Colucci v. McMillin , 256 Mich. App. 88 ( 2003 )

662 N.W.2d 87 (2003) 256 Mich. App. 88

John N. COLUCCI and Laura M. Colucci, a/k/a Laura M. Gould, Co-Personal Representatives of the Estate of Lloyd Clinton Cash, III, Deceased, Plaintiffs-Appellees,
v.
Michael Bradley McMILLIN, Individually and as Personal Representative of the Estate of Michael Brian McMillin, Deceased, Defendants/Cross-Plaintiffs-Appellees, and
Jackson County Road Commission, Defendant/Cross-Defendant-Appellant, and
Charles Walz, Nels Peter Swanson, and Aggregate Industries, a/k/a Bill Smith Sand & Gravel, Inc., Defendants/Cross-Defendants.

Docket No. 236848.

Court of Appeals of Michigan.

Submitted February 4, 2003, at Detroit. Decided April 1, 2003, at 9:05 a.m. Released for Publication May 29, 2003.

Worsham, Victor & Ahmad, P.C. (by Richard B. Worsham), Southfield, for the plaintiffs.

Smith, Haughey, Rice & Roegge (by Jon D. Vander Ploeg and William L. Henn), Grand Rapids, for the Jackson County Road Commission and Charles Walz.

Williams, Williams, Ruby & Plunkett, P.C. (by John W. Griffen, Jr., and Wayne Walker), Birmingham, for Michael Bradley McMillin, individually, and as personal representative of the estate of Michael Brian McMillin, deceased.

Before: SAAD, P.J., and ZAHRA and SCHUETTE, JJ.

ZAHRA, J.

Defendant/cross-defendant Jackson County Road Commission appeals by leave granted an order denying its motion for a change of venue. We reverse and remand for further proceedings consistent with this opinion.

I. Facts and Procedure

This lawsuit arises from a tragic accident involving an all-terrain vehicle in which the driver, Michael Brian McMillin, and the sole passenger, Lloyd Clinton Cash III, were killed. The accident occurred in Jackson County on July 25, 2000, when the vehicle struck a cable stretched across a roadway. Both decedents were residents of Wayne County, as are the personal representatives of their estates. The personal representatives of the estate of Cash filed a complaint in the Wayne Circuit Court against Michael Bradley McMillin, individually, and as the personal representative of the estate of Michael Brian McMillin (the McMillin defendants).

The McMillin defendants filed a notice, pursuant to MCR 2.112(K), that nonparties may have caused or contributed to plaintiffs' damages, naming the Jackson County Road Commission, Charles Walz "and/or other individuals employed by the Jackson County Road Commission," "Officer Peter Swansen [sic] of the Michigan Department of Natural Resources," and "[a]s yet unknown operators of the gravel mining operation in the area of the accident site, Aggregate Industries and/or Bill Smith Sand & Gravel, Inc." The McMillin defendants also moved for a change of venue, noting that: (1) they had filed a lawsuit against the Jackson County Road Commission in the Jackson Circuit Court, (2) plaintiffs had indicated they would be filing a lawsuit against the road commission, and (3) all the nonparty witnesses resided in Jackson County. The McMillin defendants maintained that venue in Jackson County was more convenient for all involved, and, for reasons of judicial economy, all actions arising out of this accident should be litigated in the same court. For reasons not entirely clear from the record, the McMillin defendants' motion for change of venue was dismissed.^[1]

Plaintiffs moved to amend their complaint to add the Jackson County Road Commission, Charles Walz, Nels Peter Swanson, and Aggregate Industries, also known as Bill Smith Sand & Gravel, Inc., as defendants. The McMillin defendants concurred in plaintiffs' motion. Plaintiffs' motion to amend was granted on May 10, 2001. In the amended complaint, plaintiffs alleged counts against: (1) the estate of Michael Brian McMillin for negligence in the operation of the vehicle; (2) Michael Bradley McMillin for negligence under the owner's liability statute; (3) Charles Walz, a Jackson County Road Commission employee, for gross negligence in the placement of the cable across the roadway; (4) the Jackson County Road Commission for gross negligence relating to the placement of the cable and maintenance of the roadway; (5) Nels Peter Swanson, a Department of Natural Resources employee, for gross negligence relating to the height at which the cable was placed across the roadway; and (6) Aggregate Industries for failure to complete several measures relating to its mining activities that would have enhanced the safety of the area where the accident occurred.^[2]

