JOHN N COLUCCI V MICHAEL BRADLEY MCMILLIN
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STATE OF MICHIGAN
COURT OF APPEALS
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,
FOR PUBLICATION
April 1, 2003
9:05 a.m.
Plaintiffs-Appellees,
v
MICHAEL BRADLEY MCMILLIN, Individually
and as Personal Representative of the Estate of
MICHAEL BRIAN MCMILLIN, Deceased,
No. 236848
Wayne Circuit Court
LC No. 00-025771
Defendants/Cross-PlaintiffsAppellees,
and
JACKSON COUNTY ROAD COMMISSION,
Defendant/Cross-DefendantAppellant,
and
CHARLES WALZ, NELS PETER SWANSON,
and AGGREGATE INDUSTRIES, a/k/a BILL
SMITH SAND & GRAVEL, INC.,
Defendants/Cross-Defendants.
Before: Saad, P.J., and Zahra and Schuette, JJ.
ZAHRA, J.
-1-
Updated Copy
May 23, 2003
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
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.
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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 MCL 600.1629, venue is proper
in a county as provided in MCL 600.1621 and MCL 600.1627. However, both of these venue
statutes defer to MCL 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 MCL 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 MCL 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, MCL 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 MCL 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 MCL 600.1641. This Court granted leave to
appeal and stayed the proceedings.
II. Analysis
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.
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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 NW2d 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 NW2d 293 (2001); DeVormer v DeVormer, 240 Mich App 601, 605;
618 NW2d 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 NW2d 164 (1999);
Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998).
Initially, we review the language of the statute itself. House Speaker v State Admin Bd, 441 Mich
547, 567; 495 NW2d 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 NW2d 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 NW2d 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 MCL 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, MCL 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.
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 NW2d 641 (1997), aff 'd 460 Mich 305; 596
NW2d 591 (1999). As such, venue is controlled exclusively by statute. Id. at 400.
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Case law before the 1995 amendment of MCL 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 NW2d 641 (1997), aff 'd 460 Mich 305; 596 NW2d 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 MCL 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 MCL 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 MCL 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 MCL 600.1641(2).
This phrase is discussed in Justice Corrigan's concurring opinion in Massey, supra at 385391. 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
5
5
Justice Cavanagh and Justice Kelly joined in Justice Corrigan's concurring opinion.
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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, MCL 600.1621. Massey, supra at 381-385. The remaining justices concluded that the
answer to the "difficult" venue question before the Supreme Court was found in MCL 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," MCL 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 (citation omitted). This definition "supports the
conclusion that separate claims against various defendants amount to separate 'causes of action.'"
Id. at 388.6
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."'"
6
Justice Corrigan noted that this Court in Schultz v Silver Lake Transport, Inc, 207 Mich App
267, 275; 523 NW2d 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. 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 MCL
600.1641. Therefore, Schultz did not consider the meaning of the phrase "cause of action" in
MCL 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 MCL 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
NW2d 704 (2002); Larry S Baker, PC v Westland, 245 Mich App 90, 101 n 3; 627 NW2d 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 MCL 600.1641.
-6-
Multiplex Concrete Machinery Co v Saxer, 310 Mich 243, 253; 17 NW2d 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 MCL 600.1641, and
particularly the exception found in MCL 600.1641(2) that venue in such cases must be
determined by the rules found in MCL 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.
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.
-7-
(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. 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, MCL 600.1629(1)(c) does not apply. Therefore, MCL 600.1629(1)(d) directs
that the criteria set forth in MCL 600.1621 or MCL 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 MCL 600.1605, which concerns venue for actions involving real
property or tangible personal property, nor MCL 600.1611, which concerns venue for actions
involving probate bonds, resolve the road commission's motion for change of venue. However,
MCL 600.1615 concerns actions against governmental units. Therefore, the road commission's
venue motion must be considered in conjunction with MCL 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 NW2d 11 (1990), where this Court stated that the language
"the proper county in which to commence and try actions against such governmental units" in
MCL 600.1615 was "mandatory" and "designate[s] the home county of a governmental unit as
the proper venue." Attorney Gen, supra at 528 (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
-8-
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 MCL 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 MCL 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, MCL 600.1629(1)(d) states that a county that satisfies the criteria
in MCL 600.1621 or MCL 600.1627 is a county in which to try a tort action. However, each of
these statutes defers to MCL 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.
/s/ Brian K. Zahra
/s/ Henry William Saad
/s/ Bill Schuette
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