Mautone v. Sunset Logistics, LLC

2021 IL App (2d) 200202-U

• Court: Appellate Court of Illinois
• Decided: September 29, 2021
• Docket: 2-20-0202
• Status: Unpublished

Opinion

2021 IL App (2d) 200202-U No. 2-20-0202 Order filed September 29, 2021

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

MATTHEW P. MAUTONE, SR. and ) Appeal from the Circuit Court MATTHEW P. MAUTONE, JR., Individually ) of Kane County. and Derivatively on Behalf of ) TAM TRUCKING LOGISTICS, LLC, and ) TAM TRUCKING, INC., ) ) Plaintiffs-Appellants, ) ) v. ) No. 19-L-597 ) SUNSET LOGISTICS, LLC, and ) DONALD P. MUELLER, ) ) Defendants-Appellees ) ) Honorable (TAM Trucking Logistics, LLC, nominal ) Mark Pheanis, defendant). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUTCHINSON delivered the judgment of the court. Justices Jorgensen and Birkett concurred in the judgment.

ORDER

¶1 Held: Absent a sufficient report of the proceedings, the circuit court’s dismissal for improper venue is presumed to be in conformity with the law and had a proper factual basis. Affirmed.

¶2 In response to the five-count complaint of Matthew Mautone Sr. (Mautone), Matthew

Mautone Jr. (Mautone Jr.), TAM Trucking Logistics, LLC (TAM Logistics), and TAM Trucking, 2021 IL App (2d) 200202-U

Inc. (TAM Trucking) (collectively, plaintiffs), Sunset Logistics LLC (Sunset Logistics), Donald

Mueller and TAM Logistics (collectively, defendants) filed a motion to dismiss for improper

venue, or in the alternative for transfer based on forum non conveniens. The circuit court granted

defendants’ motion, finding that the proper venue was McHenry County. Plaintiffs appeal, arguing

that venue is proper in Kane County under both the residency and transactional prongs of the venue

statute, section 2-101 of the Code of Civil Procedure (735 ILCS 5/2-101 (West 2018)). For the

following reasons, we affirm the circuit court’s order.

¶3 I. BACKGROUND

¶4 The following relevant facts are set forth in the complaint, motion, and affidavits of record.

¶5 In 2018 Mautone Jr. was employed as a dispatch manager for Sunset Logistics, a limited

liability company that provides local and long-distance hauling for the construction industry. At

some time during his employment, he introduced his father, Mautone, to his boss, Mueller. In May

2018, Mautone (as the sole shareholder of TAM Trucking) and Mueller (as the sole shareholder of

Sunset Logistics) entered into an asset purchase agreement. The parties agreed that Sunset

Logistics would purchase from TAM Trucking “substantially all” assets, including two trailers,

office equipment, and business operations records. In lieu of cash for the assets, the parties agreed

to form a new limited liability company, TAM Logistics, in which Mautone would have a 20%

membership interest, Mautone Jr. would have a 10% membership interest, and Mautone’s wife,

Diane, would work as a manager with a yearly salary of $60,000. Sunset Logistics would hold the

remaining 70% interest of TAM Logistics and would assume responsibility for the office space

TAM Trucking leased in St. Charles. The asset purchase agreement contained an arbitration clause,

which stated “[a]ny controversy or claim arising out of this Agreement, or breach thereof, shall be

settled by binding arbitration administered by the American Arbitration Association *** with one

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arbitrator to be held in McHenry County, Illinois,” as well as several references to the operating

agreement of the newly formed TAM Logistics. Following these negotiations, the entity began

operations.

¶6 At some time in October 2019 Mautone Jr. was excluded from the premises of TAM

Logistics, and in November 2019 both Mautone Jr. and Diane were terminated. On

November 27, 2019, plaintiffs filed suit in Kane County alleging oppression of minority interest

members, breach of fiduciary duty, contract and operating agreement, and unjust enrichment.

¶7 II. ANALYSIS

¶8 Plaintiffs’ brief advances three general issues in support of their contention that venue is

proper in Kane County: (1) both Sunset Logistics and TAM Logistics are residents of Kane

County, (2) the transaction out of which the cause of action arose occurred in Kane County, and

(3) the venue clause in the operating agreement supports venue in Kane County. In other words,

plaintiffs contend that the circuit court erred in finding venue in Kane County improper.

¶9 Proper venue is an important statutory privilege that belongs to a defendant, and, as such,

it is accorded great weight by Illinois courts. Tabirta v. Cummings, 2020 IL 124798, ¶ 16. The

purpose of the venue statute is to ensure that a cause of action will be brought in either a location

convenient to the defendant (i.e., in its county of residence), or convenient to potential witnesses

(i.e., in the county where the cause of action arose). Id. “[A] party 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 v. G.D. Searle & Co., 138 Ill.

2d 282, 289 (1990).

¶ 10 A defendant who objects to a plaintiff’s chosen venue bears the burden of proving the

selected venue is incorrect. Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 155 (2005). In

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considering a defendant’s motion to dismiss based on improper venue, the circuit court should

construe the statute liberally in favor of effecting a change of venue. Tabirta, 2020 IL 124798,

¶ 17. On appeal, courts of review will not disturb a circuit court’s factual findings unless they are

against the manifest weight of the evidence but we review de novo the correctness of the circuit

court’s legal conclusions. Id. Here, however, such a review is not possible.

¶ 11 The common law record contains 303 pages including in pertinent part: plaintiffs’

complaint, defendants’ motion to dismiss, plaintiffs’ response, and the order dismissing the action.

The order indicated that the proper venue was McHenry County and granted defendants’ motion

to dismiss for improper venue without prejudice to refiling in McHenry County. The order does

not set forth additional factual findings and does not explain precisely why the motion was granted.

There is no transcript of the hearing on defendants motion to dismiss, or a bystander’s report or

agreed statement of facts (Ill. S. Ct. R. 323(c), (d) (eff. July, 1, 2017)), reflecting what was said at

the hearing, what facts were asserted at the hearing, or what arguments the court found persuasive

or unconvincing.

¶ 12 Our supreme court has long held that that in order to support a claim of error on appeal the

appellant has the burden to present a sufficiently complete record. Webster v. Hartman, 195 Ill. 2d

426, 432 (2001) (citing Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984)). Here, plaintiffs’ claim

the circuit court erred in finding venue in McHenry County proper and Kane County improper.

However, unless there is a contrary indication in the order or in the record, we must presume that

the court heard adequate evidence to support the decision that was rendered. Foutch, 99 Ill. 2d at

394. Here, we are without a basis to meaningfully evaluate the circuit court’s decision; therefore,

we are obliged to affirm it. Id.

¶ 13 III. CONCLUSION

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¶ 14 In sum, plaintiffs have failed to provide us with a sufficient record of the proceedings

below. Accordingly, for the reasons stated, we affirm the judgment of the circuit court of Kane

County.

¶ 15 Affirmed.

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