Susman v. N. Star Trust Co.

• Decision Date: 31 March 2015
• Docket Number: No. 1–14–2789.,1–14–2789.
• Citation: 30 N.E.3d 622
• Parties: Robert M. SUSMAN, Plaintiff–Appellant, v. NORTH STAR TRUST COMPANY, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

30 N.E.3d 622

Robert M. SUSMAN, Plaintiff–Appellant

v.NORTH STAR TRUST COMPANY, Defendant–Appellee.

No. 1–14–2789.

Appellate Court of Illinois, First District, Fifth Division.

March 31, 2015.

Rehearing Denied April 27, 2015.

Barbara A. Susman, of Susman & Associates, P.C., of Chicago, for appellant.

Leonard S. Shifflett and Christopher J. Zdarsky, both of Quarles & Brady LLP, of Chicago, for appellee.

OPINION

Justice GORDON delivered the judgment of the court, with opinion.

¶ 1 In this appeal, plaintiff Robert M. Susman appeals from the trial court's grant of defendant North Star Trust Company's forum non conveniens motion to transfer this case from Cook County to Lake County. The underlying case concerns the transfer of an interest in real property located in Lake County. For the following reasons, we conclude that the trial court did not abuse its discretion in granting the forum non conveniens motion and we affirm.

¶ 2 BACKGROUND

¶ 3 Plaintiff brought this action against defendant seeking damages caused by defendant's alleged breach of fiduciary duty in defendant's role as the trustee for land trust No. 1570, created May 20, 1961 (the land trust).

¶ 4 The real estate at issue is located in Lake County, and title to it was placed in the land trust by Matt and Angeline Susman on May 20, 1961, by a deed recorded in Lake County. Thereafter, Matt and Angeline Susman died and their two sons, Robert and Donald Susman, became the beneficiaries of the land trust. Robert Susman is the plaintiff in the instant action. After Donald Susman's death, a probate proceeding was commenced in the circuit court of Lake County.

¶ 5 In the instant action, plaintiff alleges that in March 2009, defendant, which was the entity administering the land trust, erroneously issued two trustee deeds conveying trust property from the land trust, of which plaintiff was a beneficiary, to the executor of the estate of Donald Susman. It is this transfer which forms the basis of plaintiff's one-count complaint for breach of fiduciary duty.

¶ 6 Before answering or otherwise responding to the complaint, defendant moved to transfer the case from Cook County to Lake County pursuant to the doctrine of forum non conveniens. On August 12, 2014, the trial court granted defendant's motion; and on September 11, 2014, plaintiff filed a petition seeking leave of this court to appeal this decision. On October 10, 2014, we granted plaintiff's petition, and this appeal followed.

¶ 7 ANALYSIS

¶ 8 In this interlocutory appeal, plaintiff appeals the trial court's grant of defendant's forum non conveniens motion to transfer the case from Cook County to Lake County. For the following reasons, we affirm.

¶ 9 I. Interlocutory Appeal

¶ 10 Defendant moved the trial court pursuant to Illinois Supreme Court Rule 187 (eff. Jan. 4, 2013) to transfer this case from Cook County to Lake County. Rule 187(a) provides: “A motion to dismiss or transfer the action under the doctrine of forum non conveniens must be filed by a party not later than 90 days after the last day allowed for the filing of that party's answer.” Ill. S.Ct. R. 187(a) (eff. Jan. 4, 2013). If the trial court orders an “[i]ntrastate transfer of action,” the “clerk of the court from which a transfer is granted to another circuit court in this State on the ground of forum non conveniens shall immediately certify and transmit to the clerk of the court to which the transfer is ordered the originals of all documents filed in the case together with copies of all orders entered therein.” Ill. S.Ct. R. 187(c) (eff. Jan. 4, 2013). The rule further provides: “The clerk of the court to which the transfer is ordered shall file the documents and transcript transmitted to him or her and docket the case, and the action shall proceed and be determined as if it had originated in that court.” Ill. S.Ct. R. 187(c) (eff. Jan. 4, 2013).

¶ 11 Since the trial court ordered an intrastate transfer, this is an interlocutory appeal, taken pursuant to Illinois Supreme Court Rule 306 (eff. July 1, 2014). Rule 306 permits a party to petition the appellate court for leave to appeal “an order of the circuit court allowing or denying a motion to dismiss on the grounds of forum non conveniens, or from an order of the circuit court allowing or denying a motion to transfer a case to another county within this State on such grounds.” Ill. S.Ct. R. 306(a)(2) (eff. July 1, 2014). On October 10, 2014, this court granted plaintiff's petition for leave to appeal, and this appeal followed.

¶ 12 Illinois Supreme Court Rule 306(c)(1) (eff. July 1, 2014) requires the petition to be accompanied by a supporting record, as that term is defined by Illinois Supreme Court Rule 328 (eff. Feb. 1, 1994). Rule 328 permits a “supporting record” to be authenticated either by a certificate of the circuit court clerk or “by the affidavit of the attorney or party filing it.” Ill. S.Ct. R. 328 (eff. Feb. 1, 1994). In the case at bar, the supporting record was authenticated by an attorney's affidavit. After the petition was granted, this court did not order plaintiff to file a record, as permitted by Illinois Supreme Court Rule 306(c)(6) (eff. July 1, 2014). Defendant then filed a supplementary supporting record, as permitted by Illinois Supreme Court Rule 306(c)(2) (eff. July 1, 2014). Thus, this appeal is based on the supporting records filed by both plaintiff and defendant.

