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Ex parte H & M Industrial Services, Inc.

Court of Civil Appeals of Alabama

November 16, 2012

Ex parte H & M INDUSTRIAL SERVICES, INC., and ThyssenKrupp Steel USA, LLC.
v.
H & M Industrial Services, Inc., et al.). (In re Adrian Sullivan

Mandamus Denied Jan. 18, 2013 Alabama Supreme Court 1120283.

Page 1203

Edward G. Bowron and Anna L. Scully of Burr & Forman LLP, Mobile, for petitioners.

R. Edwin Lamberth and Wyman O. Gilmore, Jr., of Gilmore Law Firm, Grove Hill; and E. Tatum Turner of Turner, Onderdonk, Kimbrough, Howell, Huggins & Bradley, P.A., Chatom, for respondent.

MOORE, Judge.

H & M Industrial Services, Inc. (" H & M" ), and ThyssenKrupp Steel USA, LLC (" ThyssenKrupp" ), (hereinafter referred to collectively as " the petitioners" ) petition this court for a writ of mandamus to the Washington Circuit Court (" the trial court" ) directing it to grant their motion to dismiss or, in the alternative, to transfer the case to the Mobile Circuit Court on the basis of improper venue. We grant the petition and issue the writ.

Procedural History

On March 15, 2012, Adrian Sullivan filed a complaint in the trial court against the petitioners; Harvey Casey; Stevens Painton Corporation; and several fictitiously named defendants. Sullivan sought workers' compensation benefits from H & M and damages for alleged negligence and wantonness from the remaining defendants. Sullivan averred that the accident occurred on June 22, 2010.

On April 20, 2012, the petitioners filed a motion to dismiss or, in the alternative, to transfer the action based on improper venue. The petitioners argued that the accident happened in Mobile County and that neither H & M nor ThyssenKrupp did business in Washington County. The petitioners submitted a printout from the Alabama Secretary of State's Web site indicating that ThyssenKrupp was a foreign limited-liability company whose principal

Page 1204

address was at One ThyssenKrupp Drive, Calvert, Alabama, and whose nature of business was the sale of steel. They also attached the affidavit of Harvey Casey, a technical specialist and project manager for ThyssenKrupp. Casey testified in his affidavit that he was a project manager at the " Hot Dip Galvanizing Lines." He further testified that he is " familiar with and ha[s] knowledge of where the boundaries of both Mobile County and Washington County fall with respect to the [ThyssenKrupp] site ... based on the extensive experience [he has] on this site, and [his] knowledge of the boundaries of Mobile and Washington County is based upon [his] frequent and extensive use and knowledge of the Master Overlay Plans which depicts the Washington County boundaries upon it as compared to the layout of the [ThyssenKrupp] site." He stated that, based on his " review of the maps, [his] professional and personal experience, and [his] knowledge of the [ThyssenKrupp] site, [ThyssenKrupp] has erected no structure or other improvement on its site that falls within the borders of Washington County." He further stated that ThyssenKrupp " requires improvements to its property to perform all of its functions related to the production and sale of carbon steel products, and no such improvement has been planned for or erected within Washington County." He further testified that H & M's work was performed exclusively on the " Hot Dip Galvanizing Lines," and he opined that, based on his " review of the maps, [his] professional and personal experience, and [his] knowledge of the [ThyssenKrupp] site, all work performed by H & M was located well-within the Mobile County boundary line."

The petitioners also submitted the affidavit of John Dennis, a project manager for H & M. Dennis testified in his affidavit that, at the time of Sullivan's accident, H & M was a foreign corporation that was performing work on the " Hot Dip Galvanizing Lines" but at no other location in Alabama. He testified that H & M does not regularly do business in any other location in Alabama. Attached to Dennis's affidavit was the accident report regarding Sullivan's accident, which indicated that Sullivan's accident had occurred on the " Hot Dip Galvanizing Lines." Dennis testified that, although a certain report made by H & M lists Washington County as the location of the accident, he " ha[d] been made to understand that the Hot Dip Galvanizing Lines are located in Mobile County, Alabama, by employees of ThyssenKrupp who have access to maps and satellite imagery of the ThyssenKrupp site."

Stevens Painton Corporation also filed a motion to dismiss or, in the alternative, to transfer the action based on improper venue. It attached an affidavit of Tony DeLuca, a controller for Stevens Painton. DeLuca testified in his affidavit that Stevens Painton is a foreign corporation and that all the work that it did for ThyssenKrupp was done in Mobile County.

On May 21, 2012, Sullivan moved to strike the affidavits of Casey and Dennis. He argued that Casey's affidavit was inadmissible to the extent that it contained information regarding in which county improvements were located because he did not attach the maps upon which he relied; he argued that Dennis's affidavit was inadmissible to the extent that it stated that the " Hot Dip Galvanizing Lines" were in Mobile County because, Sullivan said, that statement was based on inadmissible hearsay.

On May 22, 2012, Sullivan responded to the petitioners' motion arguing that ThyssenKrupp's site was located in both Mobile County and Washington County. Sullivan

Page 1205

attached a printout of a Web site page. The title of the page is " ThyssenKrupp Steel and Stainless USA," [1] and it states that that company's site would be located in northern Mobile County and southern Washington County. Sullivan also attached tax maps and a deed indicating that the site of " ThyssenKrupp Steel and Stainless USA, LLC," was located in both Mobile County and Washington County. He also attached a resolution of the Washington County Commission indicating that certain land in Washington County had been designated as an industrial park by " ThyssenKrupp Steel and Stainless USA, LLC." In addition, Sullivan attached a certificate of merger between " ThyssenKrupp Steel USA, LLC," and " ThyssenKrupp Steel ...


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