McLARTY v. KUBOTA TRACTOR, LTD , 173 Mich. App. 82 ( 1988 )

173 Mich. App. 82 (1988) 433 N.W.2d 344

McLARTY
v.
KUBOTA TRACTOR, LTD.

Docket Nos. 94450, 94529.

Michigan Court of Appeals.

Decided August 29, 1988.

Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick (by Richard E. Shaw), for plaintiff.

Foster, Meadows & Ballard, P.C. (by Robert H. Fortunate), for Kubota Tractor, Ltd.

Harvey, Kruse, Westen & Milan, P.C. (by John A. Kruse and Ryan A. Husaynu), for Ford Motor Company.

Before: WAHLS, P.J., and SULLIVAN and F.D. BALKWILL,^[*] JJ.

PER CURIAM.

Defendants appeal by leave granted from a circuit court order denying their motion for an order declining jurisdiction. We reverse and remand.

This case arose out of a tractor accident which occurred in Kane County, Illinois. Decedent Kenneth McLarty was operating a tractor manufactured by defendant Kubota Tractor, Ltd., a foreign corporation. The tractor blade was sold by defendant Ford Motor Company. Ford's principal place of business is Michigan. Plaintiff, an Illinois resident, alleges that due to a defective design the tractor tipped over and fell on decedent, causing his death.

Plaintiff and her deceased husband had bought the tractor in Virginia while they were residents of Michigan. When plaintiff and decedent moved to Illinois, they took the tractor with them. The accident occurred in Illinois on property owned by plaintiff and decedent. The summons showed plaintiff to be an Illinois resident. Notwithstanding this nexus to Illinois, plaintiff filed suit in Wayne County, Michigan. Defendants filed a motion in the trial court asking it to decline jurisdiction. The trial court denied the motion. Plaintiff also moved to amend the caption to include a Michigan resident. The trial court denied the motion to amend pending the outcome of this appeal. Defendants now appeal by leave granted. We reverse and remand.

We find that the trial court abused its discretion when it denied defendants' motion to decline jurisdiction. The trial court erroneously relied on Witbeck v Bill Cody's Ranch Inn, 147 Mich. App. 587; 383 NW2d 253 (1985); rev'd on other grounds, 428 Mich. 659; 411 NW2d 439 (1987), and Duyck v International Playtex, Inc, 144 Mich. App. 595; 375 NW2d 769 (1985). In Witbeck, plaintiff and certain key witnesses were Michigan residents. However, this is not the situation in the instant case. Here, only defendant Ford is a Michigan resident. The trial court incorrectly found that plaintiff was a Michigan resident. There is no proof in the record, nor has plaintiff provided any on appeal, that plaintiff has moved from Illinois. Plaintiff argues that she has "close ties" with Michigan and has "always considered Michigan her home." Unfortunately for plaintiff, her emotional ties with Michigan do not transform her from an Illinois resident into a Michigan resident.

Nor are certain key witnesses Michigan residents. On appeal, defendants filed an affidavit stating that the members of the Elburn, Illinois, Fire Department who responded to the scene of the accident would be unavailable without a subpoena. Since plaintiff alleges that the design of the tractor and blade caused the tip-over, these witnesses could testify as to the condition of the terrain and the position of the tractor and the decedent following the accident. Plaintiff did not counter defendants' affidavit with proof that the witnesses would be available. Plaintiff merely alleged that plaintiff intended to call certain key witnesses in Michigan but failed to specifically name them or describe their importance to this case.

In denying defendant's motion, the trial court also quoted a passage from Duyck which states that forum non conveniens is not applicable if any of the parties is a Michigan resident. Duyck, supra at 602-603. However, Duyck is distinguishable from the instant case. The Duyck Court was reviewing a motion for change of venue, not a motion to decline jurisdiction, and while the two motions are analogous, they are not synonymous. Id. at 602. Therefore, the fact that one of the parties is a Michigan resident does not preclude the application of forum non conveniens. See Robey v Ford Motor Co, 155 Mich. App. 643, 646; 400 NW2d 610 (1986).

Defendants' concern that they will be unable to fully defend this case at trial prompted them to request the trial court to decline jurisdiction under the doctrine of forum non conveniens. In Cray v General Motors Corp, 389 Mich. 382; 207 NW2d 393 (1973), our Supreme Court set forth the factors to be considered in deciding such a motion:

1. The private interest of the litigant.

a. Availability of compulsory process for attendance of unwilling and the cost of obtaining attendance of willing witnesses;

b. Ease of access to sources of proof;

c. Distance from the situs of the accident or incident which gave rise to the litigation;

d. Enforcibility [sic] of any judgment obtained;

e. Possible harassment of either party;

f. Other practical problems which contribute to the ease, expense and expedition of the trial;

g. Possibility of viewing the premises.

2. Matters of public interest.

a. Administrative difficulties which may arise in an area which may not be present in the area of origin;

b. Consideration of the state law which must govern the case;

c. People who are concerned by the proceedings.

3. Reasonable promptness in raising the plea of forum non conveniens. [Cray, supra at 396.]

Based on the trial court's erroneous finding that the plaintiff was a Michigan resident, it did not consider each of the factors enunciated in Cray. Therefore, we reverse the decision of the trial court and remand for an evidentiary hearing. At the hearing the trial court shall determine the issue of forum non conveniens by applying each of the Cray factors. The trial court should note this Court's decision in Hamann v American Motors Corp, 131 Mich. App. 605; 345 NW2d 699 (1983), in deciding the issue. Further, we believe plaintiff's renaming of the personal representative in her petition with the Wayne County Probate Court is an obvious attempt to create a Michigan plaintiff.

Reversed and remanded for a hearing consistent with this opinion. We do not retain jurisdiction.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.