THE RECORD; the Petitioner’s Motion to Compel is DENIED AS MOOT; and the Respondents are given THIRTY (30) DAYS to respond to the pending Rule 27 pre-suit discovery petition.”

(Capitalization in original.)

On September 1,2015, the City responded to Jackson’s preaction-discovery petition. Like Quality, the City argued that Jackson was seeking information that was not allowed under Rule 27, Ala. R. Civ. P., and asked the circuit court to deny Jackson’s petition.

After conducting a hearing, the circuit court on October 13, 2015, issued an order that stated, in pertinent part:

“This Court notes that [Jackson’s] counsel conceded that interrogatories were inappropriate, but under Rule 27 of the Alabama Rules of Civil Procedure, he was entitled to obtain answers to his Requests of Production of Documents from both parties under Rule 34 of the Alabama Rules of Civil Procedure and allowed to take depositions pursuant to Rule 27 under Rule 35.
“This court heard arguments from both counsel who referred to the recent Alabama Supreme Court opinion of Ex parte Ferrari, 171 So.3d 631 (Ala.2015), and this Court having considered the same as well as arguments from counsel, it is hereby ORDERED, ADJUDGED, AND DECREED that both the Defendants City of Montgomery and [Quality] will produce documents requested by [Jackson] in her original verified petition filed on March 31, 2015, with Request for Production of Documents attached; and it is further hereby ORDERED that the Defendant [Quality] will make available two nurses for depositions, identified in a January 12, 2015, written statement as being Nurse McDaniel and Nurse C. Davis for the purposes of perpetuating their testimony concerning events that occurred on the night of January 12-13, 2015, when inmate Tony Lewis, Jr., died in the city jail; it is also ORDERED that the City of Montgomery make available any key witnesses, whom [Jackson] designates as necessary to perpetuate their testimony concerning events that occurred on the night of January 12-13, 2015, when inmate Tony Lewis, Jr., died in the city jail.”

(Capitalization in original.)

On November 10, 2015, the City filed a “motion to amend or vacate, or in the alternative, motion for protective order.” On December 3, 2015, Quality joined that motion. In the motion, the defendants argued that Jackson had failed to meet the requirements of Rule 27(a), Ala. R. Civ. P., because, they said, she failed to establish that she is presently unable to bring a cause of action and she failed to demonstrate that preaction discovery is necessary to prevent a failure or delay of justice. The motion further argued that Jackson’s discovery requests are overly broad and outside the scope of Rule 27. The motion requested, as an alternative to amending or vacating the October 13,2015, order, that the circuit court enter a protective order disallowing certain requests for production and ordering Jackson to submit the names of proposed deponents to the court for approval before moving forward with the depositions.

On December 8, 2015, Jackson’s counsel responded to the defendants’ motion. Among other things, Jackson’s counsel stated:

“The respondent argues that I cannot show, under Rule 27, why I could not bring a regular civil lawsuit for which ordinary discovery is available. While it may be true that I could bring such a lawsuit, I believe that the good faith discovery purposes of Rule 27 are to protect me and my client from later sanctions for bringing an unwarranted suit. It is true that I once attempted to convert my Rule 27 petition into an Amended Complaint, but your Honor should remember that, my attempt was strongly opposed by defense counsel, at an earlier hearing, and you denied that attempt.
“The respondent argues that I cannot show why pre-action discovery is necessary to prevent a failure of justice. Again, it should be obvious, for reasons already stated, including that we want to preserve testimony from two witnesses, who were eyewitnesses to Mr. Lewis dying on that fateful evening of January 12, 2015, and/or the early morning hours thereafter of January 13. In further response as to why such depositions are needed, I attach copies of affidavits of eyewitnesses, Kennedy Norman and Melvin Cook, and statements from Rodney Meriwether and Sabrina Jackson, as to why this evidence is needed.
“I am also responding to the arguments made from the bottom of page 3 through the bottom of page 6 in the Respondent’s ‘Motion to Amend or Vacate or in the Alternative, Motion for Protective Order’,.,. As to No. 1 of Plaintiffs Requests for Production of Documents, the City argues that it is required to maintain records under § 41-13-23, Code of Alabama [1975]. Yet, the City has failed to produce these records, and therefore should not claim Rule 27 limitations as a reason for non-production. The answer is the same for the City’s response on the second request. This is not a carte blanche fishing expedition, but rather an attempt to confirm that [Jackson] has enough of a case to file a regular lawsuit.
“The same argument and rationale is true as to all the other numbered requests, namely that the respondents contend [Jackson] is on a fishing expedition. Yet Rule 27, if it exists for any legitimate purpose, is to allow for discovery and the items requested by [Jackson].”

On December 18, 2015, the circuit court adopted as the order of the court a proposed order submitted by Jackson with her response to the defendants’ motion. That order stated:

“This Court has received briefs and arguments from both parties in the above-captioned action, and after having reviewed it and studied the same, this Court is of the opinion that its original order dated October 13, 2015 ..., was the valid and appropriate order, given the facts and circumstances of this case and further given the Alabama Supreme Court authority of Ex parte Ferrari, 171 So.3d 631 (Ala.2015).
“It is therefore ORDERED, ADJUDGED, AND DECREED that the respondent’s Motion to Amend or Vacate, or in the Alternative, Motion For Protective Order ..., is hereby DENIED and that the Defendants City of Montgomery and [Quality] will produce documents requested by [Jackson] in her original verified petition filed on March 31, 2015, with Request for Production of Documents attached; and it is further hereby ORDERED that the Defendant [Quality] will make available two nurses for depositions, identified in a January 12, 2015, written statement as being Nurse McDaniel and Nurse C. Davis for the purposes of perpetuating their testimony concerning events that occurred on the night of January 12-13, 2015, when inmate Tony Lewis, Jr., died in the city jail; it is also ORDERED that the City of Montgomery make available any key witnesses, whom [Jackson] designates as necessary to perpetuate their testimony concerning events that occurred on the night of January 12-13, 2015, when inmate Tony Lewis, Jr., died in the city jail.”

(Capitalization in original.)

The City filed its petition for a writ of mandamus with this Court on January 29, 2016; Quality filed its petition for a writ of mandamus on February 3, 2016.

Standard of Review

“[T]he proper avenue for seeking review of a trial court’s disposition of a Rule 27(a) petition for preaction discovery is by way of petition for a writ of mandamus...." Ex parte Ferrari, 171 So.3d 631, 638 (Ala.2015).

“ ‘ “ ‘A writ of mandamus is an extraordinary remedy that requires a showing of (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on 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 Bruner, 749 So.2d 437, 439 (Ala.1999) (quoting Ex parte McNaughton, 728 So.2d 592, 594 (Ala.1998)).’”

Ferrari, 171 So.3d at 639 (quoting Ex parte Norfolk Southern Ry., 816 So.2d 469, 471 (Ala.2001)).

Discussion

As an initial matter, this Court must address the timeliness of Quality’s mandamus petition. Rule 21(a)(3), Ala. R.App. P., provides:

“The petition shall be filed within a reasonable time. The presumptively reasonable time for filing a petition seeking review of an order of a trial court or of a lower appellate 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.”

Under Rule 4, Ala. R.App. P., the time for taking an appeal from a final judgment in a civil case is 42 days. In the present case, the circuit court issued its final order on December 18, 2015; thus the 42-day period ended on January 29, 2016, the day the City filed its mandamus petition. Therefore, Quality’s petition, which was filed on February 3, 2016, was not filed within the presumptively reasonable time. However, Quality’s petition includes a statement of circumstances constituting good cause for this Court to consider the petition, notwithstanding that it was filed beyond the presumptively reasonable time. According to the Committee Comments to Amendments to Rule 21(a) and 21(a)(4) Effective September 1, 2000:

“To determine whether the circumstances warrant the appellate court’s accepting a petition filed beyond the presumptively reasonable time established in this rule, the court should weigh factors such as the prejudice to the petitioner of the court’s not accepting the petition and the prejudice to the opposing party of the court’s accepting it; the impact on the timely administration of justice in the trial court; and whether the appellate court has pending before it other proceedings relating to the same action, and as to which the jurisdiction of the appellate court is unchallenged.”

In Quality’s statement of circumstances constituting good cause, Quality correctly contends that the City’s timely petition is properly before this Court and that the petitions concern the same subject matter; that the denial of Quality’s petition would result in prejudice to it and to the City because, Quality asserts, the denial of its petition would allow Jackson to improperly obtain evidence that would affect both Quality and the City; and that it does not appear that Jackson will suffer any prejudice if this Court accepts Quality’s petition. Concerning the latter factor, we note that Quality’s petition was filed only three business days after the City’s petition was filed and that Quality’s petition concerns the same subject matter as the City’s petition. Further, Jackson can attempt to discover the same evidence by simply filing an actual lawsuit. Finally, as Quality correctly asserts, accepting Quality’s petition will not impact the timely administration of justice in the circuit court because the City’s timely petition is currently pending before this Court and involves the same order issued by the circuit court. Therefore, we find that the present circumstances warrant accepting Quality’s petition; thus, we will consider it, notwithstanding that it was filed beyond the presumptively reasonable time.

As a ground for issuing the writ directing the circuit court to vacate its order and to dismiss Jackson’s Rule 27(a) petition, the City and Quality argue that Jackson failed to demonstrate that she was entitled to preaction discovery under Rule 27(a). Specifically, the defendants argue that Jackson did not show that she is presently unable to bring an action or to cause it to be brought. Further, the defendants argue that Jackson did not demonstrate that her petition was based on any purpose proper under Rule 27(a), such as preserving testimony or documentation.

