Tabirta v. Cummings , 2019 IL App (1st) 172891-B ( 2019 )

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Tabirta v. Cummings, 2019 IL App (1st) 172891-B
Appellate Court SERGIU TABIRTA, Plaintiff-Respondent-Appellee, v. JAMES J.
Caption CUMMINGS and GLISTER MARY LEE CORPORATION,
Defendants-Petitioners-Appellants.
District & No. First District, Second Division
Docket No. 1-17-2891
Filed March 26, 2019
Decision Under Appeal from the Circuit Court of Cook County, No. 16-L-12605; the
Review Hon. John H. Ehrlich, Judge, presiding.
Judgment Affirmed.
Counsel on Jason D. Guerra, Ted L. Perryman, and Steven A. Ahillen, of
Appeal 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
¶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
1
At the time of the accident, plaintiff was an employee of GT Express and was operating a truck
owned by that company.
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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 sales in 2016 amounted to $686,328,949. Sales in Cook County in 2016
amounted to $1,348,507 and comprised only 0.19% of its total annual revenue.
¶ 10 In a discovery deposition, James Bolton, a Cook County resident for the past 50 years,
testified that he commenced part-time employment with GML in 2011. His understanding
was that he was hired because GML needed a point person in Chicago. He services three
customers, only one of which is located in Cook County. Bolton testified that he corresponds
with the customers via phone and e-mail and uses his own cell phone and computer to do so.
GML provided him with a corporate 1-800 number for clients to reach him. He
“occasionally” meets with GML’s customers in person and is reimbursed for any travel
expenses. GML does not, however, reimburse him for his home office expenses. Bolton does
not maintain any files or records at his home office.
¶ 11 Bolton also completed an affidavit. In his affidavit, he reiterated that he was hired to
service three customers—Aldi, Central Grocery, and Sears/Kmart—and averred that 85% of
his time is spent dealing with Aldi. Aldi’s headquarters is located in Batavia, which straddles
Kane and Du Page Counties. The headquarters of one of his other clients, Sears/K-Mart, is
located in Cook County, and he visits that office approximately twice per year. Bolton
estimated that he devotes “less than 5%” of his work involved dealing with Sears/K-Mart. He
never meets with clients at his home.
¶ 12 Michael Heffernan, GML’s transportation safety and risk manager, was also deposed. He
acknowledged that Bolton was a W-2 employee of GML and classified Bolton as a sales
representative. Although GML conducted some business in Cook County, Heffernan testified
that Cook County was “not a significant part or a focus of GML’s business” and that “very
little” of GML’s overall sales occurred in Cook County. From 2011-16, GML’s sales in Cook
County totaled $17,297,873.32.
¶ 13 Thomas Welge, general counsel for GML, was also deposed. He classified Bolton as an
“administrative type point person.” Welge denied that Bolton was hired because GML
specifically needed a point person in Chicago or Cook County. He explained that the
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company simply wanted a contact person in Illinois to service Aldi, one of GML’s biggest
customers, which had an office in Batavia, Illinois. In his accompanying affidavit, Welge
reiterated that when GML hired Bolton, the company was seeking to hire an employee who
lived near the general vicinity of Aldi’s Batavia office. He averred that residence in Cook
County specifically was not a job requirement and that Bolton’s employment was not
contingent upon him residing in Cook County.
¶ 14 Upon the completion of the aforementioned discovery, Tabirta filed his response to
defendants’ motions challenging his choice of Cook County as a proper venue. Relying on
Bolton’s deposition testimony, Tabirta argued that, although GML’s registered agent and
office were located in Randolph County, Bolton’s Cook County residence from which he
serviced three GML clients constituted an “other office” within the meaning of the Illinois
venue statute. Moreover, citing GML’s long-standing history of conducting business in Cook
County, Tabirta argued that GML was also “doing business” in the county. Given that GML
maintained an “other office” and was “doing business” in Cook County, Tabirta argued that
Cook County was a proper venue and that defendants’ challenges toward his chosen venue
lacked merit.
¶ 15 Following a hearing, the circuit court denied defendants’ motions to dismiss Tabirta’s
suit for being initiated in an improper venue. In doing so, the court acknowledged that the
accident did not occur in Cook County and found that GML was not truly “doing business”
in Cook County given that only a “very, very small percentage of [its] sales” occur within the
county. Nonetheless, the court concluded that venue was proper in Cook County because
GML maintained an office in Cook County, by virtue of the fact that James Bolton, one of its
employees, “service[ed] clients on behalf of his employer” out of his Cook County residence.
