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Riverside Medical Center v. Holman





Appeal from the Circuit Court of Peoria County; the Hon. Calvin R. Stone, Judge, presiding.


This is an interlocutory appeal certified by the trial judge pursuant to Supreme Court Rule 308 (87 Ill.2d R. 308). Venue is the sole issue.

On December 2, 1981, the plaintiffs, Earnest and Gail Holman, filed an action in Peoria County for medical malpractice. One of the corporate defendants, Kankakee Anesthesiologists, Ltd. (hereinafter KAL), was an Illinois professional corporation with its place of business in Kankakee and its registered office in Peoria. The registered office was the only factor linking the case to Peoria County. The defendants moved to transfer venue from Peoria County to Kankakee County based upon their assertion that none of the defendants were residents of Peoria County for venue purposes under a combined reading of the Business Corporation Act (Ill. Rev. Stat. 1981, ch. 32, par. 157.1 et seq. (hereinafter BCA)) and the Professional Service Corporation Act (Ill. Rev. Stat. 1981, ch. 32, par. 415-1 et seq. (hereinafter PSCA)). Alternatively, defendants moved to transfer venue from Peoria to Kankakee County on the common law doctrine of forum non conveniens. Defendants' motions to transfer venue were denied by the trial court.

An interlocutory appeal was then taken wherein the following question of law was certified:

"The question to be appealed is whether the fact that the registered agent of a professional corporation resides in a county other than that in which the principal place of business of the corporation is located is sufficient to allow venue to be fixed in the county where the registered agent resides and conducts his business."

We deem the question certified to be broad enough to cover the question of venue upon consideration of both the statutory venue provisions and the common law doctrine of forum non conveniens.

Section 5 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 5) provides that for venue purposes, a private corporation is a resident of any county in which it has its registered office or other office or is doing business. According to the articles of incorporation of KAL, its initial registered office is in Peoria and it does business in Kankakee. The defendants argued, however, that under the special circumstances of this case, the registered office of KAL in Peoria could not be used to establish venue in Peoria. The trial court disagreed with KAL and denied their motion to transfer venue to Kankakee County.

In order to fully comprehend defendants' argument, it is first necessary to review the relevant statutes. Section 11 of the BCA requires that every corporation continuously maintain in this State a registered office which may be, but need not be the same as its place of business. (Ill. Rev. Stat. 1981, ch. 32, par. 157.11.) To satisfy this requirement, KAL maintained a registered office in Peoria. However, Section 12 of a different act, the PSCA, forbids a professional service corporation from opening or maintaining an establishment for the purposes for which a corporation may be maintained under the PSCA without a certificate of registration. (Ill. Rev. Stat. 1981, ch. 32, par. 415-12.) Section 4 of the PSCA further provides that in the event of any inconsistency or conflict between the PSCA and the BCA or other statute, the PSCA shall take precedence. Ill. Rev. Stat. 1981, ch. 32, par. 415-4.

The essence of the defendants' argument is that since KAL is a professional service corporation, it can have no registered office under the BCA without first complying with the registration requirements of the PSCA. Since the PSCA takes precedence over the BCA in the event of a conflict, and since KAL's registered office in Peoria does not comply with the PSCA, defendants argue that the Peoria office may not be considered a registered office for purposes of venue. The efficacy of this argument depends upon whether there is indeed a conflict or inconsistency between the relevant provisions of the PSCA and the BCA. We do not find any such inconsistency.

• 1 Our conclusion is premised upon the fact that section 11 of the BCA and section 12 of the PSCA do not regulate the same matters. The only offices which need to comply with section 12 are those maintained for the purpose of providing professional services. The first sentence of section 12 says as much. No one can seriously contend that KAL's registered office in Peoria is maintained for any of the purposes for which KAL is organized under the PSCA. Therefore, the Peoria registered office need not comply with the provisions of the PSCA and may exist separately under section 11 of the BCA.

The defendants alternatively argue that even though Peoria County may be a permissible venue under the statute, venue should nonetheless be transferred under the common law doctrine of forum non conveniens. This doctrine is a part of the common law of Illinois provided it has not been regulated by statute or rule of court. The plaintiff argues that the Illinois legislature has enacted a comprehensive statutory framework dealing with the issue of venue and transfer of venue, thereby preempting that area of the common law dealing with venue. We disagree.

The Civil Practice Act provides for transfer of venue only when an action is filed in the wrong venue. (Ill. Rev. Stat. 1981, ch. 110, par. 7.) However, the Act provides no remedy where venue is prima facie correct, but needlessly oppressive to the defendant. This is precisely the type of situation in which forum non conveniens relief would be most appropriate. The doctrine acts as an independent judicial check on the abuses that may result from a technically correct application of general venue statutes. The fact that the legislature has remained silent on this problem does not indicate to us an intent to repudiate the doctrine. Instead, we believe that the lack of a statutory solution to the problem justifies the existence of a common-law solution such as forum non conveniens. Notwithstanding the fact that there are no statutory restrictions on the doctrine, the plaintiff argues that Illinois courts> have so regulated the doctrine as to make it inapplicable to the instant case. After reviewing the decisions on this subject, we agree.

Common law England first recognized the doctrine of forum non conveniens as a means of reconciling two competing policies in the law. One policy was to provide a plaintiff with a choice of forums to insure that he would have some place to pursue his remedy. The other policy was to prevent a plaintiff from choosing a forum in order to gain a strategic advantage by setting venue in a place most inconvenient to the defendant even though the plaintiff is somewhat inconvenienced himself. To remedy this abuse, courts> were permitted to decline jurisdiction when there existed an alternate forum which could more appropriately and conveniently try the case. The doctrine could never be invoked where the action was initially filed in the wrong venue. (Holmes v. Wainright (K.B. 1803), 3 East 329, 102 Eng. Rep. 624.) Modern England still follows this practice. In the United States, the doctrine is followed in Federal court and in most State jurisdictions but is often subject to certain restrictions.

The essential elements of forum non conveniens as practiced in the United States are best set out in Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508, 91 L.Ed. 1055, 1062, 67 S.Ct. 839, 843. There the court recognized that a plaintiff is entitled to his day in court, and that some degree of inconvenience to the defendant may be necessary to the plaintiff's right to pursue his remedy. It is implicit that before a court will consider a forum non conveniens argument, there be available another venue in which the plaintiff could have filed his action which is fair to both the plaintiff and the defendant. The doctrine may not be used to deprive a plaintiff of a forum. Therefore, a court should weigh the relative advantages and disadvantages of the competing venues by balancing the legitimate needs of the plaintiff against the burden placed on the defendant. Where the chosen venue places an unreasonable burden upon the defendant in terms of expense, travel time and other practical considerations, with no appreciable benefit to the plaintiff, the court may, in its discretion, decline jurisdiction and dismiss the case. At common law, the doctrine of forum non conveniens only allowed a court to decline jurisdiction. Logically, if a court no longer had jurisdiction over the case, then it had no power to transfer it to a more appropriate venue. The only alternative was dismissal. This harsh result has been eliminated by statute in Federal court and at least 16 States. (See Annot., 74 A.L.R.2d 16 (1960).) Those jurisdictions have statutes which permit a defendant to make a motion to transfer venue for the convenience of parties and ...

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