Pre Fab Transit Co. v. Fontaine Trailer Co.

NO. 4-97-1140

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

PRE FAB TRANSIT COMPANY, a Corporation, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) De Witt County
FONTAINE TRAILER COMPANY, INC., a ) No. 97LM41
Corporation, and INDEPENDENT TRAILER & )
REPAIR, INC., a Corporation, ) Honorable
Defendants-Appellees. ) Stephen H. Peters,
) Judge Presiding.

JUSTICE GREEN delivered the opinion of the court:
Plaintiff, Pre Fab Transit Company, a corporation,
appeals an order entered December 1, 1997, in the circuit court
of De Witt County, dismissing its complaint against defendants'
Fontaine Trailer Company, Inc. (Fontaine), and Independent
Trailer and Repair, Inc. (Independent Trailer), on the ground of
forum non conveniens.
On appeal, Pre Fab contends the trial court erred (1)
by not affording plaintiff sufficient time to conduct discovery
on the issue of forum non conveniens; (2) in ruling in favor of
defendants on the issue of forum non conveniens without con-

ducting a hearing on that motion or affording plaintiff an
opportunity to respond to that motion; and (3) by entering an
order dismissing the complaint on grounds of forum non conveni-

ens. We conclude plaintiff was not given a fair opportunity to
present its position. Accordingly, we reverse and remand for a
new hearing on the issue of forum non conveniens.
Plaintiff's complaint contained 15 counts and sought
money damages arising from damage to its equipment when dollies
manufactured by defendant Independent Trailer and sold to plain-

tiff by Fontaine Trailer malfunctioned.
Forum non conveniens is a doctrine based on considera-

tion of fundamental fairness and sensible, effective judicial
administration. It allows a court to decline to hear a case,
even though it may have jurisdiction over the subject matter and
parties, when it appears that another forum can better serve the
convenience of the parties and the ends of justice. Certain
Underwriters at Lloyd's, London v. Bertrand Goldberg Associates,
Inc., 238 Ill. App. 3d 692, 697, 606 N.E.2d 541, 544 (1992).
The dispute in this case arises from uncertainty as to
what was said at a hearing held on November 13 or 14, 1997.
Prior to that time, both defendants had made motions to dismiss
pursuant to section 2-615 of the Code of Civil Procedure (Code)
(735 ILCS 5/2-615 (West 1996)). The parties agree that prior to
that date no mention had been made in regard to whether the issue
of forum non conveniens was involved. The record indicates that
a pretrial conference was scheduled for November 13, 1997. The
court's docket contained an entry dated "11/14/97" indicating the
parties appeared by counsel and that the court indicated to
counsel that plaintiff no longer was "a corporate resident of De
Witt Co., Il." The docket further stated: "counsel to brief
question of forum non conveniens & to submit briefs to court
within 7 days."
The foregoing docket entry then stated "[c]ounsel will
then make a decision concerning proper forum based on said
memorandums." (Emphasis added.) The docket entry further stated:
"[c]ounsel for Pltf[.] [sic] Ind. Trailer files mtn[.] to dsms."
(Emphasis added.) Finally, the docket entry stated "[c]ounsel
for pltf[.] indicates he will confess each mtn[.] pursuant to 735
ILCS 5/2-615 if the court determines this is a proper forum for
this case" and "[s]aid action reserved until court determines
issue as to proper forum." At the side of the entry is a nota-

tion "chg[.] 11/19/1997."
On November 19, 1997, defendant Independent Trailer
filed a motion to dismiss on the basis of forum non conveniens.
On November 20, 1997, plaintiff filed a memorandum regarding
proper jurisdiction and venue. On December 1, 1997, the circuit
court entered the order on appeal purporting to act on both the
"court's suggestion of forum non conveniens" and Independent
Trailer's motion.
A hearing was held on April 11, 1998, to settle a
bystander's bill as to what happened at the hearing on November
13 or November 14, 1997. This was important because the theory
of defendants is that the issue of forum non conveniens was
raised at this meeting. The evidence is clear that if the issue
was properly raised there, plaintiff waived further hearing on
that issue and agreed the court could proceed on memoranda
presented by the parties.
The most significant testimony at that hearing was that
of M. Tod Melton, who was counsel for Independent Trailer in
November 1997, but who had later withdrawn from the case. Melton
stated in part:
"When we came into court to have a hearing on
the motions, Judge Peters posed the question
of whether it was properly in front of this
Court. After some discussion about that, I
suggested that it seemed prudent we address
that issue and get it out of the way before
we go forward on the merits. All of the
attorneys seemed to agree with that and
thought it was a good idea. We talked about
doing it in a simplified manner in a briefing
schedule and the parties seemed to be in
agreement that they could have briefs...,
filed and sent to the Court, within seven
days and we would proceed to have the Court
rule on the briefs or memoranda without need
for further oral argument."
Melton expanded on that testimony during the following colloquy:
"Question: Other than that, it was your
understanding that there was to be no further
hearing?
Answer: Not on the forum non conveni-

