
    GLITSCH, INC. v. HARBERT CONSTRUCTION COMPANY, A DIVISION OF HARBERT INTERNATIONAL, INC.
    1920039.
    Supreme Court of Alabama.
    Aug. 27, 1993.
    
      James C. Huckaby, Jr., and Daniel B. Feldman of Haskell Slaughter Young & Johnston, P.A., Birmingham, for appellant.
    William Allen Smyly, Jr., and Denise Avery Dodson of Bradley, Arant, Rose & White, Birmingham, for appellee.
   ADAMS, Justice.

Glitsch, Inc., appeals from an order enjoining it from proceeding on its claims against Harbert Construction Company, a division of Harbert International, Inc., and Harbert’s surety in an action filed in Texas shortly after Harbert sued Glitsch in Alabama. We affirm.

In 1991, Harbert was awarded a bid to construct three prisons in Texas. In July of that year, Harbert subcontracted some of its work on two of the prisons out to Glitsch. Harbert claims that it transmitted the contract to Glitsch in July and that, although Glitsch did not return the contract, Glitsch began to perform pursuant to the contract in July. In September, according to Harbert, Glitsch returned the contract, demanding that requested changes be made to the contract. Harbert refused to alter what it considered to be the agreement, and thereafter Harbert terminated the contract. Glitsch filed a lien against Harbert’s surety in Texas; Harbert then sued in Alabama, and Glitsch, shortly thereafter, sued in Texas.

Glitsch contends that Texas law requires it to file its bond claims against a surety in Texas. In addition, Glitsch contends that Harbert had filed a plea in abatement in Texas (before seeking an injunction from the Alabama court), asking that court to do exactly the same thing that has now been ordered by the Alabama court. In Texas, however, the plea in abatement was denied without prejudice. Glitsch claims that the Texas court denied the plea without prejudice only in order to allow Harbert to show how the surety in Texas was not a proper party. Glitsch contends that Harbert was unable to do this and, therefore, that this Court should not contradict the ruling of the Texas court with regard to a cause of action filed there.

Harbert contends that the trial court correctly enjoined Glitsch from proceeding on its claim in Texas because the Alabama action is the only one addressing all issues between the parties. Furthermore, Harbert contends that it would be subjected to great expense if required to litigate in two forums. Harbert also argues that the trial court in Alabama ordered Harbert to post a $275,000 bond so that, should Harbert lose the case pending in Alabama, Glitsch would not have to sue the surety in Texas to obtain its damages.

“[T]he issuance of injunctive relief is a matter left to the sound discretion of the trial court. Hood v. Neil, 502 So.2d 749 (Ala.1987); Powell v. Phenix Federal Savings & Loan Ass’n, 434 So.2d 247 (Ala.1983). Thus, [the appellant] must show that the trial court committed plain and palpable error to warrant a reversal. Reed v. City of Montgomery, 341 So.2d 926 (Ala.1976); Ex parte Jones, 246 Ala. 433, 20 So.2d 859 (1945).”

Alabama Power Co. v. Drummond, 559 So.2d 158, 161 (Ala.1990).

Clearly, Glitseh has been protected by the requirement that Harbert post a bond to cover any damages Glitseh might recover. Because we find that the actions are substantially the same and because of the hardship to the parties to litigate in two forums, with the possibility of inconsistent results, we conclude that the trial court did not abuse its discretion. Therefore, the injunction is hereby affirmed.

AFFIRMED.

HORNSBY, C.J., and SHORES, HOUSTON, STEAGALL, KENNEDY and INGRAM, JJ., concur.

MADDOX, J., dissents.

MADDOX, Justice,

(dissenting).

Because I think that Harbert failed to show that any manifest wrong or injustice would result if the Aabama court denied the injunctive relief, I think the trial court lacked a sufficient basis for the extraordinary relief granted and, as a result, abused its discretion. Accordingly, I respectfully dissent.

As explained in Corpus Juris Secundum:

“[T]he use of the injunctive power to prohibit a person from resorting to a foreign court is a power rarely and sparingly employed, for its exercise represents a challenge to the dignity and authority of that tribunal; and such an injunction will not be granted unless a clear equity is presented requiring the interposition of the court to prevent manifest wrong and injustice.”

43A C.J.S. Injunctions § 59 (1978) (emphasis added; citations omitted). Thus, prosecution of a foreign suit may appropriately be enjoined where the foreign suit will subject the movant to fraud, gross wrong, or oppression or where other similar equitable considerations are involved. Id. See, e.g., Weaver v. Alabama Great Southern R.R., 200 Ala. 432, 76 So. 364 (1917). Athough each case must be assessed under its own unique circumstances, it is clear that a compelling equitable justification for injunctive relief must be present:

“An injunction will not be granted merely because the Complainant prefers to have the matter adjudicated by his own courts, or there is some distrust in the courts of the sister state, or from considerations of mere inconvenience or expense.... ”

43A C.J.S. Injunctions § 59.

The power of an Aabama circuit court to enjoin a party within- its jurisdiction from prosecuting an action in another state is one to be “sparingly exercised.” McWhorter v. Williams, 228 Ala. 632, 155 So. 309 (1934). While the trial court concluded that if the injunction was not granted Harbert would be forced to “expend a greater sum of monies and lawyers fees” and “incur other expenses for which it may not recover,” I find this to be an insufficient basis for granting an injunction. The exercise of equitable jurisdiction to grant injunctive relief should rest on a firmer basis, such as the traditional basis that there is no adequate remedy at law and that the one seeking an injunction will suffer irreparable harm or will be required to face a multiplicity of actions. I find none of the traditional grounds of equitable jurisdiction in the facts here. Inconvenience, which is sometimes a good reason for transferring an action, is not a good ground for an injunction, especially if the injunction would prevent the prosecution of an action in a foreign state and there are no exceptional circumstances to compel such relief.

There is no suggestion that the Texas action was brought or was being prosecuted for improper purposes or that it might have inappropriate consequences. Glitseh, a Texas resident, sued under Texas law, in the forum directed by Texas statute, over a controversy that arose from construction occurring in the state of Texas. There is no suggestion that the law of Texas is more favorable to Glitseh, or more hostile to Har-bert, than the law of Aabama. Consequently, there is no basis upon which to conclude that Glitseh seeks, or could obtain, any advantage (other than convenience) by litigating its claims in Texas rather than Aabama. Furthermore, I think that the alleged “harm” relied on by Harbert fails to provide a sufficient basis for the injunction. As explained above, the expected inconvenience and expense of litigating in the foreign forum do not provide a sufficient basis for enjoining the foreign proceedings.

Based on the foregoing, I respectfully dissent. 
      
      . Glitsch claims that it did not immediately sue Harbert in Texas because it was hoping that the two parties could settle the dispute out of court.
     