Corral v. Mervis Industries, Inc.

• Citation: 217 Ill.2d 144,839 N.E.2d 524
• Decision Date: 20 October 2005
• Docket Number: No. 99698.,99698.
• Parties: Fernando CORRAL, Jr., Personal Representative of the Estate of Fernando Corral, Sr., Deceased, Appellee, v. MERVIS INDUSTRIES, INC., Appellant.
• Court: Supreme Court of Illinois

Page 524

839 N.E.2d 524

217 Ill.2d 144

Fernando CORRAL, Jr., Personal Representative of the Estate of Fernando Corral, Sr., Deceased, Appellee, v. MERVIS INDUSTRIES, INC., Appellant.

No. 99698.

Supreme Court of Illinois.

October 20, 2005.

Rehearing Denied November 28, 2005.

Joseph P. Postel, of Meachum, Spahr, Postel & Zenz, Chicago, for appellant.

Michael T. Reagan, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, Ottawa, and Michael G. Mahoney, of Burke, Mahoney & Wise, Chicago, for appellee.

Justice KILBRIDE delivered the opinion of the court:

In this appeal we address: (1) the proper standard of review for the grant or denial of a motion to transfer on the ground of improper venue; and (2) whether the circuit court of Cook County erred in denying defendant's motion to transfer venue.

This interlocutory appeal arises from the circuit court of Cook County's denial of defendant's motion to transfer venue. The appellate court affirmed the circuit court's denial of defendant's motion. No. 1-03-0129 (unpublished order under Supreme Court Rule 23). We allowed defendant's petition for leave to appeal (177 Ill.2d R. 315).

We hold: (1) the factual determinations of the trial court on a motion to transfer venue are subject to a manifest weight of the evidence standard of review; (2) the legal effect of the trial court's factual findings is subject to de novo review. We are, however, unable to review the trial court's factual determinations in this appeal because of an incomplete record. Consequently, we affirm the order of the circuit court of Cook County.

I. BACKGROUND

On April 12, 2001, Fernando Corral, Sr., was killed while working at defendant's scrap recycling yard in Danville, Vermilion County. On January 15, 2002, Fernando Corral, Jr., the personal representative of the decedent's estate, filed a wrongful-death action in Cook County.

On April 4, 2002, defendant filed a motion to transfer in lieu of answering the complaint. Defendant moved to transfer the cause to Vermilion County, alleging Cook County is an improper venue. The circuit court of Cook County denied defendant's motion to transfer the cause to Vermilion County on December 16, 2002.

Pursuant to Supreme Court Rule 306(a)(4) (166 Ill.2d R. 306(a)(4)), defendant filed a petition for leave to appeal to the appellate court on January 15, 2003. Rule 306(a)(4) permits a party to petition for leave to appeal to the appellate court from a trial court order granting or denying a motion to transfer venue "based on the assertion that the defendant is not a resident of the county in which the action was commenced, and no other legitimate basis for venue in that county has been offered by the plaintiff." 166 Ill.2d R. 306(a)(4).

Defendant filed a supporting record with its petition for leave to appeal, as required by Rule 306(c) (166 Ill.2d R. 306(c)). The supporting record contained the following documents:

(1) defendant's motion to transfer venue, with the following attachments: (a) complaint; (b) summons; (c) return of service on summons; (d) printout from Illinois Secretary of State's website; (e) affidavit of Michael Smith, vice president and CFO of defendant, Mervis Industries, Inc.;

(2) plaintiff's response to defendant's motion to transfer venue;

(3) defendant's reply in support of motion to transfer venue;

(4) transcript of discovery deposition of Michael Smith; and

(5) order of the circuit court of Cook County, denying defendant's motion to transfer venue.

In his discovery deposition, Michael Smith, vice president and CFO of defendant, testified that defendant operates scrap processing facilities in Danville, Champaign, Mattoon, and Springfield, Illinois. According to Smith, defendant processes metal, paper, and plastic for sale to an end user. Smith testified that defendant's only Cook County connection is a sales employee, Bob Samson, who works full time for defendant from an office in Samson's home. Defendant equipped Samson's home office with a computer, fax machine and fax number, a dedicated business telephone line, and an e-mail address. Samson is defendant's only plastic scrap broker and conducts sales for defendant from the business telephone line in his home office. Smith testified that Samson answers the business phone line in his home by saying "Mervis Plastics."

According to Smith, the only time Samson has traveled to defendant's headquarters in Danville was for his hiring interview. Smith acknowledged during his deposition that plastic scrap sales generate annual revenues of $1,500,000 to $1,750,000.

