Duyck v. International Playtex, Inc

375 N.W.2d 769, 144 Mich. App. 595
CourtMichigan Court of Appeals
DecidedAugust 5, 1985
DocketDocket 77461
StatusPublished
Cited by17 cases

This text of 375 N.W.2d 769 (Duyck v. International Playtex, Inc) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Duyck v. International Playtex, Inc, 375 N.W.2d 769, 144 Mich. App. 595 (Mich. Ct. App. 1985).

Opinions

Bronson, P.J.

Plaintiff appeals by leave granted from an order of the Wayne County Circuit Court granting defendant’s motion to have venue in this action changed to Macomb County pursuant to GCR 1963, 403.1 For the purposes of this appeal, the parties have stipulated to a concise statement of facts as follows:

"1. This action arises out of an illness suffered by Plaintiff, Diane E. Duyck, in November, 1980 subsequent to her purchase of Playtex Tampons.
"2. Plaintiff filed an action in Wayne County Circuit Court on September 15, 1983, alleging negligence, breach of expressed warranty, breach of implied warranty, fraud, deceit and misrepresentations on behalf of International Playtex, Inc., in its manufacture and sale of the product.
”3. Venue is proper in Wayne County._
[598]*598"4. Plaintiff is a resident of Centerline in Macomb County, Michigan, and alleges that she purchased the product from various stores in various counties throughout the tri-county area of Metropolitan Detroit.
"5. Defendant is from out-of-state.
"6. Plaintiff’s residence is approximately five miles closer to Wayne County Circuit Court th[a]n it is to Macomb County Circuit Court.
"7. Both attorneys are located in Wayne County with each listing Detroit as their address in the pleadings and the State Bar Journal. Plaintiff’s counsel has an office located in the County of Macomb, State of Michigan, as does defense counsel, both cases being within walking distance of the Macomb County Circuit Court.
"8. All medical care given, which is pertinent to this case, was received in the area of South Macomb Hospital on 12 Mile Road and Van Dyke in Macomb County. That location is approximately equal distance between the Macomb County and Wayne County Circuit Courts.
"9. On November 18, 1983, International Playtex, Inc., filed a Motion for Change of Venue together with a Brief in Support Thereof; Plaintiff filed an Answer and a Memorandum in Opposition.
"10. The Court on December 27, 1983, granted Defendant’s Motion and issued an Order changing venue to Macomb County Circuit Court.
"11. Plaintiff filed a Motion for Rehearing and on January 27, 1984, the Court denied this Motion and entered its Order on February 27, 1984. It is from these Orders that Plaintiff appeals.”

The sole issue in this appeal is whether the trial court abused its discretion in granting defendant’s motion for a change of venue. We answer that question in the affirmative and consequently reverse the trial court’s order.

GCR 1963, 403, Motion for Change of Venue Properly Laid, states:

"The venue of any civil action properly laid, or of an appeal from any order, decision, or opinion of any state [599]*599board, commission, or agency, authorized under the laws of this state to promulgate rules and regulations, may be changed to any other county by order of the court upon timely motion by one of the parties, for convenience of parties and witnesses, or, in the case of appellate review of the administrative proceedings aforementioned, for convenience of counsel, or when an impartial trial cannot be had in the county wherein the action is pending.” (Emphasis added.)

It is well established that the burden of demonstrating inconvenience or prejudice as grounds for change of venue rests upon the moving party, and since these are matters which will not be lightly assumed, a persuasive showing must be made. Brown v Hillsdale County Road Comm, 126 Mich App 72, 78; 337 NW2d 318 (1983); 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 272. It is equally well established that plaintiff’s choice of venue should be accorded deference.

As the stipulated facts indicate, venue in Wayne County was not shown to be inconvenient to either the parties, witnesses or attorneys. Plaintiff, by filing suit in Wayne County, certainly waived any claim of inconvenience. Defendant is an out-of-state corporation and cannot, therefore, claim one county is more convenient than another. Both attorneys’ offices are located in Wayne and Ma-comb Counties, and each has an office close to either courthouse. The witnesses in this action, with the exception of plaintiff, are still unknown. However, two out-of-state witnesses were mentioned at the hearing on defendant’s motion, and we cannot believe that they would express a marked preference for one county over another. Plaintiff also argued that airport locations favor Wayne County over Macomb County and that plaintiff lives approximately five miles closer to the Wayne County courthouse. The trial court, [600]*600however, was not impressed with such precise mileage calculations, nor are we.

It is clear from the above discussion that defendant was not able to make a persuasive showing that convenience necessitated a change of venue from Wayne to Macomb County. While recognizing that convenience was not persuasively shown, the trial court granted defendant’s motion, stating:

"I’m not going to let somebody forum shop, and they do it. They all come racing in to Wayne County and file their lawsuits here and have the people of Wayne County pay for all of those lawsuits, no matter where they live, so that they can get a big judgment, and I don’t grant that.”

We believe it was improper for the trial court to consider plaintiff’s motivation for filing her lawsuit in Wayne County as grounds for granting defendant’s motion to change venue.

GCR 1963, 403 sets forth the permissible considerations for a change of venue properly laid. These considerations are limited to the convenience of the parties and witnesses or whether an impartial trial can be held. A trial court’s exercise of discretion in ruling on a motion for change of venue under GCR 1963, 403 is limited to these considerations, and reliance on impermissible considerations will constitute an abuse of that discretion. See generally People v Gage, 188 Mich 635, 641-642; 155 NW 464 (1915).

Even assuming that the trial court correctly discerned plaintiff’s motivation for filing her suit in Wayne County, it must be stressed that plaintiff had a perfect right to do so under our venue statutes. Much has been made of the constantly alleged feature of Wayne County litigation; namely, that plaintiffs desire Wayne County be[601]*601cause of perceived high damage awards and defendants avoid Wayne County for the same reason. The trial court’s opinion implicitly criticizes plaintiff, a critique which we believe is unwarranted. The object of damages recoverable in a tort suit is to put the plaintiff in as good a position as she would have been had the injuries not occurred. Plaintiff cannot be faulted because she perceives that her chances of a full and fair recovery are greater in Wayne County. Nor do we mean to imply that defendant should be faulted for desiring to pay a lower damage award. Rather, we believe that neither plaintiffs preference for a high damage award, nor defendant’s preference for a low damage award, is a proper consideration in a motion under GCR 1963, 403.

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Duyck v. International Playtex, Inc
375 N.W.2d 769 (Michigan Court of Appeals, 1985)

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Bluebook (online)
375 N.W.2d 769, 144 Mich. App. 595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duyck-v-international-playtex-inc-michctapp-1985.