DIMMITT & OWENS FINANCIAL, INC v DELOITTE & TOUCHE (ISC), LLC
Docket No. 134087
Supreme Court of Michigan
Decided July 9, 2008
481 Mich 618
In an opinion by Justice CORRIGAN, joined by Chief Justice TAYLOR and Justices WEAVER, YOUNG, and MARKMAN, the Supreme Court held:
The location of the original injury for purposes of determining venue under
- A claim for negligence requires an actual injury. Because
MCL 600.1629(1)(a) and (b) refer to the county where the original injury occurred, a court must examine the first injury resulting from an act or omission by a defendant to determine where venue is proper. The place of original injury, not the original breach of the standard of care, establishes venue. - Plaintiffs did not suffer their original injury when the defendants allegedly negligently conducted audits and prepared reports or when plaintiffs relied on the defendants’ reports. Plaintiffs suffered only a potential injury - that their investment
decisions might turn out to be poor ones - when they relied on the reports. Plaintiffs allegedly suffered their first actual injury only when Dimmitt was unable to comply with its financial obligations and was forced to liquidate its assets. Because plaintiffs’ principal places of business are in Oakland County, they suffered their original injury there, and venue is proper in that county. - The Court of Appeals erred by focusing on where plaintiffs relied on the information, but that Court reached the right result in this case with respect to the proper venue.
- Bass v Combs, 238 Mich App 16 (1999), is overruled to the extent that it held that venue was proper in the county where the negligent omissions of a defendant occurred rather than the county in which the original injury to the plaintiff occurred.
Court of Appeals result affirmed and case remanded for entry of an order changing venue.
Justice KELLY, concurring in part and dissenting in part, agreed that the phrase “original injury” as used in the tort venue statute is not synonymous with breach of a duty, that venue here is proper in Oakland County, and that the Court of Appeals decision should be affirmed. She would hold that the original injury to Dimmitt occurred when it made business decisions in reliance on the allegedly negligent audit because when and where damages manifest themselves is not important for venue purposes.
Justice CAVANAGH would deny leave to appeal.
VENUE - TORT ACTIONS.
The location of the original injury for purposes of determining the venue for a tort action is where the first actual injury occurred that resulted from an act or omission of another (
Stark Reagan, P.C, (by Peter L. Arvant and Gregory S. Pierce), for Dimmitt & Owens Financial, Inc.
Beals Hubbard, P.L.C. (by John A. Hubbard and Eric A. Parzianello), for JMM Noteholder Representative, L.L.C.
John P. Jacobs, P.C. (by John P. Jacobs), and Sidley Austin LLP (by Jeffrey C. Sharer and Kristin R. Seeger) for Deloitte & Touche (ISC), LLP, and Philip Jennings.
Plunkett Cooney (by Ernest R. Bazzana) for the Michigan Association of Certified Public Accountants.
CORRIGAN, J. In this accounting malpractice action, we consider where an “original injury” occurs for purposes of determining venue under
Plaintiffs Dimmitt & Owens Financial, Inc., and JMM Noteholder Representative, L.L.C., sued defendants Deloitte & Touche (ISC), L.L.C., Deloitte Services Limited Partnership, also known as Deloitte & Touche, L.L.P., and Philip Jennings (collectively, defendants) in the Wayne Circuit Court, alleging that defendants had committed malpractice when providing auditing services to Dimmitt. Defendants moved for a change of venue, contending that they had performed their auditing services at Dimmitt‘s offices in Oakland County. They contended that Oakland County was the “county in which the original injury occurred.”
The Court of Appeals reversed, holding that the original injury occurred when plaintiffs first relied on
I. FACTS AND PROCEDURAL HISTORY
Plaintiffs alleged that Dimmitt is a “traditional factor” that purchases accounts receivable at a discount from its customers. Factoring is a financial transaction that occurs when a business is owed money by a debtor. This business sells one or more of its invoices at a discount to a third party, the factor, to obtain cash. The debtor then directly pays the factor the full value of the invoice. The factor, however, bears the risk that the debtor will not pay the invoice.3
Dimmitt received financial backing for its factoring business through unsecured promissory notes from
Plaintiffs alleged that by 2003 Dimmitt was in default on its repayment obligation to the bank and could not meet its financial obligations to its investors. Dimmitt notified the bank of its impending default and presented a proposal for reorganization to its investors, which both the bank and the investors accepted. Dimmitt also entered into a forbearance agreement with the bank. Shortly thereafter, Dimmitt determined that it lacked the financial capacity to comply with either the forbearance agreement or the reorganization plan, and it elected to liquidate its assets.
