Ex parte R.E. Garrison Trucking, Inc. (Ala. Civ. App. 6/16/17)
R.E. Garrison Trucking, Inc. (“Garrison”), filed a writ of mandamus directing the Washington Circuit Court (“the trial court”) to vacate its order denying Garrison’s motion for a change of venue and to enter an order transferring the workers’ compensation action to the Cullman Circuit Court.
According to the affidavit of James Hamm, the director of national accounts for Garrison, Garrison is a “primarily refrigerated truck-load carrier that transports food items between points in the United States.” It is undisputed that Garrison’s principal place of business is in Cullman County. In the underlying civil action, William D. Hennis alleged he was an employee of Garrison when he suffered an on-the-job accident. The accident occurred in Cullman County.
Hennis also alleged in the complaint he is a resident of Washington County. In support of its request for a change of venue, Garrison submitted documentary evidence, including Hennis’s job application, which was completed in 2014 and medical forms completed in 2015, that showed Hennis’s address to be in Semmes, which is in Mobile County.
Garrison also submitted evidence indicating that it did not do business in Washington County. In his affidavit, Hamm testified that he had reviewed Garrison’s shipping and customer records for the previous 15 years and that Garrison had not delivered to or picked up a load from a single customer in Washington County. Hamm also said that, based on his review of personnel files for the same period, Garrison had not had any sales agents or company sales people who lived in Washington County.
In opposition to Garrison’s submissions, Hennis submitted his affidavit and documents indicating that he lived in Chatom, in Washington County. In his affidavit, he stated that he had lived at the Chatom address for the past 15 years. He explained that, in 2014, he began using the Semmes address, where his former wife lived, for mailing purposes. He said because he was gone for long periods driving for Garrison, he wanted “to be certain [he] got all [his] mail.”
Hennis also submitted evidence regarding the issue of whether Garrison did business in Washington County. In his affidavit, he testified that he was acting as Garrison’s agent when he parked and stored Garrison tractors and trailers on property he owned in Washington County (“the Washington County property”). No evidence was presented as to what Hennis meant by “storing” the tractors or trailers, i.e., whether they were merely parked for a night or a weekend or for longer periods. Hennis said that the tractors and trailers that were parked on the Washington County property were driven not only by him but by other Garrison drivers. He claimed that officers of Garrison specifically approved of the arrangement. Hennis further testified that he recruited drivers for the company.
In rebuttal to Hennis’s evidence, Garrison submitted additional evidence to demonstrate that it did not do business in Washington County. A number of Garrison employees, including Griffith, testified by affidavit that, contrary to Hennis’s assertions they had not given Hennis permission to park his tractor and a Garrison trailer on Hennis’s property in Washington County when he was not driving. One of those employees, Tim Brown, stated that Garrison allowed an independent contractor to park his or her tractor and trailer at the driver’s home for his convenience if the driver was at home for the weekend. However, Brown said, doing so did not further Garrison’s business because it “actually takes a [Garrison] trailer out of service for the weekend because another independent-contractor driver cannot hook up to it and pull it.”
As to Hennis’s assertion that he recruited drivers for Garrison, Jessica Bennett, the safety coordinator for Garrison, testified by affidavit that independent contract drivers are paid bonuses for drivers they recruit to Garrison, but only if those recruits drive for a certain length of time. The drivers Hennis recruited, Bennett said, did not drive for Garrison the requisite length of time. She testified that company records showed that Hennis had not received any recruiting bonuses.
On March 9, 2017, the trial court determined that Hennis had submitted sufficient evidence to determine he was a resident of Washington County. The trial court also concluded that Garrison was doing business by agent in Washington County at the time of Hennis’s work-related accident. Specifically, the trial court noted that Hennis used the Washington County property to store Garrison tractors and trailers for his use and for the use of other Garrison drivers. The trial court also noted that Garrison caused or allowed Hennis to recruit new drivers in Washington County. The trial court determined that both the storage of tractors and trailers and the recruitment of drivers were part of Garrison’s business functions. Garrison filed a writ of mandamus.
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.
