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Dawley v. Hall

Supreme Court of Michigan

January 3, 2018

JOANNE D. DAWLEY, Individually and as Personal Representative of the Estate of JAMES ARMOUR II, Plaintiff-Appellee,
v.
RODNEY W. HALL, Defendant-Appellant.

          Decided January 3, 2018.

          Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement

         Syllabus

         Joanne D. Dawley, individually and as personal representative of the estate of her husband, James Armour II, brought a tort action in the Wayne Circuit Court against Rodney W. Hall, the driver of a vehicle involved in a motor vehicle collision in Lake County that allegedly caused Armour's death. Defendant moved to transfer venue to Mason County or Lake County, claiming among other things that he conducted business in Mason County by owning and operating a resort there. The Wayne Circuit Court, John A. Murphy, J., granted the motion and transferred venue to Mason County in March 2015. Ten months later, plaintiff moved under MCR 2.223 to change venue back to Wayne County after discovery revealed that defendant was merely a member of the investment company that owned the resort in Mason County and not its owner. The Mason Circuit Court, Susan K. Sniegowski, J., denied the motion, and plaintiff appealed. The Court of Appeals, Wilder and Swartzle, JJ. (Borrello, P.J., concurring in the result only), reversed and remanded for transfer of venue to Wayne County. 319 Mich.App. 490 (2017). Defendant sought leave to appeal.

         In a unanimous per curiam opinion, the Supreme Court, in lieu of granting leave to appeal and without holding oral argument, held:

         Plaintiff's motion for a change of venue was not permitted under MCR 2.223(A), which only permits a court to change venue on timely motion of a defendant or on the court's own initiative. The Court of Appeals' decision ordering a transfer of venue was vacated.

         1. MCR 2.223(A) states that if the venue of a civil action is improper, the court shall order a change of venue on timely motion of a defendant or may order a change of venue on its own initiative with notice to the parties and opportunity for them to be heard on the venue question. Neither avenue contemplates a plaintiff's motion. Similarly, the relevant venue statute, MCL 600.1651, does not provide for a plaintiff's motion to change venue, but it states that a defendant may move for a change of venue within the time and in the manner provided by court rule, in which case the court will transfer the action to a proper county on such conditions relative to expense and costs as provided by court rule and MCL 600.1653. By expressly recognizing that the defendant and the court can effect a change in venue but including no similar provision for the plaintiff, the rule and the statute must be read to exclude the plaintiff. Considered together, the court rules and the statute in this case demonstrate purposeful choices about which actors can seek to effect a change in venue. Accordingly, the decision not to include the plaintiff in MCR 2.223(A) must be interpreted as a meaningful choice to preclude plaintiffs from filing motions under that rule.

         2. It was unnecessary to address plaintiff's argument on appeal that MCR 2.612(C)(1)(b) would allow a plaintiff to effect a change in venue when a defendant has obtained a transfer to an improper venue because plaintiff did not properly raise the argument below. Plaintiff argued on appeal that she was prevented from acting sooner to transfer venue back to Wayne County because defendant had concealed the fact that he was merely a member of an LLC that owned the resort in Mason County and not its owner. MCR 2.612(C)(1)(b) does permit a court to overturn a prior order on the basis of newly discovered evidence, but only if that evidence by due diligence could not have been discovered in time to move for a new trial under MCR 2.611(B), which must be done within 21 days. It was questionable whether plaintiff's evidence could have met this test, given that information regarding the corporate ownership of the lodge was publicly available on a state government website. Even if plaintiff's evidence had been new, her argument would have failed because neither her motion to transfer venue nor the accompanying brief mentioned MCR 2.612(C) or requested relief from the Wayne Circuit Court's prior order. Instead, plaintiff's request for a venue transfer was explicitly based on the premise that venue was improper in Mason County.

         Court of Appeals judgment vacated; case remanded to the Mason Circuit Court for further proceedings.

         BEFORE THE ENTIRE BENCH (except Wilder and Clement, JJ.)

          OPINION

          PER CURIAM.

         At issue is whether plaintiff, arguing that venue is improper, can avail herself of MCR 2.223(A), which permits a court to order a venue change "on timely motion of a defendant," MCR 2.223(A)(1), or on the court's "own initiative," MCR 2.223(A)(2). To ask the question is nearly to answer it. Because plaintiff's motion is neither a motion by defendant nor an action on the court's "own initiative," we hold that plaintiff cannot file a motion for a change of venue under MCR 2.223(A). Accordingly, we vacate the Court of Appeals' decision ordering transfer of venue.

         This case arose out of a fatal automobile accident in Lake County between defendant Rodney W. Hall and decedent James Armour II. Plaintiff Joanne O. Dawley, Armour's spouse, sued Hall in Wayne County in August 2014. Defendant moved to transfer venue to Mason County or Lake County, alleging among other things that he conducted business in Mason County by owning and operating Barothy Lodge.[1] The Wayne Circuit Court granted the motion and transferred venue to Mason County in March 2015.

         Ten months later, on January 8, 2016, plaintiff moved under MCR 2.223 to change venue back to Wayne County. She alleged that discovery had revealed that defendant did not, in fact, own the resort in his name; he was merely a member of Hall Investments, LLC, which owned the resort. Therefore, according to plaintiff, venue in Mason County was improper because defendant did not conduct business there. The trial court disagreed, but the Court of Appeals reversed and remanded for transfer of venue to Wayne County.[2] Defendant ...


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