In Ex parte Killian
Constr. Co., No. 1170696, 2018 WL 5730138, at *1 (Ala. Nov. 2, 2018), the
Alabama Supreme Court issued a writ directing the lower court to dismiss the
claims against Killian Construction Company (“Killian”) based on improper
venue. The Court found the forum selection
clause in the parties contract was enforceable, despite the case having almost no
contracts with the contractually selected forum.
The City of Foley,
Alabama contracted with Killian to construct the Foley Sports Tourism Complex
(“the sports complex”). Killian is a Missouri corporation, whose principal
place of business is in Springfield, Missouri.
On December 17, 2015,
Killian entered into a subcontract for part of the work on the sports complex
with Edward E. Woerner, who owns Southern Turf Nurseries, Inc. (“the
subcontract”). Woerner is a resident of Baldwin County, Alabama. According to Woerner,
Killian failed to pay him the full amount due for the work performed under the
subcontract and failed to pay him for additional work performed at the sports
complex that was not included in the subcontract. On April 25, 2017, Woerner
filed a complaint against Killian in the Circuit Court of Baldwin County,
Alabama.
Killian moved to
dismiss the action without prejudice pursuant to a mandatory forum selection
clause in the subcontract. Killian argued that the forum selection clause made Missouri
the exclusive agreed upon forum for this litigation. Woerner countered that
the forum-selection clause should not be enforced because it would be
“seriously inconvenient” based on the location of the witnesses and the
possible need to have the trial judge attend a site visit.
The Alabama Supreme Court has previously held that a forum selection clause should be
enforced so long as enforcing it is neither unfair nor unreasonable under the
circumstances, and that distance alone is not sufficient to deny a
transfer. Rather, inconvenience sufficient to void a
forum-selection clause requires a showing that a trial in the other forum would
be so gravely difficult and inconvenient that the challenging party would
effectively be deprived of its day in court.
The Alabama
Supreme Court held that despite Woerner’s claim that all witnesses were located
in Alabama and there was a need for a site visit, it was clear that the case
was nothing more than a simple breach of contract claim involving an alleged
non-payment by Killian. The Court found the request for a site visit not plausible
based on the facts alleged and that making witnesses travel to Missouri for the
trial alone was not a sufficient burden to defeat the clause. The Court held
that Woerner had failed to show why enforcement would be unreasonable under the
circumstances and ordered the case be dismissed.
