Tabirta v. Cummings

• Decision Date: 22 October 2020
• Docket Number: Docket No. 124798
• Parties: Sergiu TABIRTA, Appellee, v. James J. CUMMINGS et al., Appellants.
• Court: Illinois Supreme Court

2020 IL 124798
181 N.E.3d 726
450 Ill.Dec. 374

Sergiu TABIRTA, Appellee,
v.
James J. CUMMINGS et al., Appellants.

Docket No. 124798

Supreme Court of Illinois.

Opinion filed October 22, 2020

181 N.E.3d 728

Jason D. Guerra, Ted L. Perryman, and Steven A. Ahillen, of Roberts Perryman, P.C., of St. Louis, Missouri, for appellants.

Gregory A. Patricoski and Mark G. Patricoski, of Mark G. Patricoski, P.C., of Wheaton, for appellee.

Craig L. Unrath, of Heyl, Royster, Voelker & Allen, P.C., of Peoria, for amicus curiae Illinois Association of Defense Trial Counsel.

David R. Nordwall, of Law Office of David R. Nordwall LLC, of Chicago, for amicus curiae Illinois Trial Lawyers Association.

OPINION

CHIEF JUSTICE ANNE M. BURKE delivered the judgment of the court, with opinion.

450 Ill.Dec. 376

¶ 1 The plaintiff in this case filed a negligence action in the circuit court of Cook County. Defendants moved to transfer venue on the ground that neither defendant was a Cook County resident. The circuit court denied the venue motions, and the appellate court affirmed. 2019 IL App (1st) 172891-B, 430 Ill.Dec. 488, 126 N.E.3d 576. Based on the record before us, we now hold Cook County is not a proper venue for plaintiff's action. Accordingly, we reverse the lower courts' judgments and remand to the circuit court with directions to transfer the cause to an appropriate venue.

¶ 2 BACKGROUND

¶ 3 On December 13, 2016, plaintiff Sergiu Tabirta was driving a tractor trailer in Delaware County, Ohio, when another tractor trailer, driven by defendant James Cummings, collided with his vehicle. Plaintiff suffered multiple severe injuries in the accident, including the amputation of both

181 N.E.3d 729

450 Ill.Dec. 377

legs. Cummings's tractor trailer was owned by his employer, defendant Gilster-Mary Lee Corporation (GML), a food product manufacturer. On December 27, 2016, plaintiff filed a negligence action against both defendants in the circuit court of Cook County. Plaintiff alleged Cummings was negligent in the operation of his vehicle and that GML was liable for Cummings's negligence pursuant to an agency theory of liability.

¶ 4 On February 14, 2017, GML filed a motion to transfer venue pursuant to the Illinois venue statute. See 735 ILCS 5/2-101 (West 2016) (providing that venue is proper either (1) in the county of residence of any defendant or (2) in the county where the transaction occurred). GML alleged that Cook County was an improper venue since the accident did not occur in Cook County and neither defendant was a resident of Cook County as defined by statute. Cummings filed a separate motion seeking the same relief and adopting and incorporating by reference the arguments raised by GML. In response, plaintiff argued that venue was proper because the Cook County home office of GML employee James Bolton constituted an "other office" of the company under the venue statute. Id. § 2-102(a) (a private corporation is a resident of any county in which it has its registered office or "other office" or is "doing business"). Alternatively, plaintiff argued that Cook County was an appropriate venue because GML was "doing business" in the county. Id.

¶ 5 The parties conducted limited discovery on the venue issue. The record from the discovery proceedings reveals that Cummings is not a resident of Cook County. GML is a Missouri corporation with its principal place of business and registered agent located in the city of Chester, Illinois, in Randolph County. GML owns multiple food manufacturing plants in the Midwest region of the United States, including several in Illinois. None is in Cook County. The company also owns a fleet of trucks for delivery of its products.

¶ 6 Bolton gave a deposition and provided an affidavit. He stated that he has lived in Cook County continuously since 1956. In 2010, he retired from a career in the food industry. In 2011, he began working for GML on a part-time basis as a customer service and account representative. He worked approximately 20 hours per week and was paid by the hour. He worked with three clients—Aldi, Inc., located in Batavia, in Du Page and Kane Counties; Central Grocery, located in Joliet, in Kendall and Will Counties; and Sears/K-Mart, located in Hoffman Estates in Cook County. Bolton stated that approximately 85% of his work time was devoted to Aldi, while less than 5% of his time was devoted to Sears/K-Mart, his sole Cook County customer.

