Dawley v. Hall
Docket No. 155991
Trial Lawyer’s Takeaway: A plaintiff cannot move to change venue under MCR 2.223.
Michigan Court Rule 2.223(A) permits a court to order a venue change on (1) timely motion of a defendant or (2) the court’s own initiative. The question in this case is whether a court may order a venue change on plaintiff’s motion.
The defendant, Rodney Hall, was involved in a car accident that killed James Armour II, whose wife, Joanne Dawley, sued Hall in 2014. Hall moved to transfer venue based on his ownership of a hotel lodge in Mason County. The Wayne County Circuit Court granted his motion.
Months later, Dawley moved to change venue back to Wayne County under MCR 2.223. She said Hall did not actually own the resort, but was rather merely a member of an LLC that owned the resort. The trial court disagreed, but the Court of Appeals (with then-Judge Wilder on the panel) reversed and remanded for transfer of venue to Wayne County.
In a per curiam opinion, the Court ruled that a plaintiff cannot move under MCR 2.223, because the rule discusses a motion by a defendant only. The Court noted that the relevant venue statute, MCL 600.1651, also provided for motion only by a defendant. In addition, MCR 2.222—which allows a court in a proper venue to nonetheless transfer the case—permits the court to do so “on motion of a party.” The Court said this is “likely because a transfer under MCR 2.223 necessarily implies an erroneous choice of court by the plaintiff.”
Dawley attempted to argue that, because the court could transfer the case on its own initiative under 2.223, that the court should be able to do so on the motion of the plaintiff. The Court did not reach the argument “because there is no indication that the trial court acted on its own initiative in this case.” The Court continued in a footnote to “note, however, that the court rule gives the trial court broader discretion when it acts on its own initiative, even if such action may be spurred by information provided by the parties.” This footnote seems to suggest that a plaintiff could file a motion to urge the trial court to transfer venue on its own initiative under MCR 2.223(A)(2), but that the trial court need not do so, even if it agreed with plaintiff’s motion.
The Court clarified options that Dawley had: first, she could have filed a motion for rehearing or reconsideration of the Wayne County Circuit Court’s order transferring venue; second, she could have filed an application for leave to appeal.
The Court also rejected Dawley’s argument that the Mason County Circuit Court had authority to reverse the initial venue-transfer order based on the newly discovered evidence of Hall’s deception about the ownership of the lodge. But a court can overturn a prior order on the basis of new evidence “only if that evidence by due diligence could not have been discovered in time to move for a new trial,” which must be done within 21 days. The Court rejected her argument because the Department of Licensing and Regulatory Affairs provides information online that the lodge is owned by “Hall Investments, LLC.” Moreover, Dawley had never actually moved for rehearing or reconsideration in Mason County Circuit Court.
The Court therefore, did “not decide here whether MCR 2.612(C)(1)(b) would allow, in certain cases, a plaintiff to effect a change in venue when a defendant has obtained a transfer to an improper venue.” In a footnote, however, the Court said it is unclear whether this court rule even relevant, because MCR 2.221(B) applies specifically for late filing of motions for change of venue. That court rule allows for the late filing of motions if the movant could not have learned the facts more than 14 days before filing. Dawley, having waited months to file, would have lost under this court rule as well.
Justice Clement took no part in the case, and Justice Wilder recused himself because he was on the Court of Appeals panel.
Full opinion here.