Ala. Code § 6-3-7, governs the determination of venue in a civil action against a corporation. That statute provides, in relevant part, that in such cases, venue is proper in, in addition to other enumerated counties,
The county in which the plaintiff resided, or if the plaintiff is an entity other than an individual, where the plaintiff had its principal office in this state, at the time of the accrual of the cause of action, if such corporation does business by agent in the county of the plaintiff’s residence.
Thus, based on § 6–3–7(a)(3), venue is proper in Washington County if Hennis resided there and if Garrison did business by agent in Washington County at the time of Hennis’s on-the-job accident.
Garrison contends that Hennis’s county of residence was Mobile County; Hennis claims that he resides in Washington County.
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)
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.
The trial court was presented with conflicting evidence as to Hennis’s home address. Hennis offered testimony explaining why he had used the Semmes address on some documents. Other than documents listing an address, no evidence was presented to show that Hennis resided or intended to reside at the Semmes address. For example, there was no evidence from neighbors indicating that Hennis appeared to be living in Semmes or that he was involved in church or community activities in Semmes. Based on the materials the CCA could not say that Garrison met its burden of proving that Hennis did not live in Washington County, nor could they say that the trial court clearly erred in determining that Hennis’s residence was in Washington County.
The CCA’s next inquiry was whether the trial court erred in determining that Garrison does business by agent in Washington County. In Ex parte Elliott, 80 So. 3d 908, 912 (Ala. 2011), this Court held:
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).
As mentioned, Garrison is a commercial trucking company that delivers loads across the United States. As the Alabama supreme court stated in Ex parte Interstate Freight USA, Inc., supra, “the delivery of loads constitute business functions for which [trucking] companies were created.” Hennis presented evidence indicating that Garrison drivers use the Washington County property to park and store Garrison tractors and trailers. The evidence is undisputed that, as a convenience to its drivers, Garrison allowed those drivers to park the tractors and/or trailers they were driving when they were home for the weekend. Hennis did not present evidence indicating that Garrison paid him or reimbursed him in any way when he allowed other drivers to use the Washington County property for parking or storage of tractors or trailers. Garrison also pointed out that, if a tractor and trailer were parked or stored at a location other than its offices in Cullman County, other drivers did not have access to those vehicles so that they could be used to deliver other loads.
Based on the materials before the CCA, they could not say that the parking or storing of tractors and/or trailers away from Garrison’s premises furthered Garrison’s business purposes.
Similarly, the CCA was unconvinced by Hennis’s contention that his recruitment of drivers in Washington County was sufficient to constitute Garrison’s doing business in that county for purposes of establishing venue. As mentioned, 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 Cty., N.A., 619 So. 2d 1356, 1358 (Ala. 1993).
In Ex parte Tyson Chicken, Inc., 72 So. 3d 1, 4 (Ala. 2011), the Alabama supreme court wrote the following regarding the determination of venue in the context of hiring employees: “[O]ur decisions do not indicate that hiring employees constitutes doing business by their employer in the county where those employees choose to live; venue is dependent on the decisions of the defendant corporation, not on the personal choices of its employees independent of their employment.”
Garrison contends that Hennis was not acting as an agent when he recruited drivers. Garrison encouraged its drivers to recruit new drivers by paying recruiting bonuses to drivers who referred other drivers to Garrison. To receive the bonus, the evidence showed, the recruited driver must drive for Garrison for a minimum period. Hennis never received a recruiting bonus for the people he referred to Garrison.
Based on the materials before the CCA, they concluded that asking drivers to refer potential new drivers is “incidental to [Garrison’s] corporate business functions” and is an insufficient activity to constitute Garrison’s “doing business” in Washington County. Accordingly, they held that the trial court erred in determining that Garrison was regularly doing business by agent in Washington County.
Because the evidence demonstrates that Garrison was not doing business in Washington County, venue is not proper in Washington County. Therefore, Garrison’s petition for a writ of mandamus was granted. The CCA directed the trial court to vacate its March 9, 2017, order denying Garrison’s motion seeking a change of venue and to enter an order consistent with its opinion.