Kerry No. 5 v. Barbella Group ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Kerry No. 5, LLC v. Barbella Group, LLC, 2012 IL App (1st) 102641Appellate Court KERRY No. 5, LLC, Plaintiff-Appellant, v. BARBELLA GROUP, LLC,
Caption Defendant-Appellee.
District & No. First District, Second Division
Docket No. 1-10-2641
Filed March 30, 2012
Held In an action for breach of contract filed by an Illinois limited liability
(Note: This syllabus company against a Florida limited liability company seeking payment for
constitutes no part of logos, intellectual property and manuals in connection with the operation
the opinion of the court of a restaurant, the trial court’s grant of defendant’s motion to dismiss the
but has been prepared Illinois action based on the doctrine of forum non conveniens was
by the Reporter of affirmed, notwithstanding the fact that the trial court erred in finding that
Decisions for the venue in Illinois was improper, since defendant was a nonresident of
convenience of the Illinois and venue was proper in Illinois under section 2-101 of the Code
reader.)
of Civil Procedure, but the public and private interest factors favored
Florida as a forum.
Decision Under Appeal from the Circuit Court of Cook County, No. 09-L-12801; the
Review Hon. Allen S. Goldberg, Judge, presiding.
Judgment Affirmed.
Counsel on Law Offices of David H. Latham, of Chicago (David H. Latham, of
Appeal counsel), for appellant.
Lawrence Abu-Hashish, of Fort Lauderdale, Florida, for appellee.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Cunningham and Connors concurred in the judgment and
opinion.
OPINION
¶1 Here we are called upon to determine whether the circuit court erred in granting the
motion of defendant, the Barbella Group, LLC, to dismiss based on lack of venue and the
doctrine of forum non conveniens. Plaintiff, Kerry No. 5, LLC, raises the following issues
on appeal: (1) whether venue was proper under section 2-101 of the Illinois Code of Civil
Procedure (Code) (735 ILCS 5/2-101 (West 2008)); and (2) whether the circuit court abused
its discretion in declining jurisdiction under the doctrine of forum non conveniens. We hold
that venue is proper in Cook County, Illinois, based on the general venue provision of section
2-101 of the Code (735 ILCS 5/2-101 (West 2008)) because defendant is a nonresident of
Illinois, and thus venue is proper in any county in Illinois. We hold that the circuit court did
not abuse its discretion in granting defendant’s motion to transfer venue based on the
doctrine of forum non conveniens because the relevant private and public interest factors
favor the State of Florida as the proper forum for this litigation.
¶2 JURISDICTION
¶3 On August 3, 2010, the circuit court granted defendant’s motion to dismiss. On
September 1, 2010, plaintiff timely filed its notice of appeal. Accordingly, this court has
jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from
final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30,
2008).
¶4 BACKGROUND
¶5 On October 28, 2009, plaintiff filed a one-count complaint alleging breach of contract
against defendant. Plaintiff, in its complaint, alleged in April of 2009, it entered into an
agreement with defendant whereby it “agreed to allow [defendant] to use certain logos,
intellectual property, operating manuals and recipe manuals in connection with the operations
of a restaurant.” Plaintiff alleged that defendant agreed to pay it $150,000 under the
agreement, but had only paid it $70,000. Plaintiff requested that a judgment be entered
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against defendant “in the amount of $70,000, plus interest and court costs” and an order
entered requiring defendant “to return all interior and exterior signage, menus and menu
covers.”1
¶6 Plaintiff attached the agreement, which was titled “Trademark Use Agreement,” to its
complaint. The agreement stated plaintiff was an Illinois limited liability company while
defendant was a Florida limited liability company. The agreement stated plaintiff was the
legal owner of the trademark “Pazzo’s Cucina Italiana.” The agreement contained four
articles. The first article, in relevant part, stated that “No changes can be made to the color,
font style, or description in the logo.” The use of the logo was “only permitted at 1430 SE
17th Street, Fort Lauderdale, FL 33316.” Article one also contained provisions stating
plaintiff owned all signage, operating manuals, menus, and menu covers, which should be
returned to plaintiff when no longer in use. Article two of the agreement addressed
representations, warranties and covenants made by plaintiff. In relevant part, article two
stated that plaintiff “is a limited liability company duly organized, validly existing and in
good standing under the laws of the State of Illinois and is qualified to transact business as
a foreign limited liability company and is in good standing in the State of Illinois.” Article
three of the agreement addresses indemnification provisions.