Plaintiffs alleged that the development of Dimmitt‘s proposal for reorganization and its negotiations with the bank were premised on the true value of Dimmitt‘s assets, as set forth in the financial statements audited by defendants. Subsequently, however, Dimmitt discovered that a significant portion of its assets had been vastly overstated in the financial statements audited and reviewed by defendants. Moreover, Dimmitt discovered accounting errors and omissions. In particular, the statements included accounts receivable that had been
Plaintiffs filed a complaint in the Wayne Circuit Court, alleging accounting malpractice. They also alleged negligence, fraud/intentional misrepresentation, constructive fraud, breach of contract, and breach of fiduciary duty and sought a declaratory judgment. In lieu of answering plaintiffs’ complaint, defendants sought a change of venue. Defendants contended that they had performed the accounting work relevant to plaintiffs’ complaint at Dimmitt‘s offices in Oakland County. Defendants argued that
On defendants’ application for leave to appeal, the Court of Appeals reversed, holding that the original injury occurred when plaintiffs first relied on the information that defendants had negligently provided.5 It held that “defendants’ alleged negligence in collecting and analyzing data and information presented only the potential for future injury, but plaintiffs suffered the
Plaintiffs sought leave to appeal in this Court. We ordered oral argument on whether to grant plaintiffs’ application or take other peremptory action.8
II. STANDARD OF REVIEW
Venue is controlled by statute in Michigan.9 The Legislature is properly imbued with the power to establish the venue for causes of action.10 This Court reviews de novo questions of statutory interpretation.11 In doing so, our primary obligation is to discern legislative intent as reflected in the plain language of the statute.12 When the language of a statute is unambiguous, the Legislature‘s intent is clear, and judicial construction is neither necessary nor permitted.13
We review a trial court‘s ruling in response to a motion to change venue under the “clearly erroneous” standard.14 Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake has been made.15
Subject to subsection (2), 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.
Before the statute was amended by 1995 PA 161 and 1995 PA 249, effective March 28, 1996, subsections 1(a) and (b) referred to a “county in which all or a part of the cause of action arose,” rather than “the county in which the original injury occurred.”
In Lorencz v Ford Motor Co, 439 Mich 370, 377; 483 NW2d 844 (1992), this Court interpreted the preamendment language to mean that “venue is proper where part or all of the cause of action arose, not merely at the situs of the injury.” We explained:
It is clear that a breach of duty can occur in a different venue than the injury in a tort case. For example, in a products liability action, the product can be designed in one
county, manufactured in another, and the injury may occur in yet a third. A plaintiff, alleging proper facts, can file suit in any one of these places because all or a part of the cause of action arose in any one of them. Under the plain language of MCL 600.1629(1)(a) ;MSA 27A.1629(1)(a) , venue would be properly laid in any one of them.16
This Court refined Lorencz in Gross v Gen Motors Corp, 448 Mich 147; 528 NW2d 707 (1995). In that case, the plaintiff argued that because damages are an element of a tort action, they establish a place or places where a tort action arises. We stated:
Under
MCL 600.1629 ;MSA 27A.1629 , venue in a tort action is proper only at the situs of an injury, or in the place or places where the breach of a legal duty occurs that subsequently causes a person to suffer damages. Tangential damages that occur other than at such places are irrelevant to venue determination.17
In Coleman v Gurwin, 443 Mich 59; 503 NW2d 435 (1993), this Court analyzed the preamendment version of the statute in the context of a legal malpractice action. In that case, the defendant lawyer had allegedly given erroneous advice regarding a potential wrongful discharge claim and the applicable statute of limitations. This information induced the plaintiff to forgo filing suit until after the expiration of the period of limitations. Because the underlying suit arose in Wayne County and the defendant conducted business there, the trial court held that venue was properly laid in Wayne County. The Court of Appeals agreed. We reversed, stating:
Although evidence of an underlying suit may be necessary to prove proximate cause and damages, because legal
malpractice is a separate cause of action, venue is determined by the location of the primary suit, i.e., where the alleged legal negligence occurred. The venue of a “suit within a suit” is not a part of the legal malpractice cause of action, therefore, it may not direct the venue of the legal malpractice action. A legal malpractice action arises solely in the county where the allegedly negligent legal representation occurred. The Court of Appeals, therefore, erred by holding that the venue of the “suit within a suit” controls the venue of a legal malpractice claim.18
We continued:
Not one of the parts of the cause of action for legal malpractice occurred in Wayne County; the plaintiff retained the attorney in Oakland County, the advice was given in Oakland County and received in Washtenaw County, and the statute of limitations ran while the plaintiff lived in Washtenaw County. Plaintiff‘s action did not arise in whole or in part in Wayne County because defendant‘s alleged malpractice occurred outside of the county. Although the underlying litigation would have occurred in Wayne County, the actual suit at issue - the legal malpractice between plaintiff and defendant - is premised solely on allegedly negligent advice given on soil beyond the boundaries of Wayne County.19
In Bass v Combs, 238 Mich App 16; 604 NW2d 727 (1999), the Court of Appeals analyzed the proper venue for a legal malpractice action under the current, amended version of the statute. In that case, the plaintiff filed a legal malpractice claim against the defendants when her underlying wrongful discharge case was dismissed with prejudice because the defendants had failed to respond to discovery requests and had failed to instruct the plaintiff to appear at a deposition. The plaintiff filed her legal malpractice
The plaintiff appealed the transfer of venue of her legal malpractice claim.20 The Court of Appeals relied on the reasoning of Coleman, although Coleman had interpreted the preamendment version of the statute.21 The Court of Appeals held that Wayne County was the proper venue for the malpractice action because the plaintiff had set forth several instances of “legal negligence” that occurred in Wayne County, namely, the defendants’ failures to comply with court orders and otherwise properly handle the plaintiff‘s wrongful discharge case.22
We overrule Bass to the extent that it held that venue was proper in the county where the negligent omissions of the defendant occurred rather than the county in which the original injury suffered by the plaintiff occurred.23 The amendment of
While Taha involved a medical malpractice claim, its reasoning applies equally to the present case. In Taha, the plaintiff alleged that he fell and injured his wrist. A doctor treated the plaintiff for his wrist injury in Wayne County. An x-ray of the plaintiff‘s wrist was taken in Wayne County, but it was sent to the defendants in Oakland County to be read. The defendants allegedly misread the x-ray and communicated their findings to the doctor, who began treating the plaintiff in Wayne County based on the defendants’ allegedly negligent reading of the x-ray. The Court of Appeals explained that “[i]n the medical-malpractice context, it is clear that the plaintiff‘s injury is not merely the defendant‘s alleged failure to meet the recognized standard of care. Instead, the plaintiff‘s injury is the corporeal harm that results from the defendant‘s alleged failure to meet the recognized standard of care.”24 Therefore, the Court of Appeals held that venue was proper in Wayne County - the county where the plaintiff suffered actual physical harm:
The damage about which plaintiff complains in the case at bar is not the alleged misreading of the x-ray itself, but is the corporeal injury that plaintiff sustained as a result of defendants’ alleged negligence. Contrary to defendants’ contention, the mere misreading of the x-ray itself resulted in no actual harm, and therefore did not constitute an
“injury” for medical-malpractice purposes. Similarly, the x-ray misreading, without more, did not become an “injury” within the meaning of
MCL 600.1629 until it resulted in an actual injury to the plaintiff.25
Taha highlights the importance of separating a breach of the standard of care from the injury caused by the breach. Many negligent acts or omissions may occur that for whatever reason do not result in an actual injury. This Court has made clear, however, that a claim for negligence does not exist without actual injury.26 Because
Plaintiffs also did not suffer their original injury when they relied on defendants’ reports. The Court of Appeals held that “plaintiffs suffered the original injury when they relied on defendants’ allegedly faulty information in making investment decisions.”27 We have explained, however, that “Michigan law requires more than a merely speculative injury.... It is a present injury, not fear of an injury in the future, that gives rise to a cause of action under negligence theory.”28 At the time of plaintiffs’ reliance, plaintiffs suffered only a potential injury, namely, that their investment decisions based on defendants’ negligence might turn out to be poor ones that might injure plaintiffs. The original injury did not occur until plaintiffs allegedly suffered an actual injury as a result of their reliance on defendants’ services. The first actual injury plaintiffs allegedly suffered occurred when Dimmitt could not satisfy its financial obligations and was forced to liquidate its assets.29 Both plaintiffs’ principal places of business are in Oakland County, and, therefore, the alleged original
IV. CONCLUSION
The Court of Appeals incorrectly focused its inquiry on where plaintiffs relied on defendants’ work product, rather than where plaintiffs suffered the original, actual injury. Nevertheless, it reached the correct result in concluding that venue was proper in Oakland County. Both plaintiffs’ alleged injuries occurred when Dimmitt was unable to satisfy its financial obligations and was forced to liquidate its assets. That injury occurred in Oakland County, the location of both plaintiffs’ principal places of business.