One of the newly added defendants, the Jackson County Road Commission, moved for a change of venue. The road commission argued that, pursuant to M.C.L. § 600.1629, venue is proper in a county as provided in M.C.L. § 600.1621 and M.C.L. § 600.1627. However, both of these venue statutes defer to M.C.L. § 600.1615, which provides that a governmental unit must be sued in the county in which it exercises or may exercise governmental authority. Therefore, the road commission maintained, venue is not proper in Wayne County and must be transferred to Jackson County.^[3]

Plaintiffs opposed the motion for a change of venue, on the theory that venue was appropriate in Wayne County, pursuant to M.C.L. § 600.1629(1)(c), because the original action involved only residents of Wayne County. Once venue was properly laid, plaintiffs argued, it did not become improper when an amended complaint added other defendants because venue is determined at the time the suit is filed. Further, plaintiffs claimed, under M.C.L. § 600.1641(1) when multiple claims are joined in an action and the venue of one or more would have been improper if the claims had been brought in separate actions, the court has discretion to retain the entire action for trial. Plaintiffs maintained that, under these circumstances, M.C.L. § 600.1615 does not compel the transfer of venue to Jackson County. The McMillin defendants also opposed the motion for change of venue.

The Jackson County Road Commission replied that venue is not proper because this suit involves multiple causes of action.

The road commission maintained that M.C.L. § 600.1641(2), which was added by the Legislature in 1995, allows for venue to be reviewed after the addition of parties by amendment of the complaint in any action based on tort.

The trial court denied the motion to change venue and invited appellate review. The trial court recognized that the question before the court presented an issue of first impression relating to statutory interpretation of the 1995 amendment of M.C.L. § 600.1641. This Court granted leave to appeal and stayed the proceedings.

II. Analysis

Generally, we review for clear error a trial court's ruling on a motion to change venue. Massey v. Mandell, 462 Mich. 375, 379, 614 N.W.2d 70 (2000). "Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake has been made." Id. However, the question presented in this appeal involves an issue of statutory interpretation.^[4] Matters of statutory interpretation are subject to review de novo. Stozicki v. Allied Paper Co., Inc., 464 Mich. 257, 263, 627 N.W.2d 293 (2001); DeVormer v. DeVormer, 240 Mich.App. 601, 605, 618 N.W.2d 39 (2000).

The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. In re MCI Telecom. Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999); Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998). Initially, we review the language of the statute itself. House Speaker v. State Admin. Bd., 441 Mich. 547, 567, 495 N.W.2d 539 (1993). If the statute is unambiguous on its face, the Legislature is presumed to have intended the meaning plainly expressed and further judicial interpretation is not permissible. Lorencz v. Ford Motor Co., 439 Mich. 370, 376, 483 N.W.2d 844 (1992).

"Only where the statutory language is ambiguous may a court properly go beyond the words of the statute to ascertain legislative intent." Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999). An ambiguity of statutory language does not exist merely because a reviewing court questions whether the Legislature intended the consequences of the language under review. An ambiguity can be found only where the language of a statute as used in its particular context has more than one common and accepted meaning. Thus, where common words used in their ordinary fashion lead to one reasonable interpretation, a statute cannot be found ambiguous.

Defendant Jackson County Road Commission contends that after plaintiffs amended the complaint to add additional parties the trial court was required to consider venue on defendant's timely motion pursuant to M.C.L. § 600. 1641(2). The road commission further argues that venue under the amended complaint is not proper in Wayne County and must be transferred to Jackson County.

