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Opus One12/1/2000
UNPUBLISHED
Defendant appeals by leave granted from the trial court's order denying its motion for a change of venue. We reverse and remand for an evidentiary hearing to determine whether defendant is entitled to compensation for attending in the wrong court.
This legal malpractice action arises out of defendant's alleged negligent representation of plaintiff regarding a business venture and an action in Oakland Circuit Court. In December 1994, plaintiff entered into a partnership called Jake's on the Lake (Jake's), with Buster's Bay, Inc., a company owned by Michael Ilitch. Defendant's attorneys represented plaintiff during negotiations of the partnership agreement that was created for the purpose of operating a restaurant in Orchard Lake. Buster's Bay leased the restaurant premises from Bruce Cameron in 1 992, and, pursuant to the partnership agreement, assigned the lease to Jake's in July 1995.
On September 28, 1995, Jake's filed suit against Cameron in Oakland Circuit Court, alleging that the actual square footage of the leased property was inconsistent with the term in the lease and that certain building repairs were necessary. Cameron filed a counter suit for abandonment and for improper assignment of the lease. Defendant represented Jake's in this action.
In July 1996, the parties orally settled the cases on the record. On August 28, 1996, following a hearing, the court entered a written settlement order. The settlement allowed plaintiff the option of leaving the operation, released plaintiff from all obligations under the lease, and provided that Buster's Bay would assume liability under the lease. Some discussion on the record indicated that Ilitch and his other company, Little Caesar's Enterprises, would also remain liable under the lease. Plaintiff claims that defendant's attorneys made assurances that an indemnification agreement would be drafted between plaintiff, HIlitch, and Little Caesar's, but the final settlement order stated only that Buster's Bay remained liable under the lease.
Plaintiff left the partnership shortly after the settlement and, in May 1997, Cameron filed suit in Oakland Circuit Court against several defendants, including plaintiff, for breach of the lease and violation of the settlement agreement. On May 18, 1999, plaintiff filed the present action in Wayne Circuit Court, alleging that defendant's attorneys committed legal malpractice. Defendant filed a timely motion to change venue pursuant to MCR 2.223(A)(1) and MCR 2.223(B). The trial court denied the motion and entered a written order on September 9, 1999, from which defendant appeals.
We review for clear error a trial court's ruling on a motion to change venue. Massey v Mandell, 462 Mich 375, 379; 614 NW2d 70 (2000). Clear error exists when the reviewing court is left with a definite and firm conviction that a mistake was made. Id.
If a defendant files a timely motion to change venue, it is mandatory that the trial court transfer the case to the county with proper venue. MCL 600.1651; MSA 27A.1651; Miller v Allied Signal, Inc, 235 Mich App 710, 716-717; 599 NW2d 110 (1999). The plaintiff has the burden of establishing that the county he chose is the proper venue. Karpinski v St John Hosp, 238 Mich App 539, 547; 606 NW2d 45 (1999).
The proper venue for a tort action, such as legal malpractice, is articulated in MCL 600.1629(1); MSA 27A.1629( I1 ), which provides, in pertinent part:
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 origin
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