V.G. Marina Management Corp. v. Wiener

Case Date: 04/03/2003
Court: 2nd District Appellate
Docket No: 2-01-0906 Rel

No. 2--01--0906


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


V.G. MARINA MANAGEMENT ) Appeal from the Circuit Court
CORPORATION, ) of Kane County.
)
                   Plaintiff-Appellee, )
) No. 01--LM--668
v. )
)
FRANK WIENER, ) Honorable
) Richard J. Larson,
                   Defendant-Appellant. ) Judge, Presiding.

JUSTICE McLAREN delivered the opinion of the court:

Defendant, Frank Wiener, appeals from an order denying hismotion to dismiss or transfer on the grounds of forum nonconveniens. The main issue raised in this appeal is whether anonresident defendant is permitted to object to venue on forum nonconveniens grounds and seek the transfer of the cause to anotherIllinois county if the resident plaintiff is permitted by section2--101 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--101(West 2000)) to file his or her lawsuit against the nonresidentdefendant in any county of the state. Although we determine thatthe common-law doctrine of forum non conveniens is available tononresidents to contest the intrastate venue of an action, weaffirm on the merits.

On November 25, 1999, plaintiff, V.G. Marina ManagementCorporation, filed a complaint for rent against defendant in CookCounty. In the complaint, plaintiff alleged that it leased todefendant a condominium unit, which was located at 300 North StateStreet in Chicago, Cook County, and defendant owed it over $10,000in rent. The parties engaged in discovery, and the cause was setfor trial in June 2000. Discovery disputes ensued, and the trialdate was continued more than once. In February 2001, plaintiffvoluntarily dismissed the complaint.

On April 19, 2001, plaintiff refiled the same complaint inKane County. Defendant then moved the court to dismiss the actionon forum non conveniens grounds or, alternatively, to transfer theaction to Cook County. At the motion hearing, the court denied themotion, finding that, because defendant was a Wisconsin resident,venue was proper in any Illinois county under section 2--101 of theCode, and the interests of justice did not require the transfer ofthe cause to Cook County. Defendant's petition for leave to appeal(166 Ill. 2d R. 306(a)(2)) was granted by this court on May 7,2002.

We first consider the parties' dispute about whether anonresident defendant is permitted to object to venue on forum nonconveniens grounds and seek the transfer of the cause to anotherIllinois county if the resident plaintiff is permitted by the venuestatute to file his or her lawsuit against the nonresidentdefendant in any county of the state. The Illinois venue statuteprovides that, in general, an action may be commenced in the county where any defendant joined in good faith resides or where the causeof action arose. 735 ILCS 5/2--101 (West 2000). When none of thedefendants are Illinois residents, venue is proper in any county ofthe state. 735 ILCS 5/2--101 (West 2000). "Venue and forum nonconveniens are distinct concepts." Foster v. Chicago & NorthWestern Transportation Co., 102 Ill. 2d 378, 384 (1984). "Theprinciple of forum non conveniens is simply that a court may resistimposition upon its jurisdiction even when jurisdiction isauthorized by the letter of a general venue statute." Gulf OilCorp. v. Gilbert, 330 U.S. 501, 507, 91 L. Ed. 1055, 1062, 67 S.Ct. 839, 842 (1947). In a case where subject matter jurisdiction,personal jurisdiction, and venue are proper, a forum non conveniensmotion is available to the defendant. Gulf Oil, 330 U.S. at 504,91 L. Ed. at 1060, 67 S. Ct. at 841; Sears, Roebuck & Co. v.Continental Insurance Co., 9 Ill. App. 3d 287, 289 (1972). Thecommon-law doctrine of forum non conveniens allows the court wherethe action was filed to look beyond the venue criteria, declinejurisdiction, and direct the lawsuit to an alternative forum thatthe court determines can better serve the convenience of theparties and the ends of justice. Foster, 102 Ill. 2d at 382. Itapplies to actions involving interstate as well as intrastatematters. Lambert v. Goodyear Tire & Rubber Co., 332 Ill. App. 3d373, 378 (2002).