The court concluded that “the simple fact that [Bolton’s] working out of his home doesn’t
*** deny the fact that it’s still a place where GML is doing business out of.”
¶ 16 Following entry of the circuit court’s order, defendants filed a petition for leave to appeal
with this court pursuant to Illinois Supreme Court Rule 306(a)(4) (eff. Nov. 1, 2017) seeking
review of the circuit court’s judgment. This court, however, denied defendants’ petition for
leave to appeal. In response, defendants filed a petition for leave to appeal with the Illinois
Supreme Court. The supreme court also denied defendants leave to appeal; however, in an
exercise of its supervisory authority, the court directed this court to vacate our prior order and
to allow the petition. Tabirta v. Cummings, No. 123344 (Ill. Feb. 5, 2018). In light of the
supreme court’s exercise of its supervisory authority in this matter, we now allow
defendants’ petition for leave to appeal and consider their appeal on the merits.
¶ 17 II. ANALYSIS
¶ 18 On appeal, defendants contend that the circuit court erred in denying their motion to
transfer venue because “no part of the ‘transaction’ occurred in Cook County and no
defendant is a resident of Cook County.”
¶ 19 Tabirta responds that the circuit court properly found that venue is proper in Cook
County, Illinois, because GML “has a fixed office in Chicago, Cook County, managed and
maintained by its salaried employee James Bolton and operated in furtherance of *** GML’s
corporate interests and in support of its Cook County, Illinois[,] customers.”
¶ 20 Being subject to suit in a proper venue is an important statutory privilege. Corral v.
Mervis Industries, Inc., 217 Ill. 2d 144, 154 (2005); Lake County Riverboat L.P. v. Illinois
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Gaming Board, 313 Ill. App. 3d 943, 951 (2000). As such, a defendant has the right to insist
that a lawsuit proceed in a proper venue provided that the objection is made in a timely
manner. Corral, 217 Ill. 2d at 154. A defendant who objects to a plaintiff’s chosen venue
then bears the burden of proving that the venue is incorrect and must be able to identify
specific facts that establish that the plaintiff’s choice of venue is not proper. Id. at 155;
Reynolds v. GMAC Financial Services, 344 Ill. App. 3d 843, 848 (2003). Any inconsistencies
and doubts in the record with respect to the issue of venue will be resolved against the
defendant. Corral, 217 Ill. 2d at 155; Reynolds, 344 Ill. App. 3d at 848. Because the issue of
venue presents mixed questions of fact and law, the circuit court’s underlying factual
findings will not be disturbed unless they are against the manifest weight of the evidence;
however, its ultimate determination as to whether the venue statute is satisfied is subject to
de novo review. Corral, 217 Ill. 2d at 154-55.
¶ 21 “The purpose behind venue statutes is to protect defendants against a plaintiff’s arbitrary
selection of forum.” Lake County Riverboat, 313 Ill. App. 3d at 951. To effectuate that
purpose, venue statutes restrict proper venue to places that are convenient either to a
defendant or to potential witnesses. Bucklew v. G.D. Searle & Co., 138 Ill. 2d 282, 288-89
(1990); Lake County Riverboat, 313 Ill. App. 3d at 951. Section 2-101 of the Code of Civil
Procedure (Code) governs venue in Illinois and provides, in pertinent part, as follows:
“Except as otherwise provided in this Act, every action must be commenced (1) 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 against him or her and not solely for
the purpose of fixing venue in that county, or (2) 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 2014).
¶ 22 This statute “reflects a legislative determination that a party should not be required to
defend an action in a county that has little or no relation to the party or the transaction that is
the subject of the [plaintiff’s] suit.” Melliere v. Luhr Bros., Inc., 302 Ill. App. 3d 794, 796
(1999).
¶ 23 Here, the traffic accident took place in Ohio. It is thus undisputed that no part of the
underlying transaction at issue occurred in Cook County. It is also undisputed that defendant
Cummings is not a Cook County resident. Venue in Cook County is thus only proper in the
instant case if GML is a resident of Cook County.
