Brown v. Hillsdale County Road Com'n

• Decision Date: 01 August 1983
• Docket Number: Docket No. 65248
• Citation: 337 N.W.2d 318,126 Mich.App. 72
• Parties: Rudolphus BROWN, Plaintiff-Appellant, v. HILLSDALE COUNTY ROAD COMMISSION, Defendant-Appellee. 126 Mich.App. 72, 337 N.W.2d 318
• Court: Court of Appeal of Michigan — District of US

Page 318

337 N.W.2d 318

Rudolphus BROWN, Plaintiff-Appellant, v. HILLSDALE COUNTY ROAD COMMISSION, Defendant-Appellee.

Docket No. 65248.

126 Mich.App. 72, 337 N.W.2d 318

Court of Appeals of Michigan.

Submitted Feb. 17, 1983.

Decided May 18, 1983.

Released for Publication Aug. 1, 1983.

[126 MICHAPP 73] Shrauger & Dunn, P.C. by Jonathan Aronson, Mt. Clemens, for plaintiff-appellant.

Plunkett, Cooney, Watters, Stanczyk & Pedersen, P.C. by Frank W. Brochert and Raymond W. Morganti, Detroit, for defendant-appellee.

Before MacKENZIE, P.J., and BRONSON and HOOD, JJ.

PER CURIAM.

Plaintiff appeals the Wayne County Circuit Court's grant of defendant's motion for change of venue and the denial of plaintiff's counsel's motion to withdraw. The trial court's May 30, 1980, order was certified as final for purposes of appeal. This Court denied plaintiff's application for leave to appeal in June, 1981. However, the Supreme Court remanded for consideration as if on leave granted, 413 Mich. 940 (1982).

[126 MICHAPP 74] Plaintiff's cause of action arises out of a motor vehicle collision that occurred on February 1, 1976, on U.S. 12 in Hillsdale County. At the time, plaintiff was operating a tractor-trailer owned by Yellow Freight Systems, Inc. On the date of the collision, the Hillsdale County Road Commission, through its agent or employee, was operating a snow plow in an attempt to remove snow and ice from the highway. Plaintiff alleged that the plow was operating at an excessive rate of speed which caused considerable amounts of snow to be thrown into the air. The snow thrown by the plow substantially reduced visibility in that area and caused driving conditions to become extremely hazardous. As a result, plaintiff's truck collided with a vehicle driven by Peggy Sue Wright. Plaintiff and Ms. Wright sustained serious injuries, from which Ms. Wright subsequently died.

On August 10, 1976, the estate of Peggy Sue Wright filed a wrongful death action in Wayne County Circuit Court naming Rudolphus Brown and Yellow Freight Systems, Inc. as defendants. Venue was proper in Wayne County as to these defendants, as Mr. Brown resided in Wayne County and Yellow Freight Systems did business in Wayne County. M.C.L. Sec. 600.1621; M.S.A. Sec. 27A.1621.

By order dated February 1, 1978, Ms. Wright's estate named the Hillsdale County Road Commission as a party defendant. On February 3, 1978, Mr. Brown filed a counterclaim against Ms. Wright's estate and a cross-claim against the Hillsdale County Road Commission for the damages caused by the injuries he sustained in the accident. On February 21, 1978, the Hillsdale County Road Commission filed a motion for change of venue based on the convenience of witnesses or parties. GCR 1963, 403. The motion was denied without prejudice by order of April 10, 1978.

[126 MICHAPP 75] On March 10 and 11, 1980, Ms. Wright's estate settled all claims against the defendant, and Mr. Brown settled his counterclaim against Ms. Wright's estate. Thus, the only claim remaining was Mr. Brown's cross-claim against the Hillsdale County Road Commission. That defendant filed a motion for change of venue on March 10, 1980, on the ground that venue in Wayne County was improper, GCR 1963, 404, and, thus, the case should be transferred to Hillsdale County. M.C.L. Sec. 600.1615; M.S.A. Sec. 27A.1615. Defendant's motion was initially denied, but, upon motion for rehearing, the trial court granted the motion.

Plaintiff timely filed a motion for reconsideration of the order changing venue or, in the alternative, a stay of proceedings, or for withdrawal of counsel should the trial court fail to reconsider the venue motion. The trial court denied the motion for reconsideration and the alternative motion to withdraw as plaintiff's counsel.

In its final order, the trial court failed to state whether the transfer of venue to Hillsdale County was granted pursuant to GCR 1963, 403 or 404.

Plaintiff argues on appeal that (1) if defendant's motion was granted pursuant to GRC 1963, 404, the trial court clearly erred by finding that venue, once properly laid, became improper when the venue-determinative defendants were dismissed, (2) if defendant's motion was granted pursuant to GCR 1963, 403, the trial court abused its discretion because defendant failed to carry its burden by showing that a transfer to Hillsdale County would be convenient for the parties or witnesses, and (3) regardless of the basis for the motion, because defendant did not file it in a timely fashion, defendant waived all objections to venue in Wayne County.

[126 MICHAPP 76] We find that the transfer of venue in this case was improper whether grounded on GCR 1963, 403 or 404, and reverse.

The first issue presented is whether venue, once properly laid, can become improper upon dismissal of the venue-determinative party and, thus, justify change of venue under GCR 1963, 404. That court rule provides in pertinent part:

"The venue of any civil action improperly laid shall be changed by order of the court on timely motion by any defendant, or may be changed by the court on its own motion * * *."

Because the language of that court rule is mandatory rather than discretionary, we reverse only if we find that the trial court clearly erred by granting defendant's motion for change of venue pursuant to GCR 1963, 404. Shock Bros., Inc. v. Morbark Industries, Inc., 411 Mich. 696, 698, 311 N.W.2d 722 (1981); DesJardin v. Lynn, 6 Mich.App. 439, 443, 149 N.W.2d 228 (1967).

Although the precise issue presented has not been directly addressed by our appellate courts, there is some authority for plaintiff's argument that whether venue is properly laid is determined when the complaint is filed. In DesJardin, supra, this Court was faced with the question whether a defendant partnership's establishment for venue purposes is determined when the cause of action arises or when the plaintiff files suit against it. This Court found that residency for venue purposes is established at the time suit is started.

In their comments to GCR 1963, 407, which allows for change of venue where a defendant can show it was joined in bad faith and solely to control venue, the authors of 2 Honigman & Hawkins,[126 MICHAPP 77] Michigan Court Rules Annotated (2d ed.), p. 286, state:

"Decisions under earlier venue statutes have held that where the party whose residence establishes proper venue has been dropped from the case, the venue does not consequently become improper. This position is reinforced by Rule 407. That is, unless it is shown, pursuant to a timely motion for change of venue, that the resident defendant was joined in bad faith, proper venue will not be defeated by anything that may happen with respect to the resident defendant."

See also, Bowerman v. Detroit Free Press, 287 Mich. 443, 283 N.W. 642 (1939), and Fisher v. Rumler, 239 Mich. 224, 214 N.W. 310 (1927).

Furthermore, it has been said that federal venue statutes are concerned with the institution of the original action or suit. See, 7b Moore's Federal Practice, p 87-4, p. JC-569. Moreover, parties added by way of a cross-claim arising out of the same transaction or occurrence may not object to the venue of the action. 3 Moore's Federal Practice, p 13, 36, 13-105--13-107.

We also find that a change of venue pursuant to GCR 1963, 403 in this case does not further the purpose of our court rules: the efficient administration of justice. The original complaint was filed four years before the trial court granted the change of venue. Plaintiff filed his cross-claim arising out of the same incident or...