¶7 Article four references a Florida liquor license between an undefined seller and buyer
and, for the first time in the agreement, mentions a “KMBZ, LLC.” Article four, in relevant
part, states “the Seller is the sole owner of the ‘4 COP’ Quota Florida Alcoholic Beverage
License *** with the Florida Division of Alcoholic Beverages and Tobacco.” Article four
further states the license “is being used to operate [a] restaurant known as ‘Pazzo’s Cucina
Italiana’ located at 1430 S.E. 17th Street Causeway, Fort Lauderdale, Florida,” and that “In
the event that the liquor license is not transferred, KMBZ, LLC and/or Rocky Aiyash shall
refund the Buyer the amount of $125,000 *** within 5 days after receiving written notice of
the failure of the transfer of ownership at no fault of KMBZ, LLC.” The agreement does not
define who the “Seller” is nor does it identify “KMBZ, LLC.”
¶8 As consideration, the agreement stated that defendant would pay plaintiff $150,000.
Rocky Aiyash signed the agreement on behalf of plaintiff, as “Manager/Individually.” Maan
Barazi signed on behalf of defendant and was characterized in the agreement as defendant’s
manager. KMBZ, LLC, was also a signatory to the agreement. Matthew T. Aiyash, who the
agreement states was KMBZ, LLC’s manager, signed on its behalf.
¶9 On January 5, 2010, plaintiff filed a proof of service, showing defendant’s agent, Maan
Barazi, was served in Broward County, Florida.
1
Earlier in the complaint, plaintiff alleged defendant had only paid it $70,000 of the
$150,000 it was owed. However, later in the complaint, plaintiff only asked for $70,000, not the
$80,000 alleged balance referenced earlier in the complaint. Later, in its motion for default
judgment, plaintiff asked for $80,000 to be awarded to it.
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¶ 10 On January 8, 2010, defendant filed a motion to dismiss.2 In its motion to dismiss,
defendant alleges that it purchased a “pizza franchise” from plaintiff and that the restaurant
that is the subject of the sale is located in Fort Lauderdale, Florida. Defendant alleged further
that “the transaction or transactions all occurred in Florida,” that it “has no domicile in
Illinois, does not do business in Illinois, has no employees in Illinois and has never done
business” in Illinois. Defendant alleges it is not a resident of Illinois and that Maan Barazi,
its agent, is also not a resident of Illinois.3 Defendant alleges that under section 2-101 of the
Code, the cause of action must be dismissed because it is not a resident of Cook County and
no part of the transaction occurred in Cook County. 735 ILCS 5/2-101 (West 2008).
Additionally, defendant asserted that under the doctrine of forum non conveniens, jurisdiction
should be declined. Defendant attached to its motion an affidavit of its authorized agent,
Maan Barazi, in which Barazi stated that the “dispute giving rise to this case arose from the
sale of a restaurant/pizza franchise business located in Fort Lauderdale, Florida.” In his
affidavit, Barazi further stated that “the contract was entered into in Florida,” that “the
transaction occurred entirely in Florida,” that defendant is a resident of Florida and “has no
residence in *** Illinois,” and that defendant “does no business in Illinois and has no offices,
employees or any business relation in the State of Illinois.”
¶ 11 In response to defendant’s motion to dismiss, plaintiff argued that the dispute was a
“simple case involving Defendant’s failure to pay sums due under a trademark use
agreement.” Plaintiff contended that under section 2-101 of the Code (735 ILCS 5/2-101
(West 2008)), venue was proper in any county in Illinois because the only defendant in the
case did not reside in Illinois. Plaintiff further argued that Cook County was not an
inconvenient forum based on both private and public factors. In regard to the private factors,
plaintiff argued the parties would be equally inconvenienced because it is a resident of
Illinois and defendant resides in Florida. Plaintiff argued that “Defendant has offered no
other facts to suggest that venue is substantially less convenient here than in Florida and
there is no suggestion that any premises will have to be viewed.” In regard to public factors
considered in determining the proper forum, plaintiff responded that defendant did not
present any evidence that public factors were in its favor and commented that “we see no
need to do its work for it except to say that this is a simple case of failure to pay an agreed
upon sum.” Plaintiff also stressed that its choice of forum should be given deference.