Rule 27(a), Ala. R. Civ. P., provides, in pertinent part:

“(1) Petition. A person who desires to perpetuate that person’s own testimony or that of another person or to obtain discovery under Rule 34 or Rule 35 regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit court in the county of the residence of any expected adverse party. The petition shall be entitled in the name of the petitioner and shall show: (1) that the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought, (2) the subject matter of the expected action and the petitioner’s interest therein, (3) the facts which the petitioner desires to establish by the proposed testimony and the petitioner’s reasons for desiring to perpetuate it, (4) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and (5) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony or to seek discovery under Rule 34 or Rule 35 from the persons named in the petition.
“(3) Order and Examination. If the court is satisfied that the perpetuation of the testimony or other discovery may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written questions; or shall make an order designating or describing the persons from whom discovery may be sought under Rule 34 and specifying the objects of such discovery; or shall make an order for a physical or mental examination as provided in Rule 35(a). Discovery may then be taken in accordance with these rules. For the purpose of applying these rules to discovery before action, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such discovery was filed.”

In Ferrari, this Court “reject[ed] the notion that ‘clear language’ in Rule 27(a) dictates that discovery under Rule 34[, Ala. R. Civ. P.] (and of necessity Rule 35[, Ala. R. Civ. P.], which in all instances in Rule 27 is referenced in companionship with Rule 34)[,] may be obtained for reasons other than perpetuation of evidence.” 171 So.3d at 647. Under Ferrari, the preservation of evidence is the only proper purpose for preaction discovery under Rule 27. In Ferrari, this Court specifically considered and then rejected the idea that preaetion discovery under Rule 27 could be used to determine whether a cause of action exists. 171 So.3d at 649-52. Furthermore, concerning the argument that preaction discovery might be needed to determine whether there is a reasonable basis for filing an action, this Court stated:

“[W]e see nothing in Rule 11[, Ala. R. Civ. P.,] or the Alabama Litigation Accountability Act[, Ala. Code 1975, § 12-19-270 et seq.,] that compels a reading of Rule 27 that is contrary to the language of the rule, to the explicit Committee Comments, to the history of both the rule and its Committee Comments, and to the other considerations reviewed above, including the uniformly accepted approach in other jurisdictions to language like that at issue here.20
“20 Rule 11, Ala. R. Civ. P., provides only that an attorney’s signature on a complaint constitutes a certificate that the attorney has read the complaint and ‘that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.’ The Alabama Litigation Accountability Act provides for sanctions against attorneys who file actions that are ‘frivolous, groundless in fact or in law, or vexatious, or interposed for any improper purpose.’ See Ala.Code 1975, §§ 12-19-271 and -272.”

Ferrari, 171 So.3d at 652.

In the present case, allowing Jackson to conduct preaction discovery under Rule 27(a) is improper because Jackson has not shown that she is presently unable to bring an action or cause an action to be brought, as required by Rule 27(a). In fact, Jackson actually attempted to convert her petition into an action when she filed her “amended complaint,” and, in one of her filings in the circuit court, Jackson conceded that “it may be true that I could bring such a lawsuit.”

Furthermore, concerning Jackson’s purpose for attempting to obtain preaction discovery, Jackson’s counsel stated: “I believe that the good faith discovery purposes of Rule 27 are to protect me and my client from later sanctions for bringing an unwarranted suit.” Further, Jackson stated that allowing preaction discovery “would benefit all parties by allowing the production of relevant and material information, records, and documents, and may disclose the identity of other proper parties to this lawsuit, and would further serve to prevent a frivolous lawsuit in the event no such claim or claims exist.” Finally, Jackson specifically stated that her Rule 27(a) petition is “an attempt to confirm that [Jackson] has enough of a case to file a regular lawsuit.” However, as this Court held in Ferrari, determining whether an action would be potentially meritorious is not a proper ground for preaction discovery under Rule 27(a). There is no indication in the present case that witness testimony or documentation is at significant risk of being lost or destroyed and needs to be preserved before a complaint can be filed.

Rule 27(a), Ala. R. Civ. P., explicitly requires a petitioner to show that he or she is presently unable to bring an action or to cause an action to be brought. Furthermore, Rule 27(a) limits preaction discovery to the purpose of preserving evidence. Rule 27(a) does not allow preaction discovery for any other purpose, including evaluating a claim or claims. Therefore, because Jackson has not established that she is presently unable to bring an action or that preaction discovery is necessary to preserve evidence in the present case, the defendants have a clear legal right to have Jackson’s Rule 27(a) petition dismissed.

Conclusion

Based on the foregoing, we grant the petitions and issue the writs directing the circuit court to vacate its order and to dismiss Jackson’s Rule 27(a), Ala. R. Civ. P., petition.

1150439—PETITION GRANTED; WRIT ISSUED.

1150452—PETITION GRANTED; WRIT ISSUED.

STUART, BOLIN, MURDOCK, and BRYAN, JJ., concur.

      . We note that the defendants also argue that the discovery Jackson requested is overly broad and seeks material that is protected from disclosure. However, because we direct the circuit court to dismiss Jackson's Rule 27(a) preaction-discovery petition, we need not address this issue.


source: Caselaw Access Project

author: WISE, Justice. MURDOCK, Justice

license: Public Domain

text:
    Ex parte INTERSTATE FREIGHT USA, INC., et al. (In re Kevin L. Vogler v. Interstate Freight USA, Inc., et al.).
    1141422.
    Supreme Court of Alabama.
    June 24, 2016.

      Erskine R. Funderburg of Trussell Fun-derburg Rea & Bell, Pell City; and E.B. Harrison Willis of Cloud & Willis, LLC, Mobile, for petitioners.
    Lawrence J. Setter and Emily A. Crow of Johnstone Adams, LLC, Mobile, for respondent.
   WISE, Justice.

The petitioners, Interstate Freight USA, Inc. (“Interstate Freight USA”), Interstate Specialized, Inc. (“Interstate Specialized”), Interstate Freight, Inc. (“Interstate Freight”) (hereinafter collectively referred to as “the Interstate companies”), Charles A, Browning, and Donald R. Raughton, Sr., filed a petition for a writ of mandamus asking this Court to direct the Baldwin Circuit Court to vacate its order denying their motion to transfer the underlying action to the St. Clair Circuit Court and to enter an order granting the motion. We grant the petition and issue the writ.

Facts and Procedural History

The plaintiff below, Kevin L. Vogler, was hired as a vice president/general manager for Interstate Specialized and Interstate Freight USA. Vogler alleged that, in December 2013, he was working for another company and had become interested in acquiring the transportation branch of the Interstate companies; that he had entered into negotiations with Browning, the president of Interstate Freight USA and Interstate Specialized, and Raughton, a business consultant for the Interstate companies; that Browning and Raughton were acting on behalf of the Interstate companies; that the parties had agreed that “Vogler could acquire a minority interest in the trucking business over a two year period and, after two years of employment with the Interstate companies, would have the option of buying out the interest of Defendant Browning”; that Browning and Raughton had made representations to him regarding his salary and benefits; and that, based on those representations, Vogler left his previous employment and entered into separate employment contracts with Interstate Specialized and Interstate Freight USA. Both contracts provided that they would commence on May 19, 2014, “for a guaranteed period of not less than two (2) years” and contained provisions regarding Vogler’s salary and benefits. Vogler also alleged that, on February 24, 2015, he met with Raughton and Browning and that they told him “that the businesses were being shut down for financial reasons and his position was being terminated.”

On July 6, 2015, Vogler sued the Interstate companies, Browning, and Raughton. In his complaint, Vogler asserted claims of breach of contract and fraud.

On August 17, 2015, the petitioners filed a motion to dismiss for failure to state a cause of action or, in the alternative, for a change of venue. In their motion, they alleged that venue was not proper in Baldwin County and sought to have the case transferred to St. Clair County. They also argued that, even if venue was proper in Baldwin County, the case should be transferred to St. Clair County pursuant to the doctrine of forum non conveniens. In support of their motion, the petitioners attached affidavits from Raughton, Browning, and Amy Browning Strickland, one of the owners of Interstate Freight.

On September 2, 2015, Vogler filed a response to the petitioners’ motion to dismiss or, in the alternative, for a change of venue. On September 8, 2015, after conducting a hearing, the trial court denied the petitioners’ motion. On October 1, 2015, the petitioners filed this petition for a writ of mandamus, challenging the order only insofar as it denied their motion for a change of venue.

Standard of Review

“‘The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus.’ Ex parte Alabama Great Southern R.R., 788 So.2d 886, 888 (Ala.2000). ‘Mandamus is a drastic and extraordinary writ, to be issued only where 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). Moreover, our 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).”

Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002).

Discussion

The petitioners argue that the trial court erroneously denied the motion to transfer this case to the St. Clair Circuit Court.

I.

First, the petitioners argue that the trial court should have granted their motion for a change of venue because, they say, venue was not proper in Baldwin County. It is undisputed that venue was not proper in Baldwin County as to Raughton or Browning. The issue in this case, however, is whether venue was proper in Baldwin County as to any of the Interstate companies.

