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Docket No. 99698-Agenda 24-May 2005.

FERNANDO CORRAL, JR., Personal Representative of the Estate
of Fernando Corral, Sr., Deceased, Appellee, v. MERVIS
INDUSTRIES, INC., Appellant.

Opinion filed October 20, 2005.

JUSTICE KILBRIDE delivered the opinion of the court:

In this appeal we address: (1) the proper standard of review forthe grant or denial of a motion to transfer on the ground of impropervenue; and (2) whether the circuit court of Cook County erred indenying defendant's motion to transfer venue.

This interlocutory appeal arises from the circuit court of CookCounty's denial of defendant's motion to transfer venue. The appellatecourt affirmed the circuit court's denial of defendant's motion. No.1-03-0129 (unpublished order under Supreme Court Rule 23). Weallowed defendant's petition for leave to appeal (177 Ill. 2d R. 315).

We hold: (1) the factual determinations of the trial court on amotion to transfer venue are subject to a manifest weight of theevidence standard of review; (2) the legal effect of the trial court'sfactual findings is subject to de novo review. We are, however, unableto review the trial court's factual determinations in this appeal becauseof an incomplete record. Consequently, we affirm the order of thecircuit court of Cook County.

I. BACKGROUND

On April 12, 2001, Fernando Corral, Sr., was killed whileworking at defendant's scrap recycling yard in Danville, VermilionCounty. On January 15, 2002, Fernando Corral, Jr., the personalrepresentative of the decedent's estate, filed a wrongful-death actionin Cook County.

On April 4, 2002, defendant filed a motion to transfer in lieu ofanswering the complaint. Defendant moved to transfer the cause toVermilion County, alleging Cook County is an improper venue. Thecircuit court of Cook County denied defendant's motion to transferthe cause to Vermilion County on December 16, 2002.

Pursuant to Supreme Court Rule 306(a)(4) (166 Ill. 2d R.306(a)(4)), defendant filed a petition for leave to appeal to theappellate court on January 15, 2003. Rule 306(a)(4) permits a partyto petition for leave to appeal to the appellate court from a trial courtorder granting or denying a motion to transfer venue "based on theassertion that the defendant is not a resident of the county in which theaction was commenced, and no other legitimate basis for venue in thatcounty has been offered by the plaintiff." 166 Ill. 2d R. 306(a)(4).

Defendant filed a supporting record with its petition for leave toappeal, as required by Rule 306(c) (166 Ill. 2d R. 306(c)). Thesupporting record contained the following documents:

(1) defendant's motion to transfer venue, with thefollowing attachments: (a) complaint; (b) summons; (c)return of service on summons; (d) printout from IllinoisSecretary of State's website; (e) affidavit of Michael Smith,vice president and CFO of defendant, Mervis Industries, Inc.;

(2) plaintiff's response to defendant's motion to transfervenue;

(3) defendant's reply in support of motion to transfervenue;

(4) transcript of discovery deposition of Michael Smith;and

(5) order of the circuit court of Cook County, denyingdefendant's motion to transfer venue.

In his discovery deposition, Michael Smith, vice president andCFO of defendant, testified that defendant operates scrap processingfacilities in Danville, Champaign, Mattoon, and Springfield, Illinois.According to Smith, defendant processes metal, paper, and plastic forsale to an end user. Smith testified that defendant's only Cook Countyconnection is a sales employee, Bob Samson, who works full time fordefendant from an office in Samson's home. Defendant equippedSamson's home office with a computer, fax machine and fax number,a dedicated business telephone line, and an e-mail address. Samson isdefendant's only plastic scrap broker and conducts sales for defendantfrom the business telephone line in his home office. Smith testified thatSamson answers the business phone line in his home by saying"Mervis Plastics."

According to Smith, the only time Samson has traveled todefendant's headquarters in Danville was for his hiring interview.Smith acknowledged during his deposition that plastic scrap salesgenerate annual revenues of $1,500,000 to $1,750,000.

