Schwalbach v. Millikin Kappa Sigma Corp.

845 N.E.2d 677, 363 Ill. App. 3d 926, 300 Ill. Dec. 788
CourtAppellate Court of Illinois
DecidedDecember 16, 2005
Docket5-03-0515
StatusPublished
Cited by9 cases

This text of 845 N.E.2d 677 (Schwalbach v. Millikin Kappa Sigma Corp.) 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
Schwalbach v. Millikin Kappa Sigma Corp., 845 N.E.2d 677, 363 Ill. App. 3d 926, 300 Ill. Dec. 788 (Ill. Ct. App. 2005).

Opinion

JUSTICE CHAPMAN

delivered the opinion of the court:

The plaintiffs, Brenda Roosevelt and John Schwalbach, are the parents of Nicholas Schwalbach (Nick), who died in a fire in his university fraternity house. The defendants appeal an order denying their motions to transfer venue in the plaintiffs’ wrongful death action from Madison County (the residence of plaintiff Brenda Roosevelt and the county in which Nick Schwalbach’s estate is being administered) to Macon County (where the incident occurred) on grounds of forum non conveniens. We affirm.

On June 8, 2000, a fire broke out in the Kappa Sigma fraternity house on the campus of Millikin University. Nick Schwalbach was asleep in his third-floor bedroom when the fire began. He awoke when heat and smoke from the fire reached the third floor. He attempted to escape but was trapped. Nick died that day from smoke inhalation.

On February 27, 2001, the Madison County circuit court entered an order appointing Nick’s parents, Brenda Roosevelt and John Schwalbach, as special administrators of the estate of Nicholas Schwalbach. That day, the plaintiffs filed their initial wrongful death complaint naming Millikin Kappa Sigma Corp., the Gamma-Beta Prime Chapter of Kappa Sigma Fraternity, and the Kappa Sigma Fraternity as defendants (collectively referred to as the fraternity). The plaintiffs later filed an amended complaint adding Harrington Signal, Inc. (Harrington Signal), the manufacturer of a fire alarm that they alleged did not function properly on the morning of the fire, contributing to Nick’s death. The fraternity and Harrington Signal each filed a motion to transfer the cause to Macon County, contending both that venue was not proper in Madison County and that Macon County was a more convenient forum. The court denied the motions in February 2002, and the defendants appealed.

On May 29, 2002, while that appeal was pending, the plaintiffs filed another wrongful death petition in Madison County, naming as defendants Potter Electric Signal Company (Potter) (which they had learned through discovery might have been the manufacturer of the alarm), Schuerman Electronics (the distributorship that sold the alarm to the fraternity), and Dale Schuerman (the owner of Schuerman Electronics and the individual who installed the alarm at the fraternity house). On February 19, 2003, this court reversed the trial court’s order denying the original defendants’ motions to transfer venue. Schwalbach v. Millikin Kappa Sigma Corp., No. 5-02-0217 (2003) (unpublished order pursuant to Illinois Supreme Court Rule 23 (166 Ill. 2d R. 23)). We held that venue was not proper in Madison County because none of the original defendants were doing business in Madison County within the meaning of the venue statute (735 ILCS 5/2 — 101 (West 2000)).

On March 12, 2003, the plaintiffs filed a motion to consolidate their suit against the fraternity and Harrington Signal with their suit against Potter, Schuerman Electronics, and Dale Schuerman. The trial court entered an order consolidating the two cases on April 11, 2003. On April 25, the fraternity filed a renewed motion to transfer venue to Macon County on grounds of forum non conveniens. On July 23, 2003, the court denied all the pending motions to transfer.

The defendants filed petitions for leave to appeal pursuant to Supreme Court Rule 306(a)(2) (166 Ill. 2d R. 306(a)(2)). On October 2, 2003, we denied their petitions for leave to appeal. However, on January 28, 2004, the Illinois Supreme Court entered supervisory orders directing us to vacate our October 2 order and consider the defendants’ forum non conveniens arguments on their merits. Schwalbach v. Millikin Kappa Sigma Corp., 207 Ill. 2d 627, 628, 802 N.E.2d 257, 258 (2004) (supervisory orders).

The fraternity and Harrington Signal filed separate briefs in this case. Potter adopted the briefs of both the fraternity and Harrington Signal. The defendants who filed briefs made essentially identical arguments. Thus, we will refer to the defendants’ arguments collectively. We now turn to the merits of the defendants’ appeal.

The defendants contend that the court abused its discretion in denying their motions to transfer venue to Macon County. The trial court enjoys broad discretion in ruling on a forum non conveniens motion, and we will not reverse its order absent an abuse of that discretion. First American Bank v. Guerine, 198 Ill. 2d 511, 515, 764 N.E.2d 54, 57 (2002); Boner v. Peabody Coal Co., 142 Ill. 2d 523, 527-28, 568 N.E.2d 883, 885 (1991). Applying this standard, we disagree with the defendants’ contention.

Forum non conveniens is an equitable doctrine under which a court may, in exceptional circumstances, decline to exercise jurisdiction over a case if the defendant can show that another forum would be more convenient. Guerine, 198 Ill. 2d at 515, 764 N.E.2d at 57. The same body of law governs both motions to dismiss on the grounds that a more convenient out-of-state forum exists (interstate motions) and motions to transfer to a more convenient forum within Illinois (intrastate motions). Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 176, 797 N.E.2d 687, 696 (2003).

In deciding whether to grant a forum non conveniens motion, courts must weigh all the relevant factors, both public and private. The private-interest factors to be considered include (1) the convenience of the parties, (2) access to witnesses and sources of evidence, and (3) all other practical problems that make trying a case expeditious, easy, or inexpensive. The last factor includes such considerations as the cost of securing the attendance of willing witnesses, the availability of service of process to secure the attendance of unwilling witnesses, and the ability to view the location where the events at issue took place (if appropriate). Guerine, 198 Ill. 2d at 516, 764 N.E.2d at 58. The public-interest factors include (1) the interest in deciding localized controversies locally, (2) the unfairness of imposing the burden of jury duty or the expense of a trial on a county with no connection to the controversy, and (3) the relative congestion of the dockets in the proposed alternative fora. Guerine, 198 Ill. 2d at 516-17, 764 N.E.2d at 58. Trial courts are to consider all these interests and determine whether, on the whole, they strongly favor a transfer or dismissal. Guerine, 198 Ill. 2d at 518, 764 N.E.2d at 59.

No one factor is decisive or should be accorded primary emphasis in the analysis. Dawdy, 207 Ill. 2d at 180, 797 N.E.2d at 698. The plaintiffs choice of forum is, however, an important consideration always entitled to some deference. Where the plaintiff’s choice of forum is neither the situs of the events at issue in the litigation nor the plaintiff’s home county, it is entitled to less deference than it normally merits. Dawdy, 207 Ill. 2d at 173-74, 797 N.E.2d at 694. While courts do not condone “forum-shopping,” we recognize that both plaintiffs and defendants engage in the practice with equal fervor. Dawdy, 207 Ill. 2d at 174, 797 N.E.2d at 694; Guerine, 198 Ill. 2d at 521, 764 N.E.2d at 61.

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Bluebook (online)
845 N.E.2d 677, 363 Ill. App. 3d 926, 300 Ill. Dec. 788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schwalbach-v-millikin-kappa-sigma-corp-illappct-2005.