Shock Bros, Inc. v. Morbark Industries, Inc. , 411 Mich. 696 ( 1981 )

411 Mich. 696 (1981) 311 N.W.2d 722

SHOCK BROS, INC
v.
MORBARK INDUSTRIES, INC

Docket No. 65583.

Supreme Court of Michigan.

Decided November 2, 1981.

Joseph E. Mihelich for plaintiff.

Warner, Norcross & Judd (by Joseph G. Scoville and Eugene E. Smary) for defendant.

PER CURIAM:

The defendant in this case filed a motion in Macomb Circuit Court in which a claim was made that venue in this action had been improperly laid. The circuit court denied the motion and the Court of Appeals affirmed that determination.^[1] Although we agree with the result reached by the circuit court and by the Court of Appeals, we issue this opinion to correct a misperception of the standard of review by the Court of Appeals.

I

The plaintiff purchased a chip harvester machine from the defendant in 1975. In 1977 the plaintiff filed a lawsuit in Macomb Circuit Court claiming, inter alia, that the machine had several defects which occasioned the payment of costs by the plaintiff and further deprived the plaintiff of business revenues.

The defendant answered the allegations in the plaintiff's complaint but also moved for a change of venue claiming that venue was improperly laid in Macomb County. GCR 1963, 404.

The circuit court, after examining the record which included affidavits, found that venue was properly laid in Macomb County.

II

The Court of Appeals, in affirming, originally referred to this motion as one brought under GCR 1963, 403.^[2] In a subsequent order this error was corrected. However, the Court of Appeals made the following statement in its opinion:

"We review a trial court's resolution of venue questions under an abuse of discretion standard. As stated in Hunter v Doe, 61 Mich App 465, 467; 233 NW2d 39 (1975):

"``The grant or denial of a motion to change venue rests in the sound discretion of the trial court and will be reversed on appeal only in cases where there is a plain abuse of that discretion.'

"See also Three Lakes Ass'n v Whiting, 75 Mich App 564; 255 NW2d 686 (1977)."

The Court of Appeals then went on to find that the circuit court had not abused its discretion in denying the motion.

III

Hunter v Doe, 61 Mich App 465; 233 NW2d 39 (1975), and Three Lakes Ass'n v Whiting, 75 Mich App 564; 255 NW2d 686 (1977), are cases in which the question was whether venue should be changed though properly laid. The Court of Appeals decided that in such circumstances the standard of review is one of abuse of discretion. We need not decide the correctness of those decisions because that is not the situation here.

In the instant case, the claim was that venue was not properly laid. The circuit court, had it found that venue was improperly laid, would have had no discretion to refuse to transfer the case. Accordingly, the abuse of discretion standard is inapplicable. See DesJardin v Lynn, 6 Mich App 439, 443; 149 NW2d 228 (1967). The Court of Appeals, in cases such as the instant one, must review the lower court's decision in order to determine whether that court clearly erred in ruling that venue was properly or improperly laid, not whether it abused its discretion.

IV

We do not, however, remand this matter to the Court of Appeals. Our review of the record convinces us that the circuit court did not err in denying the motion. Accordingly, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we affirm the decisions of the Macomb Circuit Court and of the Court of Appeals.

Costs to plaintiff.

COLEMAN, C.J., and KAVANAGH, WILLIAMS, LEVIN, FITZGERALD, RYAN, and BLAIR MOODY, JR., JJ., concurred.

NOTES

[1] 97 Mich App 616; 296 NW2d 125 (1980), and order of July 15, 1980, granting rehearing.

[2] GCR 1963, 403 provides:

"The venue of any civil action properly laid, or of an appeal from any order, decision, or opinion of any state board, commission, or agency, authorized under the laws of this state to promulgate rules and regulations, may be changed to any other county by order of the court upon timely motion by one of the parties, for convenience of parties and witnesses, or, in the case of appellate review of the administrative proceedings aforementioned, for convenience of counsel, or when an impartial trial cannot be had in the county wherein the action is pending."