In addition to defendant's Cook County employee, defendantsells a small amount of stainless steel in Cook County. The CookCounty steel sales represent less than 1% of defendant's total sales.

The order of the circuit court denying defendant's motion totransfer venue states:

"This cause coming to be heard on motion of defendant,Mervis Industries, to transfer venue; it is hereby ordered thatdefendant's motion is denied. This matter is set for status onthe pleadings for 2/7/03 at 9:15 a.m."

The appellate court allowed defendant's petition for leave toappeal. 166 Ill. 2d R. 306(a)(4). On November 4, 2004, the appellatecourt affirmed the circuit court. No. 1-03-0129 (unpublished orderunder Supreme Court Rule 23). The appellate court's order stated:

"The trial court held that Mervis had an office in CookCounty, because one of Mervis's employees worked in hisCook County home. We agree with the trial court that thehome office here sufficed to establish corporate residence forvenue purposes."

The appellate court further concluded:

"Mervis brokered plastic scrap from an office in itsemployee's home in Cook County. Because Mervis had an'other office' in Cook County, the trial court correctly heldthat Mervis was a resident of Cook County for venuepurposes."

We allowed defendant's petition for leave to appeal. 177 Ill. 2d R.315.

II. ANALYSIS

Defendant raises two issues in its appeal. First, defendant arguesreviewing courts should apply a de novo standard of review to ordersdenying a motion to transfer venue from an improper forum when thefacts are undisputed. Second, defendant argues the circuit court ofCook County erred in denying its motion to transfer venue toVermilion County because its employee's home is not an office ofdefendant and, therefore, Cook County is an improper venue. Weaddress each of defendant's arguments seriatim.

A. Standard of Review

We first examine the proper standard of review for the grant ordenial of a motion to transfer based on improper venue. We begin ouranalysis by reviewing the venue statutes. Section 2-101 of the Codeof Civil Procedure (Code) (735 ILCS 5/2-101 (West 2000)) generallygoverns venue and provides, in relevant part:

"Except as otherwise provided in this Act, every actionmust be commenced (1) in the county of residence of anydefendant who is joined in good faith and with probablecause for the purpose of obtaining a judgment against him orher and not solely for the purpose of fixing venue in thatcounty, or (2) in the county in which the transaction or somepart thereof occurred out of which the cause of action arose."

Section 2-102 of the Code specifically defines the residence ofcorporations and provides, in pertinent part:

"For purpose of venue, the following definitions apply:

(a) Any private corporation *** organized under the lawsof this State *** is a resident of any county in which it has itsregistered office or other office or is doing business." 735ILCS 5/2-102 (West 2000).

Defendant contends a motion to transfer to a proper venuepresumes the forum county is not a proper venue. According todefendant, where venue is improper in the forum county, the circuitcourt has no discretion and must transfer venue to a proper forum.Thus, defendant insists the proper standard of review is de novo.Plaintiff, on the other hand, asks this court to adopt a "clearlyerroneous" standard of review.

There appear to be conflicting decisions in our appellate courtconcerning the proper standard of review on a motion to transferbased on improper venue. Home Depot, U.S.A., Inc. v. Departmentof Revenue, 355 Ill. App. 3d 370 (2d Dist. 2005), applied a de novostandard of review to the issue of whether statutory venuerequirements had been met and then applied an abuse of discretionstandard of review to the ultimate issue of venue where more than onevenue is proper. Other appellate court cases have only applied a denovo standard of review to determine whether the facts of a particularcase met statutory venue requirements. See Reynolds v. GMACFinancial Services, 344 Ill. App. 3d 843 (5th Dist. 2003); Boxdorferv. DaimlerChrysler Corp., 339 Ill. App. 3d 335 (5th Dist. 2003);Reichert v. Court of Claims, 327 Ill. App. 3d 390 (5th Dist. 2002),vacated on other grounds, 203 Ill. 2d 257 (2003); Lake CountyRiverboat L.P. v. Illinois Gaming Board, 313 Ill. App. 3d 943, 951(2d Dist. 2000). Still, other appellate court cases have applied anabuse of discretion standard of review. See Southern & CentralIllinois Laborers' District Council v. Illinois Health FacilitiesPlanning Board, 331 Ill. App. 3d 1112 (5th Dist. 2002); Johnson v.Compost Products, Inc., 314 Ill. App. 3d 231 (2d Dist. 2000); Longv. Gray, 306 Ill. App. 3d 445 (1st Dist. 1999). To be sure, this courthas not been entirely clear on expressing the standard of review to beapplied on appeal from an order of the circuit court granting ordenying a motion to transfer based on improper venue, and theconfusion among our appellate districts concerning the properstandard of review is understandable.

