Forum-Selection Clauses: Movant Must Prove the Clause Is Part of the Parties’ Agreement Before Enforcement on a Venue Motion

I. Introduction

In Ex parte Continental Roofing Company, LLC (Ala. Feb. 27, 2026), the Supreme Court of Alabama denied a petition for a writ of mandamus seeking to compel dismissal (or transfer) based on a forum-selection clause designating Madison County. The underlying suit was filed by homeowner Tim Cloud against Continental Roofing Company, LLC (“Continental”) in the Etowah Circuit Court and asserted two claims: (1) breach of warranty/contract and (2) negligent or wanton installation and/or repair.

Continental moved to dismiss for improper venue under a forum-selection clause purportedly contained in a “Workmanship Warranty Service Agreement.” The central procedural and substantive issue was not whether forum-selection clauses are generally enforceable, but whether Continental proved that the parties’ agreement in fact included the clause it sought to enforce—given that Continental attached only an entirely blank, unsigned form “Service Agreement.”

II. Summary of the Opinion

The Court held that Continental did not carry its burden to prove improper venue because it failed to present evidence establishing that Cloud agreed to (or ratified) a contract containing the Madison County forum-selection clause. A blank form agreement—unconnected to Cloud by any identifying information, execution proof, affidavit, or authenticated linkage—was insufficient. Because Continental failed to establish the predicate fact that the forum-selection clause was part of the parties’ agreement, the trial court did not clearly err in denying the motion to dismiss, and mandamus relief was denied.

