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Ex parte Road Gear Truck Equipment, LLC

Supreme Court of Alabama

November 15, 2019

Ex parte Road Gear Truck Equipment, LLC
v.
Road Gear Truck Equipment, LLC In re: Deborah Dement et al.

          Marshall Circuit Court, CV-17-21

          PETITION FOR WRIT OF MANDAMUS

          PER CURIAM.

         Road 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 petition.

         I. Facts

         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."

         Road 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.

         On 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."

         On 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 County, Alabama.
"4. Road Gear does not have any stores, dealers, salesmen, affiliates or subsidiaries in Marshall County, Alabama.
"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."

         After 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.

         On 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 received.
5. Subsequently, I purchased a Road Gear cab guard from FleetPride located in Marshall County, Alabama. ..."[1]

         The two 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."

         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.

         On 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, Gist stated:

"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, Alabama.
"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."

         Also on 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.

         On 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 ...

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