Spencer v. S. Boyd, Inc.
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Shirley Spencer and Christy Gee petitioned the Supreme Court for a writ of mandamus to direct the Greene Circuit Court to vacate its judgment granting the motion of K & K Excavating,
LLC ("K & K"), to enforce a forum-selection clause and transferring the petitioners' action against K & K to the Tuscaloosa Circuit Court. In 2007, Spencer contracted with K & K for the installation of a septic system at the petitioners' house in Eutaw. The petitioners separately contracted with S. Boyd, Inc. ("Boyd"), to conduct the excavation work necessary to install the septic system. The
contract between the parties included a forum-selection clause. When mediation of the case proved unsuccessful, the Greene Circuit Court ordered another pretrial conference to be held. K & K filed a reply brief in support of the transfer motion. The Greene Circuit Court ultimately entered an order granting the transfer motion as to K & K and severing the petitioners' claims against K & K from those asserted against the Boyd defendants; the Greene Circuit Court denied the transfer motion as to the Boyd defendants. The petitioners did not challenge the validity of the forum selection clause. Instead, the petitioners argued only that K & K waived its right to enforce the forum-selection clause "by defending the lawsuit in Greene County for two years, through multiple pretrial conferences and completion of party discovery." The Supreme Court agreed. Under the facts of this case, K & K's substantial invocation of the litigation process in Greene County clearly
evinced its intention to abandon its right to enforce the forum-selection clause in favor of the judicial process. Therefore, the Court granted the petition and directed the trial court to vacate its order granting the transfer motion.
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