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Reichert v. Court of CLaims of the State of Illinois

January 18, 2002

LARRY REICHERT, PETITIONER-APPELLEE
v.
THE COURT OF CLAIMS OF THE STATE OF ILLINOIS, RESPONDENT-APPELLEE (THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, INTERVENING RESPONDENT-APPELLANT)



Appeal from the Circuit Court of Pope County. No. 00-MR-4 Honorable Donald Lowery, Judge, presiding.

The opinion of the court was delivered by: Justice Welch

UNPUBLISHED

On April 18, 2000, Larry Reichert filed, in the circuit court of Pope County, a petition for writ of certiorari seeking the review of a decision of the Court of Claims of the State of Illinois (Court of Claims) in Reichert's personal-injury action against the Board of Trustees of the University of Illinois (University). Named as the respondent to the petition is the Court of Claims. The petition seeks the review of a decision of the Court of Claims which held that, because Reichert's personal injuries did not arise out of the University's operation of a "vehicle," Reichert's damages were limited to the statutory maximum of $100,000.

On May 25, 2000, the Court of Claims filed a motion to transfer venue to Sangamon County, arguing that Pope County was an improper venue and that the only proper venue was Sangamon County. Reichert opposed the motion, and on January 2, 2001, the motion to transfer venue was denied by the circuit court.

On February 23, 2001, the University filed a petition to intervene in the certiorari action. Apparently, no party objected. This petition was granted on March 6, 2001.

Also on February 23, 2001, the University filed a motion to transfer venue from Pope County to Sangamon County or, in the alternative, to Cook County. The University's motion raises substantially the same points as did the Court of Claims' motion to transfer venue. The record contains no objection or response by Reichert. On March 7, 2001, the circuit court of Pope County denied this motion to transfer venue.

The University's petition for leave to appeal to this court was granted on May 7, 2001, pursuant to Supreme Court Rule 306 (166 Ill. 2d R. 306). We note that no party has challenged the University's standing, as an intervenor, to raise the issue of proper venue.

The Court of Claims did not file a petition for leave to appeal to this court. Accordingly, although properly a party to this appeal, its status before this court is that of an appellee. Its motion to be realigned as an appellant was denied by an order dated May 29, 2001. Nevertheless, the Court of Claims has filed a brief attacking the judgment below. As an appellee, it has no standing to do so but may only argue in support of the judgment below. Accordingly, we will sua sponte strike the brief of the Court of Claims filed herein and will address ourselves only to the arguments of the University attacking the judgment below. The relevant facts are undisputed. Reichert's personal injuries were incurred in Pope County. In the Court of Claims, all the pleadings were filed and all the proceedings took place in Sangamon County. The principal, and only, offices of the Court of Claims are located in Sangamon and Cook Counties.

We begin with a discussion of the appropriate standard of review, which the parties dispute. The University insists that because in this case the facts are undisputed, the only issue before this court is one of law and review should be de novo. Reichert insists that the appropriate standard of review is whether the trial court abused its discretion. We note a split of authority on this issue. Several cases hold that the determination of proper venue is discretionary with the court and that the trial court's decision should be reviewed to determine whether it abused its discretion. See Johnson v. Compost Products, Inc., 314 Ill. App. 3d 231, 236 (2000); Wheat v. Wilbur, 261 Ill. App. 3d 323, 324 (1994). Indeed, even the Illinois Supreme Court has held that the determination of proper venue is discretionary. See Stambaugh v. International Harvester Co., 102 Ill. 2d 250, 263 (1984).

Nevertheless, in Lake County Riverboat L.P. v. Illinois Gaming Board, 313 Ill. App. 3d 943, 951 (2000), the court held that the issue of whether a particular venue is proper raises a mixed question of law and fact. The court pointed out that being sued in a proper venue is an important statutory privilege and that a defendant has an absolute right to insist upon a proper venue. Lake County Riverboat L.P., 313 Ill. App. 3d at 951. Because in that case the facts were undisputed, the court held that the issue of proper venue was one of law to be reviewed de novo.

We are persuaded by the reasoning of Lake County Riverboat L.P., 313 Ill. App. 3d at 951. The determination of proper venue is not discretionary; it is compulsory. Although a defendant may waive the issue of proper venue, once a proper motion to transfer based on improper venue is raised and proved, the trial court has no discretion but to grant it.

We do not lightly disregard the holding of our supreme court in Stambaugh that the determination of proper venue is discretionary. We note, however, that the case upon which Stambaugh relied as authority for the proper standard of review, Morrison v. Community Unit School District No. 1, 44 Ill. App. 3d 315 (1976), did not involve a motion to transfer for improper venue. Instead, that case involved a motion to transfer venue to a different court for fear that the inhabitants of the county were prejudiced against the movant and that a fair trial could not be received, pursuant to what was then section 4 of "An Act to revise the law in relation to change of venue" (Ill. Rev. Stat. 1971, ch. 146, par. 4 (now see 735 ILCS 5/2-104 (West 2000))). Such a motion does fall within a trial court's sound discretion. However, in our view, a ruling on a motion to transfer for improper venue is not discretionary. Either the facts support venue in the county in which the action was filed or they do not. Once this factual determination is made, the trial court has no discretion as to whether to grant or deny the motion. Therefore, it seems to us that the proper standard of review is, as Lake County Riverboat L.P., 313 Ill. App. 3d at 951, held, a mixed question of law and fact. We also note that of the two appellate court decisions cited above which hold that the appropriate standard of review is the abuse-of-discretion standard, one relied on a forum non conveniens case for authority (Wheat, 261 Ill. App. 3d at 324) and the other relied on Stambaugh as authority (Johnson, 314 Ill. App. 3d at 236).

Accordingly, we adopt and apply herein the standard of review as set forth in Lake County Riverboat L.P.. Because in this case, as in that case, the facts are undisputed, we review the issue de novo.

Section 2-101 of the Code of Civil Procedure (Code) (735 ILCS 5/2-101 (West 2000)) is the general venue provision. It provides that every action must be commenced either in the county of residence of any defendant who is joined in good faith 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 2000). Under this general venue provision, a private corporation is deemed to be a resident of any county in which it has an office or is doing business, a partnership is deemed to be a resident of any county in which it has an office, in which it is doing business, or in which a partner resides, ...


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