Those appellate court cases applying the abuse of discretionstandard of review relied on Stambaugh v. International HarvesterCo., 102 Ill. 2d 250 (1984). Stambaugh applied an abuse of discretionstandard of review to an appeal from the denial of a motion to transferbased on improper venue. Stambaugh, 102 Ill. 2d at 263. Stambaughdid not offer any analysis or explanation concerning the applicablestandard of review, but simply cited Morrison v. Community UnitSchool District No. 1, 44 Ill. App. 3d 315 (1976), for the abuse ofdiscretion standard of review. As the Reichert court aptly observed,Morrison did not involve a motion to transfer based on impropervenue but, rather, a motion to transfer from a proper venue based onprejudice of the forum county's jury pool. Reichert, 327 Ill. App. 3dat 393. A motion to transfer from one proper venue to another basedon potential prejudice requires the trial court to exercise discretionand merits application of the abuse of discretion standard of review.

Since Stambaugh, this court has clarified the proper deference tobe accorded the trial court via applicable standards of appellatereview. In People v. Coleman, this court acknowledged "[t]hemanifestly erroneous standard represents the typical appellate standardof review for findings of fact made by a trial judge." People v.Coleman, 183 Ill. 2d 366, 384-85 (1998), citing M. Davis, A BasicGuide to Standards of Judicial Review, 33 S.D. L. Rev. 469, 470-71(1988). Accordingly, we determined that the manifestly erroneousstandard of review is only appropriate when reviewing the proprietyof an order of the circuit court granting or denying relief at theconclusion of the evidentiary stage of a proceeding. Coleman, 183 Ill.2d at 385. Although Coleman involved a proceeding under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1994)), thiscourt has recognized that, "[t]ypically, the manifest error standard isappropriate to review findings of fact made by a trial judge" in othercivil actions. See Webster v. Hartman, 195 Ill. 2d 426, 432 (2001),citing Coleman, 183 Ill. 2d at 384-85.

Coleman further noted the abuse of discretion standard of reviewhas traditionally been reserved for trial court decisions deserving greatdeference, such as overseeing the courtroom or maintaining theprogress of trials. Coleman, 183 Ill. 2d at 387. Colemanacknowledged the abuse of discretion standard of review "has beenrecognized as 'the most deferential standard of review available withthe exception of no review at all.' " Coleman, 183 Ill. 2d at 387,quoting 33 S.D. L. Rev. at 480. Consequently, Coleman concludedthe use of such a deferential standard was inappropriate to review aruling that did not require the trial court to exercise any discretion.Coleman, 183 Ill. 2d at 387.

Coleman also recognized that when all factual inquiries areeliminated, and the trial court's inquiry is limited to the sufficiency ofthe allegations, the question becomes a legal one. Accordingly, thetrial court's ultimate legal determination is subject to de novo plenaryreview. Coleman, 183 Ill. 2d at 388-89.

We agree with defendant that it is inappropriate to apply an abuseof discretion standard of review on appeal from the grant or denial ofa motion to transfer based on improper venue. As the Reichert courtcorrectly recognized, "[e]ither the facts support venue in the countyin which the action was filed or they do not. Once this factualdetermination is made, the trial court has no discretion as to whetherto grant or deny the motion." Reichert, 327 Ill. App. 3d at 393-94.

