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Martin-trigona v. Roderick

MAY 28, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH A. SOLAN, Judge, presiding.


This is an appeal from an order entered by the Circuit Court of Cook County dismissing the plaintiff's cause of action for failure to comply with the court's order for transfer of venue.

The only issue presented on appeal is whether the "waiver of venue" provision found in the plaintiff's lease was valid and enforceable.

On August 21, 1972, the defendants signed a lease for a three-bedroom apartment located in Champaign, Illinois. The plaintiff, Anthony R. Martin-Trigona, was the owner and lessor of said apartment. The lease provided in pertinent part:

"* * * Lessee further consents and waives venue or other objections to lessor instituting any action under this lease in any circuit court of Illinois * * *."

On December 14, 1972, plaintiff filed a complaint in the Circuit Court of Cook County to recover rent payments owed by defendants. The defendants filed a motion to transfer the cause of Champaign County, alleging improper venue. Defendants established by affidavit the lease had been signed in Champaign and all defendants resided in Champaign County. On February 15, 1973, an order was entered by the trial court transferring the cause to the Circuit Court of the Sixth Judicial Circuit, Champaign County, Illinois. On July 10, 1973, defendants' motion to dismiss plaintiff's cause of action for failure to transfer pursuant to court order was granted. Plaintiff's appeal resulted from such action.

The plaintiff contends the defendants waived venue by signing the lease containing a "waiver of venue" provision. In support of his contention, plaintiff cites several Federal cases involving the right of removal to the Federal courts from a State court via a contractual waiver, the question of proper diversity jurisdiction, or an interpretation of the Federal forum non conveniens rules. The Federal cases relied on by plaintiff are distinguishable, however, from the case at bar. Plaintiff also cites May v. Chas. O. Larson Co., (1940), 304 Ill. App. 137, wherein the appellate court held a defendant may waive venue by his failure to make a timely objection to venue. The May case, however, does not involve a "waiver of venue" contractual provision.

• 1-3 We believe the "waiver of venue" provision contained in plaintiff's lease is void as against public policy. The Illinois venue statute (Ill. Rev. Stat. 1971, ch. 110, § 5) provides:

"Except as otherwise provided in this Act, every action must be commenced (a) in the county of residence of any defendant who is joined in good faith * * * or (b) in the county in which the transaction or some part thereof occurred out of which the cause of action arose."

The above-quoted language clearly shows a legislative purpose that the venue statute is to be mandatorily applied to all venue questions, with the only exceptions being expressly provided by the Civil Practice Act. There is an "otherwise provided" in section 8(2) of the Act (Ill. Rev. Stat. 1971, ch. 110, § 8(2)), which states that all objections of improper venue are waived unless a timely motion for transfer is filed. Defendants in the instant case filed their motion to transfer in compliance with section 8(2), and thus did not waive venue. Allowing waiver of venue provisions in contracts would result in utter chaos with court dockets. It would allow a landlord to insert into a lease a clause stating the lessor could choose any forum in which to bring a cause of action, to the ridiculous conclusion that Chicago-area lawsuits would be tried in such places as Pope or Alexander counties in the extreme southern portion of the state. Likewise, counties surrounding Cook County would become excessively burdened attempting to handle the large volume of Chicago-area causes of action. Precisely for these reasons, the appellate court, in Heldt v. Watts (1946), 329 Ill. App. 408, succinctly explained the purpose behind the Illinois venue statute. The court stated:

"The legislature clearly meant to protect a defendant against being sued in a county arbitrarily selected by a plaintiff, wherein the defendant does not reside, or in which no part of the transaction occurred which gave rise to the cause of action. If a plaintiff could so select the county to bring his suit, obviously a defendant would be entirely at his mercy, since such an action could be made oppressive and unbearably costly."

In the present case, all of the defendants are residents of Champaign County, the leased premises in question are located in Champaign County, and the lease was entered into in Champaign County. Under section 5 of the Civil Practice Act, plaintiff's lawsuit could not be brought other than in Champaign County.

For the reason stated herein, the judgment of the Circuit Court of Cook ...

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