“ ‘ “The question of proper venue for an action is determined at the commencement of the action.” ’ Ex parte Pike Fabrication, Inc., 859 So.2d 1089, 1091 (Ala.2002) (quoting Ex parte Pratt, 815 So.2d 532, 534 (Ala.2001)). If venue is improper at the outset, then, upon motion of the defendant, the court must transfer the case to a court where venue is proper. Pike Fabrication, 859 So.2d at 1091....
“ ‘ “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). In addition, this Court is bound by the record, and it cannot consider a statement or evidence in a party’s brief that was not before the trial court. Ex parte American Res. Ins. Co., 663 So.2d 932, 936 (Ala.1995).’

“Pike Fabrication, 859 So.2d at 1091.”

Ex parte Guarantee Ins. Co., 133 So.3d 862, 867 (Ala.2013).

Section 6-3-7(a), Ala.Code 1975, provides, in pertinent part:

“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 action 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.”

It is uncontested that all three of the Interstate companies have their principal place of business in St. Clair County. Additionally, the petitioners presented evidence indicating that a substantial part of the actions or omissions that give rise to Vogler’s claims occurred in St. Clair County, However, Vogler argues that venue is proper in Baldwin County under § 6-3-7(a)(3), Ala. Code 1975.

In his affidavit, Vogler stated that he was a resident of Spanish Fort, Alabama, which is located in Baldwin County, and that he had lived in Spanish Fort since April 1999. Accordingly, he has satisfied the first prong of § 6-3-7(a)(3) by establishing that he was a resident of Baldwin County at the time of the accrual of the cause of action. Therefore, the issue in this case is whether, at the commencement of the action, any of the Interstate companies did business by agent in Baldwin County.

“In Ex parte Elliott, 80 So.3d 908, 912 (Ala.2011), this Court held:
“‘To establish that a corporation does business in a particular county for purposes of venue, past isolated transactions are inconclusive. Ex parte Harrington Mfg. Co., 414 So.2d 74 (Ala.1982). A corporation does business in a county for purposes of § 6-3-7 if it performs with some regularity in that county some of the business functions for which the corporation was created. Ex parte South-Trust Bank of Tuscaloosa Cnty., N.A., 619 So.2d 1356, 1358 (Ala.1993).’
“(Emphasis added.) This Court has also held that ““not every act done within the corporate powers of a foreign corporation will constitute doing business within the meaning of the statute.’ ” ’ Ex parte Greenetrack, Inc., 25 So.3d 449, 453 (Ala.2009) (quoting Ex parte Scott Bridge Co., 834 So.2d 79, 81 (Ala.2002), quoting in turn Ex parte Charter Retreat Hosp., Inc., 538 So.2d 787, 790 (Ala.1989))....”

Ex parte Guarantee Ins. Co., 133 So.3d at 872.

“A critical distinction exists between corporate defendants currently doing business in a county (the test applied by subsection (a)(3)) and those that formerly did business in the county (the test applied only when venue is proper in no other county). As this Court has said, ‘isolated transactions in the past are inconclusive in determining venue.’ Ex parte Pike Fabrication, [Inc.], 859 So.2d [1089,] 1093 [ (Ala.2002) ] (emphasis added). Here we are concerned only with whether Perfection can fairly be said to be conducting business currently in Hale County.
“In addition, our holdings make clear that a corporation ‘does business’ under the statute if, ‘ “ ‘with some regularity, it performs there some of the business functions for which it was created.’ ” ’ Ex parte Pike Fabrication, 859 So.2d at 1093 (quoting Ex parte Wiginton, 743 So.2d 1071, 1074-75 (Ala.1999), quoting in turn Ex parte SouthTrust Bank of Tuscaloosa, 619 So.2d 1356, 1358 (Ala. 1993)). We have found pretransaction inquiries within a county to be an insufficient basis for placing venue there, Ex parte Pike Fabrication, 859 So.2d at 1093, because business inquiries are essentially an ‘exercise of corporate powers incidental to ... corporate business functions.’ Ex parte Scott Bridge Co., 834 So.2d at 81. However, regularly performing the work for which the company exists is the exercise of its business functions, and would therefore fall within the ambit of ‘doing business’ within a county. Id. at 82.”

Ex parte Perfection Siding, Inc., 882 So.2d 307, 310-11 (Ala.2003).

In his affidavit, Vogler asserted:

“Interstate Specialized, Inc., and Interstate Freight USA, Inc., are commercial trucking companies. They employed truck drivers. They held the DOT licenses and other licenses and permits necessary to operate as commercial trucking companies. Interstate Freight, Inc., held title to the trucks, trailers and other equipment used by the operating companies. Interstate Freight, Inc., charged rent of at least $42,000 per month to the operating companies for the use of the trucks, trailers and equipment.”

The petitioners presented affidavits from Strickland, Raughton, and Browning. In her affidavit, Strickland asserted that Interstate Freight does not do business by agent in Baldwin County. In his affidavit, Browning stated:

“Interstate Freight USA, Inc. and Interstate Specialized, Inc. do not own or lease any facilities, offices, real property or post office boxes in Baldwin County. Interstate Freight USA, Inc. and Interstate Specialized, Inc. maintain no records, documents or files in Baldwin County, Interstate Freight USA, Inc. and Interstate Specialized, Inc. do not have any control over, nor do they attempt to exercise control over, where their employees choose to reside. Interstate Freight USA, Inc. and Interstate Specialized, Inc. do not do business with any regularity in Baldwin County and were not doing business by agent in Baldwin County when the complaint at issue was filed.
“Interstate Freight USA, Inc. and Interstate Specialized, Inc. hire, train, review, supervise, and if necessary terminate their employees from their principal place of business in St. Clair County. Interstate Freight USA, Inc.’s and Interstate Specialized, Inc.’s principal places of business are all located in St. Clair County.
“Interstate Freight USA, Inc. and Interstate Specialized, Inc. maintain their corporate books and records, including their employment records in St. Clair County.”

Finally, in his affidavit, Raughton stated:

“I have made a search of the freight loads hauled by Interstate Freight USA, Inc., from July 1, 2014 through July 19, 2015 and determined 61 of 2,243 loads were delivered into Baldwin County and that no load originated from Baldwin County.
“Interstate Freight USA, nor Interstate Specialized, Inc., performed business by agent in Baldwin County from January 2014 through July 15, 2015. The principal place of business for Interstate Freight USA, Inc., Interstate Specialized Inc., and Interstate Freight, Inc., is St. Clair County, Alabama,”

Interstate Freight USA and Interstate Specialized are commercial trucking companies. Therefore, the delivery of loads constitute business functions for which the companies were created. In support of their argument that the Interstate companies did not regularly do business in Baldwin County, the petitioners appear to rely solely on the fact that the number of loads they delivered into Baldwin County constituted only a small percentage of their overall business. However, the true issue in this case is whether the Interstate companies were regularly physically present and doing business by agent in Baldwin County.

The evidence presented to the trial court indicated that, during an approximately 54-week period, the Interstate companies delivered 61 loads to Baldwin County. Thus, the trial court was presented with evidence that, during the roughly 54-week period preceding the filing of the complaint in this case, the Interstate companies were physically present in Baldwin County at the time each of those 61 loads were delivered. That evidence would support a finding that the Interstate companies regularly did business in Baldwin County. Additionally, the petitioners did not present any evidence as to the dates on which Interstate Freight delivered any of those 61 loads. Without information regarding the dates of those deliveries, we cannot determine whether those loads were delivered throughout the 54-week period on a regular basis or whether the loads were delivered in a short period as part of an isolated transaction. Therefore, the petitioners did not present any evidence to negate a finding that their physical presence in Baldwin County to deliver those 61 loads constituted regularly conducting business in Baldwin County.

The petitioners did not present sufficient evidence to establish a prima facie showing that the Interstate companies did not regularly do business by agent in Baldwin County. Accordingly, the petitioners did not satisfy their burden of establishing that venue in Baldwin County was improper.

II.

Next, the petitioners argue that, even if venue was proper in Baldwin County, the trial court exceeded its discretion in denying them motion to transfer the action from Baldwin County to St. Clair County based on the doctrine of forum non conveniens. Specifically, they contend that St. Clair County has a strong connection to the case because, they say, all the material events that gave rise to Vogler’s claims occurred there. In contrast, the petitioners assert, Baldwin County has, at best, only a tenuous connection to the case—namely, the fact that Vogler resides there. The petitioners assert that the interest-of-justice prong of Alabama’s forum non conveniens statute, § 6-3-21.1, Ala.Code 1975, mandates a transfer to St. Clair County.

“ ‘A party moving for a transfer under § 6-3-21.1 has the initial burden of showing, among other things, one of two factors: (1) that the transfer is justified based on the convenience of either the parties or the witnesses, or (2) that the transfer is justified “in the interest of justice.”’ Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 539 (Ala.2008). Although we review a ruling on a motion to transfer to determine whether the trial court exceeded its discretion in granting or denying the motion, id., where ‘the convenience of the parties and witnesses or the interest of justice would be best served by a transfer, § 6-3-21.1, Ala.Code 1975, compels the trial court to transfer the action to the alternative forum.’ Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 912 (Ala.2008) (emphasis added).”

Ex parte Wachovia Bank, N.A., 77 So.3d 570, 573 (Ala.2011).

Section 6-3-21.1 provides, in pertinent part:

“With respect to civil actions filed in an appropriate venue, any court of general jurisdiction shall, for the convenience of parties and witnesses, or in the interest of justice, transfer any civil action or any claim in any civil action to any court of general jurisdiction in which the action might have been properly filed and the case shall proceed as though originally filed therein.”