Specifically, because it is an Illinois limited liability company with its place of business at
311 South Wacker Drive in Chicago, Illinois, it has an interest in having its cause of action
2
Defendant did not specify whether its motion was pursuant to section 2-615 of the Code
(735 ILCS 5/2-615 (West 2008)) or section 2-619 of the Code (735 ILCS 5/2-619 (West 2008)).
3
We note that before this court, there is only one defendant, Barbella Group, LLC. Similarly,
plaintiff’s complaint filed before the circuit court listed the only defendant as Barbella Group, LLC.
However, defendant’s motion to dismiss listed both Barbella Group, LLC, as a defendant and “Mann
Barazi” as a codefendant. We also note that the pleadings in the record refer to “Mann Barazi” as
both “Mann” and “Maan” Barazi and refer to him as defendant’s manager, a principle of Barbella
Group, LLC, and as the authorized agent of Barbella Group, LLC.
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litigated in Cook County. As an exhibit, plaintiff attached to its response the affidavit of
Rocky Aiyash, who stated that he had “personal knowledge of the matters contained herein”
and that he was “a member and manager” of plaintiff. Aiyash further attested that plaintiff
is an Illinois limited liability company that operates “ ‘Pazzo’s Mediterranean Bar & Grill’
at 311 South Wacker Drive, Chicago.”
¶ 12 In reply, defendant maintained that Florida was the proper venue because the subject
restaurant was in Florida, the contract was entered into in Florida, and the parties conducted
business in Florida. Defendant argued that plaintiff’s only support for its argument that Cook
County was the proper forum was that it resided there. Defendant alleged plaintiff was
“forum shopping to suit [its] individual interests.” Further, defendant maintained that Cook
County should not bear the expense of a trial for a controversy with a Florida restaurant and
that it would be a great expense for it to defend the suit in Cook County. Defendant stressed
that it had no connections to Illinois and that it did all of its business in Florida.
¶ 13 On August 3, 2010, the circuit court issued a memorandum opinion and order granting
defendant’s motion to dismiss for lack of venue and under the doctrine of forum non
conveniens.4 The circuit court found that Cook County was not the proper venue because
defendant did not reside and did not do any business in Illinois. The circuit court found
defendant did not conduct any usual or customary business in Illinois.
¶ 14 The circuit court also found that the State of Florida is a more convenient forum than
Cook County, Illinois, based on both private and public interests. The circuit court noted that
either forum would be inconvenient to one of the parties, depending on which forum
prevailed. Accordingly, the circuit court found that the factor addressing the convenience of
the parties did not favor either party. Next, the circuit court found that because the restaurant,
menus, logos and signage are located in Florida, this factor weighed “slightly” in defendant’s
favor. The circuit court noted that “while it might not be necessary to view the premises at
this juncture of litigation, that does not mean it will never be necessary, and all the property
in question is in Florida.”
¶ 15 In addressing whether public interest factors favor either of the forums, the circuit court
found:
“The public interest in having localized controversies decided at home and not in
burdening citizens in an unrelated forum with jury duty would be satisfied in Florida. The
Defendants reside in Florida, and the controversy is local to Florida because that is where
the transaction occurred and where the property that is subject to the dispute is located.
Because the transaction occurred in Florida and the controversy is local to Florida,
Florida jurors would be hearing a case that is related to their jurisdiction. Dismissing this
case in Cook County, Illinois would be proper because it would be unfair to impose the
expense of a trial and burden of jury duty on Cook County residents. There is no
connection to the litigation beyond the Plaintiff residing in Cook County.”