III. Analysis

A. Precedents Cited

  • Ex parte Integon Corp., 672 So. 2d 497 (Ala. 1995)
    Provided the foundational mandamus elements (clear legal right, imperative duty/refusal, no adequate remedy, properly invoked jurisdiction). This framework matters because Continental could only win if the record showed a “clear legal right” to venue enforcement.
  • Ex parte CTB, Inc., 782 So. 2d 188 (Ala. 2000)
    Established mandamus as the correct vehicle to review denial of enforcement of an “outbound” forum-selection clause when raised via a motion to dismiss. The Court relied on CTB to confirm procedural propriety of mandamus review, while emphasizing that review still depends on a sufficient evidentiary predicate.
  • Ex parte D.M. White Constr. Co., 806 So. 2d 370 (Ala. 2001)
    Two key contributions: (1) venue-related forum-selection enforcement is properly presented by a Rule 12(b)(3) motion to dismiss without prejudice for contractually improper venue; and (2) evidentiary materials may be submitted to support a venue attack. The Court used this authority to underscore what Continental could have done (submit evidence) but did not do.
  • Williams v. Skysite Communications Corp., 781 So. 2d 241 (Ala. Civ. App. 2000) (quoting Crowe v. City of Athens, 733 So. 2d 447 (Ala. Civ. App. 1999))
    Cited (through D.M. White) for the proposition that evidentiary matters may support a motion to dismiss attacking venue—reinforcing that the record may and should include proof of the contractual venue term.
  • Ex parte Procom Servs., 884 So. 2d 827 (Ala. 2003), and F.L. Crane & Sons, Inc. v. Malouf Constr. Corp., 953 So. 2d 366 (Ala. 2006)
    Invoked (via Ex parte COWS USA, LLC) for the discretionary standard: appellate review asks whether the trial court exceeded its discretion in refusing to enforce the clause. The decision clarifies that discretion is not meaningfully reviewable in the movant’s favor where the movant fails to prove the clause is actually part of the parties’ deal.
  • Ex parte COWS USA, LLC, 401 So. 3d 1100 (Ala. 2024)
    Restated Alabama’s strong enforcement posture toward forum-selection clauses and referenced the “reasonableness” factors. Here, the Court treated those principles as secondary because the threshold problem was proof of assent/contract terms—not the reasonableness of enforcement.
  • Ex parte Leasecomm Corp., 886 So. 2d 58 (Ala. 2003), Ex parte PT Solutions Holdings, LLC, 225 So. 3d 37 (Ala. 2016), and Ex parte International Paper Co., 285 So. 3d 753 (Ala. 2019)
    These cases supply the familiar rule: forum-selection clauses are upheld unless the challenger clearly establishes unfairness (fraud/undue influence/overweening bargaining power) or unreasonableness (serious inconvenience). The Court did not reject that doctrine; it held Continental never reached that stage because it did not prove the clause belonged to the operative agreement.
  • Ex parte Northern Cap. Res. Corp., 751 So. 2d 12 (Ala. 1999)
    Provided five reasonableness factors for evaluating a clause. The Court cited them (through COWS USA) to describe the general analytic structure, but it effectively treated them as inapplicable until the contract term is shown to exist and bind the parties.
  • Borden v. Malone, 327 So. 3d 1105 (Ala. 2020) (quoting Bell v. Smith, 281 So. 3d 1247 (Ala. 2019), quoting Donoghue v. American Nat'l Ins. Co., 838 So. 2d 1032 (Ala. 2002), quoting Wilson v. First Union Nat'l Bank of Georgia, 716 So. 2d 722 (Ala. Civ. App. 1998), quoting GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381 (10th Cir. 1997))
    This “central document” doctrine allows a defendant to submit an indisputably authentic copy of a document referred to in the complaint and central to the claim. The Court’s use of this line is pivotal: Continental attempted to invoke the doctrine by attaching a “substantially the same form” agreement, but Cloud disputed authenticity/identity, and the attachment lacked indicia tying it to Cloud—so it was not “indisputably authentic” as the parties’ agreement.
  • Macon Cnty. Greyhound Park v. Knowles, 39 So. 3d 100 (Ala. 2009), and Credit Sales, Inc. v. Crimm, 815 So. 2d 540 (Ala. 2001)
    Continental cited these for the principle that a party cannot both repudiate and enforce a contract (and cannot “pick and choose” provisions). The Court accepted the abstract contract principle but held it did not help Continental without proof that the proffered clause was indeed part of the agreement Cloud relied upon.
  • Ex parte Safeway Ins. Co. of Alabama, 947 So. 2d 380 (Ala. 2006), and Ex parte American Res. Ins. Co., 663 So. 2d 932 (Ala. 1995)
    These cases grounded the Court’s evidentiary discipline: statements in briefs are not evidence, and mandamus review is confined to what was before the trial court. Continental’s explanations about its contract practices and why Cloud supposedly had the signed copy were treated as non-evidence.
  • Ex parte Michelin N. America, Inc., 56 So. 3d 604 (Ala. 2010) (quoting Ex parte Pratt, 815 So. 2d 532 (Ala. 2001))
    Supplied the burden allocation: once improper venue is pleaded, the challenger bears the burden of proving it. This burden rule was dispositive—Continental pleaded improper venue but failed to prove it.
  • Franklin Structures, LLC v. Williams (Ala. 2025) (quoting Ex parte Cain, 838 So. 2d 1020 (Ala. 2002), quoting Southern Energy Homes, Inc. v. Hennis, 776 So. 2d 105 (Ala. 2000))
    Cited for contract-formation/assent principles: assent is typically shown by signature, but it can also be shown by ratification. The Court used this to recognize that Cloud’s acceptance of warranty work could constitute ratification—yet reiterated that Continental still had to prove what terms were ratified (i.e., that the relevant agreement contained the forum-selection clause).
  • Ex parte Tyson Chicken, Inc., 72 So. 3d 1 (Ala. 2011) (quoting Ex parte Pike Fabrication, Inc., 859 So. 2d 1089 (Ala. 2002), quoting Ex parte Finance America Corp., 507 So. 2d 458 (Ala. 1987))
    Reinforced the mandamus standard in venue disputes: mandamus will not issue absent a clear showing of trial-court error, and the burden of proving improper venue rests on the movant. The Court concluded Continental did not make the required clear showing.