(Emphasis added.)

“Historically, the plaintiff has had the initial choice of venue under the system established by the legislature for determining venue. Before the enactment of § 6-3-21.1 by the Alabama Legislature in 1987, a plaintiffs choice of venue could not be disturbed on the basis of convenience to the parties or the witnesses or in the interest of justice. With the adoption of § 6-3-21.1, trial courts now have ‘the power and the duty to transfer a cause when “the interest of justice” requires a transfer.’ Ex parte First Family Fin. Servs., Inc., 718 So.2d 658, 660 (Ala.1998) (emphasis added). In First Family, this Court noted that an argument that trial judges have almost unlimited discretion in determining whether a case should be transferred under § 6-3-21.1 ‘must be considered in light of the fact that the Legislature used the word “shall” instead of the word “may” in § 6-3-21.1.’ 718 So.2d at 660. This Court has further held that ‘Alabama’s forum non conveniens statute is compulsory.’ Ex parte Sawyer, 892 So.2d 898, 905 n. 9 (Ala.2004).”

Ex parte Autauga Heating & Cooling, LLC, 58 So.3d 745, 748-49 (Ala.2010).

“The ‘interest of justice’ prong of § 6-3-21.1 requires ‘the transfer of the action from a county with little, if any, connection to the action, to the county with a strong connection to the action.’ Ex parte National Sec. Ins. Co., 727 So.2d [788,] 790 [ (Ala.1998) ]. Therefore, ‘in analyzing the interest-of-justice prong of § 6-3-21.1, this Court focuses on whether the “nexus” or “connection” between the plaintiffs action and the original forum is strong enough to warrant bm-dening the plaintiffs forum with the action.’ Ex parte First Tennessee Bank Nat’l Ass’n, 994 So.2d 906, 911 (Ala.2008). Additionally, this Court has held that ‘litigation should be handled in the forum where the injury occurred.’ Ex parte Fuller, 955 So.2d 414, 416 (Ala. 2006). Further, in examining whether it is in the interest of justice to transfer a case, we consider ‘the burden of piling court services and resources upon the people of a county that is not affected by the case and ... the interest of the people of a county to have a case that arises in their county tried close to public view in their county.’ Ex parte Smiths Water & Sewer Auth., 982 So.2d 484, 490 (Ala.2007).”

Ex parte Indiana Mills & Mfg., Inc., 10 So.3d 536, 540 (Ala.2008).

The Court of Civil Appeals was presented with a similar situation in Ex parte West Fraser, Inc., 129 So.3d 286 (Ala. Civ. App.2013). In that case, Michael Hunt was injured while working at West Fraser’s saw mill located in Lee County, and he was treated for his injuries in Lee County. Hunt subsequently filed a worker’s compensation action against West Fraser in the Chambers Circuit Court. That action was transferred to the Lee Circuit Court.

At some point after Hunt filed his worker’s compensation action, West Fraser terminated Hunt’s employment. The notice of termination was mailed from Lee County, and Hunt received that notice at his home in Chambers County. Hunt then filed an action in the Chambers Circuit Court in which he alleged a retaliatory-discharge claim related to his filing a worker’s compensation claim. West Fraser moved for a change of venue of the retaliatory-discharge action to the Lee Circuit Court, but the Chambers Circuit Court denied that motion. West Fraser filed a petition for a writ of mandamus in the Court of Civil Appeals.

In its petition, West Fraser argued that venue was not proper in Chambers County and, alternatively, that the case should be transferred to the Lee Circuit Court based on the doctrine of forum non conveniens. In addressing West Fraser’s claim, the Court of Civil Appeals addressed the issue of where Hunt’s injury with regard to the retaliatory-discharge action occurred as follows:

“In Ex parte SouthTrust Bank of Tuscaloosa County, N.A., 619 So.2d 1356 (Ala.1993), William Pritchett defaulted on the loan he had obtained from South-Trust Bank of Tuscaloosa County (‘the bank’) to purchase a vehicle, and the bank repossessed the vehicle. The bank informed Pritchett that it had sold the vehicle for $500 and applied that amount to the balance of Pritchett’s loan. Pritchett alleged that the vehicle had been sold for more than $500, but only $500 was applied to his balance. He filed a civil action in the Montgomery Circuit Court alleging against the bank claims of fraud, conversion, abuse of process, wanton/willful conduct, and malicious prosecution. The bank sought to have the action transferred to the Tuscaloosa Circuit Court. When the Montgomery Circuit Court denied the motion, the bank filed a petition for a writ of mandamus. Id. at 1358.
“The bank asserted that the alleged misrepresentations to Pritchett about the actual resale value of the vehicle were made through telephone calls and through mail sent from Tuscaloosa. However, Pritchett argued that he received those communications in Montgomery and that, therefore, his ‘injuries’ ‘occurred’ in Montgomery County. Id. Our supreme court wrote:
“‘In Age-Herald Publishing Co. v. Huddleston, 207 Ala. 40, 92 So, 193 (1922), a libel action, this Court established that the term “injury” for purposes of § 6-3-7 refers to the wrongful act or omission of the corporate defendant, not to the resulting damage to the plaintiff, and thus determined that venue for such an injury is proper where a wrongful act was committed, not where the damage resulted. We note that the Court deviated from its Age-Herald rule in the later case of Kenney v. Gurley, 208 Ala. 623, 95 So. 34 (1923). There, this Court held that where libelous matters are passed through the mail from one individual to another, the “injury” takes place where the matter is received. Unlike the holding in Age-Herald, however, the Kenney holding did not hinge upon § 6-3-7; rather, it was based upon a libel action between individuals, and its fact-specific rationale is inapposite here.’
“Id. at 1358.
“Our supreme court went on to hold that Pritchett’s alleged injuries occurred in Tuscaloosa County, where the bank made telephone calls and sent mail to Pritchett, not in Montgomery County, where Pritchett received those communications. Id.
“In Ex parte Pikeville Country Club, 844 So.2d 1186, 1189 (Ala.2002), our supreme court explained that it found the analysis of SouthTrust Bank particularly persuasive in interpreting the current version of § 6-3-7(a)(l), stating:
“ ‘We construe “the events or omissions giving rise to the claim” to be a clear reference to the wrongful acts or omissions of the corporate defendant. Having so construed the statute, we see no reason to' abandon the holding of Ex parte SouthTrust Bank. Therefore, we conclude that venue in this "case is improper in Covington County as to the [defendant], because the event giving rise to [the plaintiffl’s claims—the mailing of the letter containing the alleged misrepresentations—occurred in Marion County, where the letter was mailed, and not in Covington County, where [the plaintiff] received the letter. See also Ex parte Wiginton, 743 So.2d. 1071 (Ala.1999).’
“In this case, Hunt alleged that West Fraser fired him from his job operating a gang saw at its Opelika saw mill in retaliation for his having filed a workers’ compensation action. The evidence was undisputed that the decision to terminate Hunt’s employment was made in Opelika, and the letter notifying Hunt of West Fraser’s decision was mailed from Opelika. Accordingly, we conclude that all of West Fraser’s alleged wrongful acts occurred in Lee County, not in Chambers County.”

129 So.3d at 289-90. After concluding that venue.was proper in Chambers County, the Court of Civil Appeals addressed West Fraser’s argument that the interest-of-justice prong of § 6-3-21.1 required that the case be transferred to the Lee Circuit Court, concluding:.

“In this case, there is a strong connection between Hunt’s retaliatory-discharge action and Lee County. As discussed, all the conduct made the basis of the action occurred in Lee County, and Hunt’s ‘injury’ in this case occurred in Lee County. His underlying physical injury—the subject of his workers’ compensation action—occurred at West Fraser’s facility in Lee County. Hunt was treated for that injury in Lee County. The workers’ compensation case, which is related to this case, is being heard in the Lee Circuit Court.
“On the other hand, the connection between the retaliatory-discharge action and Chambers County is virtually nonexistent. Hunt lives in Chambers County. The business that West Fraser conducted in Chambers County and that serves as the basis for venue in that county has no material connection with this case. There are no relevant facts in this case involving Chambers County. To echo our supreme court in [Ex parte] Autauga Heating & Cooling, [58 So.3d 745 (Ala.2010),] we see no need to burden Chambers County with an action that arose in Lee County simply because Hunt lives there and because West Fraser conducted business unrelated to this case there. Accordingly, we conclude that the trial court abused its discretion in denying West Fraser’s motion for a change of venue.”

Ex parte West Fraser, Inc., 129 So.3d at 293-94.

In this case, the petitioners have established that St. Clair County has a stronger connection to the claims in this case than has Baldwin County. In his affidavit, Raughton stated, in pertinent part:

“I was personally involved in the negotiations with Kevin Vogler, the execution of two written agreements, Mr. Vogler’s work with Interstate Freight USA, Inc., and his subsequent termination.
“... The negotiations by Mr. Vogler for employment previously occurred in St. Clair County, then execution of the written agreement (Exhibits 1 and 2 of Plaintiffs Complaint) occurred in St. Clair County, his job duties originated and his office was located in St. Clair County. The termination of Mr. Vogler by Interstate Freight USA,' Inc., occurred in St. Clair County at its principal office. All employment payroll and benefits originated and occurred from St. Clair County. All meetings with Mr. Vogler about job duties, job performance or lack thereof, occurred in St. Clair County. The events giving rise to this litigation, breach of contract, and representations of employment, all occurred in St. Clair County, Alabama. The email account used by Mr. Vogler while employed was controlled and accessed by servers in St. Clair County.”

