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Pre Fab Transit Co. v. Fontaine Trailer Co.

October 06, 1998

PRE FAB TRANSIT COMPANY, A CORPORATION, PLAINTIFF-APPELLANT,
v.
FONTAINE TRAILER COMPANY, INC., A CORPORATION, AND INDEPENDENT TRAILER & REPAIR, INC., A CORPORATION, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Green

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Appeal from Circuit Court of De Witt County No. 97LM41

Honorable Stephen H. Peters, Judge Presiding.

Plaintiff, Pre Fab Transit Company, a corporation, appeals an order entered December 1, 1997, in the circuit court of De Witt County, dismissing its complaint against defendants' Fontaine Trailer Company, Inc. (Fontaine), and Independent Trailer and Repair, Inc. (Independent Trailer), on the ground of forum non conveniens.

On appeal, Pre Fab contends the trial court erred (1) by not affording plaintiff sufficient time to conduct discovery on the issue of forum non conveniens; (2) in ruling in favor of defendants on the issue of forum non conveniens without conducting a hearing on that motion or affording plaintiff an opportunity to respond to that motion; and (3) by entering an order dismissing the complaint on grounds of forum non conveniens. We conclude plaintiff was not given a fair opportunity to present its position. Accordingly, we reverse and remand for a new hearing on the issue of forum non conveniens.

Plaintiff's complaint contained 15 counts and sought money damages arising from damage to its equipment when dollies manufactured by defendant Independent Trailer and sold to plaintiff by Fontaine Trailer malfunctioned.

Forum non conveniens is a doctrine based on consideration of fundamental fairness and sensible, effective judicial administration. It allows a court to decline to hear a case, even though it may have jurisdiction over the subject matter and parties, when it appears that another forum can better serve the convenience of the parties and the ends of Justice. Certain Underwriters at Lloyd's, London v. Bertrand Goldberg Associates, Inc., 238 Ill. App. 3d 692, 697, 606 N.E.2d 541, 544 (1992).

The dispute in this case arises from uncertainty as to what was said at a hearing held on November 13 or 14, 1997. Prior to that time, both defendants had made motions to dismiss pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 1996)). The parties agree that prior to that date no mention had been made in regard to whether the issue of forum non conveniens was involved. The record indicates that a pretrial conference was scheduled for November 13, 1997. The court's docket contained an entry dated "11/14/97" indicating the parties appeared by counsel and that the court indicated to counsel that plaintiff no longer was "a corporate resident of De Witt Co., Il." The docket further stated: "counsel to brief question of forum non conveniens & to submit briefs to court within 7 days."

The foregoing docket entry then stated "[c]counsel will then make a decision concerning proper forum based on said memorandums." (Emphasis added.) The docket entry further stated: "[c]counsel for Pltf[.] [sic] Ind. Trailer files mtn[.] to dsms." (Emphasis added.) Finally, the docket entry stated "[c]counsel for pltf[.] indicates he will confess each mtn[.] pursuant to 735 ILCS 5/2-615 if the court determines this is a proper forum for this case" and "[s]aid action reserved until court determines issue as to proper forum." At the side of the entry is a notation "chg[.] 11/19/1997."

On November 19, 1997, defendant Independent Trailer filed a motion to dismiss on the basis of forum non conveniens. On November 20, 1997, plaintiff filed a memorandum regarding proper jurisdiction and venue. On December 1, 1997, the circuit court entered the order on appeal purporting to act on both the "court's suggestion of forum non conveniens" and Independent Trailer's motion.

A hearing was held on April 11, 1998, to settle a bystander's bill as to what happened at the hearing on November 13 or November 14, 1997. This was important because the theory of defendants is that the issue of forum non conveniens was raised at this meeting. The evidence is clear that if the issue was properly raised there, plaintiff waived further hearing on that issue and agreed the court could proceed on memoranda presented by the parties.

The most significant testimony at that hearing was that of M. Tod Melton, who was counsel for Independent Trailer in November 1997, but who had later withdrawn from the case. Melton stated in part: "When we came into court to have a hearing on the motions, Judge Peters posed the question of whether it was properly in front of this Court. After some Discussion about that, I suggested that it seemed prudent we address that issue and get it out of the way before we go forward on the merits. All of the attorneys seemed to agree with that and thought it was a good idea. We talked about doing it in a simplified manner in a briefing schedule and the parties seemed to be in agreement that they could have briefs..., filed and sent to the Court, within seven days and we would proceed to have the Court rule on the briefs or memoranda without need for further oral argument."

Melton expanded on that testimony during the following colloquy:

"Question: Other than that, it was your understanding that there was to be ...


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