Gross v. General Motors Corp.

Levin, J.

(dissenting). I agree with the majority that "a part” of the instant causes of action for product design failure did not arise, for venue purposes, in Wayne County on the rationale that the decision to manufacture and market products containing the alleged design defects was necessarily made in Detroit because the World Headquarters of General Motors is located in Detroit. Further discovery, however, may show that the ultimate design decision was made in Detroit.

General Motors contends that the vehicles were designed at its Warren Technical Center in Ma-comb County. McLain contends, with some evidence to support, that the design was approved by General Motors Product Policy Group, an executive management committee that met at the World Headquarters in Detroit. In Gross, discovery on the venue issue, although voluminous, may be incomplete, possibly because the circuit judge initially ruled for General Motors, and, on remand, *173ultimately decided to retain jurisdiction on bases unrelated to where the vehicle was designed or the design decision was made.

I would remand both cases for additional discovery and fact finding regarding the role of the Product Policy Group and executive management in the design decisions concerning the vehicles. Although the design and alternative designs may have been formulated and developed in Warren, the ultimate decision may have been made in Detroit.

I recognize that ordinarily venue decisions are reached without extensive discovery, and that there are advantages to bright-line rules. In the instant cases, however, the parties appear to be willing to devote considerable resources to winning this venue war, which both sides appear to regard as worthy of that effort. We are not justified in bringing this venue war to a conclusion, as desirable as closure would be, without providing the plaintiffs with the opportunity for complete discovery and development of the facts and further fact finding by a circuit judge concerning General Motors’ actual design decision-making process.

If evidence developed on further discovery were to show, and the judge were to find, that the Product Policy Group or other high level management are meaningfully involved in the design decision, a part of the cause of action may have arisen in Detroit.

The difference between analyzing a problem, and developing a recommendation for its resolution, on the one hand, and choosing between alternative resolutions, on the other hand, is one that the members of this Court deal with on a daily basis. The commissioner’s staff, located in the Business and Trade Center Building, reviews applications for leave to appeal, reports to the Court concern*174ing the nature of the problem, and recommends, not infrequently, alternative resolutions. The justices review the commissioners’ reports in their offices and homes, and confer by telephone or during conference at the Court’s seat in the Law Building in Lansing.

Although commissioner reports and recommendations are generated in the Business and Trade Center Building, decisions on applications for leave to appeal are not made in that building. They are made elsewhere, by the justices, at their offices, their homes, or during telephone or formal conference discussion at the Law Building. Although the justices and the Court often adopt commissioner recommendations without holding them for conference discussion, the decisions in those cases are not made in the Business and Trade Center Building simply because work was done and a report and recommendation were there generated.

Similarly, in the instant cases, it may be that the Product Policy Group or another executive management committee or persons located in the World Headquarters, including persons located in Macomb County who report to persons located in Detroit, make the most meaningful design decisions when they decide which designs to adopt and which to reject. The record is not sufficiently developed for this Court to rule, as a matter of law, that design decisions invariably occurred in Macomb County.

I would remand to the circuit courts for further proceedings on the venue issue.

I also disagree with the majority’s disposition of Gross’ alternative argument that venue was properly transferred on grounds of hardship or inconvenience by the Washtenaw Circuit Court to the Wayne Circuit Court pursuant to § 1629(1) of the *175Revised Judicature Act1 and MCR 2.222-2.224. The majority states that "[l]ike the Court of Appeals” it finds that the argument is "without merit.”2

Before Lorencz v Ford Motor Co, 439 Mich 370; 483 NW2d 844 (1992), was decided, venue had been changed by the Wayne Circuit Court to Washtenaw, on the basis that venue was improper in Wayne. The Wayne Circuit Court ruled that the proper venue was Washtenaw. The Washtenaw Circuit Court — the "proper venue” — changed the venue, back to Wayne "for purposes of convenience” as provided for in the statute.3

The Court of Appeals ruled on the first appeal to that Court that the Washtenaw Circuit Court "did not have authority to transfer the action to Wayne County for purposes of convenience,”4 but remanded to the Wayne Circuit Court for reconsideration in light of Lorencz of General Motors’ motion for a change of venue. On remand, the Wayne Circuit Court decided to retain jurisdiction, and the Court of Appeals, by order, affirmed, one judge dissenting.

I am inclined to disagree with the Court of Appeals, and to the view that the Washtenaw Circuit Court did not, because the case had been "improperly” commenced in Wayne, have less authority to change venue to Wayne "based on hardship or inconvenience” than it would have had if the case had been commenced in Washtenaw.5

*176The majority also errs in suggesting that Gross’ alternative argument should not be heard because he failed to apply for leave to appeal the first decision of the Court of Appeals and failed to file a cross appeal from its second decision. A litigant is not required to file an application for an interlocutory appeal to this Court to preserve the right to seek review of an adverse decision by the Court of Appeals following a subsequent decision of the Court of Appeals.6

Nor is a litigant required to file a cross appeal to advance an alternative argument for affirming a decision of the Court of Appeals.7 A cross appeal is required when a litigant asks this Court to change the decision of the Court of Appeals.

The Court of Appeals decided on the second appeal in Gross to affirm the decision of the *177Wayne Circuit Court retaining jurisdiction, following the change back to Wayne ordered by the Washtenaw Circuit Court. Gross, who seeks affirmance of the decision of the Court of Appeals, was not required to file a cross appeal to preserve his right to seek review of the earlier decision of the Court of Appeals.

Cavanagh and Weaver, JJ., took no part in the decision of these cases.

MCL 600.1629(1); MSA 27A.1629(1).

Ante, p 161, n 8.

Either party may file a motion for a change in venue based on hardship or inconvenience. Venue shall only be changed under this subsection to the county in which the moving party resides. [MCL 600.1629(2); MSA 27A.1629(2).]

199 Mich App 620, 624; 502 NW2d 365 (1993).

The hierarchy of venue set forth in subsection (1) of § 1629, is expressly made subject to the power of the court to change venue on *176the basis of hardship or inconvenience. Subsection (1) of § 1629 provides: "Subject to subsection (2), in an action based on tort, the following provisions apply . . . .” There is there set forth the hierarchy, on which the majority opinion is predicated. Subsection (2), concerning change in venue "based on hardship or inconvenience,” immediately follows, and is set forth in n 3.

Compare Raven v Wayne Co Bd of Comm’rs, 399 Mich 585, 588, n 1; 250 NW2d 477 (1977), in which this Court had denied an application for interlocutory appeal, and it was asserted on the second appeal that the earlier decision had become the law of the case. This Court said:

The remand for further proceedings prevented the judgment from becoming final. This is the first occasion this Court has had to consider on plenary review the conclusions and determinations of the Court of Appeals. We are not precluded by the earlier determination of the Court of Appeals from reaching a conclusion contrary to that expressed in its first opinion.

An appellee not taking a cross-appeal may nevertheless urge in support of the judgment in his favor reasons other than those adopted by the lower court, or reasons rejected by the trial court. [7A Callaghan’s Michigan Pleading & Practice (2d ed), § 57.54, p 334.]

See Burns v Rodman, 342 Mich 410, 414; 70 NW2d 793 (1955); Fass v Highland Park, 321 Mich 156, 158; 32 NW2d 175 (1948).