For these reasons, we affirm the result reached by the Court of Appeals and remand this case to the Wayne Circuit Court for entry of an order changing venue to the Oakland Circuit Court.
TAYLOR, C.J., and WEAVER, YOUNG, and MARKMAN, JJ., concurred with CORRIGAN, J.
KELLY, J. (concurring in part and dissenting in part). I agree that “original injury” as used in the tort venue statute1 is not synonymous with the breach of a duty and that venue here is proper in Oakland County. But I disagree with the majority‘s conclusion that the “original injury” for venue purposes occurred when plaintiff Dimmitt & Owens Financial, Inc. (Dimmitt) became unable to meet its financial obligations and elected to liquidate its assets.
The majority focuses on when Dimmitt‘s damages emanating from the original injury became manifest.
The majority relies heavily on Henry v Dow Chem Co3 to redefine the phrase “original injury” as “actual,” rather than “potential,” injury.4 I have several objections to this reliance on Henry.
First, I fail to see how Henry is relevant to determining venue. There, a majority of the Court refused to recognize a cause of action for medical monitoring. But venue is “a matter of convenience,”5 not a question of whether a plaintiff has stated a legally cognizable cause of action.6 Were venue tied to the legal sufficiency of a complaint, no plaintiff would ever have a forum in which to make “a good-faith argument for the exten-
Second, the majority in Henry effectively equated actual injury with manifest injury.8 In his dissent in Henry, Justice CAVANAGH explained that injuries to legally protected interests are actual injuries, even when their manifestation is latent.9 I joined the dissent in Henry and continue to disagree with the majority‘s definition of injury in that case to exclude latent injuries.
Third, the majority in Henry noted that this Court had not “finely delineated the distinction between an ‘injury’ and the ‘damages’ flowing therefrom....” 10 The majority in Henry then immediately conflated the two.11 But the words “injury” and “damages” appear in separate elements of the cause of action for negligence.12 And “injury” in the first instance is a “violation of another‘s legal right....” 13 Damages may eventually emanate from the violation.
This conclusion is in line with the Court of Appeals decision in Taha v Basha Diagnostics, PC,14 which the majority quotes with approval.15 The plaintiff in Taha was treated for a broken wrist in Wayne County. In beginning the treatment, plaintiff‘s physician relied on x-rays that the Oakland County defendants misread. The Court of Appeals held that “the location of plaintiff‘s treatment by [his doctor] following defendants’ services was determinative of venue in this case.”16 The “actual harm” occurred “at [his doctor‘s] office in Wayne County.”17 While the Court of Appeals alternatively referred to plaintiff‘s “corporeal injury,”18 it never identified that injury separately from the treatment of plaintiff‘s pre-existent broken wrist.
The plaintiff in Taha was entitled to receive proper medical treatment based on a correct reading of his x-ray. He was injured when an improper treatment plan was devised on the basis of an incorrect radiological reading. Thus, the original injury in Taha was the ineffective treatment devised in reliance on the negligent radiological reading. As a result of that injury, the plaintiff claimed some unspecified damage to his already broken wrist.
I would affirm the Court of Appeals decision.
CAVANAGH, J. I would deny leave to appeal.
Notes
- The existence of a legal duty by defendant toward plaintiff;
- the breach of such duty;
- the proximate causal relation between the breach of such duty and an injury to the plaintiff; and
- the plaintiff must have suffered damages. [Lorencz v Ford Motor Co, 439 Mich 370, 375; 483 NW2d 844 (1992) (citations omitted; emphasis added).]