Ex parte Gentile Company, LLC: Where a party fails to support its unsworn pleadings with evidence supporting its arguments, the party’s motion will not be granted because statements and arguments of counsel in unsworn pleadings are not evidence.
Gentile Company, LLC and Bright Star Restaurant, Inc. entered into a contract for Gentile to provide cleaning services for Bright Star. Gentile alleges that Bright Star wrongfully terminated the contract in April 2016. In May 2016, Gentile brought suit against Bright Star for breach of contract in the Circuit Court of Jefferson County.
Bright Star is located in the Bessemer Cutoff of Jefferson County. Upon responding to the suit, Bright Star moved to have the case dismissed or alternatively, transferred to the Bessemer Division of the Jefferson County Circuit Court. In its motion to transfer venue, Bright Star argued that venue was proper in the Bessemer Division, and should be transferred under the doctrine of forum non conveniens. The trial court denied the motion to dismiss, and granted the motion to transfer venue to the Bessemer Division. Gentile filed a petition for writ of mandamus on the issue. Ex parte Gentile Company, LLC [Ms. 2150901, Oct. 14, 2016] — So.3d — (Ala.Civ.App. 2016).
In its Complaint, Gentile alleged that it was a domestic corporation doing business in Jefferson County. Gentile further alleged that Bright Star is a domestic corporation that also does business in Jefferson County. In its motion to transfer venue, Bright Star alleged only that its restaurant is located in Bessemer and a substantial part of the events giving rise to the litigation occurred in Bessemer. In its post-judgment motion, Gentile provided an affidavit of its president. It also argued that Bright Star had failed to meet its evidentiary burden to support a finding to transfer venue. The appellate court agreed.
The Alabama Court of Civil Appeals found that Bright Star presented no evidence in support of its motion to transfer venue. The court was able to draw logical inferences from that supported Bright Star’s arguments, but Bright Star did not make any attempt to present evidence to support a finding in its favor. “The unsworn statements, factual assertions, and arguments of counsel are not evidence.”[1] Stated differently, statements made by counsel in unsworn pleadings or motions are not evidence.[2]
Therefore, the only evidence before the appellate court on the issue of transferring venue was the affidavit of Dominic Gentile. Gentile’s affidavit supported a finding that venue was proper in Jefferson County under Alabama Code (1975) § 6-3-7(a)(3), which governs actions against corporate defendants.[3] As a result, the evidence was that venue was proper in two locations, and in such instances, the plaintiff (Gentile) may choose the venue in which it wants to proceed.[4] Because Bright Star failed to present any evidence on the issue of improper venue or forum non conveniens, the appellate court concluded that Bright Star failed to meet its burden to have the matter transferred to the Bessemer Division. The writ was granted, and the trial court was directed to vacate its order granting transfer of venue.
[1] Ex parte Russell, 911 So.2d 719, 725 (Ala.Civ.App. 2005).
[2] Hicks v. Jackson Cty. Comm’n, 990 So.2d 904, 905 (Ala.Civ.App. 2008).
[3] Ala. Code (1975) § 6-3-7(a) reads in pertinent part: “(a) All civil actions against corporations may be brought in any of the following counties: (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 plaintiff’s residence”.
[4] Ex parte H.L. Rayburn & Co., 384 So.2d 1075, 1076 (Ala. 1980).
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