Before it was amended in 1995, M.C.L. § 600.1641, which governs venue in joined causes of action, provided:

Where causes of action are joined, whether properly or not, the venue may be laid in any county in which either cause of action, if sued upon separately, could have been commenced and tried, subject to separation and change pursuant to and subject to the conditions imposed by court rules.

Case law before the 1995 amendment of M.C.L. § 600.1641 suggests that venue could be considered only at the time the lawsuit was instituted. See Omne Financial, Inc. v. Shacks, Inc., 226 Mich.App. 397, 405, 573 N.W.2d 641 (1997), aff'd 460 Mich. 305, 596 N.W.2d 591 (1999). However, the clear language added by the Legislature in 1995 dictates otherwise:

(1) Except as provided in subsection (2), if causes of action are joined, whether properly or not, venue is proper in any county in which either cause of action, if sued upon separately, could have been commenced and tried, subject to separation and change as provided by court rule.

(2) If more than 1 cause of action is pleaded in the complaint or added by amendment at any time during the action and 1 of the causes of action is based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, venue shall be determined under the rules applicable to actions in tort as provided in section 1629. [MCL 600.1641 (emphasis added).]

We conclude that the plain language of M.C.L. § 600.1641(2) indicates a legislative intent to allow venue to be considered after a complaint is amended to add one or more causes of action. This is so though venue was appropriate when the case was originally filed. If M.C.L. § 600.1641(2) were interpreted any other way, the words "or added by amendment at any time" that were added by amendment of the statute in 1995 would be rendered meaningless. MCL 600.1641(2) creates an exception to the general rule set forth in M.C.L. § 600.1641(1) for actions based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death. Thus, if a lawsuit is "based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death," and venue is improper after the complaint is amended to add one or more causes of action, the trial court is required to consider venue if the issue is raised in a timely motion. MCR 2.223(1).

The present case raises tort claims that seek damages for wrongful death. Therefore, the question whether the trial court was required to consider venue after the complaint was amended turns on whether the complaint was amended to add one or more causes of action. We must therefore interpret the phrase "cause of action" used in M.C.L. § 600.1641(2).

This phrase is discussed in Justice Corrigan's concurring opinion in Massey, supra at 385-391, 614 N.W.2d 70.^[5] In Massey, a child from Wayne County suffered a fatal accident at a camp in Lapeer County while under the supervision of a day-care center operated in Wayne County. The subsequent wrongful-death lawsuit, filed in the Wayne Circuit Court, named as defendants the day-care center and one of its employees, as well as the camp and some of its employees. The camp and its employees moved for a change of venue, arguing that venue was proper in Lapeer County. The venue question was ultimately resolved by the Supreme Court, which unanimously agreed that venue was properly laid in Wayne County.

Four justices determined that venue was proper in Wayne County under the general venue statute, M.C.L. § 600.1621. Massey, supra at 381-385, 614 N.W.2d 70. The remaining justices concluded that the answer to the "difficult" venue question before the Supreme Court was found in M.C.L. § 600.1641, which applies to claims involving the joinder of multiple causes of action. Noting that "cause of action" is a legal term of art and must therefore be understood according to its "peculiar and appropriate meaning," M.C.L. § 8.3a, Justice Corrigan observed that the term has repeatedly been defined in case law "as being ``the fact or combination of facts giving rise to or entitling a party to sustain an action.'" Massey, supra at 386-387, 614 N.W.2d 70 (citation omitted). This definition "supports the conclusion that separate claims against various defendants amount to separate ``causes of action.'" Id. at 388, 614 N.W.2d 70.^[6]

We find persuasive the reasoning and rationale of Justice Corrigan's concurring opinion in Massey.^[7] We conclude that plaintiffs' claims of negligence or gross negligence against each defendant are separate causes of action that were joined in plaintiffs' amended complaint. "``Causes of action are understood to be those "which are generally recognized and often defined as the fact or combination of facts giving rise to or entitling a party to sustain an action."'" Multiplex Concrete Machinery Co. v. Saxer, 310 Mich. 243, 253, 17 N.W.2d 169 (1945) (citations omitted). Although plaintiffs' claims against all defendants arose from the same fact or combination of facts, the amended complaint alleges theories that each defendant's negligence separately contributed to the wrongful death of plaintiffs' decedent. Thus, plaintiffs' amended complaint joined separate causes of action arising from a single set of facts, the accident, all of which are based on tort and seek damages for a wrongful death. Therefore, to determine the appropriate venue for the amended complaint, one must consider M.C.L. § 600.1641, and particularly the exception found in M.C.L. § 600.1641(2) that venue in such cases must be determined by the rules found in M.C.L. § 600.1629.