Additionally, in his affidavit, Browning stated, in pertinent part:

“I was personally involved in the negotiations with Kevin Vogler, the execution of the two written agreements, Mr. Vo-gler’s work with Interstate Freight USA, Inc., and his subsequent termination.
“Interstate Freight USA, Inc. and Interstate Specialized, Inc. hire, train, review, supervise, and if necessary terminate their employees from their principal place of business in St. Clair County. Interstate Freight USA, Inc.’s and Interstate Specialized, Inc.’s principal places of business are all located in St. Clair County.
“Interstate Freight USA, Inc. and Interstate Specialized, Inc. maintain their corporate books and records, including their employment records in St. Clair County. The negotiations, execution and delivery surrounding the two agreements between Mr. Vogler’s employment occurred in St. Clair County. Mr. Vogler’s job duties originated and his office was located in St. Clair County. The termination of Mr. Vogler by Interstate Freight USA, Inc. occurred in St. Clair County at its principal office. All meetings with Mr. Vogler about his job duties, job performance or lack thereof, occurred in St. Clair County. The events giving rise to this litigation, breach of contract and the representation of employment, all occurred in St. Clair County, Alabama. The e-mail account used by Mr. Vogler while employed was controlled and accessed by servers in St. Clair County.
“During the negotiation, execution and delivery of the two written agreements related to this litigation only three persons were present in those meetings; Kevin Vogler; Donald R. Raughton, Sr.; and myself. While this litigation is ongoing and discovery has not begun, I anticipate that Donald R. Raughton, Sr. and myself will be the primary witnesses for the Defendants. Most if not all of the witnesses that the Defendants will offer for testimony reside in St. Clair County. Aside from the Plaintiff, none of the witnesses in this litigation reside in Baldwin County, but reside in St. Clair County, Alabama or DeKalb County, Alabama.”

Thus, the facts that were before the trial court indicate that all of the petitioners’ alleged wrongful conduct took place in St. Clair County, not in Baldwin County. Also, Vogler’s injuries in this case—the termination of his employment and the damage sustained as a result of the alleged fraudulent misrepresentations that induced him to enter into the employment agreement—occurred in St. Clair County.

Also, as was the ease in Ex parte West Fraser, the connection between Vogler’s claims in this action and Baldwin County was virtually nonexistent. Of the parties, Vogler is the only resident of Baldwin County. Further, based on the facts that are before this Court, Vogler did not present the trial court with evidence indicating that any potential witnesses in this case resided in Baldwin County. Additionally, Vogler did not present any argument or evidence to the trial court to establish that the business the Interstate companies conducted in Baldwin County and that formed the basis for venue in that county had a material connection with Vogler’s breach-of-contract and fraud claims against the petitioners. In his response in this Court, Vogler argues, for what appears to be the first time:

“In ordering that venue be transferred to Lee County, the West Fraser court discounted the impact of the business conducted by West Fraser in Chambers County: ‘the business that West Fraser conducted in Chambers County and that serves as the basis for venue in that county has no material connection with this case.’ 129 So.3d at 293.
“Contrary to Petitioners’ position, the same cannot be said for Interstate’s business in Baldwin County. Respondent Vogler was Executive Vice President and General Manager for Interstate. His contractual duties included ‘developing business from Employee’s own contacts, and developing relationships with existing and former IF customers’ and generally operating the business on a day to day basis. Complaint, Exhibit 1, page 1; Complaint, Exhibit 2, page 1. Therefore, the business that Interstate did in Baldwin County has a direct effect on whether Vogler can be said to have fulfilled the duties of his contractual relationship with Interstate and has a direct bearing on the claims alleged in his Complaint. Further, Interstate has filed a counterclaim against Vogler that alleges that Vogler failed ‘to perform under the terms and conditions of the contracts.’ Exhibit 3. So, to the extent that business in Baldwin County is part of Vogler’s responsibility as Executive Vice President and General Manager, such business is material to the issues in this lawsuit. It is also very possible that Interstate’s customers in Baldwin County will be witnesses to show that Vogler performed the duties of his contracts by developing business from his contacts in Baldwin County.” ■

(Vogler’s brief, at pp. 12-13.)

In Part I of this opinion, we noted that the 61 loads that the Interstate companies delivered to Baldwin County between July Í, 2014, and July 15, 2015, was the business that formed the basis for venue in Baldwin County. However, Vogler has not presented any evidence to establish that those 61 loads were, in any way, connected to the claims presented in this case. Additionally, in his affidavit, Vogler asserted that, while he was employed by Interstate Freight USA and Interstate Specialized, Interstate Freight USA had transported at least 50 loads of precast concrete to the Alabama Department of Natural Resources in Gulf Shores and at least 10 loads to Quincy Compressor in Bay Minette, which are located in Baldwin County. However, even regarding those loads, Vogler did not include any evidence indicating that the delivery of those loads to Baldwin County was actually connected to the claims in this case. Rather, he appears to rely on nothing more than his general assertion that he was responsible for “generally operating the business on a day to day basis” to connect those deliveries to his claims.

Also, it appears that Vogler’s arguments in this regard are, at least in part, based on the petitioners’ answer and counterclaim in which they asserted a breach-of-contract claim alleging that Vo-gler had “fail[ed] to perform under the terms of the contracts.” Vogler has attached that answer and counterclaim as an exhibit to the response he filed in this Court. However, the petitioners’ answer and counterclaim were not filed in the trial court until October 2, 2015, which was after the trial court had already denied the petitioners’ motion for a change of venue.

“It is well settled that, ¾ a mandamus proceeding, this Court will not consider evidence not presented to the trial court.' Ex parte Cincinnati Ins. Co., 51 So.3d 298, 310 (Ala.2010). See Ex parte Ford Motor Credit Co., 772 So.2d 437, 442 (Ala.2000) (‘“On review by mandamus, we must look only at those facts before the trial court.’” (quoting Ex parte Baker, 459 So.2d 873, 876 (Ala.1984))). ‘[T]his Court is bound by the [materials before it], and it cannot consider a statement or evidence in a party’s brief that was not before the trial court.’ Ex parte Pike Fabrication, [Inc.,] 859 So.2d [1089,] 1091 [ (Ala.2002) ]. Accordingly, we have not considered those exhibits attached to Tinney’s answer in response to the mandamus petition. See Ex parte Pike Fabrication, 859 So.2d. at 1091, and Verbena United Methodist Church, 953 So.2d 395, 399 (Ala.2006) (refusing to consider an affidavit submitted in opposition to a mandamus petition because the affidavit was not before the trial court when that court rendered the decision under review).”

Ex parte East Alabama Med. Ctr., 109 So.3d 1114, 1117-18 (Ala.2012) (emphasis added). Because the petitioners’ answer and counterclaim were not before the trial court at the time it ruled on the motion for a change of venue, we will not consider the answer and counterclaim or any argument based on those' pleadings.

As shown by the foregoing, Baldwin County has only a very weak overall connection to the claims in this case, and St. Clair County has a much stronger connection. See Ex parte Manning, 170 So.3d 638 (Ala.2014); Ex parte Morton, 167 So.3d 295 (Ala.2014); Ex parte State Farm Mut. Auto. Ins. Co., 149 So.3d 1082 (Ala. 2014); and Ex parte Indiana Mills & Mfg., Inc., supra. Therefore, the interest-of-justice prong of the forum non conve-niens statute requires that the action be transferred to St. Clair County.

Conclusion

For the above-stated reasons, we conclude that venue was proper in Baldwin County. However, we conclude that the trial court exceeded its discretion in denying the motion for a change of venue based on the interest-of-justice prong of the forum non conveniens statute. Accordingly, we grant the petition for the writ of mandamus and direct the trial court, in the interest of justice, to enter an order transferring the case to the St. Clair Circuit Court.

PETITION GRANTED; WRIT ISSUED.

STUART, BOLIN, PARKER, SHAW, MAIN, and BRYAN, JJ., concur.

MURDOCK, J., dissents.

MURDOCK, Justice

(dissenting).

I respectfully dissent. See, e.g., Ex parte Wachovia Bank, 77 So.3d 570, 576-78 (Ala.2011) (Murdock, J., dissenting).

      . The parties have not presented this Court with a transcript of the hearing.

      . In his affidavit, Vogler included assertions regarding business transactions the Interstate companies conducted in Baldwin County before his employment was terminated in February 2015. However, Vogler did not file his complaint until July 6, 2015, Because the question is whether the Interstate companies regularly did business in Baldwin County at the time of the commencement of the proceedings, we will not consider those past transactions Vogler referenced in his affidavit for purposes of determining whether venue was proper in Baldwin County.


author: BRYAN, Justice.

text:
    Kevin KENDRICK, in his official capacity as Director of Compliance at Alabama State University v. The ADVERTISER COMPANY d/b/a The Montgomery Advertiser.
    1150275.
    Supreme Court of Alabama.
    June 24, 2016.

      Kenneth L. Thomas and Ramadanah Maryum Salaam-Jones, office of gen. counsel, Alabama State University, Montgomery, for appellant.
    Dennis R. Bailey and J. Evans Bailey of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellee.
   BRYAN, Justice.

