Dinapoli v. Kent Island, LLC

⁴⁵⁸ WATTS, J. Appellants, Michael A. DiNapoli, Janet DiNapoli, Leland C. Brendsel, B. Diane Brendsel, Daniel T. Hopkins, Richard M. Markman, and Queen Anne’s Conservation Association, Inc., filed an action for declaratory relief and for writs of mandamus in the Circuit Court for Queen Anne’s County. The Circuit Court for Queen Anne’s County granted a motion filed by appellees-Kent Island, LLC (“Kent Island”), County Commissioners of Queen Anne’s County (the “County Commissioners”), Queen Anne’s County Sanitary Commission (the “Sanitary Commission”), and Queen Anne’s County Planning Commission (the “Planning Commission”) 1 —which asked the court to transfer the case to the Circuit Court for Anne Arundel County on the grounds of improper venue and/or forum non conveniens. After the transfer, the Circuit Court for Anne Arundel County denied a request for recusal, and then granted summary judgment in favor of appellees. Appellants noted an appeal raising four issues, 2 which we have rephrased and consolidated as follows: ⁴⁵⁹ I. Whether the circuit court abused its discretion in granting Kent Island’s motion to transfer pursuant to Maryland Rule 2-327 on the grounds of improper venue and/or forum non conveniens?

II

Whether the circuit court abused its discretion in denying appellants’ Request for Recusal?

III

Whether the circuit court erred in granting summary judgment in favor of appellees? For the reasons set forth below, we answer the first question “yes.” We shall vacate the judgment and remand the case to the Circuit Court for Anne Arundel County with instructions for the Circuit Court for Anne Arundel County to transfer the case to the Circuit Court for Queen Anne’s County for a new trial. As a result of the reversal on Issue I, we shall not address Issues II and III. FACTUAL AND PROCEDURAL BACKGROUND This case involves Kent Island’s attempt to develop property known as “The Cloisters on Kent Island” in Stevensville, Queen Anne’s County, Maryland, as a subdivision of condominium units. 2005 Kent Island Case Kent Island has been involved with litigation regarding this property for numerous years.

On February 23, 2005, Kent Island brought an action against the County Commissioners, Maryland Department of the Environment, and the Sanitary Commission in the Circuit Court for Anne Arundel County (hereinafter the “2005 Kent Island Case”). Kent Island sought a writ of mandamus and declaratory and injunctive relief. Kent Island sought to enforce its interpretation of State laws related to water and sewer service for the planned subdivision, and the State’s oversight of the county’s comprehensive water and sewer plans. The County Commissioners moved to dismiss or, in the alternative, to transfer the action from Anne Arundel County.

The Circuit Court for Anne Arundel County denied the motion and ordered the action to ⁴⁶⁰ proceed in the ordinary course. The County Commissioners renewed the motion to transfer and, following a hearing, the Circuit Court for Anne Arundel County again denied the motion. 3 On November 5, 2007, following a two-day trial, the Circuit Court for Anne Arundel County issued an Order granting Kent Island’s request for a writ of mandamus directing Queen Anne’s County to grant Kent Island’s property water and sewer service. The County Commissioners and the Sanitary Commission, both appellees in the present case, noted an appeal. 4 During the pendency of the appeal, the parties entered into a settlement agreement. On March 10, 2009, the Honorable William C. Mulford, II, Judge of the Circuit Court for Anne Arundel County, signed a document titled the “Consent Order,” which was jointly submitted to the court by Kent Island, the County Commissioners, and the Sanitary Commission (all appellees in this case), to resolve the litigation.