MCL 600.1629(1) provides:

Subject to subsection (2)^[8], in an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, all of the following apply:

(a) The county in which the original injury occurred and in which either of the following applies is a county in which to file and try the action:

(i) The defendant resides, has a place of business, or conducts business in that county.

(ii) The corporate registered office of a defendant is located in that county.

(b) If a county does not satisfy the criteria under subdivision (a), the county in which the original injury occurred and in which either of the following applies is a county in which to file and try the action:

(i) The plaintiff resides, has a place of business, or conducts business in that county.

(ii) The corporate registered office of a plaintiff is located in that county.

(c) If a county does not satisfy the criteria under subdivision (a) or (b), a county in which both of the following apply is a county in which to file and try the action:

(i) The plaintiff resides, has a place of business, or conducts business in that county, or has its corporate registered office located in that county.

(ii) The defendant resides, has a place of business, or conducts business in that county, or has its corporate registered office located in that county.

(d) If a county does not satisfy the criteria under subdivision (a), (b), or (c), a county that satisfies the criteria under section 1621 or 1627 is a county in which to file and try an action.

None of the statute's first three subsections accurately describe the parties in the present case. MCL 600.1629(1)(a) provides that venue is properly laid in the county where the original injury occurred and "the" defendant resides or conducts business. The majority in Massey determined that this subsection does not apply where, as here, there are multiple defendants. Massey, supra at 382, 614 N.W.2d 70. MCL 600.1629 (1)(b) does not apply because the plaintiffs do not live or have a place of business in Jackson County, the county where the original injury occurred. For similar reasons, M.C.L. § 600.1629(1)(c) does not apply. Therefore, M.C.L. § 600.1629(1)(d) directs that the criteria set forth in M.C.L. § 600.1621 or M.C.L. § 600.1627 provide a county in which to file and try plaintiffs' amended complaint. However, both of these general venue statutes state that they should not be used to establish venue in actions "provided for in sections 1605, 1611, 1615, and 1629...." Neither M.C.L. § 600.1605, which concerns venue for actions involving real property or tangible personal property, nor M.C.L. § 600.1611, which concerns venue for actions involving probate bonds, resolve the road commission's motion for change of venue. However, M.C.L. § 600.1615 concerns actions against governmental units. Therefore, the road commission's venue motion must be considered in conjunction with M.C.L. § 600.1615, which provides:

Any county in which any governmental unit, including but not limited to a public, municipal, quasi-municipal, or governmental corporation, unincorporated board, public body, or political subdivision, exercises or may exercise its governmental authority is the proper county in which to commence and try actions against such governmental units, except that if the cause of action arose in the county of the principal office of such governmental unit, that county is the proper county in which to commence and try actions against such governmental units.

Under this statute, the appropriate county for a cause of action against the road commission is Jackson County, where defendant "exercises or may exercise its governmental authority...." This conclusion is supported by this Court's holding in Attorney Gen. v. Kent Co. Rd. Comm., 184 Mich.App. 525, 459 N.W.2d 11 (1990), where this Court stated that the language "the proper county in which to commence and try actions against such governmental units" in M.C.L. § 600.1615 was "mandatory" and "designate[s] the home county of a governmental unit as the proper venue." Attorney Gen., supra at 528, 459 N.W.2d 11 (emphasis in original). Thus, because the appropriate county to bring suit against the road commission was Jackson County, the trial court erred in denying the road commission's motion to change venue.

