Find Legal Information

Winn v. Mitsubishi Motor Manufacturing of America, Inc., No. 4-99-0173

4th District, 8 December 1999

JUSTICE KNECHT delivered the opinion of the court:

In June 1998, plaintiffs, Diana and Danelle Winn, filed a complaint in Champaign County against defendant, Mitsubishi Motor Manufacturing of America, Inc., under the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 1996)). Defendant argued venue was improper and moved to transfer the case to McLean County. The trial court allowed discovery to proceed to determine whether venue was proper in Champaign County. Before the trial court ruled on defendant's motion to transfer, plaintiffs filed a motion to voluntarily dismiss. In January 1999, the trial court granted plaintiffs' motion to voluntarily dismiss. Defendant appeals, arguing the trial court erred by (1) failing to immediately rule on its motion to transfer venue and (2) granting plaintiffs' motion to voluntary dismiss instead of granting defendant's motion to transfer venue. We affirm.

BACKGROUND

Plaintiffs filed a class-action suit against defendant in the circuit court of Champaign County. The complaint alleged defendant violated the Consumer Fraud Act (815 ILCS 505/1 et seq. (West 1996)) by falsely representing it used high-quality and long-lasting paint on its vehicles and by failing to advise consumers the vehicles' paint would prematurely fail.

In August 1998, defendant moved to transfer venue, arguing venue in Champaign County was improper under section 2-101 of the Code of Civil Procedure (Code) (735 ILCS 5/2-101 (West 1996)) because defendant maintained no offices in Champaign County, nor did it conduct business in Champaign County. Defendant argued venue was proper only in McLean County, where defendant's business operations are located.

Plaintiffs opposed defendant's motion, arguing venue in Champaign County was proper because plaintiffs purchased their Mitsubishi vehicles from a dealership located in Champaign County. Defendant's general counsel and corporate secretary submitted an affidavit averring defendant "manufactures *** automobiles at its facilities in Normal, Illinois. [It] does not make retail sales of automobiles. Its products are sold to other corporations for distribution. *** [It] sells no automobiles in Champaign County."

Also in August 1998, plaintiffs filed a motion for protective order and a preliminary response to defendant's venue motion, claiming they needed to conduct discovery before they could properly respond to the venue motion. In September 1998, the trial court heard arguments on defendant's motion to transfer and allowed plaintiffs to proceed with limited discovery as related to whether venue was proper in Champaign County. The trial court declined to rule on the venue motion pending plaintiffs' discovery.

In November 1998, plaintiffs moved to amend their complaint to add an additional Mitsubishi entity as a defendant. Defendant opposed the motion, arguing venue was a threshold issue and therefore the court should address it prior to plaintiffs' motion.

Also in November 1998, the trial court conducted a hearing on plaintiffs' motion. At the hearing, plaintiffs presented, without prior notice, an oral motion to voluntarily dismiss without prejudice. Defendant opposed the motion to voluntarily dismiss because plaintiffs failed to give notice or tender costs as required by section 2-1009(a) of the Code (735 ILCS 5/2-1009(a) (West 1996)). The trial court instructed plaintiffs to tender costs and set their motion for a hearing.

Following the November 1998 hearing, plaintiffs filed a written motion to voluntarily dismiss. In January 1999, defendant's counsel sent plaintiffs' counsel a letter, via mail and facsimile, stating:

"Because your colleague Mr. Wright expressed your intention to refile this action (presumably in the correct venue), [defendant] is entitled to the fees and expenses incurred in its efforts to transfer this case to the proper venue in McLean County as well as costs. See 735 ILCS 5/2-107; see also 735 ILCS 5/2-1009. *** Accordingly, we ask that plaintiffs tender $18,367.24 to [defendant] for this firm's fees and costs in connection with the dismissal."

The same day, plaintiffs' counsel replied via facsimile, stating:

"I fully agree with you that the payment of costs is mandated by [s]ection []2-1009 of the [Code]. However, attorneys' fees are not so mandated. As you should be well aware, [s]ection []2-107 permits the imposition of attorneys' fees only in the event that venue is fixed by the plaintiff in bad faith and without probable cause. It is not my understanding that your firm has made this allegation. *** Please forward on to me the citations of all relevant case law or statutes which suggest that attorney's fees should be treated as costs for the purpose of []2-1009."

Following this exchange of letters, plaintiffs filed a motion to fix court costs. Plaintiffs argued "payment of costs" under section 2-1009(a) relates to payment of defendant's filing fee and nothing further. Defendant filed a response to plaintiffs' motion for voluntary dismissal and motion to fix costs. Defendants argued the trial court lacked authority to rule on plaintiffs' motion for voluntary dismissal. Defendant argued Majewski v. Von Bergan, 266 Ill. App. 3d 140, 144, 638 N.E.2d 1189, 1192 (1994), required the trial court to rule on the motion to transfer venue before ruling on the motion to voluntarily dismiss. For the first time, defendant argued plaintiffs acted in bad faith by improperly setting venue in Champaign County and further argued plaintiffs were attempting to use voluntary dismissal as a tool to improperly circumvent a ruling on the motion to transfer venue.

In January 1999, the trial court conducted a hearing on plaintiffs' motions. The court determined it must rule first on plaintiffs' motion to voluntarily dismiss and dismissed the case without prejudice. The court instructed plaintiffs to pay costs but rejected defendant's request for attorney fees. Accordingly, the court never ruled on defendant's motion to transfer venue. Defendant filed the instant appeal.

II. ANALYSIS

As a threshold matter, plaintiffs argue defendant failed to file a timely notice of appeal and improperly filed its petition under Supreme Court Rule 301 (155 Ill. 2d R. 301) rather than Rule 306 (166 Ill. 2d R. 306). We note plaintiffs already raised these arguments in a motion to dismiss defendant's appeal. We rejected plaintiffs' arguments and denied their motion on April 26, 1999. Therefore, we need not readdress these issues here.

A. Propriety of Allowing Discovery To Proceed

Defendant's brief implies the trial court erred by failing to grant its August 1998 motion to transfer venue and instead allowing discovery to proceed with respect to whether venue was proper in Champaign County. Defendant cites In re Dominique F., 145 Ill. 2d 311, 324, 583 N.E.2d 555, 561 (1991), where our supreme court held "[w]here a petition for change of venue is timely filed and in proper form, it must be granted and any order entered after its presentation is a nullity." Here, defendant presented its motion to change venue before plaintiffs moved to voluntarily dismiss. Therefore, defendant argues, the trial court's failure to grant defendant's motion to transfer venue rendered all later orders, including the order granting plaintiffs' voluntary dismissal, void. We disagree.

While few cases directly address whether a trial court has discretion to allow discovery to proceed in order to determine whether venue is proper, we conclude it does. The literal language of section 2-104(c) of the Code (735 ILCS 5/2-104(c) (West 1996)) indicates factual hearings are proper to determine the propriety of venue. 3 R. Michael, Illinois Practice