155991_54_01

DAWLEY v HALL
Docket No. 155991. Decided January 3, 2018.
Joanne D. Dawley, individually and as personal representative of the estate of her
husband, James Armour II, brought a tort action in the Wayne Circuit Court against Rodney W.
Hall, the driver of a vehicle involved in a motor vehicle collision in Lake County that allegedly
caused Armour’s death. Defendant moved to transfer venue to Mason County or Lake County,
claiming among other things that he conducted business in Mason County by owning and
operating a resort there. The Wayne Circuit Court, John A. Murphy, J., granted the motion and
transferred venue to Mason County in March 2015. Ten months later, plaintiff moved under
MCR 2.223 to change venue back to Wayne County after discovery revealed that defendant was
merely a member of the investment company that owned the resort in Mason County and not its
owner. The Mason Circuit Court, Susan K. Sniegowski, J., denied the motion, and plaintiff
appealed. The Court of Appeals, W ILDER and S WARTZLE, JJ. (BORRELLO, P.J., concurring in the
result only), reversed and remanded for transfer of venue to Wayne County. 319 Mich App 490
(2017). Defendant sought leave to appeal.
In a unanimous per curiam opinion, the Supreme Court, in lieu of granting leave to
appeal and without holding oral argument, held:
Plaintiff’s motion for a change of venue was not permitted under MCR 2.223(A), which
only permits a court to change venue on timely motion of a defendant or on the court’s own
initiative. The Court of Appeals’ decision ordering a transfer of venue was vacated.
1. MCR 2.223(A) states that if the venue of a civil action is improper, the court shall
order a change of venue on timely motion of a defendant or may order a change of venue on its
own initiative with notice to the parties and opportunity for them to be heard on the venue
question. Neither avenue contemplates a plaintiff’s motion. Similarly, the relevant venue
statute, MCL 600.1651, does not provide for a plaintiff’s motion to change venue, but it states
that a defendant may move for a change of venue within the time and in the manner provided by
court rule, in which case the court will transfer the action to a proper county on such conditions
relative to expense and costs as provided by court rule and MCL 600.1653. By expressly
recognizing that the defendant and the court can effect a change in venue but including no
similar provision for the plaintiff, the rule and the statute must be read to exclude the plaintiff.
Considered together, the court rules and the statute in this case demonstrate purposeful choices
Michigan Supreme Court
Lansing, Michigan
Syllabus Chief Justice:
Stephen J. Markman
Justices:
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
Elizabeth T. Clement
This syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions:
Kathryn L. Loomis

-- 1 of 10 --

about which actors can seek to effect a change in venue. Accordingly, the decision not to
include the plaintiff in MCR 2.223(A) must be interpreted as a meaningful choice to preclude
plaintiffs from filing motions under that rule.
2. It was unnecessary to address plaintiff’s argument on appeal that MCR 2.612(C)(1)(b)
would allow a plaintiff to effect a change in venue when a defendant has obtained a transfer to an
improper venue because plaintiff did not properly raise the argument below. Plaintiff argued on
appeal that she was prevented from acting sooner to transfer venue back to Wayne County
because defendant had concealed the fact that he was merely a member of an LLC that owned
the resort in Mason County and not its owner. MCR 2.612(C)(1)(b) does permit a court to
overturn a prior order on the basis of newly discovered evidence, but only if that evidence by due
diligence could not have been discovered in time to move for a new trial under MCR 2.611(B),
which must be done within 21 days. It was questionable whether plaintiff’s evidence could have
met this test, given that information regarding the corporate ownership of the lodge was publicly
available on a state government website. Even if plaintiff’s evidence had been new, her
argument would have failed because neither her motion to transfer venue nor the accompanying
brief mentioned MCR 2.612(C) or requested relief from the Wayne Circuit Court’s prior order.
Instead, plaintiff’s request for a venue transfer was explicitly based on the premise that venue
was improper in Mason County.
Court of Appeals judgment vacated; case remanded to the Mason Circuit Court for
further proceedings.
Justice W ILDER did not participate because he was on the Court of Appeals panel.
Justice C LEMENT took no part in the decision of this case.
©2018 State of Michigan

