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Fifth District reverses Gleeson's order denying transfer in collision suit to Randolph County

By Heather Isringhausen Gvillo | Dec 30, 2016

The Fifth District Appellate Court reversed St. Clair County Circuit Judge Andrew Gleeson’s order denying transfer in a car accident suit

Justice Judy Cates delivered the Rule 23 decision on Dec. 28 reversing Gleeson’s order and remanding the case back to St. Clair County with directions to grant transfer to Randolph County.

Justices Richard Goldenhersh and Melissa Chapman concurred in the decision, concluding that the circuit court erred in denying transfer in a case where the accident occurred in Randolph County, the defendants reside and maintain a registered office in Randolph County and the defendants do not do business in St. Clair County.

According to the lawsuit, William Loucks was driving his vehicle north on State Route 150 near Briar Hill Road on July 15, 2011, when he came up behind a truck and attached trailer, which were owned by defendant Red Dot Construction and Equipment Rentals, Inc. Defendant Kurt Schroeder, president of Red Dot Construction, was driving the truck.

Loucks attempted to pass Schroeder, guiding his vehicle into the southbound lane of Route 150, but then reconsidered.

As he was steering his vehicle back into the northbound lane, Schroeder was slowing down to make a right turn. The front of Loucks’ vehicle collided with the rear of the trailer and left the roadway. Loucks allegedly suffered severe injuries in the accident.

William Loucks and his wife Danita Loucks filed the negligence complaint on July 12, 2013, alleging Schroeder failed to timely activate his turn signal, failed to activate his brake lights and caused the accident.

The defendants filed a motion to transfer the case from St. Clair County to Randolph County in August 2013 on grounds of improper venue, and alternatively, forum non conveniens.

They argued that transfer was appropriate because the accident occurred in Randolph County and they neither resided nor conducted their business in St. Clair County.

On April 2, 2014, the plaintiffs filed a memorandum in opposition to the motion, arguing that the defendants had the burden to prove that St. Clair County was improper and failed to set provide sufficient facts to establish that Red Dot Construction does not do business in St. Clair County.

They alleged that Schroeder’s affidavit provided no support for the defendants’ motion to transfer because it contained conclusions instead of facts.

They also argued that Schroeder testified in his Feb. 25, 2014, deposition that Red Dot Construction has done business in St. Clair County, and that he would have to talk to the bookkeeper and accountant to determine the extent of the business. He testified that Red Dot Construction rented out equipment and purchased parts in St. Clair County. Schroeder also said he did not review invoices, records or maps before he signed his affidavit.

That same day, the defendants filed an amended motion to transfer. They attached Schroeder’s initial affidavit from Aug. 19, 2013, his discovery deposition and a supplemental affidavit from Schroeder from March 31, 2014.

During the deposition, Schroeder said Red Dot Construction had never done much work in St. Clair County. He testified that the company did not do any construction work in St. Clair County from six months prior to the accident through the date of his deposition.

He also recalled that Red Dot Construction had a project at Scott Air Force Base in the 1990s, but had not done much work in St. Clair County since then.

Schroeder also testified that Red Dot provided crane rentals prior to his dad’s death in 1990, but not much since then.

Schroeder said that he was unclear about the precise boundaries of St. Clair County, making it difficult for him to say whether Red Dot had done other construction work within its boundaries.

In his supplemental affidavit, “Schroeder acknowledged that at the time of his deposition, he was unsure of the exact boundaries of St. Clair County, and which municipalities were within its boundaries.”

He reviewed a map of the county and confirmed that Red Dot was not doing any projects in St. Clair County at the time of the accident and had not done any projects there since the accident.

Gleeson heard arguments on the motion to transfer on May 13, 2014. He denied the motion, and the defendants appealed.

“In this case, it is undisputed that the accident took place in Randolph County, that defendant Schroeder resides in Randolph County, that defendant Red Dot has its registered office in Randolph County, and that Red Dot has no offices in St. Clair County. As such, venue in St. Clair County is proper only if Red Dot was ‘doing business’ in St. Clair County at the time the suit was commenced,” Cates wrote.

The appeals court defines “doing business” as whether a defendant is “conducting its usual and customary business within the county in which venue is sought.”

“After reviewing the record, we find that Red Dot presented sufficient evidence to meet its burden to show that it was not doing its usual and customary business within St. Clair County,” Cates wrote.

In regards to the plaintiffs’ arguments that the defendants failed to meet their burden to show venue was improper and that Schroeder’s initial affidavit was insufficient, the appeals court held that the affidavits and deposition are sufficient together.

“We pause here to note that the plaintiffs relied exclusively on their arguments challenging the weight to be given to Schroeder’s affidavits and deposition testimony. The plaintiffs did not offer any affidavits, admissions, or documents to rebut Schroeder’s testimony, despite being granted leave to conduct discovery on the venue issues.

“In this case, the defendants set out specific facts to show that venue did not lie in the plaintiffs’ chosen forum, and the plaintiffs’ presented no evidence to rebut Schroeder’s testimony,” the decision states.

“After reviewing the record, we conclude that the defendants met their burden to show that Red Dot was not ‘doing business’ in St. Clair County for venue purposes. Accordingly we find that the circuit court erred when it denied the defendants’ motion to transfer this case to Randolph County based on improper venue,” it continues.

The appeals court reversed Gleeson’s order denying the defendants’’ motion to transfer and remanded the case with directions to enter an order granting transfer to Randolph County.

St. Clair County Circuit Court case number 13-L-365

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