¶ 24 With respect to county of residence of corporate defendants, section 2-102 of the Code
provides that “[a]ny private corporation *** organized under the laws of this State, and any
foreign corporation authorized to transact business in this State is a resident of any county in
which it has its registered office or other office or is doing business.” (Emphases added.) 735
ILCS 5/2-102(a) (West 2014). This provision “reflect[s] the legislature’s view that a
[corporate defendant] should not be put to the burden of defending an action in a county
where the party does not maintain an office or do business and where no part of the
transaction complained of occurred.” Bucklew, 138 Ill. 2d at 289.
¶ 25 GML is a Missouri corporation with its principal place of business and registered agent
located in Randolph County, Illinois. Pursuant to section 2-102 of the Code, venue is thus
only proper in Cook County if GML has an “other office” in Cook County or is “doing
business” in Cook County.
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¶ 26 The term “other office” is not defined by statute, and aside from the Fifth District’s
decision in Melliere, 302 Ill. App. 3d 794, there is a dearth of case law construing the phrase.
In Melliere, the plaintiff filed suit in St. Clair County, Illinois, against his employer after he
sustained injuries on a construction site located near Kentucky. His employer, an Illinois
construction corporation with its corporate headquarters located in Monroe County, Illinois,
filed a motion to transfer the case for lack of venue. The circuit court, however, denied the
motion, finding that the corporation maintained an “other office” in St. Clair County by
virtue of the fact that it leased a hangar at a local airport, which the company used to house
its corporate aircraft. The court noted that the company employed two full-time pilots who
regularly reported to work at the hangar to fly company employees to job sites, job bids, and
to construction industry meetings and conventions. In addition, the hangar was equipped with
a phone and desk for the pilots to use and a local telephone directory contained a listing for
the company at the airplane hangar. Id. at 796.
¶ 27 The company appealed the circuit court’s ruling, arguing that the phrase “other office”
should be “defined as a place for the regular transaction of business or performance of a
particular service” and that the airplane hangar did not fall within that definition because the
company was not engaged in the business of commercial aviation and none of its employees
responsible for the transaction of its regular construction business reported to work at the
hangar. Id. at 797. According to the company, the term “other office” should be limited to a
facility in which its clerical work was performed and from which it prepared its construction
bids, fielded inquiries about its business, and dispatched its employees to perform
construction-related tasks. Id. at 798.
¶ 28 The Appellate Court, Fifth District, however, rejected the company’s “narrow” and
“restrictive” interpretation of the word “office.” In doing so, the court found persuasive a
Georgia Supreme Court decision broadly construing the term “office” as used in the Georgia
venue statute as simply a “place of business.” Id. at 798-99 (citing Scott v. Atlanta Dairies
Cooperative, 238 S.E.2d 340 (Ga. 1977)). Relying on this construction of the term, the
Georgia Supreme Court concluded that a filling station, rented by the defendant dairy
company that was used to maintain its delivery trucks and from which it dispatched its
employees to pick up milk, constituted an office even though the building was not a
traditional clerical office that was open to the public. Id. at 799 (citing Atlanta Dairies, 238
S.E.2d 340). Employing the rationale utilized by the Georgia Supreme Court, the Fifth
District in Melliere concluded that
“the phrase other office as used in [the Illinois] venue statute means a fixed place of
business at which the affairs of the corporation are conducted in furtherance of a
corporate activity. This other office may be, but need not be, a traditional office in
which clerical activities are conducted. Rather, we believe that the phrase other office
includes any fixed location purposely selected to carry on an activity in furtherance of
the corporation’s business activities. The facility may be open to the public or may be
a strictly private corporate operation.” (Emphases omitted.) Id. at 800.
Accordingly, given that the company’s airplane hangar was regularly used to further its
construction business activities, the Fifth District concluded that the hangar was an “other
office” within the meaning of the Illinois venue statute.
¶ 29 Both parties rely on Melliere to support their respective venue arguments. Defendants
argue that Bolton’s “private residence is simply his home” and that GML has no ownership
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or financial interest in his home and does not manage or control the property in any way.