Kevin Kendrick, in his official capacity as director of compliance (“the director”) at Alabama State University (“ASU”), appeals from a summary judgment of the Montgomery Circuit Court (“the trial court”) ordering him to provide The Advertiser Company d/b/a The Montgomery Advertiser (“the Advertiser”) with redacted copies of each “request for reduction/cancellation of athletic financial aid” form (“the financial-aid form”) submitted to the director involving the ASU football program since December 15, 2014.

Facts and Procedural History

On April 23, 2015, Josh Moon, a reporter employed by the Advertiser, sent a written request to Kenneth Mullinax, director of media relations at ASU, requesting copies of all financial-aid forms submitted to the director involving students participating in the ASU football program since December 15, 2014. The financial-aid form is a record maintained by ASU that reflects a reduction or cancellation of a student’s athletic financial aid. A financial-aid form contains the following information: a student’s name, address, and ASU identification number; the ASU sport or sports in which the student participates; and the reason or reasons the student’s athletic financial aid- has been reduced or canceled. In addition, the financial-aid form instructs an ASU head coach seeking to reduce or cancel a student’s athletic financial aid to attach to the financial-aid form “any disciplinary form, transcripts, medical records, correspondence, etc.”

On May 8, 2015, Mullinax spoke with Moon by telephone and informed Moon that the financial-aid forms he had requested “would be so redacted that there would be nothing on them.” (Emphasis in original.) On May 13, 2015, Moon emailed Mullinax and stated that, because the requested financial-aid forms would be heavily redacted, he would “take just the list of names of players whose scholarships have been revoked since December [2014].” Later that day, Mullinax e-mailed Moon and informed him that legal counsel for ASU had advised Mullinax that the director could not release the names of students whose athletic financial aid had been revoked because, he said, the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. § 1232g (“FERPA”), and the regulations promulgated pursuant to FERPA, 34 C.F.R. Part 99, prohibit the disclosure of that information.

Legal counsel for the Advertiser and legal counsel for ASU exchanged correspondence regarding whether the financial-aid forms are subject to disclosure. The Advertiser argued that § 36-12-40, Ala.Code 1975 (“the Open Records Act”), which provides, in pertinent part, that “[ejvery citizen has a right to inspect and take a copy of any public writing of this state, except as otherwise expressly provided by statute,” authorizes the disclosure of the financial-aid forms. Legal counsel for ASU, on the other hand, argued that FERPA prohibits the release of education records without the student’s consent and, thus, that FERPA expressly provides that the financial-aid forms are not subject to the Open Records Act.

On June 17, 2015, the Advertiser filed a “petition for a writ of mandamus and complaint for declaratory judgment” asking the trial court to declare that the financial-aid forms are public writings subject to inspection under the Open Records Act. In support of its request, the Advertiser claimed that FERPA provides an exception that allows the disclosure of “directory information,” which, the Advertiser claimed, includes a student’s name and any officially recognized sport or sports in which the student participates. The Advertiser asked the trial court to order the director to provide the Advertiser with the requested financial-aid forms from which all “nondirectory” information had been redacted.

On June 22, 2015, the director filed a “motion to dismiss or alternatively motion for a summary judgment” in which he argued that FERPA prohibits the disclosure of education records and that, therefore, the financial-aid forms are not subject to disclosure under the Open Records Act. On July 28, 2015, the Advertiser filed a motion for a summary judgment in which it reiterated its argument that the disclosure of the financial-aid forms does not violate FERPA if the forms are redacted so as to provide only directory information, i.e., a student’s name and the sport or sports in which the student participates. The Advertiser requested that the trial court order the director to provide the requested financial-aid forms with all “non-directory” information redacted.

On August 31,2015, the trial court heard arguments of counsel and subsequently entered a judgment on September 4, 2015, that stated, in pertinent part:

“[T]his Court is of the opinion that there are no issues of material disputed fact and that, as a matter of law, the documents as requested by the [Advertiser] are public records and should be turned over to [the Advertiser] pursuant to the Alabama Open Records Act subject to [the Advertiser’s] agreement that [the director] may redact other portions of the documents. There are undeniable benefits that come from government transparency.
“WHEREFORE, it is ORDERED, ADJUDGED and DECREED, that [the director] produce within (10) ten business days, and at a cost to the [Advertiser] of .20 cents per page, legible copies of all [financial-aid forms] submitted by the football program to [the director] or anyone else at [ASU] since Dec. 15, 2014. That portion of the form showing the date, student name, and sport shall be unaltered. Any other information on the form pertaining to the student athlete may be redacted by [the director] at [the director’s] expense.”

(Capitalization in original.)

On September 10, 2015, the director filed a motion to alter, amend, or vacate the judgment; the trial court denied that motion on September 17, 2015. This appeal followed.

Standard of Review

‘“Our standard of review is straightforward when, as here, the facts are undisputed:
“ ‘ “An order granting or denying a summary judgment is reviewed de novo, applying the same standard as the trial court applied. American Gen. Life & Accident Ins. Co. v. Underwood, 886 So.2d 807, 811 (Ala. 2004). In addition, ‘[t]his court reviews de novo a trial court’s interpretation of a statute, because only a question of law is presented.’ Scott Bridge Co. v. Wright, 883 So.2d 1221, 1223 (Ala.2003). Where, as here, the facts of a case are essentially undisputed, this Court must determine whether the trial court misapplied the law to the undisputed facts, applying a de novo standard of review. Carter v. City of Haleyville, 669 So.2d 812, 815 (Ala.1995). Here, in reviewing the [entry] of a summary judgment when the facts are undisputed, we review de novo the trial court’s interpretation of statutory language and our previous caselaw on a controlling question of law.” ’
“McKinney v. Nationwide Mut. Fire Ins. Co., 33 So.3d 1203, 1206-07 (Ala. 2009) (quoting Continental Nat’l Indem. Co. v. Fields, 926 So.2d 1033, 1034-35 (Ala.2005)).”

Fraternal Order of Police, Lodge No. 64 v. Personnel Bd. of Jefferson Cty., 103 So.3d 17, 23-24 (Ala.2012).

Discussion

As the trial court noted in the September 4, 2015, judgment, there are no disputed issues of material fact. The sole issue on appeal is whether the financial-aid forms, in the redacted condition ordered by the trial court, are subject to disclosure under the Open Records Act or whether they are protected from disclosure by FERPA. On the one hand, “[t]here is a presumption in favor of disclosure of public writings and records expressed in the language of [the Open Records Act].” Chambers v. Birmingham News Co., 552 So.2d 854, 856 (Ala.1989). On the other hand, “where [the Open Records Act] ‘stands as an obstacle to the accomplishment of the full purposes and objectives of Congress,’ [the Open Records Act] is preempted by the federal law.” Ex parte Alabama Dep’t of Transp., 757 So.2d 371, 374 (Ala.1999) (quoting California v. F.E.R.C., 495 U.S. 490, 506, 110 S.Ct. 2024, 109 L.Ed.2d 474 (1990)). Because the parties appear to agree that FERPA prohibits the disclosure of education records absent an applicable exception, we proceed—without deciding its validity at this time—on that assumption and decide solely whether the FERPA exception the Advertiser argued provides for the disclosure of the redacted financial-aid forms is applicable.

FERPA provides, in pertinent part:

“No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information .,.) of students without the written consent of their parents to any individual, agency, or organization other than to the following [persons or entities not applicable here].”

20 U.S.C. § 1232g(b)(l),

The Advertiser does not dispute that the financial-aid form is an “education record” as that term is defined in FERPA. There is no indication in the record that the students whose financial-aid forms were requested gave their consent to disclosure of the forms. Thus, unless an exception provides for the disclosure of the redacted financial-aid forms, the presumption of disclosure under the Open Records Act must yield to the protections afforded by FER-PA.

The Advertiser argues that the redacted financial-aid forms would provide the Advertiser with only students’ names and the sports in which those students participate. It is undisputed that, in this case, that information constitutes “directory information,” an exception to the nondisclosure provision set forth in § 1232g(b)(l). See 20 U.S.C. §§ 1232g(a)(5)(A) & 1232g(b)(l). However, the director argues that the redacted financial-aid forms will disclose more than directory information in that, he says, the requested financial-aid forms, even in their redacted condition, would disclose information regarding students’ financial aid and that FERPA prohibits disclosure of the financial-aid forms even in a redacted condition. We agree with the director.

Each redacted financial-aid form would supply the Advertiser with the following information: the date the form was completed and/or submitted; the student’s name; the sport or sports in which the student participates; and the fact that the student’s athletic financial aid has been reduced or canceled. Thus, the Advertiser’s argument that disclosure of the redacted financial-aid forms would provide the Advertiser with only directory information is incorrect. Even as heavily redacted as the requested financial-aid forms would be under the trial court’s judgment, the very nature of the financial-aid form would provide the Advertiser with information related to the student’s financial aid—specifically, that the student referenced on the form has had his or her athletic financial aid reduced or canceled. Information regarding a student’s financial aid .is not “directory information” subject to disclosure under FERPA; rather, it is the very type of information FERPA was implemented to protect from disclosure. See Red & Black Publ’g Co. v. Board of Regents, 262 Ga. 848, 852, 427 S.E.2d 257, 261 (1993) (noting that FERPA was intended to protect records “relating to individual student academic performance, financial aid, or scholastic probation” (emphasis added)); Bauer v. Kincaid, 759 F.Supp. 575, 591 (W.D.Mo.1991) (noting that FERPA “expressly protects ... records relating to ... financial aid” and that those records “are quite appropriately required to be kept confidential”); and New York State Bar Ass’n v. F.T.C., 276 F.Supp.2d 110, 145 (D.C.Cir.2003) (noting that FER-PA governs the privacy of education records, including student financial-aid records ).

