Marshall Circuit Court, CV-17-21
PETITION FOR WRIT OF MANDAMUS
Gear Truck Equipment, LLC ("Road Gear"), a
corporation based in Franklin County, petitions this Court
for a writ of mandamus directing the Marshall Circuit Court
to vacate its order denying Road Gear's motion to
transfer the underlying action to the Franklin Circuit Court
and to enter an order transferring the action. We deny the
complaint describes the incident underlying this action:
"On March 22, 2017, Vernon Dement was operating a 1994
Kenworth tractor trailer pulling a log [load] along Hobbs
Island Road in Madison County, Alabama. While traveling west
along Old Highway 431, Mr. Dement's log truck entered a
curve to the left entering Hobbs Island Road and over turned,
stopping the forward motion of the truck. The cab guard on
the truck was defective and/or unreasonably dangerous in that
it allowed the cargo of logs to crash into the passenger
compartment, crushing Mr. Dement to death inside the vehicle,
and injuring Mrs. Dement who was a passenger in the truck.
The cab guard was defective and/or unreasonably dangerous in
that it was improperly manufactured and/or designed and
lacked proper warnings. The failure of said cab guard was a
direct and proximate cause of the death of Mr. Dement and the
injuries to Mrs. Dement."
Gear manufactures trucking equipment, including "cab
guards" designed to prevent passengers in
tractor-trailer trucks from being injured by shifting loads.
It is undisputed that Road Gear's principal place of
business is located in Russellville in Franklin County.
August 4, 2017, Deborah Dement filed this action in the
Marshall Circuit Court on behalf of herself and in her
capacity as the personal representative and administrator of
the estate of her deceased husband against Road Gear and
fictitiously named defendants. Dement alleged that her
injuries and the death of her husband were caused by Road
Gear's negligence and wantonness and that Road Gear was
liable under the Alabama Extended Manufacturer's
Liability Doctrine ("the AEMLD"). Dement alleged in
her complaint that venue was proper in Marshall County
because she resided in Marshall County and Road Gear
"does business in Marshall County."
September 6, 2017, Road Gear filed a motion for a change of
venue in which it contended that venue was not proper in
Marshall County because, it said, Road Gear did not conduct
business in Marshall County. Road Gear argued that venue was
proper in either Madison County, the location of the
accident, or in Franklin County, the location of Road
Gear's principal place of business, where the subject cab
guard was designed and manufactured. In support of its
motion, Road Gear filed an affidavit from its general
manager, Jason Gist, in which he stated, in part:
"2. Road Gear has its principal place of business in
Russellville, Franklin County, Alabama. Road Gear's
registered agent for service of process is located in
Russellville, Franklin County, Alabama.
"3. Road Gear does not have any agents in Marshall
"4. Road Gear does not have any stores, dealers,
salesmen, affiliates or subsidiaries in Marshall County,
"5. All activities of Road Gear involving the design,
manufacture, and inspection of Road Gear equipment occurs in
Russellville, Franklin County, Alabama.
"6. Road Gear sells and distributes its equipment
through various truck dealers, trailer dealers and/or
aftermarket truck/trailer part dealers, none of which are
located in Marshall County, Alabama."
Dement filed an amended complaint, Road Gear filed a renewed
motion for a change of venue in which it reiterated its
contention that venue was improper in Marshall County.
October 19, 2017, Dement filed a response in opposition to
Road Gear's motion for a change of venue in which she
contended that venue was proper in Marshall County because,
she said, Road Gear did business in Marshall County through
FleetPride, Inc. ("FleetPride"), which sells truck
and trailer parts and has a store in Albertville in Marshall
County ("the Albertville FleetPride store"). Dement
filed three affidavits in support of this contention. The
first affidavit, from her attorney's private
investigator, Brian Sims, stated, in part:
"1. Prior to August 1, 2017, I called Road Gear Truck
Equipment LLC about purchasing a cab guard. I was told by
'Anthony' that I would have to make my purchase from
Road Gear's exclusive dealer 'FleetPride'.
