Boxdorfer v. DaimlerChrysler Corp.

• Decision Date: 02 May 2003
• Docket Number: No. 5-01-0273.,5-01-0273.
• Citation: 339 Ill. App.3d 335,274 Ill.Dec. 15,790 N.E.2d 391
• Parties: Thomas BOXDORFER and Joanna Lane, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellees, v. DAIMLERCHRYSLER CORPORATION, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

790 N.E.2d 391

339 Ill. App.3d 335

274 Ill.Dec. 15

Thomas BOXDORFER and Joanna Lane, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellees, v. DAIMLERCHRYSLER CORPORATION, Defendant-Appellant.

No. 5-01-0273.

Appellate Court of Illinois, Fifth District.

May 2, 2003.

Rehearing Denied June 10, 2003.

Alan J. Dixon, Charles A. Newman, Ann K. Covington, Kathy A. Wisniewski, Maggie B. Williams, Peter W. Herzog, III, John W. Rogers, Bryan Cave LLP, St. Louis, MO; Larry E. Hepler, Theodore J. MacDonald, Burroughs, Hepler, Broom, MacDonald, Hebrank & True, Edwardsville, for Appellant.

Paul M. Weiss, Phillip A. Bock, Tod A. Lewis, Freed & Weiss LLC, Chicago; L. Thomas Lakin, Bradley M. Lakin, Roy C. Dripps, Jeffrey A.J. Millar, Gail Renshaw, The Lakin Law Firm, P.C., Wood River; Michael J. Freed, Christopher J. Stuart, Much, Shelist, Freed, Denenberg, Ament & Rubenstein, P.C., Chicago; Edward T. Joyce, Arthur W. Aufmann, Edward T. Joyce & Associates, P.C., Chicago, for Appellees.

Justice WELCH delivered the opinion of the court:

DaimlerChrysler Corp. (the defendant) appeals from an order entered by the circuit court of Madison County denying the defendant's motion to transfer venue and motion to dismiss on forum non conveniens grounds. Because we believe that the circuit court erred in denying the defendant's motion to transfer venue, this is the only issue we need to address. The facts in this case are as follows.

On June 2, 2000, Thomas Boxdorfer and Joanna Lane, individually and on behalf of all others similarly situated (the plaintiffs), filed a complaint in Madison County against the defendant. The complaint alleged one count of common law fraud and one count of consumer fraud. The plaintiffs complained that the paint on vehicles made by the defendant was defective in that it would delaminate and the defendant failed to disclose this to the consuming public, that the defendant failed to disclose that the defect might not exhibit itself until after the warranty expired, and that the defendant failed to disclose that if the defect did not exhibit itself until after the warranty expired, the defendant would not repair it.

The defendant points out on appeal, and the record supports, that this is at least the tenth time that the defendant has been sued on similar or identical grounds, by either identical or similar plaintiffs, including two suits previously filed in Illinois. The plaintiffs do not dispute the defendant's assertion that all previous actions have been dismissed.¹ On July 24, 2000, the defendant filed a motion to transfer venue to Sangamon County. The defendant pointed out that although it is incorporated under the laws of Delaware and its principal place of business is in Michigan, the defendant has a registered agent in Sangamon County and that, therefore, venue is proper in Sangamon County. The defendant claimed that nothing in the plaintiffs' complaint demonstrates that venue is proper in Madison County and that, therefore, the case should be transferred to Sangamon County.

On September 25, 2000, the plaintiffs filed a motion for leave to file an amended complaint. In the proposed amended complaint, the plaintiffs alleged that venue was proper in Madison County because (1) all the plaintiffs are citizens of Madison County, where the paint on the plaintiffs' vehicles experienced delamination, (2) the defendant's fraud by omission directly affected the citizens of Madison County, and (3) the defendant has transacted substantial business in Madison County through its authorized dealerships in Madison County.

In response to the plaintiffs' motion, the defendant filed a "renewed motion for transfer of venue." The motion claimed that the plaintiffs' amended complaint does not support venue in Madison County. The defendant specifically disputed the plaintiffs' assertion that dealerships in Madison County acted as the defendant's agents. The defendant attached an affidavit to its motion. The affidavit stated the following: that the defendant does not sell automobiles directly to consumers but sells automobiles to dealers, who resell the vehicles to individual members of the public; that dealerships pay the defendant for vehicles upon shipment; that the defendant does not have an ownership interest in any dealership in Madison County; that the defendant has no offices, manufacturing plants, facilities, or operations in Madison County; that most of the informational materials distributed by the defendant relating to automobile paint were developed at the defendant's offices in Michigan; and that the defendant conducts no business in Madison County. Again, the motion sought to have the case transferred for improper venue to Sangamon County, where the defendant has a registered agent.