We commend the trial court for its efforts to comply with both FERPA and the Open Records Act by requiring ASU to redact the requested financial-aid forms in the manner it directed. However, the release of the redacted financial-aid forms to the Advertiser would nonetheless disclose information that is protected by FERPA, and the Advertiser did not argue that the release of the redacted financial-aid forms is authorized by any other exception in FERPA. Because FERPA prohibits the very release of the redacted financial-aid forms and because FERPA takes precedence over the Open Records Act, the director is entitled to a summary judgment. Accordingly, we reverse the trial court’s summary judgment in favor of the Advertiser and remand the case for the trial court to enter a summary judgment in favor of the director.

REVERSED AND REMANDED.

STUART, BOLIN, PARKER, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.

      . According to the director’s brief, Kendrick resigned from his employment with ASU after this appeal was docketed, and his duties were assumed by Melvin Hines. Pursuant to Rule 43(b), Ala. R.App. P., Hines was automatically substituted for Kendrick as the appellant. Recognizing that the true appellant is whoever is employed as ASU’s director of compliance, we refer to the appellant as "the director" throughout this opinion.

      . Those reasons include the following: "[r]en-dered him/herself ineligible for intercollegiate competition for any reason”; ”[d]id not satisfy the institution’s academic requirements for like scholarship or grant-in-aid”; ”[f]raudu-lently misrepresented information”; ”[e]n-gaged in serious misconduct warranting substantial disciplinary penalty”; "[v]oluntarily withdrew from the team for personal reasons”; “[rjeceived any outside aid that exceeded the value of the cost of attendance or affected their respective sport’s maximum award amounts/equivalences”; and ”[o]ther.”

      . FERPA provides that it is a student’s parents who must consent to the release of education records regarding their child. 20 U.S.C. § 1232g(b)(l). However, the consent necessary for release is required from only the student once the student attains 18 years of age or is attending an institution of postsec-ondary education. 20 U.S.C. § 1232g(d); see 34 C.F.R. § 99.5(a)(1). Because ASU is a postsecondary educational institution, only the student's consent is required for release of the student's financial-aid form.

      . FERPA defines "education records” as
      “those records, files, documents, and other materials which—•
      "(i) contain information directly related to a student; and
      "(ii) are maintained by an educational agency or institution or by a person acting for such agency or institution.”
      20 U.S.C. § 1232g(a)(4)(A).

      . We recognize that FERPA provides that personally identifiable information from an education record may be disclosed if:
      “The disclosure is in connection with financial aid for which the student has applied or which the student has received, if the information is necessary for such purposes as to:
      “(A) Determine eligibility for the aid;
      "(B) Determine the amount of the aid;
      "(C) Determine the conditions for the aid; or
      "(D) Enforce the terms and conditions of the aid.”
      34 C.F.R. § 99.31(a)(4)(i). We interpret that section as allowing the disclosure of "personally identifiable information” if tire purpose of the disclosure is for one of the four reasons listed in § 99,31(a)(4)(i).


author: STUART, Justice

text:
    ALABAMA HOUSE OF REPRESENTATIVES JUDICIARY COMMITTEE et al. v. OFFICE OF THE GOVERNOR OF ALABAMA and Governor Robert Bentley
    1160579
    Supreme Court of Alabama.
    April 18, 2017
    Jackson R. Sharman III, Wesley B. Gilchrist, and Rachel M. Lary of Lightfoot, Franklin & White, L.L.C., Birmingham, for appellants.
    David B. Byrne, chief legal advisor, William F. Patty, deputy legal advisor, and Jason Paulk, deputy legal advisor, Office of the Governor; and Ross H. Garber and Susan S. Murphy of Shipman & Goodwin, LLP, Washington, D.C., for appellee The Office of the Governor of Alabama and Governor Robert Bentley.
    William C. Athanas of Waller Lansden Dortch & Davis, LLP, Birmingham; and H. Lewis Gillis of Means Gillis Law, LLC, Montgomery, for appellee Robert Bentley is his personal capacity.
   ORDER

On April 7, 2017, the Alabama House of Representatives Judiciary Committee (“the Judiciary Committee”); Representative Mike Jones, chairman of the Judiciary Committee; Representative Jim Hill, vice chairman of the Judiciary Committee; Representative Marcel Black, ranking minority member of the Judiciary Committee; the remaining members of the Judiciary Committee; and Representative Mac McCutcheon, Speaker of the Alabama House of Representatives, appealed an order of the Montgomery Circuit Court entered in an action filed by the Office of the Governor of Alabama and Governor Robert Bentley temporarily enjoining the Judiciary Committee from conducting hearings with regard to its investigation of two articles of impeachment filed against then Governor Robert Bentley. The appellants, in a status report not contested by the appellees, have notified this Court that on April 10, 2017, Robert Bentley resigned from the office of Governor of Alabama. A review of the record, the briefs, and the parties’ status reports establishes that this appeal and the underlying action are now moot.

Therefore, it is ORDERED that this appeal is dismissed and this case remanded to the Montgomery Circuit Court for dismissal of the underlying action.

APPEAL DISMISSED.

BOLIN, PARKER, SHAW, MAIN, WISE, and BRYAN, JJ., concur.

STUART, J., concurs specially.

MURDOCK, J., recuses himself.

STUART, Justice

(concurring specially).

I agree with the majority that the record before us and the status report notifying this Court of Robert Bentley’s resignation from the office of Governor of Alabama establishes that this appeal and the underlying action are moot. The issue presented by this appeal and the underlying action, however, warrants addressing.

On April 26, 2016, the Alabama House of Representatives adopted House Rule 79.1, setting out the procedures for impeaching an official pursuant to Art. VII, § 173, Ala. Const. 1901. House Rule 79.1(a) provides that, after the proper filing of articles of impeachment, the articles shall be referred to the House Judiciary Committee to investigate the allegations and to make a recommendation to the Alabama House of Representatives “as to whether cause exists to impeach the official.” House Rule 79.1(a)(1) and (2).

On April 28, 2016, 23 members of the House introduced House Resolution 367, proposing two articles of impeachment against then Governor Bentley: Article I alleged that Governor Bentley had “willfully neglected his duty as Governor by failing to faithfully execute the laws of this state and by refusing to perform his constitutional and statutory duties”; Article II alleged that Governor Bentley had “unlawfully misused state property, misappropriated state resources, and consistently acted in violation of law to promote his own personal agenda.” Pursuant to House Rule 79.1, the articles of impeachment were referred to the Judiciary Committee.

On June 16, 2016, pursuant to House Rule 79.1(c), the Judiciary Committee adopted “Committee Rules of the House Judiciary Committee for the Impeachment Investigation of Governor Robert Bentley.” On September 27, 2016, the Judiciary Committee adopted “Amended Committee Rules of the House Judiciary Committee for the Impeachment Investigation of Governor Robert Bentley.” Pursuant to the Judiciary Committee’s amended Rule 13, the Judiciary Committee hired Jack Sharman of Lightfoot, Franklin & White, LLC, to serve as special counsel to the Judiciary Committee and to conduct an impeachment investigation of Governor Bentley.

On April 7, 2017, in anticipation of the issuance of Special Counsel Shaman’s investigative report, the Office of the Governor of Alabama and Governor Robert Bentley (hereinafter referred to collectively as “Governor Bentley”) filed a complaint in the Montgomery Circuit Court, asking the court to declare that Governor Bentley is entitled to due process in the impeachment proceedings, that the Judiciary Committee had violated Governor Bentley’s due-process rights, and that the manner in which the Judiciary Committee had “conducted the impeachment proceedings against Governor Bentley has exceeded the mandate of the House under Art. VII, § 173 and is in violation of the separation-of-powers doctrine.” Governor Bentley also moved the circuit court for an order temporarily enjoining and restraining the Judiciary Committee “from further abridging and violating the Governor’s constitutional due-process rights and from taking any additional actions that exceed their legitimate impeachment authority in violation of the separation-of-powers doctrine embodied in the Alabama Constitution.” Specifically, Governor Bentley argued that the Judiciary Committee:

“a. prosecuted impermissibly vague and ambiguous articles of impeachment against the Governor;
“b. failed to give the Governor sufficient notice of the charges against him;
“c, improperly delegated the impeachment authority reserved for the House of Representatives to an unelected private lawyer;
“d. unlawfully limited the evidence the Governor may present in his own defense;
“e. deprived the Governor of the ability to confront and cross-examine witnesses against him;
“f. failed to adopt evidentiary standards to ensure the reliability of evidence presented to the Committee;
“g. refused to provide the Governor with exculpatory evidence; and
“h. refused to consider legal argument presented by the Governor.”

Following a hearing at which both Governor Bentley and the Judiciary Committee presented oral argument, the circuit court issued a temporary restraining order enjoining the Judiciary Committee from holding any hearings with regard to Special Counsel Sharmaris investigation of the articles of impeachment, from making any recommendation to the House of Representatives with regard to the impeachment of Governor Bentley, and from conducting any proceedings that did not afford Governor Bentley due process. The circuit court also entered an order scheduling a show-cause hearing for May 15, 2017.