"2. On or before August 1, 2017, I went to the
FleetPride dealership located at 8941 U.S. Highway 431 North
in Albertville, Marshall County, Alabama.
"3. While at the FleetPride location, I asked whether
the dealership sold Road Gear Equipment Company, LLC
products. I was informed that they did sell Road Gear
Equipment Company, LLC products and I was provided with a
quote for a Road Gear cab guard size 68x70 with a window and
chain rack and tray and mounting kit. ...
"4. The FleetPride dealer also showed me a Road Gear
catalog related to the Road Gear products they sold and we
used it to select the cab guard model for the quote I
5. Subsequently, I purchased a Road Gear cab guard from
FleetPride located in Marshall County, Alabama.
other affidavits Dement submitted in support of her
contention that Road Gear does business in Marshall County
were from employees of the Albertville FleetPride store.
Bradley Hooper's affidavit stated:
"1. I am an Alabama resident and I have worked for
FleetPride Truck and Trailer Parts in Albertville, Alabama
for 10 years.
"2. The FleetPride location where I work is an
authorized dealer for Road Gear Truck Equipment LLC.
FleetPride where I work has sold Road Gear products and been
an authorized dealer for Road Gear as long as I have been
employed with FleetPride."
employee Adam Bridges's affidavit was nearly identical to
Hooper's affidavit except that Bridges stated that he had
worked at the Albertville FleetPride store for four years.
October 20, 2017, Road Gear filed a reply to Dement's
response to its motion for a change of venue, and Road Gear
attached a second affidavit from Gist. In addition to
reiterating some observations from his original affidavit,
"3. I have viewed the Road Gear equipment rack that has
been made the basis of this lawsuit. I observed that the
equipment rack bore serial number 638. A true and correct
copy of a photograph of the portion of the equipment rack
made the basis of this lawsuit bearing serial number 638 is
attached hereto a Exhibit 'A'. From review of Road
Gear's records, I have determined that the subject
equipment rack was sold and delivered to the original
purchaser in Russellville, Franklin County, Alabama.
"4. Additionally, all acts with regard to the design,
manufacture, assembly, distribution and sale of the equipment
rack bearing serial number 638 occurred at Road Gear's
facility in Russellville, Franklin County, Alabama.
"5. Road Gear does not have any agents, authorized to
act on behalf of or bind Road Gear in any fashion, in
Marshall County, Alabama.
"6. Road Gear does sell and distribute its equipment
through various vendors, including truck dealers, trailer
dealers and/or aftermarket truck/trailer parts dealers. Fleet
Pride Truck & Trailer Parts is one such aftermarket parts
dealer to whom Road Gear sells its equipment.
"7. With regard to the particular piece of equipment
made the basis of this litigation, bearing serial number 638,
Road Gear did not sell it to Fleet Pride in Albertville,
"8. Fleet Pride in Albertville, Alabama is not set up as
a customer in Road Gear's database of customers.
"9. Road Gear does not have any control over which of
Fleet Pride's 262 store front locations Fleet Pride sells
Road Gear's equipment.
"10. Road Gear has one place of business which is
located in Russellville, Franklin County, Alabama. All of
Road Gear's business records, design records, production
equipment, manufacturing facility and personnel are located
in Russellville, Franklin County, Alabama."
October 20, 2017, the trial court held a hearing on Road
Gear's motion for a change of venue. Following the
hearing, the trial court entered an order in which it asked
for additional briefing on the issue of what constitutes
doing business by agent for purposes of determining venue.
October 30, 2017, Road Gear filed an evidentiary supplement
to its motion for a change of venue. The supplement included
a copy of the sales order from Sims's purchase of a cab
guard, which showed that the sale was made to FleetPride in
Irving, Texas, and then shipped to the Albertville FleetPride
store. Road Gear also attached a third affidavit from Gist.
In his third affidavit, in addition to reiterating some
observations made in his previous affidavits, Gist stated:
"2. Road Gear has never authorized anyone, at any store
or otherwise, in Marshall County, Alabama to sell products as
a dealer on its behalf.
"3. Road Gear has never conferred any authority, by word
or act, upon any individual or company in Marshall ...