III. Conclusion

We hold that plaintiffs' amended complaint states separate causes of action against multiple defendants. The cause of action against defendant road commission is an action based in tort that seeks damages for a wrongful death. Pursuant to M.C.L. § 600.1641(2), the trial court was required to consider the road commission's timely motion for a change of venue by examining the rules found in M.C.L. § 600.1629, the venue statute for actions based in tort. That statute does not provide the appropriate county for all causes of action pleaded in the amended complaint. In such situations, M.C.L. § 600.1629(1)(d) states that a county that satisfies the criteria in M.C.L. § 600.1621 or M.C.L. § 600.1627 is a county in which to try a tort action. However, each of these statutes defers to M.C.L. § 600.1615, which designates the home county of a governmental unit as the proper venue for a suit against that unit. Therefore, Jackson County is the proper county for a lawsuit against the Jackson County Road Commission and that is based in tort or seeks damages for a wrongful death, and the trial court erred in denying the road commission's motion to change venue to that county.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

NOTES

[1] According to the Jackson County Road Commission, the McMillin defendants' lawsuit against the road commission filed in Jackson County was dismissed without prejudice on October 13, 2001.

[2] The personal representative of McMillin's estate filed a cross-claim in the Wayne Circuit Court against Walz, the Jackson County Road Commission, Nels Peter Swanson, and Aggregate, claiming gross negligence against the governmental defendants and negligence against Aggregate Industries, asserting essentially the same allegations as plaintiffs.

[3] Defendant Charles Walz filed a separate motion for change of venue identical in substance to the motion brought by the road commission. Because Walz is not a party to this appeal, only the motion of the road commission is mentioned throughout this opinion.

[4] In Michigan, "the establishment of venue is within the Legislature's power." Omne Financial, Inc. v. Shacks, Inc., 226 Mich.App. 397, 403, 573 N.W.2d 641 (1997), aff'd 460 Mich. 305, 596 N.W.2d 591 (1999). As such, venue is controlled exclusively by statute. Id. at 400, 573 N.W.2d 641.

[5] Justice Cavanagh and Justice Kelly joined in Justice Corrigan's concurring opinion.

[6] Justice Corrigan noted that this Court in Schultz v. Silver Lake Transport, Inc., 207 Mich.App. 267, 275, 523 N.W.2d 895 (1994), apparently concluded that a lawsuit involving multiple defendants arising from a single automobile accident presented a single cause of action. Massey, supra at 388 n. 1, 614 N.W.2d 70. Justice Corrigan rejected this aspect of Schultz and observed that the Schultz opinion did not cite authority for its conclusion or explain its rationale. We recognize that, pursuant to MCR 7.215(I)(1), "[a] panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals...." (Emphasis added.) Nonetheless, we conclude we are not bound by MCR 7.215(I)(1) to hold that the present case involves a single cause of action arising from a single vehicular accident that happens to include multiple defendants. Schultz was decided in 1994, before the Legislature amended M.C.L. § 600.1641. Therefore, Schultz did not consider the meaning of the phrase "cause of action" in M.C.L. § 600.1641(2) when the Court concluded that a wrongful-death lawsuit alleging negligence by multiple defendants is a single claim. Moreover, Schultz was decided on the basis of the panel's analysis of M.C.L. § 600.1629. Thus, the panel's observation that the case did not involve joinder and involved a single claim arising from a single automobile accident is dicta and does not present binding authority for this Court. See, e.g., People v. Carlson, 466 Mich. 130, 139, 644 N.W.2d 704 (2002); Larry S. Baker, PC v. Westland, 245 Mich.App. 90, 101 n. 3, 627 N.W.2d 27 (2001).

[7] We also observe that while a majority of the Supreme Court did not join in Justice Corrigan's opinion in Massey, nothing in the Supreme Court's majority opinion suggests that the majority rejected Justice Corrigan's interpretation of M.C.L. § 600.1641.

[8] MCL 600.1629(2) provides "[a]ny party may file a motion to change venue based on hardship or inconvenience." We do not rely on this provision to support the change of venue to Jackson County.