In the agreement, Queen Anne’s County agreed to dismiss the appeal and, among other things, Kent Island agreed to reduce the density of the approved subdivision and withdraw a claim for attorney’s fees. 5 ⁴⁶¹ The terms of the Consent Order were, in pertinent part, as follows: 1. Extension of November 5, 2007 Court Order: Kent Island has obtained ... approval prior to the deadline imposed by this Court’s Order date November 5, 2007. The parties agree that Kent Island shall have until May 5, 2014 (five years from the deadline imposed by this Court’s Order dated November 5, 2007) to obtain final site plan and final unconditional subdivision approval for a 240 unit subdivision as provided herein under the laws and circumstances in effect as of November 18, 2003. All other aspects of this Court’s November 5, 2007 Order shall remain in effect. 2.

Reduction of Density: Within one hundred twenty (120) days following the execution of this Consent Order by the Court, Kent Island shall submit a revised final site plan and a revised final subdivision plat for review and approval by the Queen Anne’s Planning Commission reducing the density of the proposed Cloisters on Kent Island subdivision from 273 condominium units to 240 condominium units ... All other aspects of the ... plans which were approved by the Planning Commission on November 13, 2008 shall be the same and the Planning Commission shall review the revised final site plan and revised final subdivision plat in accordance with the same criteria and standards that applied to the plans that were approved on November 13, 2008. Kent Island shall have until May 5, 2014 to satisfy conditions imposed by the Planning Commission and shall not be required to obtain an extension from the Planning Commission to extend its deadline for compliance to May 5, 2014. 3. Public Works Agreement: Within ninety (90) days after approval of Kent Island’s revised final subdivision plat with conditions and revised final site plan from the Planning Commission showing 240 units, Kent Island and [the County ⁴⁶² Commissioners and the Sanitary Commission] shall execute a Public Works Agreement which shall ... provide, among other things, a schedule for the start and completion of all site improvements.

The Public Works Agreement shall also provide that Kent Island shall pay the costs of its water and sewer allocation and shall post its infrastructure bonds prior to May 5, 2014 as conditions to the signing of its revised final site plan and revised final subdivision plat by the Planning Commission. A specific schedule of construction will be negotiated between Kent Island and the Queen Anne’s County Department of Public Works that defines each phase and the site improvements that will be constructed for each phase and shall be included in the Public Works Agreement. 5. The Parties agree and the Court hereby orders that any actions taken by Queen Anne’s County to modify its subdivision requirements, zoning or planning laws, ordinances or regulations will not impact the status of Kent Island’s approvals and that there will be no impediment provided by Queen Anne’s County to the ultimate development and completion of a 240 condominium unit age restricted development on parcel 279 provided that Kent Island satisfies the requirements of this Consent Order. 8. Dismissal of Appeal: Within ten (10) days of the execution of this Consent Order by this Court, [the County Commissioners and the Sanitary Commission] shall dismiss its appeal of this Court’s November 5, 2007 Order. 9.

This Consent Order shall be binding upon each of the parties’ successors and assigns and shall be binding upon Queen Anne’s County and all of its agencies and departments. ⁴⁶³ Present Case In this case, appellants Hopkins, Markman, Michael A. DiNapoli, Jane DiNapoli, Leland C. Brendsel, and B. Diane Brendsel brought suit as residents and taxpayers of Queen Anne’s County. Appellant Queen Anne’s Conservation Association, Inc. brought suit as a “Maryland corporation concerned with issues raised in th[e] action.” On December 17, 2009, appellants filed a Complaint for Declaratory Judgment against appellees in the Circuit Court for Queen Anne’s County, seeking a determination that the Consent Order dated March 10, 2009, is null and void. On February 8, 2010, appellants filed an Amended Complaint in the Circuit Court for Queen Anne’s County, seeking declaratory relief as well as writs of mandamus. In the Amended Complaint, appellants alleged that the Consent Order in the 2005 Kent Island Case is null and void because it is (1) an illegal zoning contract, (2) an unlawful attempt to create a Development Rights and Responsibilities Agreement, and (3) a denial of appellants’ Equal Protection rights.

