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No. 2--03--0582

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

Respondent, Bassem Hayek, filed a petition for leave to appeal from an order of the circuitcourt of Du Page County denying his motion for a change of venue from Du Page County to CookCounty. We granted the petition for leave to appeal, but now conclude that jurisdiction is lacking.

Petitioner, State Farm Mutual Automobile Insurance Company (State Farm), filed in thecircuit court of Du Page County a petition to vacate an arbitration award against it and in favor ofHayek. The arbitration involved a dispute over the amount of underinsured motorist benefits thatState Farm was required to pay Hayek on a claim arising out of an automobile accident. Followingan arbitration hearing in Cook County, the arbitrators awarded Hayek $720,299. State Farm soughtto vacate the award pursuant to section 12 of the Uniform Arbitration Act (Arbitration Act) (710ILCS 5/12 (West 2002)), arguing that (1) the award was procured by undue means, (2) there wasevidence of partiality by one of the arbitrators, (3) two of the arbitrators exceeded their powers byfailing to review and consider material evidence, and (4) the award was entered in bad faith.

In response to State Farm's petition to vacate the award, Hayek moved to transfer venue fromDu Page County to Cook County on the ground that the petition must be filed in the same countywhere the arbitration hearing was held. Section 17 of the Arbitration Act provides, in relevant part,that "[a]n initial application shall be made to the court of the county in which the agreement providesthe arbitration hearing shall be held or, if the hearing has been held, in the county in which it washeld." 710 ILCS 5/17 (West 2002). State Farm responded that venue was proper either in CookCounty or in Du Page County, the county in which Hayek resides. The trial court agreed that venuewas proper in Du Page County and denied the motion to transfer venue. Hayek filed a petition forleave to appeal pursuant to Supreme Court Rule 306(a)(4) (Official Reports Advance Sheet No. 5(March 5, 2003), R. 306(a)(4), eff. January 1, 2003), which we granted.

State Farm filed a motion to dismiss Hayek's appeal, asserting that jurisdiction is lackingbecause Hayek cannot meet the requirements of Rule 306(a)(4), which allows a party to petition forleave to appeal from an order "granting or denying a motion for a transfer of venue based on theassertion that the defendant is not a resident of the county in which the action was commenced, andno other legitimate basis for venue in that county has been offered by the plaintiff." Official ReportsAdvance Sheet No. 5 (March 5, 2003), R. 306(a)(4), eff. January 1, 2003. State Farm argues thatthe basis of Hayek's motion to transfer venue was not that he is not a resident of Du Page Countyand, therefore, Rule 306(a)(4) is not applicable in this case.

We denied State Farm's motion to dismiss the appeal for lack of jurisdiction. However, wehave an ongoing, independent duty to consider our jurisdiction and to dismiss the appeal if jurisdictionis lacking. Franson v. Micelli, 172 Ill. 2d 352, 355 (1996). We conclude that our earlier denial ofState Farm's motion was erroneous and that we do not have jurisdiction over Hayek's appeal.

Rule 306(a)(4) appears to correspond to the general venue provision of section 2--101 of theCode of Civil Procedure (Code) (735 ILCS 5/2--101 (West 2002)), which states that, generally, everyaction must be commenced either in the defendant's county of residence or in the county in which allor part of the transaction occurred that gave rise to the cause of action. Hayek's motion to transfervenue is based, not on the general venue provision, but on the venue provision of the Arbitration Act(710 ILCS 5/17 (West 2002)). The question we must decide is whether Rule 306(a)(4) may be readto encompass the instant motion to transfer venue, which is not based on the general venue provision. Supreme court rules are construed in the same manner as statutes. Courts must give effectto the supreme court's intent by examining the language of the rule. Ferguson v. Bill BergerAssociates, Inc., 302 Ill. App. 3d 61, 68-69 (1998). If the language is clear and unambiguous, courtsmust give it effect and may not look to extrinsic aids for construction. Ferguson, 302 Ill. App. 3dat 69. Likewise, courts may not alter the rule or read into it exceptions or limitations, no matter howbeneficial or desirable the result. Ferguson, 302 Ill. App. 3d at 69.

In Ferguson, the court held that it did not have jurisdiction over an appeal of a denial of thedefendant's motion to transfer venue based on a contractual forum selection clause. The defendantin Ferguson moved to transfer venue from Cook County to a New York court. The court held that,because the defendant was seeking to transfer venue to another state rather than to another countyin Illinois, Rule 306(a)(4), by its plain language, did not apply. Ferguson, 302 Ill. App. 3d at 69-70.

Similarly, it appears that the plain language of Rule 306(a)(4) precludes us from findingjurisdiction in the instant case. In order for Rule 306(a)(4) to apply, the defendant's motion totransfer venue must be "based on the assertion that the defendant is not a resident of the county inwhich the action was commenced, and no other legitimate basis for venue in that county has beenoffered by the plaintiff." Official Reports Advance Sheet No. 5 (March 5, 2003), R. 306(a)(4), eff.January 1, 2003. In this case, Hayek resides in Du Page County, where State Farm commenced itsaction. Hayek's motion to transfer venue was not based on the assertion that he is not a resident ofDu Page County; instead, he asserted that venue should be in Cook County pursuant to the venueprovision of the Arbitration Act. Allowing Hayek to appeal when his motion to transfer venue wasbased on a ground other than that specified in Rule 306(a)(4) would improperly expand the scope ofthe rule and usurp the supreme court's rulemaking authority. See Ferguson, 302 Ill. App. 3d at 69. Hayek cites Foley v. Greer, 333 Ill. App. 3d 500 (2002), in support of his argument thatjurisdiction is proper under Rule 306(a)(4). We find Foley to be inapposite. Like the case at bar,Foley involved the venue provision of the Arbitration Act. In addressing its jurisdiction, the courtstated that it had to initially determine whether the arbitration statute took precedence over thegeneral venue statute. The court determined that the arbitration venue provision superseded thegeneral venue provision, and that venue was proper in the county where the arbitration between theparties was held. Foley, 333 Ill. App. 3d at 503. The court never addressed, however, how a motionto transfer venue based on the arbitration venue provision falls within the ambit of Rule 306(a)(4). Furthermore, the defendant in Foley did not reside in the county where the cause of action wasbrought. Thus, the problem in the case before us was not an issue in Foley. Moreover, while thefacts in Foley were such that the court could fit them within Rule 306(a)(4), we question whether itwas logically consistent to apply Rule 306(a)(4) to the jurisdiction question after holding that thearbitration venue provision, rather than the general venue provision, was controlling.

It would seem to be desirable to allow interlocutory appeals from grants or denials of motionsto transfer venue based on the Arbitration Act's venue provision, especially because the purpose ofarbitration is to avoid the formality, delay, and expense of litigating in the court system (see AdvanceIron Works, Inc. v. ECD Lincolnshire Theater, L.L.C., 339 Ill. App. 3d 882, 886 (2003)). However,the decision of whether to expand Rule 306(a)(4) to allow such appeals lies within the province ofthe supreme court. We may not alter or expand the plain language of the rule, no matter howbeneficial it may be to do so. Consequently, we conclude that jurisdiction over Hayek's appeal islacking, and we dismiss the appeal.

Appeal dismissed.

O'MALLEY, P.J., and CALLUM, J., concur.