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Tabirta v. Cummings

Court of Appeals of Illinois, First District, Second Division

March 26, 2019

SERGIU TABIRTA, Plaintiff-Respondent-Appellee,
v.
JAMES J. CUMMINGS and GLISTER MARY LEE CORPORATION, Defendants-Petitioners-Appellants.

          Appeal from the Circuit Court of Cook County, No. 16-L-12605; the Hon. John H. Ehrlich, Judge, presiding.

          Jason D. Guerra, Ted L. Perryman, and Steven A. Ahillen, of St. Louis, Missouri, for appellants.

          Gregory A. Patricoski and Mark G. Patricoski, of Patricoski Law Offices, of Wheaton, for appellee.

          Panel JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justices Mason and Hyman concurred in the judgment and opinion.

          OPINION

          PUCINSKI, JUSTICE

         ¶ 1 Plaintiff Sergiu Tabirta filed a negligence action in Cook County, Illinois, against James Cummings and Glister Mary Lee Corporation (GML) after sustaining injuries in a vehicle accident that occurred in Ohio. Defendants, in turn, challenged Tabirta's chosen venue because the accident did not occur in Cook County and neither defendant admitted to being a "resident" of the county as required by the Illinois venue statute. The circuit court denied defendants' motions to change venue, and defendants have appealed the court's ruling. For the reasons explained herein, we affirm the judgment of the circuit court.

         ¶ 2 I. BACKGROUND

         ¶ 3 On December 13, 2016, at approximately 2:20 p.m., a tractor trailer driven by Cummings collided with the commercial truck that plaintiff[1] was driving near mile post 168 on Interstate Road 71, a public highway located in Delaware County, Ohio. At the time of the accident, the tractor trailer that Cummings was operating was owned by GML, a Missouri corporation that manufactures, sells, and delivers private-label nonperishable food items and has its principal place of business located in Randolph County, Illinois. Tabirta suffered multiple serious injuries as a result of the accident, including the amputation of both of his legs.

         ¶ 4 Following the accident, Tabirta brought suit against Cummings and GML. Tabirta alleged in pertinent part that Cummings was negligent in the manner in which he operated the tractor trailer. Tabirta further alleged that Cummings was an agent of GML at the time of the accident, and thus he sought to hold the company accountable pursuant to an agency theory of liability. Tabirta, a resident of Cook County, Illinois, filed his suit in Cook County. He mistakenly identified GML as an Illinois corporation with its principal place of business in Cook County, Illinois.

         ¶ 5 In response, GML filed a motion to dismiss Tabirta's lawsuit on the grounds that it was not initiated in a proper venue. Alternatively, GML requested that Tabirta's suit be transferred to an appropriate venue. In support of its motion, GML argued: "Defendant James Cummings does not reside in Cook County, Illinois. Defendant GML does not own or lease any property in Cook County, does not have a registered office/agent in Cook County, and does not conduct its usual and customary business in Cook County." Given that the vehicle accident that precipitated Tabirta's lawsuit did not occur in Cook County, Illinois, and that neither defendant resided in Cook County, Illinois, GML argued that the requirements of the Illinois venue statute were not satisfied.

         ¶ 6 In support of its motion, GML attached an affidavit completed by Michael Heffernan, the company's transportation safety and risk manager. In his affidavit, Heffernan averred that GML is a Missouri corporation with its registered agent and principal place of business located at "1037 State Street, Chester, Illinois, 62233, County of Randolph." Heffernan further averred that GML does not own or lease any real property or office space in Cook County and does not have an authorized agent in Cook County. Heffernan also stated that GML "does not conduct its usual and customary business within Cook County, Illinois," and expressly denied that GML designs, manufactures, advertises, or finances its products from within Cook County. Finally, Heffernan averred that GML's "annual sales in Cook County, Illinois, in 2016 constituted 0.19% *** of its overall national annual sales" and that GML's annual sales in Cook County "did not exceed 0.47% of its overall national sales" during any of the five years preceding the accident.

         ¶ 7 Cummings also filed a motion to dismiss Tabirta's lawsuit or, alternatively, to transfer to the suit to another venue. He expressly adopted, realleged, and incorporated the substance of GML's motion in his own filing.

         ¶ 8 After defendants filed their motions challenging Tabirta's chosen venue, the parties engaged in limited discovery with respect to that issue. During the course of that discovery, GML submitted answers to plaintiff's interrogatory requests, and several of its employees were deposed.

         ¶ 9 In its answers, GML admitted that it had conducted business in Cook County since 1968 but denied that it was "doing business" in the county within the meaning of the Illinois venue statute. Specifically, GML admitted that it purchased materials and supplies from vendors located in Cook County and that it sold some products to customers located in Cook County. In addition, GML acknowledged that delivery vehicles that it owned traveled on roads in Cook County. GML, however, denied advertising in Cook County. GML's total national and international ...


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