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09/01/95 LANCE EVANS v. MD CON

September 1, 1995

LANCE EVANS, PLAINTIFF-APPELLEE,
v.
MD CON, INC., DEFENDANT-APPELLANT, AND KEHE FOOD DISTRIBUTORS, INC., KEHE ENTERPRISES, INC., UNARCO MATERIALS HANDLING DIVISION OF UNR INDUSTRIES, UNR INDUSTRIES, AND HUNDREISER-GUTOWSKY & ASSOCIATES, INC., DEFENDANTS.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE JOSEPH CASCIATO, JUDGE PRESIDING.

Rehearing Denied October 4, 1995.

The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr., P.j., and T. O'brien, J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

The plaintiff-appellee Lance Evans filed a complaint in the circuit court of Cook County seeking recovery for injuries he sustained in a work-related fall. The defendant-appellant MD Con, Inc. (hereinafter referred to as MD Con) filed a motion to transfer this action to the circuit court of Will County based on the doctrine of intrastate forum non conveniens. The circuit court denied MD Con's motion from which denial MD Con petitioned this court for leave to appeal pursuant to Supreme Court Rule 306(a)(2). (134 Ill. 2d R. 306(a)(2).) We granted MD Con's petition.

FACTS

The following facts were presented to the trial court by defendant MD Con as disclosed in the plaintiff's complaint, the plaintiff's answers to MD Con's forum non conveniens interrogatories, and in an uncontested affidavit executed by a representative of its co-defendant Hundreiser-Gutowsky & Associates, Inc. The plaintiff, a resident of Grundy County, was employed by Stevens Precision Erectors, Inc., which maintains its principal place of business in Will County. On July 2, 1990, pursuant to his employment, he was part of a crew assigned to erect and install steel storage racks within a then under-construction warehouse which was owned by either Kehe Food Distributors, Inc., Kehe Enterprises, Inc., or both. That warehouse was located in Will County. During the installation of the steel storage racks the plaintiff fell to the ground and was injured. He received initial and continuing medical treatment at a hospital and doctors' offices located in DuPage County.

In his answers to MD Con's interrogatories the plaintiff identified eighteen persons who were present at the warehouse site at the time of his injury, three of whom witnessed his fall. Of those eighteen persons, thirteen reside in Will County, one resides in DuPage County, one resides in Grundy County, and the county of residence of three is unknown. All three of the eyewitnesses reside in Will County and are also employees of Stevens Precision Erectors.

The connections of the various defendants to this litigation are as follows: MD Con was the general contractor for the construction of the warehouse in which the plaintiff's injury occurred and has its principal place of business in Lake County and a registered agent in Cook County. Kehe Food Distributors, Inc. and Kehe Enterprises, Inc., as noted above, owned the premises and maintain their principal place of business in Will County and have a registered agent inDuPage County. UNARCO Materials Handling Division of UNR Industries and UNR Industries provided the material from which the storage racks were constructed and both have their principal place of business in Tennessee and have a registered agent in Cook County. Hundreiser-Gutowsky & Associates, Inc. provided architectural services in connection with the construction of the warehouse and has both its principal place of business and a registered agent in Cook County. An affidavit executed by its chief architect stated that Hundreiser-Gutowsky & Associates did not have control over the premises where the plaintiff's injury occurred and otherwise was not involved in the construction of the premises.

After hearing argument, the circuit court denied MD Con's motion without prejudice to renew it in the event that further discovery did not reveal any additional contact between this action and Cook County.

ARGUMENT(S)

The sole issue in this appeal is the propriety of the circuit court's denial of MD Con's motion to transfer this action to the circuit court of Will County pursuant to the doctrine of forum non conveniens. MD Con maintains that the court abused its discretion in denying its motion in that the evidence it presented showed that the relevant public and private considerations strongly indicated the propriety of a transfer of this action to Will County. The plaintiff counters that the circuit court properly denied MD Con's motion because it failed to satisfy the burden of proving that it would be inconvenient to litigate this case in Cook County.

Under section 2-101 of the Code of Civil Procedure venue will lie "in the county of residence of any defendant who is joined in good faith and with probable cause for the purpose of obtaining a judgment" or "in the county in which the transaction or some part thereof occurred out of which the cause of action arose." (735 ILCS 5/2-101 (West 1992).) Section 2-102 of the Code of Civil Procedure provides further that an Illinois corporation or a foreign corporation authorized to transact business in Illinois "is a resident of any county in which it has its registered office or other office or is doing business." 735 ILCS 5/2-102(a) (West 1992).

The application of the doctrine of forum non conveniens, on either an inter or intra state basis, presupposes the existence of more than one proper venue and permits the court in which the action is filed to decline jurisdiction and direct the lawsuit to an alternative forum which it determines can better serve the convenience of the parties and the ends of justice. See Wieser v. Missouri Pacific Railroad Co. (1983), 98 Ill. 2d 359, 365-66, 456 N.E.2d 98, 100-01, 74 Ill. Dec. 596; Moore v. Chicago & Northwestern ...


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