-- 2 of 10 --

FILED January 3, 2018
S T A T E O F M I C H I G A N
SUPREME COURT
JOANNE D. DAWLEY, Individually and as
Personal Representative of the Estate of
JAMES ARMOUR II,
Plaintiff-Appellee,
v No. 155991
RODNEY W. HALL,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH (except W ILDER and CLEMENT , JJ.)
PER CURIAM.
At issue is whether plaintiff, arguing that venue is improper, can avail herself of
MCR 2.223(A), which permits a court to order a venue change “on timely motion of a
defendant,” MCR 2.223(A)(1), or on the court’s “own initiative,” MCR 2.223(A)(2). To
ask the question is nearly to answer it. Because plaintiff’s motion is neither a motion by
defendant nor an action on the court’s “own initiative,” we hold that plaintiff cannot file a
Michigan Supreme Court
Lansing, Michigan
OPINION Chief Justice:
Stephen J. Markman
Justices:
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Kurtis T. Wilder
Elizabeth T. Clement

-- 3 of 10 --

2
motion for a change of venue under MCR 2.223(A). Accordingly, we vacate the Court of
Appeals’ decision ordering transfer of venue.
This case arose out of a fatal automobile accident in Lake County between
defendant Rodney W. Hall and decedent James Armour II. Plaintiff Joanne O. Dawley,
Armour’s spouse, sued Hall in Wayne County in August 2014. Defendant moved to
transfer venue to Mason County or Lake County, alleging among other things that he
conducted business in Mason County by owning and operating Barothy Lodge.1 The
Wayne Circuit Court granted the motion and transferred venue to Mason County in
March 2015.
Ten months later, on January 8, 2016, plaintiff moved under MCR 2.223 to change
venue back to Wayne County. She alleged that discovery had revealed that defendant did
not, in fact, own the resort in his name; he was merely a member of Hall Investments,
LLC, which owned the resort. Therefore, according to plaintiff, venue in Mason County
was improper because defendant did not conduct business there. The trial court
disagreed, but the Court of Appeals reversed and remanded for transfer of venue to
Wayne County.2 Defendant now seeks leave to appeal in this Court, arguing among
other things that MCR 2.223 does not permit a plaintiff to move for transfer of venue.
1 In tort actions like the present case, MCL 600.1629(a), (b), and (c) provide three
possible venue locations. The parties agree that none of the three is appropriate here. In
such cases, MCL 600.1629(d) provides that venue is proper where the defendant resides
or conducts business, MCL 600.1621, or in the county where the accident occurred, MCL
600.1627.
2 Dawley v Hall, 319 Mich App 490; 902 NW2d 435 (2017).

-- 4 of 10 --

3
We review interpretation of court rules “de novo and under the same principles
that govern the construction of statutes.”3 “Namely, the court rule is to be interpreted
according to its plain language,” giving each word and phrase its common, ordinary
meaning.4
MCR 2.223(A) states in pertinent part:
If the venue of a civil action is improper, the court
(1) shall order a change of venue on timely motion of a
defendant, or
(2) may order a change of venue on its own initiative with
notice to the parties and opportunity for them to be heard on the
venue question.
The rule thus provides two avenues for changing venue: the defendant’s timely motion or
the court’s order on its own initiative. Neither avenue contemplates a plaintiff’s motion.
That is likely because “[a] transfer under MCR 2.223 necessarily implies an erroneous
choice of court by the plaintiff.”5 Similarly, the relevant venue statute, MCL 600.1651,
does not provide for a plaintiff’s motion to change venue. It states, “An action brought in
a county not designated as a proper county may nevertheless be tried therein, unless a
3 Fraser Trebilcock Davis & Dunlap PC v Boyce Trust 2350, 497 Mich 265, 271; 870
NW2d 494 (2015).
4 Id.
5 2 Longhofer, Michigan Court Rules Practice, Text (6th ed), § 2223.6, p 190; but see 1
Longhofer, Michigan Court Rules Practice, Forms (3d ed), § 3:38, commentary, p 109
(recognizing that MCR 2.223 is “silent” on whether a plaintiff can file a motion and
suggesting that “[a] logical resolution” is to permit the plaintiff to file a late, but not a
timely, motion).