The circuit court did not consider whether court congestion favored either of the possible
4
The circuit court’s memorandum opinion and order stated that it did consider oral argument
on the matter. However, a transcript of the oral argument is not in the record before this court.
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forums because the parties did not present any argument regarding this public interest factor.
¶ 16 Overall, the circuit court found that two public interest factors favored Florida as a
forum, one private interest factor favored Florida, and the remaining two factors were
neutral. Accordingly, the circuit court found that “Florida can serve the ends of justice better
than Cook County, Illinois.”
¶ 17 On September 1, 2010, plaintiff timely filed its notice of appeal. This appeal followed.
¶ 18 ANALYSIS
¶ 19 Before this court, plaintiff attacks the circuit court’s rulings regarding venue and the
application of the doctrine of forum non conveniens. Plaintiff did not file a reply brief before
this court. Before we analyze plaintiff’s contentions in turn, there are two items of note that
we found in our review of the record. First, defendant cited several documents that are not
part of the record. Defendant attached as exhibits to its brief before this court a document
titled “Asset Purchase Agreement” and a seven-count complaint it and Maan Barazi filed
against defendant, KMBZ, LLC, Matthew Aiyash, and Rocky Aiyash in the State of Florida.
Defendant references these documents in its brief, particularly in its statement of facts.
However, these documents are not part of the record. Accordingly, we will not consider the
unfiled documents or any references to these documents in defendant’s brief in making our
decision. See Dopp v. Village of Northbrook, 257 Ill. App. 3d 820, 824 (1993) (this court
refused to consider a proposed unfiled amended complaint, stating “all matters to be
considered on appeal must be made part of the official court record” and that “[d]ocuments
to be included in the record on appeal may only consist of those which were filed in the
case”). Second, the order entered by the circuit court granted defendant’s motion to dismiss
“for lack of venue and forum non conveniens.” This is misleading because “[t]he doctrine
of forum non conveniens presupposes the existence of more than one court with authority to
hear the case.” Weaver v. Midwest Towing, Inc., 116 Ill. 2d 279, 287 (1987). This court has
stated “that a defendant’s motion to dismiss for forum non conveniens should not be
analogized to an objection to improper venue.” Grant v. Starck, 96 Ill. App. 3d 297, 300-01
(1981). Therefore, we will first determine whether venue was proper in Cook County,
Illinois, before determining whether Cook County, Illinois, is an inconvenient forum based
on the doctrine of forum non conveniens.
¶ 20 Venue
¶ 21 Plaintiff first argues that venue was proper in Cook County, Illinois, based on section 2-
101 of the Code. 735 ILCS 5/2-101 (West 2008). In making its argument, plaintiff relies
upon the following language in section 2-101 of the Code: “If all defendants are nonresidents
of the State, an action may be commenced in any county.” 735 ILCS 5/2-101 (West 2008).
Plaintiff contends that because the sole defendant is not a resident of Illinois, it may
commence its action in any county of Illinois.
¶ 22 Defendant responds that venue in Cook County, Illinois, is not proper because it does not
reside in Illinois, it has not done business in Illinois, and the contract between the parties was
signed and executed in the State of Florida. Therefore, defendant contends that it does not
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have sufficient contact or ties to Illinois for Cook County to be the proper venue for the cause
of action. Defendant argues that plaintiff focuses only on one sentence of section 2-101 of
the Code while disregarding the rest of the statute. Defendant claims that considering section
2-101 in its entirety shows that it is a nonresident defendant with insufficient Illinois contacts
for venue to be proper in Cook County, Illinois.
¶ 23 Our supreme court in Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 153-55 (2005),
set out a two-step standard of review for determining whether venue is proper:
“The determination of proper statutory venue raises separate questions of fact and law
because it necessarily requires a trial court to rule on the legal effect of its factual
findings. In other words, after first examining the facts of the case, the trial court must
then determine whether the venue statute is satisfied. The inquiry thus requires a two-step
analysis. First, the trial court’s underlying factual findings of fact will not be disturbed
on review unless those findings are against the manifest weight of the evidence.
[Citation.] Second, the trial court’s conclusion of law is reviewed de novo.” Id. at 153-54.
