(251) 299-0101

WORKERS' COMPENSATION & VENUE - EX PARTE R.E. GARRISON TRUCKING, INC.

Ex parte R.E. Garrison Trucking, Inc., [Ms. 2160556, June 16, 2017] __ So. 3d __ (Ala. Civ. App. 2017). The court reverses an order of the Washington Circuit Court denying – after consideration of conflicting evidence – an employer's motion to transfer venue from the county where the injured employee resided and the employer allegedly did some business by agent to the county where the employer principally conducted business.

The court first reiterates the standard of review concerning such venue determinations:

" ' "The proper method for obtaining review of a denial of a motion for a change of venue in a civil action is to petition for the writ of mandamus. Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297, 302 (Ala. 1986). 'Mandamus is a drastic and extraordinary writ, to be issued only where there is (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 Integon Corp., 672 So. 2d 497, 499 (Ala. 1995). 'When we consider a mandamus petition relating to a venue ruling, our scope of review is to determine if the trial court [exceeded] its discretion, i.e., whether it exercised its discretion in an arbitrary and capricious manner.' Id. Our review is further limited to those facts that were before the trial court. Ex parte American Resources Ins. Co., 663 So. 2d 932, 936 (Ala. 1995)." '

"Ex parte Southeast Alabama Timber Harvesting, LLC, 94 So. 3d 371, 373 (Ala. 2012) (quoting Ex parte National Sec. Ins. Co., 727 So. 2d 788, 789 (Ala. 1998))."

Ms. * 7-8 (quoting Ex parte Tier 1 Trucking, LLC, [Ms. 115-740, Sept. 30, 2016] __ So. 3d __, __ (Ala. 2016)). "[A] writ of mandamus will not be granted unless there is a clear showing of erroron the part of the trial judge." Ms. * 8 (quoting Ex parte Hibbett Sporting Goods, Inc., [Ms. 2160069, Jan. 27, 2017] __ So. 3d __, __ (Ala. Civ. App. 2017)) (emphasis in original).

The court next discusses the distinction between "residence" and "domicile" for purposes of ascertaining proper venue under § 6-3-7, Ala. Code 1975 (corporate venue statute):

"'Generally, the terms "residence" and "domicile" are not considered synonymous.... However, when determining venue, most jurisdictions, including Alabama, do consider the terms synonymous.... The terms denote the place where the person is deemed in law to live and may not always be the place where the person is actually dwelling.'

"Ex parte Sides, 594 So. 2d 93, 95 (Ala. 1992) (citing Ex parte Weissinger, 247 Ala. 113, 22 So. 2d 510 (1945)). ...

" 'A person's domicile is that place in which his habitation is fixed, without any present intention of removing, and it embraces (1) the fact of residence and (2) the intention to remain. As a general proposition a person can have but one domicile, and when once acquired is presumed to continue until a new one is gained facto et animo, and what state of facts constitutes a change of domicile is a mixed question of law and fact.'

"Weissinger, 247 Ala. at 117, 22 So. 2d at 514."

Ms. * 9-10 (quoting Ex parte Corley, 942 So. 2d 349, 352 (Ala. 2006)).

Next, the court examines whether the employer did business by agent in Washington County:

" 'To establish that a corporation does business in a particular county for purposes of venue, past isolated transactions are inconclusive. Ex parte Harrington Mfg. Co., 414 So. 2d 74 (Ala. 1982). A corporation does business in a county for purposes of § 6–3–7 if it performs with some regularity in that county some of the business functions for which the corporation was created. Ex parte SouthTrust Bank of Tuscaloosa Cnty., N.A., 619 So. 2d 1356, 1358 (Ala. 1993)."

" '(Emphasis added.) This Court has also held that "'"not every act done within the corporate powers of a foreign corporation will constitute doing business within the meaning of the statute." ' " Ex parte Greene track, Inc., 25 So. 3d 449, 453 (Ala. 2009) (quoting Ex parte Scott Bridge Co., 834 So. 2d 79, 81 (Ala. 2002), quoting in turn Ex parte Charter Retreat Hosp., Inc., 538 So. 2d 787, 790 (Ala. 1989))....'

"Ex parte Guarantee Ins. Co., 133 So. 3d [862] at 872 [(Ala. 2013)]."

Ms. * 12-13 (quoting Ex parte Interstate Freight USA, Inc., 213 So. 3d 560, 564-65 (Ala. 2016)).

In the end, the court concludes that evidence the injured employee permitted the employer's trailers to be parked on his property in Washington County over the weekend, and evidence the employee occasionally recruited drivers for the employer, were insufficient to establish that the employer was "doing business" in Washington County within the meaning of § 6-3-7(a)(2). Accordingly, the court issued the writ and directed the Washington County Circuit Court to transfer venue to Cullman County.

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