In addition to defendant's Cook County employee, defendant sells a small amount of stainless steel in Cook County. The Cook County steel sales represent less than 1% of defendant's total sales.

The order of the circuit court denying defendant's motion to transfer venue states:

"This cause coming to be heard on motion of defendant, Mervis Industries, to transfer venue; it is hereby ordered that defendant's motion is denied. This matter is set for status on the pleadings for 2/7/03 at 9:15 a.m."

The appellate court allowed defendant's petition for leave to appeal. 166 Ill.2d R. 306(a)(4). On November 4, 2004, the appellate court affirmed the circuit court. No. 1-03-0129 (unpublished order under Supreme Court Rule 23). The appellate court's order stated:

"The trial court held that Mervis had an office in Cook County, because one of Mervis's employees worked in his Cook County home. We agree with the trial court that the home office here sufficed to establish corporate residence for venue purposes."

The appellate court further concluded:

"Mervis brokered plastic scrap from an office in its employee's home in Cook County. Because Mervis had an `other office' in Cook County, the trial court correctly held that Mervis was a resident of Cook County for venue purposes."

We allowed defendant's petition for leave to appeal. 177 Ill.2d R. 315.

II. ANALYSIS

Defendant raises two issues in its appeal. First, defendant argues reviewing courts should apply a de novo standard of review to orders denying a motion to transfer venue from an improper forum when the facts are undisputed. Second, defendant argues the circuit court of Cook County erred in denying its motion to transfer venue to Vermilion County because its employee's home is not an office of defendant and, therefore, Cook County is an improper venue. We address each of defendant's arguments seriatim.

A. Standard of Review

We first examine the proper standard of review for the grant or denial of a motion to transfer based on improper venue. We begin our analysis by reviewing the venue statutes. Section 2-101 of the Code of Civil Procedure (Code) (735 ILCS 5/2-101 (West 2000)) generally governs venue and provides, in relevant part:

"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."

Section 2-102 of the Code specifically defines the residence of corporations and provides, in pertinent part:

"For purpose of venue, the following definitions apply:

(a) Any private corporation * * * organized under the laws of this State * * * is a resident of any county in which it has its registered office or other office or is doing business." 735 ILCS 5/2-102 (West 2000).

Defendant contends a motion to transfer to a proper venue presumes the forum county is not a proper venue. According to defendant, where venue is improper in the forum county, the circuit court has no discretion and must transfer venue to a proper forum. Thus, defendant insists the proper standard of review is de novo. Plaintiff, on the other hand, asks this court to adopt a "clearly erroneous" standard of review.

There appear to be conflicting decisions in our appellate court concerning the proper standard of review on a motion to transfer based on improper venue. Home Depot, U.S.A., Inc. v. Department of Revenue, 355 Ill.App.3d 370, 291 Ill.Dec. 333, 823 N.E.2d 625 (2d Dist.2005), applied a de novo standard of review to the issue of whether statutory venue requirements had been met and then applied an abuse of discretion standard of review to the ultimate issue of venue where more than one venue is proper. Other appellate court cases have only applied a de novo standard of review to determine whether the facts of a particular case met statutory venue requirements. See Reynolds v. GMAC Financial Services, 344 Ill.App.3d 843, 279 Ill.Dec. 719, 801 N.E.2d 11 (5th Dist.2003); Boxdorfer v. DaimlerChrysler Corp., 339 Ill.App.3d 335, 274 Ill.Dec. 15, 790 N.E.2d 391 (5th Dist.2003); Reichert v. Court of Claims, 327 Ill.App.3d 390, 261 Ill.Dec. 432, 763 N.E.2d 402 (5th Dist.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, 951, 246 Ill.Dec. 499, 730 N.E.2d 524 (2d Dist.2000). Still, other appellate court cases have applied an abuse of discretion standard of review. See Southern & Central Illinois Laborers' District Council v. Illinois Health Facilities Planning Board, 331 Ill.App.3d 1112, 265 Ill.Dec. 609, 772 N.E.2d 980 (5th Dist.2002); Johnson v. Compost Products, Inc., 314 Ill.App.3d 231, 247 Ill.Dec. 175, 731 N.E.2d 948 (2d Dist.2000); Long v. Gray, 306 Ill.App.3d 445, 239 Ill.Dec. 744, 714 N.E.2d 1041 (1st Dist.1999). To be sure, this court has not been entirely clear on expressing the standard of review to be applied on appeal from an order of the circuit court granting or denying a motion to transfer based on improper venue, and the confusion among our appellate districts concerning the proper standard of review is understandable.

Those...