Sullivan v. H&M Indus. Servs., Inc. (Ex parte H&M Indus. Servs., Inc.)

• Decision Date: 16 November 2012
• Docket Number: 2110945
• Parties: Ex parte H&M Industrial Services, Inc., and ThyssenKrupp Steel USA, LLC PETITION FOR WRIT OF MANDAMUS In re: Adrian Sullivan v. H&M Industrial Services, Inc., et al.
• Court: Alabama Court of Civil Appeals

Ex parte H&M Industrial Services, Inc., and ThyssenKrupp Steel USA, LLC

PETITION FOR WRIT OF MANDAMUS

In re: Adrian Sullivan

v.H&M Industrial Services, Inc., et al.

2110945

ALABAMA COURT OF CIVIL APPEALS

OCTOBER TERM, 2012-2013

Dated: November 16, 2012

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.

(Washington Circuit Court, CV-12-900011)

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 awrit 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 address was at OneThyssenKrupp 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 attached aprintout 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 and Stainless USA, LLC," dated September 26, 2011. He also attached proof of registration of several vehicles in the name of "ThyssenKrupp Stainless USA, LLC," in Washington County.²

After a hearing, the trial court entered an order, on June 15, 2012, stating:

"Based on the submissions and the arguments of the parties, the Court GRANTS [Sullivan's] Motion to Strike. The portions of the Casey affidavit relying on documents not attached, and the portions of the Dennis affidavit relying on hearsay information, both identified in [Sullivan's] Motion, are hereby stricken.

"The Court also finds that Defendants have not met their burden of establishing that venue is not proper in Washington County. This would be true even if the Court considered the Dennis and Casey affidavits in their entirety. Accordingly, the Defendants' Motions to Dismiss or Transfer are DENIED."

(Capitalization in original.)

Standard of Review

"'A petition for the writ of mandamus is the appropriate means by which to challenge a trial court's order regarding a change of venue. The writ of mandamus is an extraordinary remedy; it will not be issued unless the petitioner shows "'"(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court."'" Ex parte Inverness Constr. Co., 775 So. 2d 153, 156 (Ala. 2000) (quoting Ex parte Gates, 675 So. 2d 371, 374 (Ala. 1996)); Ex parte Pfizer, Inc., 746 So. 2d 960, 962 (Ala. 1999).'

"Ex parte Children's Hosp. of Alabama, 931 So. 2d 1, 5-6 (Ala. 2005).

"Applying the general rules to a petition for a writ of mandamus challenging a ruling related to venue, this Court has held: "The burden of proving improper venue is on the party raising the issue and on review of an order transferring or refusing to transfer, a writ of mandamus will not be granted unless there is a clear showing of error on the part of the trial judge.' Ex parte Finance America Corp., 507 So. 2d 458, 460 (Ala. 1987). 'Our review is limited to only those facts that were before the trial court.' Ex parte Kane, 989 So. 2d 509, 511 (Ala. 2008). "

Ex parte Lugo de Vega, 65 So. 3d 886, 891 (Ala. 2010).

Discussion

The petitioners initially argue that the trial court improperly struck Casey's affidavit because, they assert, his testimony that the "Hot Dip Galvanizing Lines" and all steel-producing business were located in Mobile County was based on personal knowledge.

In Stephens v. First Commercial Bank, 45 So. 3d 735, 73839 (Ala. 2010) (plurality opinion), our supreme court reasoned:

"Stephens ... argues that 'it is apparent that none of the evidence presented to the trial court was within the "personal knowledge" of Mr. Brown.' Stephens's brief, p. 13. In previous cases, we have held testimony inadmissible under the best-evidence rule or the hearsay prohibition, but only when it was readily evident that the witness had no personalknowledge of the facts he or she testified to. See, e.g., Ex parte Walker, 623 So. 2d [281,] 284 [(Ala. 1992)] (applying best-evidence rule where it was clear from the record that a bookkeeper's testimony was based exclusively on books and records of the business and not personal knowledge); Ex parte Head, 572 So. 2d 1276, 1281 (Ala. 1990) (holding that 'testimony reaardina the relationships amona the defendants, purportedly made "from personal knowledge" gained from the records of the probate court ' was inadmissible where 'no copies of the probate records from which [the affiant] gained her "personal knowledge" were provided with [the] affidavit'); McMillian v wallis, 567 So 2d 1199 1205 (Ala 1990)

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