Accordingly, we will not disturb the circuit court’s findings of fact unless those findings are
against the manifest weight of the evidence, and we will review the circuit court’s
conclusions of law de novo. Id.¶ 24 The concept of venue, which determines where a cause of action is heard, is distinct from
the concept of jurisdiction. Baltimore & Ohio R.R. Co. v. Mosele, 67 Ill. 2d 321, 328 (1977).
Therefore, “[s]tatutory venue requirements are procedural only and do not have any relation
to the question of jurisdiction.” Id. Further, “[v]enue may properly lie in more than one
jurisdiction.” ServiceMaster Co. v. Mary Thompson Hospital, 177 Ill. App. 3d 885, 890
(1988).
¶ 25 Section 2-101 of the Code is the general venue statute in Illinois. 735 ILCS 5/2-101
(West 2008). Section 2-101 provides, in relevant part:
“Generally. Except as otherwise provided in this Act, every action must be commenced
(1) in the county of residence of any defendant who is joined in good faith and with
probable cause for the purpose of obtaining a judgment against him or her and not solely
for the purpose of fixing venue in that county, or (2) in the county in which the
transaction or some part thereof occurred out of which the cause of action arose.
***
If all defendants are nonresidents of the State, an action may be commenced in any
county.” (Emphases added.) 735 ILCS 5/2-101 (West 2008).
Section 2-102 of the Code defines the residence of corporations. 735 ILCS 5/2-102 (West
2008). Subsection (a) of section 2-102 provides, in relevant part: “A foreign corporation not
authorized to transact business in this State is a nonresident of this State.” (Emphasis added.)
735 ILCS 5/2-102(a) (West 2008).
¶ 26 The burden of proving improper venue is on the defendant. Corral, 217 Ill. 2d at 155.
Defendant must show a clear right to relief and set out specific facts, not conclusions. Id.Doubts arising due to an inadequate record are to be resolved against the defendant. Id.¶ 27 In this case, venue is proper in Cook County, Illinois, based on sections 2-101 and 2-102
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of the Code. 735 ILCS 5/2-101, 2-102(a) (West 2008). Defendant, based on the affidavit it
attached to its motion to dismiss, in which its agent attested that it was a “resident of
Florida,” it “does no business in Illinois and has no offices, employees or any business
relation in the State of Illinois,” is a nonresident of Illinois based on section 2-102(a) of the
Code. 735 ILCS 5/2-102(a) (West 2008) (“A foreign corporation not authorized to transact
business in this State is a nonresident of this State.”). As it is the only defendant, an action
may be filed against it in any county in Illinois according to section 2-101 of the Code. 735
ILCS 5/2-101 (West 2008) (“If all defendants are nonresidents of the State, an action may
be commenced in any county.”). Accordingly, plaintiff properly filed its action against
defendant in Cook County, Illinois, as it was allowed to do under the general venue provision
of the Code. 735 ILCS 5/2-101 (West 2008).
¶ 28 Defendant relies upon several cases that all address motions to transfer venue to another
county within the State of Illinois and are thus readily distinguishable to the case at bar. In
Baltimore & Ohio R.R. Co. v. Mosele, at issue was whether a foreign corporate defendant
authorized to do business in Illinois was “ ‘doing business’ within Madison County[,
Illinois,] for purposes of the venue statute.” Mosele, 67 Ill. 2d at 324-26. Our supreme court
held it was not and directed the circuit court to “enter an order transferring the case *** to
a county of proper venue.” Id. at 334. In Corral v. Mervis Industries, a defendant filed a
motion to transfer venue from Cook County, Illinois, to Vermilion County, Illinois. Corral,
217 Ill. 2d at 147. In ServiceMaster Co. v. Mary Thompson Hospital, the defendant sought
to have venue transferred from Du Page County, Illinois, to Cook County, Illinois.
ServiceMaster Co., 177 Ill. App. 3d at 887-90. Similarly, in Stambaugh v. International
Harvester Co., a defendant sought a motion to transfer out of St. Clair County, Illinois.
