Ex parte Mullen, [Ms. SC-2023-0278, Jan. 12, 2024] ___ So. 3d ____ (Ala. 2024). The Court (Bryan, J.; Parker, C.J., and Shaw, Wise, Sellers, Mendheim, Stewart, Mitchell, and Cook, JJ., concur) issues a writ of mandamus directing the Jefferson Circuit Court to transfer this action against Richard and Cheryl Mullen to the Walker Circuit Court.
The Mullens purchased real property located in Walker County (“the property”), built a residence on it, and subsequently sold the property to Karl and Fay Leo. Ms. *2. The Leos filed this action in Jefferson County asserting claims for breach of contract, breach of the implied warranty of habitability, fraud, negligence, and fraudulent suppression and requested damages and equitable relief. Ms. **2-3.
The Court first concludes pursuant to §§ 6-1-1(b) and 6-1-2 that Rule 82(b)(1)(B) governs and clearly requires that “if the subject matter of the action is real estate, whether or not exclusively, [must] … be brought in the county where the real estate or a material portion thereof is situated.” Ms. *19.
The Court “conclude(s) that the property at issue in this case is the ‘subject matter’ of the Leos’ action within the meaning of Rule 82(b)(1)(B). Although the Leos do not appear to seek rescission of the contract for the sale of the property at issue in this case …, the gravamen of the Leos’ complaint is that the Mullens improperly designed and constructed the residence located on the property and sold it to the Leos in an uninhabitable condition by making false advertisements and representations concerning the condition of the residence.” Ms. *16.