Long v. Gray

714 N.E.2d 1041, 306 Ill. App. 3d 445, 239 Ill. Dec. 744, 1999 Ill. App. LEXIS 494
CourtAppellate Court of Illinois
DecidedJuly 7, 1999
Docket1-97-2989
StatusPublished
Cited by15 cases

This text of 714 N.E.2d 1041 (Long v. Gray) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Long v. Gray, 714 N.E.2d 1041, 306 Ill. App. 3d 445, 239 Ill. Dec. 744, 1999 Ill. App. LEXIS 494 (Ill. Ct. App. 1999).

Opinion

JUSTICE BURKE

delivered the opinion of the court:

Defendants Paul Strouse and Zipp Express, Inc., appeal from an order of the circuit court of Cook County denying their motion to transfer venue in a negligence action commenced by plaintiff Eddie Gray and pursued by plaintiff Taketta Long, guardian of Eddie’s estate and person. Defendant Earsey Gray is not a party to this appeal. Strouse and Zipp Express contend that (1) the trial court abused its discretion in denying their motion to transfer venue because it did not employ the proper standards in analyzing issues surrounding the residency of defendant Earsey Gray and (2) no evidence established that Zipp Express was doing business in Cook County at the time of the occurrence. For the reasons set forth below, we affirm.

Plaintiff Eddie Gray, a resident of Cook County, filed his negligence action against defendants in the circuit court of Cook County on April 23, 1996, against defendants, seeking damages for injuries he had received in two successive motor vehicle accidents that had occurred in Anna, Union County, Illinois. In his complaint, plaintiff alleged that on January 18, 1996, he had been a passenger in a vehicle driven by defendant Earsey Gray (Earsey) that had come into contact with a guardrail, causing him to be thrown from the vehicle. Plaintiff further alleged that he was immediately thereafter struck by a truck owned by defendant Zipp Express and operated by defendant Strouse, Zipp Express’ employee.

Strouse and Zipp Express filed special and limited appearances and moved that the case be transferred for lack of proper venue or on grounds of forum non conveniens. Earsey neither joined in the motion nor objected to it. Strouse and Zipp Express argued in their motion that venue did not lie in Cook County because no defendants resided there, nor was Zipp Express doing business there. Strouse and Zipp Express requested that the action be transferred to either Union County, where the accident occurred, or Kankakee County, where Earsey allegedly resided. They argued, in the alternative, that Cook County was an inconvenient locale for prospective witnesses. The affidavit supporting the motion to transfer venue stated that Strouse resided in Indianapolis, Indiana, and that Zipp Express was an Indiana corporation with its principal office in Indianapolis. The supporting affidavit further stated that Zipp Express had neither offices nor employees in Cook County.

In response to the motion to transfer venue, plaintiff argued that Earsey was a resident of Cook County in April 1996, the month suit was filed. Plaintiff maintained that although Earsey had stated in his answers to plaintiffs interrogatories that he was permanently residing in Kankakee County in April 1996, the evidence showed otherwise. Earsey’s girlfriend, Irene Branch, stated in her deposition that Earsey was living with her in her Cook County apartment on April 23, 1996, and had been living with her continuously for over a year; Earsey was served with the summons and complaint in Cook County on June 7, 1996; and Dennis Fredrickson, a private investigator retained by plaintiff, stated in an affidavit that Earsey had told him on April 24, 1996, that he had been living in Cook County for almost a year.

Plaintiff also argued that Zipp Express was itself a resident of Cook County by virtue of its doing business there. Plaintiff relied upon discovery evidence showing that in April 1996, Zipp Express had transported and delivered freight to 6 different Cook County locations and had picked up freight at 13 different Cook County locations. Plaintiff asserted that this freight pickup and delivery by Zipp Express clearly indicated that Zipp Express had been engaged in substantial and ongoing trucking activities in Cook County.

At a hearing on the motion to transfer venue, Strouse and Zipp Express maintained that the only sworn testimony upon which the court could rely was that of Earsey. They also argued that the investigator’s affidavit was unsworn and uncertified. The trial court gave plaintiff leave to file a formalized affidavit containing the investigator’s statement. The court then denied the motion to transfer venue, finding that venue properly lay in Cook County because Earsey had admitted to the investigator that he had been living in Cook County in April 1996 and that Zipp Express was itself a resident of Cook County by virtue of its doing business in the county. The court also found that Cook County would be a more convenient forum. This appeal followed. 1

We first address plaintiff Long’s argument that Earsey’s failure to object to improper venue in the trial court precluded Strouse and Zipp Express, the two moving defendants, from raising such an objection. Plaintiff maintains that Earsey’s election not to attack venue raised a presumption that he agreed that he resided in Cook County at the time suit was filed. This court has rejected a similar argument in Hines v. Dresser Industries, Inc., 137 Ill. App. 3d 7, 484 N.E.2d 401 (1985) . In Hines, a defendant which had failed to object to an improper venue was deemed to have waived the issue. Nevertheless, according to the Hines court, the defendant’s waiver did not preclude another defendant in the case from making his own objection to improper venue, nor had the waiver transformed the improperly laid venue to a properly laid venue. The Hines court stated that proper venue is an important personal privilege which any defendant has the right to either waive or assert. Hines, 137 Ill. App. 3d at 9-11. See also Gardner v. International Harvester Co., 113 Ill. 2d 535, 538, 499 N.E.2d 430 (1986) (citing Hines with approval and noting that “waiver of improper venue by one defendant does not necessarily bind other defendants”). Accordingly, we find that Earsey’s election not to object to improper venue did not preclude Strouse and Zipp Express from asserting improper venue. We thus proceed to the merits of the issues raised in this appeal.

Strouse and Zipp Express first contend that the trial court abused its discretion by arbitrarily denying their motion to transfer venue. They argue that no evidence supported the court’s finding that Earsey was a resident of Cook County for purposes of establishing venue in Cook County. They further argue that the trial court discounted Earsey’s sworn testimony and erroneously relied upon the initially unsworn and unverified statement of plaintiffs investigator.

Section 2 — 101 of the Code of Civil Procedure (Code) specifies that venue properly lies in the county of residence of any defendant or in the county where the cause of action arose. 735 ILCS 5/2— 101 (West 1996). The statute neither defines “resident” nor does it provide for dual residences. In Illinois, the term “residence” is determined on a case-by-case basis. See Webb v. Morgan, 176 Ill. App. 3d 378, 386, 531 N.E.2d 36 (1988). Residence is generally understood to include the intent of the party whose residence is in question as well as his permanency of abode and mere physical presence. See Webb, 176 Ill. App. 3d at 386.

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Bluebook (online)
714 N.E.2d 1041, 306 Ill. App. 3d 445, 239 Ill. Dec. 744, 1999 Ill. App. LEXIS 494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-gray-illappct-1999.