Stambaugh v. International Harvester Co., 102 Ill. 2d 250, 255 (1984). Defendant has not
cited any authority addressing interstate motions to dismiss based on venue as opposed to an
intrastate motion to transfer venue as occurred in the cases it cites in support. Defendant had
the burden of proving improper venue, but failed to do so here. Corral, 217 Ill. 2d at 155.
¶ 29 The circuit court erred in finding venue in Cook County was improper.
¶ 30 Forum Non Conveniens
¶ 31 Although we hold that venue was proper in Cook County, Illinois, we may still affirm
the circuit court’s dismissal of plaintiff’s cause of action based on the doctrine of forum non
conveniens. Plaintiff argues the circuit court abused its discretion in finding that Cook
County is an inconvenient forum for its cause of action. Plaintiff characterizes the matter as
a “collection case–Defendant agreed to pay but did not [pay] certain sums under a written
agreement.” Based on this characterization, plaintiff maintains that the private factors a court
considers under the forum non conveniens doctrine favor keeping the matter in Illinois.
Specifically, plaintiff argues that defendant failed to present any affidavits from potential
witnesses establishing any inconvenience, and that defendant offered no evidence to prove
that the property in Florida mentioned in the agreement between the parties would need to
be viewed. Plaintiff contends that the public factors a court considers under the forum non
conveniens doctrine are “neutral to slightly favoring Plaintiff.” Specifically, plaintiff argues
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that Cook County has an interest in the controversy as it is a resident of Cook County, that
the circuit court did not give deference to its choice of forum, and that defendant did not
present any evidence of possible court congestion in Cook County.
¶ 32 Defendant responds that the circuit court properly found that both the public and private
factors favored Florida as the appropriate forum for the cause of action. Defendant maintains
that it does not have any ties to Cook County. Defendant alleges that KMBZ, LLC, another
signatory to the agreement between the parties, but not a party to the appeal, is also a Florida
company. Defendant contends that because plaintiff entered into the agreement with it in
Florida, Florida is the proper forum.
¶ 33 As an equitable doctrine based on the effective administration of justice and
considerations of fundamental fairness, the doctrine of forum non conveniens allows the
circuit court “to decline jurisdiction when trial in another forum ‘would better serve the ends
of justice.’ ” Langenhorst v. Norfolk Southern Ry. Co., 219 Ill. 2d 430, 441 (2006) (quoting
Vinson v. Allstate, 144 Ill. 2d 306, 310 (1991)); see also Gulf Oil Corp. v. Gilbert, 330 U.S.
501, 507 (1947) (“The principle of forum non conveniens is simply that a court may resist
imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general
venue statute.”). Both private and public interest factors must be balanced in determining
whether the doctrine applies. Weaver, 116 Ill. 2d at 287. Our supreme court, in First National
Bank v. Guerine, 198 Ill. 2d 511 (2002), explained:
“In Illinois, the private interest factors include (1) the convenience of the parties; (2) the
relative ease of access to sources of testimonial, documentary, and real evidence; and (3)
all other practical problems that make trial of a case easy, expeditious, and
inexpensive–for example, the availability of compulsory process to secure attendance of
willing witnesses, the cost to obtain attendance of willing witnesses, and the ability to
view the premises (if appropriate). [Citations.] The public interest factors include (1) the
interest in deciding localized controversies locally; (2) the unfairness of imposing the
expense of a trial and the burden of jury duty on residents of a county with little
connection to the litigation; and (3) the administrative difficulties presented by adding
further litigation to court dockets in already congested fora. [Citation.] Court congestion
is a relatively insignificant factor, especially where the record does not show the other
forum would resolve the case more quickly.” Guerine, 198 Ill. 2d at 516-17.
¶ 34 The above factors apply to both intrastate and interstate transfers. Id. at 517. A plaintiff’s
choice of forum is a substantial one and should rarely be disturbed unless the private and
public interest factors strongly favor the defendant. Weaver, 116 Ill. 2d at 288. Our supreme
court has acknowledged that although “the forum non conveniens standard remains difficult
for defendants to meet, it does not foreclose legitimate transfers when the balance of factors
strongly favors litigation in another forum.” Guerine, 198 Ill. 2d at 521. Defendant has the
burden of proving that the factors “strongly favor” a transfer. Langenhorst, 219 Ill. 2d at 444.