¶ 13 II. Standard of Review

¶ 14 The standard of review for a forum non conveniens decision is abuse of discretion. Langenhorst v. Norfolk Southern Ry., Co., 219 Ill.2d 430, 441, 302 Ill.Dec. 363, 848 N.E.2d 927 (2006).

¶ 15 “Forum non conveniens is an equitable doctrine founded in considerations of fundamental fairness and the sensible and effective administration of justice.” Langenhorst, 219 Ill.2d at 441, 302 Ill.Dec. 363, 848 N.E.2d 927 (citing Vinson v. Allstate, 144 Ill.2d 306, 310, 162 Ill.Dec. 43, 579 N.E.2d 857 (1991) ). “This doctrine allows a trial court to decline jurisdiction when trial in another forum ‘would better serve the ends of justice.’ ”

Langenhorst, 219 Ill.2d at 441, 302 Ill.Dec. 363, 848 N.E.2d 927 (quoting Vinson, 144 Ill.2d at 310, 162 Ill.Dec. 43, 579 N.E.2d 857 ). “Forum non conveniens is applicable when the choice is between interstate forums as well as when the choice is between intrastate forums,” such as in the case at bar. Glass v. DOT Transportation, Inc., 393 Ill.App.3d 829, 832, 332 Ill.Dec. 275, 912 N.E.2d 762 (2009).

¶ 16 “A trial court is afforded considerable discretion in ruling on a forum non conveniens motion.” Langenhorst, 219 Ill.2d at 441, 302 Ill.Dec. 363, 848 N.E.2d 927. “We will reverse the circuit court's decision only if defendants have shown that the circuit court abused its discretion in balancing the relevant factors.” Langenhorst, 219 Ill.2d at 442, 302 Ill.Dec. 363, 848 N.E.2d 927 (citing Dawdy v. Union Pacific R.R. Co., 207 Ill.2d 167, 176–77, 278 Ill.Dec. 92, 797 N.E.2d 687 (2003) ). “A circuit court abuses its discretion in balancing the relevant factors only where no reasonable person would take the view adopted by the circuit court.” Langenhorst, 219 Ill.2d at 442, 302 Ill.Dec. 363, 848 N.E.2d 927 (citing Dawdy, 207 Ill.2d at 177, 278 Ill.Dec. 92, 797 N.E.2d 687 ); Glass, 393 Ill.App.3d at 832, 332 Ill.Dec. 275, 912 N.E.2d 762.

¶ 17 Despite the fact that a discretionary standard is well established for this equitable doctrine, plaintiff argues that our standard of review should be de novo, because the trial court did not conduct an evidentiary hearing. In support of this argument, plaintiff cites Townsend v. Sears, Roebuck & Co., 227 Ill.2d 147, 154, 316 Ill.Dec. 505, 879 N.E.2d 893 (2007), which was a choice-of-law case. In Townsend, our supreme court observed: “It is generally held that a trial court's choice-of-law determination is reviewed de novo. ” Townsend, 227 Ill.2d at 153, 316 Ill.Dec. 505, 879 N.E.2d 893. Even after defendant in its response brief criticized plaintiff for failing to cite a forum non conveniens case to support this point, plaintiff did not provide a cite to a forum non conveniens case in his reply brief.

¶ 18 We are not persuaded to deviate from the well-established standard by one cite to a choice-of-law case. “The issue, then, is not what decision we would have reached if we were reviewing the facts on a clean slate, but whether the trial court acted in a way that no reasonable person would.” Vivas v. The Boeing Co., 392 Ill.App.3d 644, 657, 331 Ill.Dec. 827, 911 N.E.2d 1057 (2009).

¶ 19 III. Plaintiff's Choice of Forum

¶ 20 “Before weighing the relevant factors, a court must first decide how much deference to give to a plaintiff's choice of forum.” Vivas, 392 Ill.App.3d at 657, 331 Ill.Dec. 827, 911 N.E.2d 1057 (citing Langenhorst, 219 Ill.2d at 448, 302 Ill.Dec. 363, 848 N.E.2d 927 (the supreme court determined the appropriate amount of deference before weighing the relevant factors)).

¶ 21 Normally, the plaintiff's choice of forum is a substantial factor in deciding a forum non conveniens motion. Dawdy, 207 Ill.2d at 172, 278 Ill.Dec. 92, 797 N.E.2d 687 ; Vivas, 392 Ill.App.3d at 657, 331 Ill.Dec. 827, 911 N.E.2d 1057. However, where the plaintiff chooses a forum other than where he resides, his choice is not entitled to the same weight. Dawdy, 207 Ill.2d at 173–76, 278 Ill.Dec. 92, 797 N.E.2d 687 ; Vivas, 392 Ill.App.3d at 657, 331 Ill.Dec. 827, 911 N.E.2d 1057.

¶ 22 Plaintiff argues that, although he did not choose his home forum, his choice is entitled to substantial deference and he cites in support both First American Bank v. Guerine, 198 Ill.2d 511, 517, 261 Ill.Dec. 763, 764 N.E.2d 54 (2002), and Glass v. DOT Transportation, Inc.,

393 Ill.App.3d 829, 832, 332 Ill.Dec. 275, 912 N.E.2d 762 (2009). In Guerine, our supreme court explained: “ ‘When the home forum is chosen, it is reasonable to assume that the choice is convenient. When the plaintiff is foreign to the forum chosen, however, the assumption is much less...