On March 15, 2001, the circuit court of Madison County conducted a hearing on the plaintiffs' and the defendant's motions. There was no objection to the plaintiffs' motion to amend, so after granting the motion to amend, the court heard the parties' arguments based on the facts alleged in the plaintiffs' amended complaint.

On March 22, 2001, the circuit court issued an order denying the defendant's motion to transfer venue. In its order, the circuit court noted that the plaintiffs purchased and garaged their vehicles in Madison County and that the plaintiffs suffered damages to their vehicles in Madison County. The circuit court held that these facts were "sufficient to meet the requirements of venue" because they constituted "some part" of the transaction occurring in Madison County out of which the cause of action arose. The circuit court also found that venue was proper because local dealerships perform work in Madison County pursuant to warranties provided by the defendant and that the dealerships receive payments from the defendant for that work. The circuit court denied the defendant's motion to transfer venue. The defendant now appeals this decision.

The sole issue raised by the defendant on appeal is whether the circuit court erred in holding that venue was established in Madison County and thereby denying the defendant's motion to transfer venue. In order to properly address this issue, we must first set out the appropriate standard of review.

We begin by pointing out that there is a conflict within the appellate court pertaining to the appropriate standard of review for a circuit court's denial of a motion to transfer venue. Some cases have held that where the facts are undisputed, the appropriate standard of review is de novo. Reichert v. Court of Claims, 327 Ill.App.3d 390, 393, 261 Ill.Dec. 432, 763 N.E.2d 402 (2002), vacated on other grounds, 203 Ill.2d 257, 271 Ill.Dec. 916, 786 N.E.2d 174 (2003); Lake County Riverboat L.P. v. Illinois Gaming Board, 313 Ill.App.3d 943, 246 Ill.Dec. 499, 730 N.E.2d 524 (2000). Other cases have held that the appropriate standard of review is whether the circuit court abused its discretion. Southern & Central Laborers District Council v. Illinois Health Facilities Planning Board, 331 Ill.App.3d 1112, 265 Ill.Dec. 609, 772 N.E.2d 980 (2002); Johnson v. Compost Products, Inc., 314 Ill.App.3d 231, 247 Ill. Dec. 175, 731 N.E.2d 948 (2000). We believe that the de novo standard of review is applicable.

In Reichert², a panel of this appellate district's court noted that the issue of whether venue is proper raises a mixed question of law and fact. We then held that where the facts are undisputed in a motion-to-transfer-venue case, the issue becomes one of law and is therefore subject to de novo review. Reichert, 327 Ill. App.3d at 394, 261 Ill.Dec. 432, 763 N.E.2d 402. The reason we declined to review under an abuse-of-discretion standard is because we reasoned that the determination of proper venue is not a discretionary decision but is compulsory. We hold to this reasoning.

The venue statute is section 2-101 of the Code of Civil Procedure. 735 ILCS 5/2-101 (West 2000). It provides:

"Except as otherwise provided in this Act, every action must be commenced (1) in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment against him or her and not solely for the purpose of fixing venue in that county[] or (2) in the county in which the transaction or some part thereof occurred out of which the cause of action arose." (Emphasis added.) 735 ILCS 5/2-101 (West 2000).

We focus on the language that the action must be commenced in a county where one of two requirements are satisfied. Nothing in the statute indicates that an action may be commenced in a county where certain requirements may apply. The statute clearly makes the requirements compulsory, and we find no room for a circuit court's discretion on whether certain facts meet these requirements. Although we do acknowledge that a defendant may waive the issue of proper venue, once a proper motion to transfer based on improper venue is made and proved, the circuit court has no discretion whether to grant it; the statute does not allow an action to be commenced where venue is not proper. Accordingly, we believe that either the facts of a case will establish venue under the law or they will not, and the circuit court's decision after establishing those facts is a legal decision reviewed as a matter of law.

The two cases cited above that apply an abuse-of-discretion standard to a circuit court's decision pertaining to improper venue rely on the Illinois Supreme Court's decision in Stambaugh v. International Harvester Co., 102 Ill.2d 250, 80 Ill.Dec. 28, 464 N.E.2d 1011 (1984). In Stambaugh, the Illinois Supreme Court held that the determination of proper venue is discretionary. Stambaugh, 102 Ill.2d at 263, 80 Ill.Dec. 28, 464 N.E.2d 1011. Although we do not lightly disregard the holding of the supreme court, we do note that the case upon which Stambaugh relied as authority for the proper standard of review, Morrison v....