That same day, April 7, 2017, the Alabama House of Representatives Judiciary Committee; Representative Mike Jones, chairman of the Alabama House of Representatives Judiciary Committee; Representative Jim Hill, vice chairman of the Alabama House of Representatives Judiciary Committee; Representative Marcel Black, ranking minority member of the Alabama House of Representatives Judiciary Committee; the remaining members of the Alabama House of Representatives Judiciary Committee (all hereinafter referred to collectively as “the Judiciary Committee”); and Representative Mac McCutcheon, Speaker of the Alabama House of Representatives, appealed the order of the Montgomery Circuit Court temporarily enjoining the Judiciary Committee from conducting hearings with regard to its investigation of the two articles of impeachment against Governor Robert Bentley. On April 8, 2017, this Court, ex mero motu, entered an order staying the circuit court’s temporary restraining order and ordering the parties to file briefs pursuant to an expedited schedule set forth in the Court’s order.

In its brief to this Court, the Judiciary Committee contends that the circuit court erred by enjoining its proceedings with regard to the articles of impeachment preferred against Governor Bentley because, it says, the matter presented in this case is nonjusticiable, i.e., that the court system— the judicial branch of government—does not have the constitutional authority to exercise jurisdiction over this matter by virtue of the doctrine of separation of powers.

“The Constitution of Alabama expressly adopts the doctrine of separation of powers that is only implicit in the Constitution of the United States. Opinion of the Justices No. 380, 892 So.2d 332, 334 n. 1 (Ala. 2004). This Court has said that the Alabama Constitution provides that the ‘three principal powers of government shall be exercised by separate departments,’ and it ‘expressly vest[s] the three great powers of government in three separate branches.’ Ex parte Jenkins, 723 So.2d 649, 653-54 (Ala. 1998). Section 42, Ala. Const. 1901, provides:
“ ‘The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.’
“Section 43 provides:
‘“In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.’
“ ‘ “Great care must be exercised by the courts not to usurp the functions of other departments of government. § 43, Constitution 1901. No branch of the government is so responsible for the autonomy of the several governmental units and branches as the judiciary.” ’ Piggly Wiggly No. 208, Inc. v. Dutton, 601 So.2d 907, 911 (Ala. 1992)(quoting Finch v. State, 271 Ala. 499, 503, 124 So.2d 825, 829 (1960)). Thus, just as this Court will declare legislative usurpation of the judicial power violative of the separation-of-powers provision of our Constitution, see, e.g„ Ex parte Jenkins, supra, so it must decline to exercise the judicial power when to do so would infringe upon the exercise of the legislative power.
“The separation-of-powers provision of the Alabama Constitution limits the jurisdiction of this Court.”

Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham, 912 So.2d 204, 212 (Ala. 2005).

This Court has consistently held that the courts will not interfere in the legislature’s own proceedings. In Ex parte Marsh, 145 So.3d 744, 750 (Ala. 2013), this Court explained this principle as follows:

“Under the separation-of-powers provision, the Alabama Constitution gives the legislature the unlimited power to determine the rules governing its own proceedings unless another provision of the Alabama Constitution provides otherwise. Ala. Const. 1901, Art. IV, § 53; Birmingham-Jefferson Civic Ctr. Auth. v. City of Birmingham, 912 So.2d 204, 217 (Ala. 2005)(‘The power of the legislature to determine the rules of its own proceedings is “unlimited except as controlled by other provisions of our Constitution.” ...’). ‘[Ujnless controlled by other constitutional provisions, the courts cannot look to the wisdom or folly, the advantages or disadvantages of the rules which a legislative body adopts to govern its own proceedings.’ Opinion of the Justices No. 185, 278 Ala. 522, 525, 179 So.2d 155, 158 (1965)(seeking an opinion relating to the validity of a Senate rule governing the procedure for terminating debate or invoking cloture).
“In Goodwin v. State Board of Administration, 212 Ala. 453, 102 So. 718 (1925), the plaintiff alleged that an act was not legally passed because it violated a rule of the House of Representatives. This Court held that ‘[t]he rule not being required by the Constitution, but adopted by the House for its own convenience, the fact that it may have been overlooked or violated in the passage of the act did not impair its validity.’ 212 Ala. at 455, 102 So. at 719. The rules controlling legislative procedure are usually formulated or adopted by legislative bodies themselves, and the observance of such rules is a matter that is entirely subject to legislative control and discretion and is not subject to review by a court unless the rules conflict with the constitution. Town of Brilliant v. City of Winfield, 752 So.2d 1192, 1198 (Ala. 1999).”

In Birmingham-Jefferson Civic Center Authority, 912 So.2d at 215, this Court discussed Nixon v. United States, 506 U.S. 224, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993), a case in which the Supreme Court of the United States considered an impeached federal judge’s argument that an internal rule of the United States Senate regarding impeachment proceedings was unconstitutional:

“In Nixon v. United States, 506 U.S. 224, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993), a former chief judge of the United States District Court for the Southern District of Mississippi, Judge Walter L. Nixon, was impeached by the United States House of Representatives and was convicted by the Senate. Nixon argued that Senate Rule XI, under which he was tried and convicted, was unconstitutional because it provided for a Senate committee, rather than for the full Senate, to participate in the evidentiary hearings.
“The first sentence of the Impeachment Trial Clause, Art. I, § 3, cl. 7, United States Constitution, states that ‘[t]he senate shall have the sole power to try all impeachments.’ The Supreme Court affirmed the lower court’s ruling that the matter is nonjusticiable, holding that the language of the Impeachment Trial Clause demonstrates a commitment of the matter of impeachments to the Senate. The Supreme Court explained that in order to determine whether there is a textually demonstrable constitutional commitment of an issue to a coordinate political department, a court must, in the first instance, interpret the text in question and determine to what extent the issue is textually committed. 506 U.S. at 228, 113 S.Ct. 732 (citing Powell v. McCormack, 395 U.S. 486, 519, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). The Supreme Court concluded that the first sentence of the Impeachment Trial Clause is a grant of authority to the Senate and that the word ‘sole’ indicates that the authority is reposed in the Senate and nowhere else. 506 U.S. at 229, 113 S.Ct. 732.”

Before the circuit court, Governor Bentley maintained that the Judiciary Committee was conducting “impeachment proceedings against the Chief Executive of the State of Alabama in [an] unconstitutional manner.” The judiciary’s consideration of this matter, however, is limited by the separation-of-powers provision of the Alabama Constitution.

Article VII, § 173, Ala. Const. 1901, provides that the House of Representatives has the responsibility “to consider the impeachment of the governor” and that, “[i]f the house of representatives prefer articles of impeachment,” then, following the procedure described in § 173, the governor may be removed from office

“for willful neglect of duty, corruption in office, incompetency, or intemperance in the use of intoxicating liquors or narcotics to such an extent, in view of the dignity of the office and importance of its duties, as unfits the officer for the discharge of such duties, or for any offense involving moral turpitude while in office, or committed under the color thereof, or connected therewith, by the senate sitting as a court of impeachment.”

Additionally, Art. IV, § 53, Ala. Const. 1901, provides that “[e]ach house shall have power to determine the rules of its proceedings.” Unequivocally, the method of removal of the governor rests solely in the legislative branch of government. The Alabama House of Representatives is charged in § 173 with “considering” the impeachment of the governor and has the authority under § 53 to provide the rules to govern the consideration of impeachment, which may include an impeachment investigation, and the method for preferring articles of impeachment.

Here, in accordance with its constitutional duty set forth in Art. VII, § 173, and pursuant to Art. IV, § 53, the Alabama House of Representatives, in April 2016, adopted House Rule 79.1(c), providing that “[t]he [Judiciary Cjommittee shall adopt rules to govern the proceedings before it in order to ensure due process, fundamental fairness, and a thorough investigation, provided that the rules are not inconsistent with this rule.” The Judiciary Committee then adopted specific rules pursuant to Rule 79.1(c) governing the procedures for conducting the investigation of, and considering, the impeachment of Governor Bentley. Those actions are in accord—not in conflict—with the Alabama Constitution, which grants this Court no power to sit in judgment of those rules. See Ex parte Marsh, 145 So.3d at 751 (“It is not the function of the judiciary to require the legislature to follow its own rules.”).

Because the plain language of Art. VII, § 173, and Art. IV, § 53, Ala. Const. 1901, provides that the method of impeachment of the governor rests in the legislature, courts ai-e required to refrain from exercising judicial power over this matter. The exercise of such power would infringe upon the exercise of clearly defined legislative power. “The judicial branch of government must ‘“never exercise the legislative and executive powers, or either of them.”’” Birmingham-Jefferson Civic Ctr., 912 So.2d at 213 (quoting Ex parte James, 836 So.2d 813, 819 (Ala. 2002), quoting in turn Ala. Const. 1901, Art. III, § 43).

Because the authority to impeach the governor and the method by which to impeach the governor rests in the Alabama Legislature and is not a function of the judicial branch of government, this case presents a nonjusticiable matter over which the courts do not have jurisdiction.

      . Article VII, § 173, Ala. Const. 1901, provides that the House of Representatives has the responsibility "to consider the impeachment of the governor, the lieutenant-governor, or other officer administering the office of the governor.”

      . House Rule 79.1(c) provides that the Judiciary Committee "shall adopt rules to govern the proceedings before it in order to ensure due process, fundamental fairness, and a thorough investigation, provided that the rules are not inconsistent with this rule.”