Plaintiff contends that this doctrine is unavailable tononresident defendants seeking an intrastate transfer whenplaintiff was permitted by statute to file the action in any countybecause statutory venue rules are given preference over the commonlaw. On the contrary, our courts have consistently recognized aforum non conveniens motion as the proper mechanism by which todismiss or transfer a cause that has no practical connection to theforum. For instance, in Torres v. Walsh, 98 Ill. 2d 338, 350(1983), our supreme court recognized a trial court's authority totransfer a cause on forum non conveniens grounds to another countywithin the same state. A forum non conveniens motion is alsoavailable to nonresident defendants requesting that an action betransferred to another state. First Professional Leasing Co. v.Rappold, 23 Ill. App. 3d 420, 425 (1974). We find no reason why anonresident should not similarly be permitted to seek a forum nonconveniens transfer to another county within the same state eventhough the plaintiff could commence the lawsuit in any county. Anonresident defendant should be allowed to litigate a matter in aconvenient intrastate forum. Nonetheless, as discussed in thefollowing quotation, the statutory venue rule is entitled todeference when the court considers the forum non conveniens motion. "In most instances, the plaintiff's initial choice of forumwill prevail, provided venue is proper and the inconveniencefactors attached to such forum do not greatly outweigh theplaintiff's substantial right to try the case in the chosenforum. If, however, the litigation has no practicalconnection to the forum, and a defendant establishes thenecessary showing under the doctrine, the court should grantthe motion for transfer." Peile v. Skelgas, Inc., 163 Ill. 2d323, 335-36 (1994).

We conclude that the common-law doctrine of forum nonconveniens is indeed applicable to this situation as a check toensure that plaintiffs select a forum that is convenient for allthe parties and best serves the interests of justice.

The second issue presented in this case is whether the trialcourt abused its discretion in denying defendant's motion totransfer because, as defendant contends, the facts overwhelminglyfavored the transfer of the cause to Cook County.

The trial court has broad discretion to determine whether amotion to dismiss or transfer for forum non conveniens should begranted. We will not substitute our judgment for that of the trialcourt or even evaluate whether it wisely exercised its discretion. Elling v. State Farm Mutual Automobile Insurance Co., 291 Ill. App.3d 311, 317 (1997). We must only consider whether the trial courtabused its discretion (Trent v. Caterpillar, Inc., 234 Ill. App. 3d839, 842 (1992)), which occurs when no reasonable person would takethe view it adopted (O'Connell v. City of Chicago, 285 Ill. App. 3d459, 463 (1996)).

Forum non conveniens is an equitable doctrine under whichprinciples of convenience and fairness are weighed in order tochoose between two or more forums having jurisdiction. Kwasniewskiv. Schaid, 153 Ill. 2d 550, 552 (1992). When ruling on a forum nonconveniens motion, the court must consider private interest factorsaffecting the litigants' convenience and public interest factorsaffecting the court's administration. Vinson v. Allstate, 144 Ill.2d 306, 310 (1991). Relevant private factors include theaccessibility of sources of proof, the availability of witnesses,the availability of compulsory service of process to compel theappearance of unwilling witnesses, the costs of obtainingwitnesses, the possibility of viewing the premises in question, ifappropriate, the convenience of the parties, and any otherpractical concerns that make the trial of a case easy, expeditious,and inexpensive. Trent, 234 Ill. App. 3d at 842-43. Relevantpublic factors include "the administrative difficulties flowingfrom court congestion; 'a local interest in having localizedcontroversies decided at home'; and the unfairness of burdeningcitizens in an unrelated forum with jury duty." Bland v. Norfolk& Western Ry. Co., 116 Ill. 2d 217, 224 (1987), quoting Gulf Oil,330 U.S. at 509, 91 L. Ed. At 1063, 61 S. Ct. At 843.