Because Bolton’s home is not a “fixed location purposely selected by GML to carry on
corporate activities in Cook County,” defendants argue that it does not meet the Melliere
court’s definition of an office for purposes of venue. Tabirta, in turn, responds that Bolton
was specifically hired to work out of his Cook County residence to service several of GML’s
Illinois customers. Because Bolton’s residence is a fixed location chosen specifically by
GML to tend to its Illinois customers and facilitate its corporate interests, Tabirta asserts that
Bolton’s home office meets the Melliere court’s definition of the term office as used in the
Illinois venue statute. We agree with Tabirta.
¶ 30 The record establishes that GML is in the business of manufacturing, selling, and
delivering nonperishable private-label food items. Some of GML’s sales are derived from
customers located in Illinois. The record also establishes that Bolton was hired in 2011 for
the express purpose of servicing three of GML’s Illinois customers, the most important of
which was Aldi, a food retailer with a corporate office located in Batavia, a city in northern
Illinois that straddles Du Page and Kane Counties. The record further establishes that
Bolton’s residence, located in nearby Cook County, was a factor in his hiring. In his
discovery deposition, GML’s general counsel, Thomas Welge, explained that GML was
looking to hire a “point person” in Illinois who lived in close proximity to Aldi’s Batavia
office. Bolton’s Cook County residence satisfied this requirement. Since his hiring, Bolton
has worked approximately 24 hours per week to service and maintain GML’s relationships
with those clients. He is not a traveling salesperson; rather, he spends the vast majority of his
time communicating with GML’s customers via e-mail and over the phone from his home, a
fixed location. Although GML does not possess an ownership interest in Bolton’s personal
residence, we do not find that the lack of such an interest precludes a finding that Bolton’s
residence is an “other office.” Admittedly, the corporate defendant in Melliere leased the
facility found to be an “other office” for purpose of venue; however, the crux of the Melliere
court’s analysis as to whether the facility constituted an “office” for purposes of venue was
not whether the corporate defendant possessed an ownership interest in the property. Instead,
the relevant inquiry was whether the property was a “fixed location purposely selected to
carry on an activity in furtherance of the corporation’s business activities.” Id. Employing
this rationale, we find that Bolton’s home residence satisfies the Melliere court’s definition of
the term “other office” and that GML is thus a resident of Cook County. GML specifically
hired Bolton to service three of its Illinois customers from his Cook County residence and
provided him with an e-mail address and a corporate extension with which to do so. Since his
hiring, Bolton has acted as GML’s “point person” in Illinois and has worked to maintain
GML’s business relationships with its Illinois clients, thereby furthering GML’s corporate
interests. We therefore conclude that the circuit court did not err in denying defendants’
motions seeking dismissal of Tabirta’s lawsuit for lack of proper venue.
¶ 31 In so finding, we are unpersuaded by defendants’ reliance on Peterson v. Monsanto Co.,
157 Ill. App. 3d 508 (1987), a case in which the Fifth District rejected the argument that the
location of an employee’s home office in the plaintiff’s chosen venue was sufficient to
establish that the defendant company was “doing business” in that venue. Id. at 510. Neither
the parties nor the court engaged in any analysis as to whether the employee’s home office
constituted an “other office” within the meaning of the Illinois venue statute. Id. Instead, the
court was only asked to determine whether a company could be found to be doing business in
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a county simply because one of its employees had a home office located in that county. Id.
Accordingly, we disagree that Peterson necessarily compels a different result.
¶ 32 We further disagree that our decision would improperly subject a company to venue in
“any county where any of its agents or employees conduct[ ] any work out of their homes”
and would thus “defy the purpose of the [Illinois venue] statute,” which is designed to protect
defendants against being subjected to a plaintiff’s arbitrary choice of venue. We emphasize
that cases involving questions of venue are fact specific and that our conclusion is based
solely upon the facts present in this case. A fair reading of this disposition does not support
the conclusion that venue is proper in any county in which a corporation’s employee
maintains a home office; rather, we are simply holding that, in this case, Bolton’s home
office in which he regularly services three of GML’s customers constitutes an “other office”
within the meaning of the venue statute. We therefore affirm the judgment of the circuit
court.2
¶ 33 III. CONCLUSION
¶ 34 The judgment of the circuit court is affirmed.
¶ 35 Affirmed.
2
In light of our conclusion that GML maintains an office in Cook County, we need not address
Tabirta’s alternative argument that venue in Cook County is also proper because GML is doing
business in Cook County.
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