The "clearly erroneous" standard of review, suggested byplaintiff, has been employed by this court only in reviewing decisionsof administrative agencies. See Carpetland U.S.A., Inc. v. IllinoisDepartment of Employment Security, 201 Ill. 2d 351, 369 (2002);AFM Messenger Service, Inc. v. Department of Employment Security,198 Ill. 2d 380, 395 (2001); City of Belvidere v. Illinois State LaborRelations Board, 181 Ill. 2d 191, 205 (1998). Agency determinationshave historically been entitled to great deference due to an agency'sexperience and expertise in interpreting its governing statutes. SeeAFM Messenger, 198 Ill. 2d at 394-95. We therefore declineplaintiff's invitation to adopt a "clearly erroneous" standard of reviewfor trial court orders granting or denying a motion to transfer basedon improper venue.

In determining the proper scope of review on a motion to transferbased on improper venue, we find Lake County Riverboat instructive.In Lake County Riverboat, the appellate court noted that proper venuedeterminations involve separate questions of fact and law. LakeCounty Riverboat, 313 Ill. App. 3d at 951, citing ServiceMaster Co.v. Mary Thompson Hospital, 177 Ill. App. 3d 885, 891-95 (1988)(reviewing the facts of the case and then determining as a matter oflaw whether venue is proper). Lake County Riverboat properlyrecognized that questions of fact are reviewed for manifest error, andquestions of law are reviewed de novo. Lake County Riverboat, 313Ill. App. 3d at 951. When there is no dispute concerning the factsrelied upon by the court, Lake County Riverboat concluded a de novostandard of review was proper. Lake County Riverboat, 313 Ill. App.3d at 951.

We agree with the standards set forth by Lake County Riverboat.The determination of proper statutory venue raises separate questionsof fact and law because it necessarily requires a trial court to rule onthe legal effect of its factual findings. In other words, after firstexamining the facts of the case, the trial court must then determinewhether the venue statute is satisfied. The inquiry thus requires a two-step analysis. First, the trial court's underlying factual findings arereviewed deferentially. A trial court's findings of fact will not bedisturbed on review unless those findings are against the manifestweight of the evidence. Eychaner v. Gross, 202 Ill. 2d 228, 251(2002). Second, the trial court's conclusion of law is reviewed denovo. Eychaner, 202 Ill. 2d at 252. With these standards of review inmind, we now review the merits of this appeal.

B. Whether the Circuit Court Erred in Denying Defendant's Motionto Transfer Venue

Let us first be clear what is and is not at issue in this case.Defendant based its motion to transfer solely on a claim that venue isimproper in Cook County. Defendant did not base its motion totransfer on a claim of forum non conveniens. We do not, therefore,consider whether the facts of this case would have supported a venuetransfer based on a claim of forum non conveniens.

"Proper venue is an important statutory privilege." Bucklew v.G.D. Searle & Co., 138 Ill. 2d 282, 288 (1990). A defendant has theright to insist that a lawsuit proceed in a proper venue, provided thedefendant timely raises a venue objection. Williams v. Illinois StateScholarship Comm'n, 139 Ill. 2d 24, 52-53 (1990). A defendant mayraise, waive, or forfeit an objection to improper venue. See 735 ILCS5/2-104(b) (West 2000); Horn v. Rincker, 84 Ill. 2d 139, 145-46(1981).

We reiterate the determination of proper statutory venue raisesseparate questions of fact and law. We will not disturb a trial court'sfindings of fact unless those findings are against the manifest weightof the evidence. Eychaner, 202 Ill. 2d at 251; Webster, 195 Ill. 2d at432. "A decision is against the manifest weight of the evidence onlywhen an opposite conclusion is apparent or when the findings appearto be unreasonable, arbitrary, or not based on the evidence."Eychaner, 202 Ill. 2d at 252. A reviewing court must not substitute itsown judgment for the judgment of the trier of fact. Kalata v.Anheuser-Busch Cos., 144 Ill. 2d 425, 434 (1991). After reviewingthe trial court's factual findings, we review the legal effect of the trialcourt's conclusions de novo. Eychaner, 202 Ill. 2d at 252.