¶ 35 The private and public factors are not to be weighed against each other, but, rather, the
total circumstances of the case must be evaluated to determine whether they strongly favor
a transfer. Guerine, 198 Ill. 2d at 518. Each case “must be considered as unique on its facts.”
Langenhorst, 219 Ill. 2d at 443. The defendant cannot argue that plaintiff’s choice of forum
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is inconvenient to the plaintiff. Guerine, 198 Ill. 2d at 518. However, “defendant must show
that the plaintiff’s chosen forum is inconvenient to the defendant and another forum is more
convenient to all parties.” Id.¶ 36 On review, we will not reverse the circuit court’s decision in its application of the
doctrine of forum non conveniens unless the court abuses its discretion. Weaver, 116 Ill. 2d
at 288; see also Guerine, 198 Ill. 2d at 515 (stating “trial court enjoys considerable
discretion” in deciding a motion based on forum non conveniens). When balancing the
relevant factors, the circuit court only abuses its discretion “where no reasonable person
would take the view adopted by the circuit court.” Langenhorst, 219 Ill. 2d at 442.
¶ 37 With these principles in mind, we hold the circuit court did not abuse its discretion. In
considering the private interest factors, the circuit court found that the first private interest
factor, the convenience of the parties, did not favor either party because either party would
be inconvenienced in its opponent’s preferred forum. We agree with the circuit court’s
analysis. It is clear that one of the parties will be inconvenienced by the eventual forum
chosen and, therefore, this factor does not favor either party. As to the second and third
private interest factors, the ease of access to the evidence and ability to view the premises,
we hold that these factors strongly favor Florida as the appropriate forum for this litigation.
According to the affidavit of defendant’s authorized agent, the “case arose from the sale of
a restaurant/pizza franchise business located in Fort Lauderdale, Florida,” “the contract was
entered into in Florida,” and “the transaction occurred entirely in Florida.” Plaintiff does not
dispute this. The second and third private interest factors favor Florida because all of the
potential evidence, including the restaurant itself, is located in Florida.
¶ 38 The public factors also favor Florida. As shown above, all of the property, including the
restaurant itself, is in Florida. Additionally, the transaction occurred in Florida. Based on
these facts, the first public interest factor, “the interest in deciding localized controversies
locally,” favors Florida. Guerine, 198 Ill. 2d at 516-17. We agree with the circuit court’s
finding that “Florida jurors would be hearing a case that is related to their jurisdiction.” The
next public factor, “the unfairness of imposing the expense of a trial and the burden of jury
duty on residents of a county with little connection to the litigation,” also favors Florida.
Guerine, 198 Ill. 2d at 517. Based on the pleadings, the only connection Cook County has
to this litigation is that it is plaintiff’s residence. Cook County only has a little connection
to this litigation, but would bear the cost of a trial. We acknowledge that a plaintiff’s choice
of forum should be given substantial deference. Weaver, 116 Ill. 2d at 288. In this case,
however, none of the factors favor Illinois as the proper forum.
¶ 39 Like the circuit court, we did not consider the final public interest factor, court
congestion, because neither party provided any evidence of court congestion in either forum.
See Guerine, 198 Ill. 2d at 516-17 (“Court congestion is a relatively insignificant factor,
especially where the record does not show the other forum would resolve the case more
quickly.”).
¶ 40 After reviewing the circuit court’s findings in regard to the private and public interests
concerning dismissing plaintiff’s case, we cannot say that no reasonable person would take
the view, as the circuit court did in this case, that the public and private interest factors favor
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Florida as a forum. See Langenhorst, 219 Ill. 2d at 442 ( “A circuit court abuses its discretion
in balancing the relevant factors only where no reasonable person would take the view
adopted by the circuit court.”). Accordingly, the circuit court did not abuse its discretion in
granting defendant’s motion to dismiss based on the doctrine of forum non conveniens.
¶ 41 CONCLUSION
¶ 42 The judgment of the circuit court is affirmed.
¶ 43 Affirmed.
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