A further consideration in ruling on a forum non conveniensmotion is the plaintiff's choice of forum. "A plaintiff is giventhe right to select the forum, and unless the public and privateinterest factors strongly weigh in favor of transfer, a plaintiff'schoice of forum will rarely be disturbed." Kwasniewski, 153 Ill.2d at 553. Less deference is given where the plaintiff is not aresident of the chosen forum (Kwasniewski, 153 Ill. 2d at 553); but, even when the plaintiff's forum choice is entitled to lessdeference, the test remains whether the relevant factors, viewed intheir totality, strongly favor transfer to the forum suggested bythe defendant (Elling, 291 Ill. App. 3d at 318).

With respect to the private and public interest factors,defendant's motion to transfer argued that those factors stronglyweighed in favor of changing venue to Cook County. As to theprivate interest factors, defendant cited the followingconsiderations: the cause properly belonged in Cook County becausethe litigation had already begun there before plaintiff dismissedthe action, and Cook County was the location of the leased property,the signing of the contract, and plaintiff's and defendant'sbusiness offices. As to the public interest factors, defendantcontended that a Kane County jury would have no meaningfulconnection with the circumstances of the litigation and that thecourt's refusal to transfer essentially would endorse plaintiff'sforum shopping.

The trial court considered these factors and found that theydid not strongly favor transfer to Cook County. We cannot say thatthe court's conclusion was an abuse of discretion or that noreasonable person would adopt that view. Most significantly,defendant did not make any substantive showing that he wasinconvenienced by having this litigation tried in Kane County. Eventhough Cook County is an alternative forum for the dispute,defendant did not demonstrate that an undue burden or hardshipresulted from the action's present venue. In fact, the distancebetween two adjacent counties generally does not impose a burden onwitnesses or defendants. Snook v. Lake Forest Hospital, 133 Ill.App. 3d 998, 1001 (1985). While defendant's contention that thecourt should consider that the property and business offices arelocated in Cook County is correct, this is but one factor among manyto be weighed in the overall balancing of interests and does not,standing alone, mandate the transfer of a cause. Elling, 291 Ill.App. 3d at 316-17.

Defendant's claim that the litigation had previously beencommenced in Cook County does not weigh in favor of transfer. Thecommon-law record developed in this case is sparse. Besides thecomplaints and the motion to dismiss, the record contains not muchmore than defendant's answers to interrogatories and requests fordocuments. Defendant exaggerates the extent to which this actionwas litigated in Cook County, and the court's view that this factordid not require a transfer to Cook County is not unreasonable.

With respect to the public interest factors, defendant arguedthat it would be unfair to burden a Kane County jury with a casethat had no meaningful connection to that community. Indeed, theparties' only tie to Kane County is that it is where plaintiff'scounsel's office is located. We recognize that this is aconsideration that favors the cause being tried in Cook County; however, we are also mindful that section 2--101 of the Code allowsplaintiff to file its lawsuit in any county of the state. "[T]hedeference to be accorded to a plaintiff regarding his [or her]choice of forum is less when the plaintiff chooses a forum otherthan where he [or she] resides or where the injury occurred[;]nonetheless[,] the deference to be accorded is only less, asopposed to none, and the test is still whether the relevantfactors, viewed in their totality, strongly favor transfer toanother forum [citation]." (Emphasis in original.) Elling, 291Ill. App. 3d at 318.

In sum, for a transfer to be necessary in this case, defendantwas required to demonstrate how he was inconvenienced and burdenedby having the action tried in Kane County. See Elling, 291 Ill.App. 3d at 318 (noting that the denial of the defendants' forum nonconveniens motion was appropriate where they did not sustain theirburden of showing that the relevant private interest factorsstrongly favored another forum and that the present forum wasinconvenient). Here, the trial court considered the private andpublic interest factors raised by defendant in his motion todismiss. The trial court weighed those factors and found that nonestrongly weighed in favor of transfer in contravention ofplaintiff's forum choice. Our role is not to substitute ourjudgment for that of the trial court. Elling, 291 Ill. App. 3d at317. While we might weigh the factors differently, we cannot saythat the weight given them by the trial court was an abuse ofdiscretion or that no reasonable person would have reached the sameconclusion. Thus, we affirm the trial court's denial ofdefendant's forum non conveniens motion.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

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