¶ 7 Bolton averred in his affidavit that he was hired by GML "because of my over 50 years of experience in the food industry and because GML wanted a contact person in northern Illinois for one of its customers, Aldi, Inc." In his deposition, he testified that "[GML] needed somebody in the Chicago area to take care of several accounts, and they wanted somebody on a part-time basis to oversee these accounts." He described his job as a "point person" for customers to contact if they had questions about sales or orders.

¶ 8 Bolton stated that he worked mainly out of his home in Cook County. He had never had a customer visit his home for any reason. Bolton said he made two hour-long visits per year to Sears/K-Mart's corporate headquarters in Hoffman Estates. GML reimbursed him for his travel expenses. GML did not pay any portion of his mortgage, real estate taxes, utilities, cell phone bills, Internet charges, office

181 N.E.3d 730

450 Ill.Dec. 378

supplies, or any other expenses associated with his home office. GML had no ownership interest in Bolton's personal residence. Bolton said he had a telephone extension for GML's general 800 number in Chester, Illinois. He explained that, when a customer dialed the 800 number and entered his four-digit extension, the call would be forwarded to his cell phone. Bolton testified that he communicated with customers by phone or e-mail using a company-provided e-mail address. He kept no company records in his home other than the e-mails stored on his computer. Bolton testified that GML provided him with a computer after he was hired.

¶ 9 Thomas Welge, GML's vice president of sales and research and development, stated in his affidavit that the company does not advertise to the public that it has an office in Cook County. Welge said GML hired Bolton in 2011 because the company "desired an individual with experience in the food industry to service one customer in particular located in northern Illinois, Aldi, Inc." Welge stated that Bolton's county of residence was of no significance in GML's hiring decision. Furthermore, according to Welge, Bolton's continued employment was not contingent on him residing in a certain county, and his employment would not be affected if he moved to a neighboring county. During his deposition, Welge was asked whether he agreed with the statement that Bolton "was hired because GML needed a Chicago contact and [a] Chicago point person." Welge said he disputed that statement. He testified that the reason GML hired Bolton was to "have a contact person for Aldi."

¶ 10 Michael Heffernan, GML's transportation safety and risk manager, attested that the company does not own, lease, or occupy any property in Cook County. He further stated that GML does not design, manufacture, advertise, finance, or sell its products from within Cook County. According to Heffernan, the company's sales in Cook County in 2016 constituted 0.19% of its total sales and, during the five-year period preceding plaintiff's accident, its sales in Cook County did not exceed 0.47% of its total sales in any year.

¶ 11 After hearing arguments, the circuit court denied defendants' motions to transfer venue, holding that Cook County provided a proper venue for plaintiff's action. The court determined that Bolton's home office constituted an "other office" of GML because he serviced clients on behalf of his employer from his Cook County residence. The court rejected plaintiff's alternative argument that GML was "doing business" in Cook County, citing the proportionally low quantity of sales to Cook County customers.

¶ 12 Defendants filed a petition for leave to appeal in the appellate court pursuant to Illinois Supreme Court Rule 306(a)(4) (eff. Nov. 1, 2017). The appellate court denied the petition. Thereafter, defendants filed a petition for leave to appeal in this court. We denied leave to appeal but exercised our supervisory authority to direct the appellate court to vacate its order and allow the petition for leave to appeal. Tabirta v. Cummings , No. 123344, 420 Ill.Dec. 751, 98 N.E.3d 55 (Ill. May 30, 2018).

¶ 13 Upon remand, the appellate court affirmed the circuit court's judgment. 2019 IL App (1st) 172891-B, 430 Ill.Dec. 488, 126 N.E.3d 576. The court found that "GML specifically hired Bolton to service three of its Illinois customers from his Cook County residence." Id. ¶ 30. The court also noted that Bolton spent most of his working hours communicating with customers from his home office using a company-provided telephone extension and e-mail address. Id. Based on these factors, the court concluded that Bolton's...