-- 5 of 10 --

4
defendant moves for a change of venue within the time and in the manner provided by
court rule, in which case the court shall transfer the action to a proper county on such
conditions relative to expense and costs as provided by court rule and [MCL 600.1653].”6
The rule and statute, then, expressly designate who can bring about a change in venue.
Under well-established interpretive principles, by expressly recognizing that the
defendant and the court can effect a change in venue, but including no similar provision
for the plaintiff, the rule and statute must be read to exclude the plaintiff.7
This conclusion becomes even clearer when these provisions are compared to
MCR 2.222. That rule allows a court in a proper venue to nonetheless transfer the case
6 Emphasis added. MCL 600.1653 is a cost-shifting provision involving motions for
change of venue when venue is improper. It states that “[i]f a party brings a motion for a
change of venue in an action based on tort alleging improper venue, the court shall award
expenses and costs as follows . . . .” MCL 600.1653. The fees are to be paid by the
losing party, after a hearing. MCL 600.1653(a) and (b). While this could be read to
suggest that either party can file the motion, such an interpretation would contradict the
clear language of MCL 600.1651 and MCR 2.223, which specifically provide that only a
defendant can file the motion to change venue on the ground that present venue is
improper.
7 See Bradley v Saranac Community Schs Bd of Ed, 455 Mich 285, 298; 565 NW2d 650
(1997) (“This Court recognizes the maxim expressio unius est exclusio alterius; that the
express mention in a statute of one thing implies the exclusion of other similar things.”).
Plaintiff argues that “[i]f a court has authority to change venue without any
motion, that the plaintiff filed a motion does not deprive the court of that authority.” We
do not reach this argument because there is no indication that the trial court acted on its
own initiative in this case. We note, however, that the court rule gives the trial court
broader discretion when it acts on its own initiative, even if such action may be spurred
by information provided by the parties. Compare MCR 2.223(A)(1) (stating that if venue
is improper, the court “shall order a change of venue on timely motion of a defendant”)
(emphasis added) with MCR 2.223(A)(2) (stating that if venue is improper, the court
“may order a change of venue on its own initiative”) (emphasis added). And it is the
latter provision that courts must follow to transfer venue on their own initiative.

-- 6 of 10 --

5
“on motion of a party”8 on the basis of, among other things, the convenience of the
parties.9 Unlike MCR 2.223, then, MCR 2.222 does not limit which party may initiate a
change of venue. Other rules allowing the court to act on its “own initiative” also
explicitly provide for the filing of “the motion of a party,” further demonstrating that
actions taken on the court’s “own initiative” are distinct from actions prompted by
motions of any party.10 Considered together, the court rules and the statute in this case
demonstrate purposeful choices about which actors can seek to effect a change in venue.
Accordingly, the decision not to include the plaintiff in MCR 2.223(A) must be
8 MCR 2.222(B) (emphasis added).
9 MCR 2.222(A) (“The court may order a change of venue of a civil action, or of an
appeal from an order or decision of a state board, commission, or agency authorized to
promulgate rules or regulations, for the convenience of parties and witnesses or when an
impartial trial cannot be had where the action is pending.”).
10 See, e.g., MCR 2.612(A)(1) (“Clerical mistakes in judgments, orders, or other parts of
the record and errors arising from oversight or omission may be corrected by the court at
any time on its own initiative or on motion of a party and after notice, if the court orders
it.”); MCR 2.402(B) (“A court may, on its own initiative or on the written request of a
party, direct that communication equipment be used . . . .”); MCR 2.316(B)(3) (“On
motion of a party, or on its own initiative after notice and hearing, the court may order
discovery materials removed at any other time on a finding that the materials are no
longer necessary.”); MCR 2.115(B) (“On motion by a party or on the court’s own
initiative, the court may strike” certain matters from a pleading); MCR 2.114(E) (“If a
document is signed in violation of this rule, the court, on the motion of a party or on its
own initiative, shall impose” reasonable expenses); MCR 2.207 (“Parties may be added
or dropped by order of the court on motion of a party or on the court’s own
initiative . . . .”); see also MCR 2.509(A)(2) (requiring the court to hold a jury trial unless
“the court on motion or on its own initiative finds that there is no right to trial by jury”).