It is the defendant's burden to prove plaintiff's venue selectionwas improper. Weaver v. Midwest Towing, Inc., 116 Ill. 2d 279, 285(1987). "In doing so, the defendant must set out specific facts, notconclusions, and show a clear right to the relief asked for." Weaver,116 Ill. 2d at 285 (citing Taylor v. Southern Ry. Co., 350 Ill. 139, 143(1932), and Winn v. Vogel, 345 Ill. App. 425, 430 (1952)). "Anydoubts arising from the inadequacy of the record will be resolvedagainst the defendant." Weaver, 116 Ill. 2d at 285, citing Foutch v.O'Bryant, 99 Ill. 2d 389, 391-92 (1984).

Defendant argues the circuit court of Cook County erred indenying its motion to transfer venue to Vermilion County. Accordingto defendant the circuit court held that Cook County is a proper venuebecause the Cook County residence of a single employee of thedefendant constituted an "other office" of the defendant since thatemployee does business from his residence. Nothing in the recordsupports defendant's characterization of the circuit court's factualdeterminations.

Moreover, it is unclear how the appellate court could havereviewed the circuit court's factual findings because nothing in thesupporting record contains any factual findings or the basis for thecircuit court's decision. The order of the circuit court denyingdefendant's motion to transfer venue simply states, "This causecoming to be heard on motion of defendant, Mervis Industries, totransfer venue; it is hereby ordered that defendant's motion is denied."The supporting record contains no transcript of the hearing ondefendant's motion to transfer venue. No additional record on appealor report of proceedings was provided to the appellate court aspermitted by Rule 306(h) (155 Ill. 2d R. 306(h)). There was nobystander's report or agreed statement of facts filed as authorizedunder Rule 323 (166 Ill. 2d R. 323). Moreover, the record providedto this court for review was the same record presented to the appellatecourt for its review.

From our examination of the supporting record, we know onlythat defendant's motion to transfer venue was called for hearing onDecember 16, 2002. We do not know what evidence or argumentswere presented at that hearing, nor are we informed of the circuitcourt's findings of fact or its reasoning in denying defendant's motionto transfer venue. We only know that the circuit court denieddefendant's motion to transfer venue after conducting a hearing. Thus,we cannot determine whether the circuit court's order is based on oneor more of the statutory bases for venue.

This court has recognized that to support a claim of error, theappellant has the burden to present a sufficiently complete record.Webster, 195 Ill. 2d at 432, citing Foutch, 99 Ill. 2d at 391-92 ("anappellant has the burden to present a sufficiently complete record ofthe proceedings at trial to support a claim of error"). An issue relatingto a circuit court's factual findings and basis for its legal conclusionsobviously cannot be reviewed absent a report or record of theproceeding. Webster, 195 Ill. 2d at 432 ("Where the issue on appealrelates to the conduct of a hearing or proceeding, this issue is notsubject to review absent a report or record of the proceeding").

Without an adequate record preserving the claimed error, thereviewing court must presume the circuit court had a sufficient factualbasis for its holding and that its order conforms with the law. Webster,195 Ill. 2d at 432; Foutch, 99 Ill. 2d at 392. "Any doubts which mayarise from the incompleteness of the record will be resolved againstthe appellant." Foutch, 99 Ill. 2d at 392.

Accordingly, we cannot review the claimed error to determinewhether the trial court's factual findings were against the manifestweight of the evidence, or consider the legal effect of its factualfindings. Consequently, the appellate court's conclusion was notsupported by the record and we make no pronouncement on itsdetermination that venue was proper in Cook County based on itsconclusion that defendant maintains an "other office" in Cook County.Nonetheless, we affirm its judgment affirming the denial ofdefendant's motion to transfer venue to Vermilion County.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of theappellate court, affirming the order of the circuit court of CookCounty, denying defendant's motion to transfer based on impropervenue.

Affirmed.

JUSTICE GARMAN took no part in the consideration ordecision of this case.