In Angelucci v Dart Properties Inc, the Court of Appeals reluctantly reversed the trial court’s order granting the defendant’s motion to change venue to Macomb County in this multiclaim landlord-tenant dispute, following Provider Creditors Committee v United American Health Care Corp, 738 NW2d 770 (Mich Ct App, 2007). But the opinion called for a special panel to review the court’s decision in Provider Creditors. Specifically, the court took issue with the Provider Creditors panel’s interpretation of MCL 600.1641(2). In its view, Provider Creditors improperly limited the application of subsection (2) to only tort claims asserting personal injury. The Dart Properties panel stated that venue should have been proper in Macomb County under MCL 600.1641(2). However, because it was bound by Provider Creditors, the panel held that venue was proper in Oakland County, and reversed the trial court’s decision transferring venue to Macomb County.
Plaintiff’s complaint asserted a class action based on negligence, violation of various consumer-protection laws, misrepresentation, concealment, intentional infliction of emotional distress, and interference with a possessory interest. Defendants sought venue in Macomb County, where the alleged acts occurred, where the plaintiff resided, and where defendants were primarily located. The trial court agreed with the defendants and granted their motion for change of venue.
Proper venue is determined under MCL 600.1641, which provides that where more than one cause of action is pled, and one of the claims 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(2). In turn, MCL 600.1629 requires that tort actions be heard in the county where the injury occurred and where either the defendant resides, the defendant’s corporate office is registered, or where the plaintiff resides.
The Provider Creditors panel restricted the meaning of subsection 1641(2) to torts alleging a personal injury within the definition from MCL 600.6301 requiring “bodily harm, sickness, disease, death, or emotional harm resulting in bodily harm.” Thus, subsection 1641(2) does not apply to multiclaim actions alleging another type of tort.
The Dart Properties panel said that such a restrictive reading of subsection 1641(2) was improper because the phrase beginning “seeking damages for personal injury . . .” was intended to modify only the last antecedent before it, i.e., “another legal theory.” The panel reasoned that the “personal injury” phrase was not meant to modify the phrase “based on tort.” According to the Dart Properties panel, a multiclaim action including any type of tort should come within the ambit of subsection 1641(2). However, because the Dart Properties panel was bound by the opinion in Provider Creditors due to MCR 7.215(J)(2), it was constrained to reverse the trial court’s decision and hold that venue was proper in Oakland county.
The Dart Properties panel called for a special panel to reconsider Provider Creditors under MCR 7.215(J)(3). If the Court of Appeals convenes a special panel, a seven judge panel will consider the proper meaning of MCL 600.1641(2).