ens. We thought at that time it would be
addressed by the Court, we would file our
briefs each within seven days, I remember
that specifically. It was not seven to file,
seven to respond, seven to reply; it was
[all] parties were to file within seven days
and the [judge] would read the briefs and
issue a written ruling unless he felt there
was a need for further oral argument."
However, he also testified he did not remember the "exact words"
forum non conveniens ever being used at the hearing on November
13 or 14, 1997.
Plaintiff's counsel responded to meritorious testimony
by stating: "I have a fairly vivid recollection of the hearing
in November '97 and my recollection, there is nothing that Mr.
Melton has testified to that I can say I disagree with." Howev-

er, plaintiffs counsel did testify he never understood they were
arguing about any issue other than jurisdiction and venue and,
accordingly, he directed the memorandum he filed to those two
issues.
Also presented at the April 11, 1998, hearing was a
letter written by Melton to Independent Trailer's present counsel
dated March 2, 1998. That letter set forth his recollections of
the November 13 or 14, 1997, hearing. The circuit court certi-

fied this document as a bystander's bill setting forth what
occurred at that time.
We recognize that in Certain Underwriters, 238 Ill.
App. 3d at 696, 606 N.E.2d at 543, in the course of a hearing on
a defense motion to dismiss for lack of jurisdiction, the parties
discussed the question of forum non conveniens. In an informal
manner, as here, the circuit court dismissed the complaint on the
grounds of forum non conveniens. However, there, unlike here, no
uncertainty was indicated as to whether the plaintiff understood
that was the issue upon which further hearing was being waived
and upon which the court was to be briefed.
The record here gives little indication that the term
"forum non conveniens" was ever used in the discussions on
November 13 or 14, 1997. Melton, the writer of the letter settl-

ed upon by the court as the bystander's report of that hearing,
testified he could not say for sure that the term "forum non
conveniens" was ever used. Certainly, plaintiff's counsel did
not understand that theory was in issue, as he completely omitted
reference to it in his memorandum. While the word "forum" was
probably used, that word is also pertinent in regard to venue.
At all pertinent times, Supreme Court Rule 187(b) has
provided:
"(b) Proceedings on motions. Hearings
on motions to dismiss or transfer the action
under the doctrine of forum non conveniens
shall be scheduled so as to allow the parties
sufficient time to conduct discovery on is-

sues of fact raised by such motions. Such
motions may be supported and opposed by affi-

davit. In determining issues of fact raised
by affidavits, any competent evidence adduced
by the parties shall also be considered. The
determination of any issue of fact in connec-

tion with such a motion does not constitute a
determination of the merits of the case or
any aspect thereof." 134 Ill. 2d R. 187(b).
The foregoing indicates a policy of giving plaintiffs, subject to
a forum non conveniens motion, a fair opportunity to respond.
Plaintiff should have filed a motion to reconsider in the circuit
court when he received notice of the dismissal, but, in view of
the uncertain procedure used here, we do not hold that the error
that occurred was waived. If an issue such as forum non conveni-

ens is raised without being formally pleaded or by written or
pronounced court order, the court should be careful to ensure all
parties understand that issue has been raised. We reverse and
remand for a new hearing on the issue of whether forum non
conveniens applies here. Before such a hearing, the court shall
give the parties an opportunity for further briefing on the
subject.
On remand, the circuit court should recognize that the
type of forum non conveniens to be applied here is of the inter-

state type. See 134 Ill. 2d R. 187(c). If that were not so, the
appropriate remedy would have been a transfer of the case to the
appropriate Illinois court (134 Ill. 2d R. 187(c)(1)). Under
these circumstances the question before the court on remand is
whether the courts of some other state are more appropriate than
the courts of this state. See 3 R. Michael, Illinois Practice
14.1 through 14.3, at 161-72 (1989). Under these circumstanc-

es, the fact that plaintiff moved its office from De Witt County
to Champaign County is of little significance.
As indicated, we reverse the order dismissing plain-

tiff's complaint and remand to the circuit court of De Witt
County. That court shall then hold a new hearing on the issue of
forum non conveniens after giving the parties an opportunity to
brief the issue.
Reversed and remanded with directions.
KNECHT and COOK, JJ., concur.