-- 7 of 10 --

6
interpreted as a meaningful choice to preclude plaintiffs from filing motions under that
rule.11
Plaintiffs’ inability to file a motion under MCR 2.223 does not leave them in the
lurch. In this case, for example, plaintiff could have challenged the Wayne Circuit
Court’s order transferring venue if she had filed a motion for rehearing or reconsideration
within 21 days pursuant to MCR 2.119(F)(1), or by filing an application for leave to
appeal, MCR 7.205. Plaintiff bypassed these options and instead waited roughly 10
months to file a new motion to change venue.
Plaintiff also protests that defendant concealed the fact that he was merely a
member of an LLC that owned the resort in Mason County by suggesting that he actually
owned it himself. It was this chicanery, according to plaintiff, that prevented her from
acting sooner to transfer venue back to Wayne County. Plaintiff argues that the
concealment is legally significant because, under MCL 600.1651, the transferee court
obtains “full jurisdiction of the action as though the action had been originally
commenced therein.” Therefore the transferee court, plaintiff contends, “acquires
11 Plaintiff cites Eigner v Eigner, 79 Mich App 189; 261 NW2d 254 (1977), in support of
her argument that MCR 2.223 does not preclude plaintiffs from bringing motions to
change venue. In Eigner, the plaintiff successfully moved to transfer venue under GCR
1963, 404, a predecessor of MCR 2.223 that similarly stated, “[t]he venue of any civil
action improperly laid shall be changed by order of the court on timely motion by any
defendant, or may be changed by the court on its own motion.” The Court of Appeals
affirmed the trial court’s transfer based on that rule. Eigner, 79 Mich App at 197. But
much like the Court of Appeals in the instant case, Eigner offered no analysis of the
rule’s text and, indeed, it is unclear whether the defendant even challenged the plaintiff’s
authority to invoke the rule. To the extent that Eigner did hold that the court rule
permitted plaintiffs to file a motion under this rule, we disagree with that holding.

-- 8 of 10 --

7
jurisdiction to do anything the transferor court could have done. . . . One of the things the
Wayne Circuit Court could have done (had it not lost jurisdiction) was reverse itself
based on newly discovered evidence. MCR 2.612(C).” Consequently, plaintiff
concludes that the Mason Circuit Court had the authority to do the same thing.
MCR 2.612(C)(1)(b) does permit the court to overturn a prior order on the basis of
“[n]ewly discovered evidence,” but only if that evidence “by due diligence could not
have been discovered in time to move for a new trial under MCR 2.611(B),” which must
be done within 21 days. It is highly questionable whether plaintiff’s “new evidence”
could meet this test, given that the Department of Licensing and Regulatory Affairs
(LARA) has publicly provided online documents, dating back to 2010, revealing that
“Barothy Lodge” is an assumed name for an entity known as Hall Investments, LLC.12
Even if plaintiff’s evidence were new, her argument would still fail: she never made a
motion under MCR 2.612(C). Instead, she simply observes that the Wayne and Mason
Circuit Courts could have granted relief under that rule. However, the rule states that a
court can grant relief “[o]n motion and on just terms[.]”13 Plaintiff’s motion to transfer
venue and accompanying brief never mentioned MCR 2.612(C) or requested relief from
the Wayne Circuit Court’s prior order. Instead, she explicitly requested a venue transfer
on the basis that venue was improper in Mason County. Consequently, because plaintiff
has not properly raised the argument, we do not decide here whether MCR
12 See LARA, Corporations Online Filing System,
<https://cofs.lara.state.mi.us/CorpWeb/CorpSearch/CorpSummary.aspx?ID=801162077
&SEARCH_TYPE=1> (accessed December 20, 2017) [https://perma.cc/CWL8-FX68].
13 MCR 2.612(C).

-- 9 of 10 --

8
2.612(C)(1)(b) would allow, in certain cases, a plaintiff to effect a change in venue when
a defendant has obtained a transfer to an improper venue.14
For the reasons above, plaintiff could not move for a change of venue under MCR
2.223(A). Accordingly, we vacate the Court of Appeals decision15 and remand to the
Mason Circuit Court for proceedings consistent with this opinion.
Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
WILDER , J., did not participate because he was on the Court of Appeals panel.
C LEMENT , J., took no part in the decision of this case.
14 We would note, however, that it is unclear whether MCR 2.612(C)(1)(b) even applies
to motions to change venue in light of MCR 2.221(B), which is more specific and allows
for the late filing of motions for change of venue “if the court is satisfied that the facts on
which the motion is based were not and could not with reasonable diligence have been
known to the moving party more than 14 days before the motion was filed.” In this case,
while no party has raised the issue, even if plaintiff had been permitted to file a motion to
change venue under MCR 2.223, the motion would not have been timely under MCR
2.221(A) (requiring a motion for change of venue to be filed before or at the time the
defendant files an answer), and, for the reasons discussed above, likely would not have
satisfied the criteria for allowance of a late motion for change of venue under MCR
2.221(B).
15 The Court of Appeals did not directly address defendant’s argument that plaintiff could
not utilize MCR 2.223, but it implicitly assumed that plaintiff could. Because we
conclude that this argument is determinative, we need not reach the issues the Court of
Appeals did address.

-- 10 of 10 --