B. Legal Reasoning

  1. Mandamus posture heightens the need for a clean record.
    Because mandamus requires a “clear legal right,” the petitioner must present a record showing the trial court clearly erred. The Court emphasized it could only consider facts and evidence actually before the circuit court.
  2. Forum-selection enforcement presupposes a proven contract term.
    Alabama’s pro-enforcement doctrine (unfair/unreasonable exceptions; difficulty of challenger’s burden) only becomes relevant after the movant shows the clause is part of the parties’ agreement. Here, the foundational evidentiary step failed.
  3. The “central document” doctrine did not rescue Continental.
    Cloud referenced a “Workmanship Warranty Service Agreement,” but Continental’s attachment was a blank form with no names, dates, signatures, contract number, or terms tying it to Cloud. Once Cloud disputed the linkage, the form could not be treated as an “indisputably authentic” copy of the operative agreement.
  4. Brief assertions are not evidence.
    Continental’s explanations—e.g., that customers are sent duplicate forms and told to return a signed copy; that Cloud must have the executed agreement—were made in briefing and were not supported by affidavits or other competent evidence presented to the trial court.
  5. Burden of proof on improper venue was not met.
    Under Ex parte Michelin N. America, Inc. and Ex parte Pratt, once improper venue is pleaded, the challenger must prove it. Continental offered no affidavit, no authenticated executed contract, no testimony, and no discovery-derived document production establishing that the Madison County clause governed the parties.
  6. Ratification was acknowledged, but the terms ratified were not proven.
    The Court noted Cloud’s acceptance of warranty repairs could constitute ratification even without a signature, but ratification requires knowledge and acceptance of the contract’s terms. Continental still had to prove that the contract Cloud ratified contained the specific forum-selection clause.
  7. Practical litigation tools existed but were not used.
    The Court pointed out Continental could have (a) filed supporting affidavits (e.g., that Cloud received/signed a version containing the clause, or that company records show the clause was included), or (b) pursued discovery directed to venue (e.g., demand Cloud’s copy). The absence of such proof left the venue challenge unsupported.

C. Impact

The decision sharpens (and effectively reiterates in a venue/enforcement posture) a threshold evidentiary requirement: a party seeking to enforce a forum-selection clause by Rule 12(b)(3) must prove that the clause is part of the parties’ agreement, not merely that the clause exists on a generic company form.

Practically, Ex parte Continental Roofing Company, LLC will likely:

  • Increase the use of affidavits and authenticated exhibits at the outset of venue motions premised on contract clauses (especially where the plaintiff disputes receipt/execution).
  • Encourage limited venue discovery before pressing for dismissal/transfer when the operative contract document is in dispute.
  • Constrain “form contract” enforcement arguments where the movant cannot connect the form to the parties’ transaction with specific identifiers or reliable business records.
  • Clarify sequencing: courts need not reach the “unfair or unreasonable” analysis under Ex parte Leasecomm Corp. and its progeny until the movant proves the clause binds the parties.

IV. Complex Concepts Simplified

  • Mandamus: An extraordinary appellate remedy used to correct clear legal error where ordinary appeal is inadequate. It is not a “second look”; it requires a clear right shown on the trial-court record.
  • Forum-selection clause: A contract term choosing the county/state where disputes must be litigated. Enforceability often turns on fairness and convenience—but only after the clause is shown to be part of the parties’ contract.
  • “Inbound” vs. “outbound” clause: “Outbound” sends litigation outside Alabama; “inbound” keeps it in Alabama. The Court noted the clause here is “inbound” (Madison County, Alabama), though mandamus availability is the same in this posture.
  • Rule 12(b)(3), Ala. R. Civ. P.: The procedural tool for dismissal based on improper venue, including “contractually improper venue” when a forum-selection clause applies.
  • “Statements in briefs are not evidence”: Lawyers’ factual assertions in motions/briefs do not prove facts unless supported by admissible materials (affidavits, documents, testimony) presented to the trial court.
  • Ratification: Accepting benefits under an agreement can bind a party to its terms even without a signature. But the proponent must still prove what the agreement’s terms were.
  • Venue discovery: Limited discovery focused on where the case should be heard (e.g., requesting the signed contract copy). The Court highlighted this as an available tool.

V. Conclusion

Ex parte Continental Roofing Company, LLC stands for a practical but consequential rule in forum-selection litigation: before a court evaluates whether enforcing a forum-selection clause would be unfair or unreasonable, the party seeking enforcement must prove—by evidence in the trial-court record—that the clause is actually part of the parties’ agreement (or was ratified with those terms). A blank, unsigned, unconnected form does not satisfy the movant’s burden to prove improper venue, and mandamus will not issue absent a clear showing of trial-court error.