Appellants claimed, among other things, that the Consent Order “confers a special privilege and effectively rezones one property, which renders it a special law.” Appellants requested a writ of mandamus ordering the County Commissioners to cease all performance under the Consent Order. Motion to Transfer On January 22, 2010, Kent Island filed a Motion to Dismiss Pursuant to Maryland Rule 2-322 and in the Alternative Motion to Transfer Pursuant to Maryland Rule 2-327. Kent Island sought dismissal “on the grounds that the Queen Anne’s County Circuit Court is not empowered to overturn a Consent Order entered by the Circuit Court for Anne Arundel CountyC,] and that Queen Anne’s County is an improper venue for requesting such relief.” In the alternative, Kent Island requested that the case be transferred to Anne Arundel County “where the Consent ⁴⁶⁴ Order was entered and where the litigation that led to the entry of the Consent Order occurred.” Kent Island contended that the long litigation history warranted transfer to the Circuit Court for Anne Arundel County and that venue was improper in Queen Anne’s County. According to Kent Island, bringing the case in the Circuit Court for Queen Anne’s County “will create the possibility of conflicting and inconsistent decisions.” Kent Island argued that the Circuit Court for Anne Arundel County, “as the court that approved and entered the Consent Order and as the court that presided over the litigation that led to the entry of Consent Order is well-suited to address the current lawsuit which is simply a belated, collateral challenge to the validity of the Consent Order and inherently, a challenge to the decision rendered by the Circuit Court for Anne Arundel County on November 5, 2007.” On February 8, 2010, appellants filed an “answer” to the motion, in which they responded that the Circuit Court for Queen Anne’s County was “the appropriate forum for determination of the legality and therefore the enforceability of the [Consent Order].” Appellants contended that the case was “properly b[r]ought in Queen Anne’s County” as “Queen Anne’s County is where the land which is the subject of the litigation is located, the Commissioners perform their duties and where [Kent Island] has contact with the State.” According to appellants, “[t]here is no venue which is more appropriate than Queen Anne’s County[,]” and the “notion that th[e] action should be removed to Anne Arundel County because a prior action was [ ] tried there is unsupportable.” On February 12, 2010, without a hearing, the Circuit Court for Queen Anne’s County issued an Order granting Kent Island’s Motion to Transfer and ordered that the action be “TRANSFERRED TO THE ANNE ARUNDEL COUNTY CIRCUIT COURT.” The circuit court gave no reason for the transfer.

On February 19, 2010, the case was transferred to the Circuit Court for Anne Arundel County. Request for Recusal On April 5, 2010, appellants filed a request for recusal in the Circuit Court for Anne Arundel County seeking the disqualifi ⁴⁶⁵ cation of Judge Mulford. Appellants contended that Judge Mulford, the judge who signed the Consent Order in the 2005 Kent Island Case, would “be inherently and personally biased and inclined to ratify and uphold that agreement^]” On April 8, 2010, Kent Island filed a response to request for recusal. Kent Island argued that the “fact that Judge Mulford presided over the underlying litigation and signed the Consent Order that [appellants] are attempting to overturn is not a ground for mandatory or discretionary recusal.” On June 30, 2010, following a hearing, Judge Mulford denied the request for recusal.

Motions for Summary Judgment On April 1, 2010, Kent Island filed a Motion for Summary Judgment in the Circuit Court for Anne Arundel County. On May 3, 2010, appellants filed a Motion for Summary Judgment and a Response to Kent Island’s Motion for Summary Judgment. On June 1, 2010, Kent Island filed an Opposition to appellants’ Motion for Summary Judgment and a Reply to appellants’ Response. On August 30, 2010, the circuit court held a hearing on the motions for summary judgment.

On December 8, 2010, the circuit court issued a Memorandum Opinion and Order denying appellants’ Motion for Summary Judgment and granting Kent Island’s Motion for Summary Judgment, ending the case against all appellees. On January 5, 2011, appellants noted this appeal. DISCUSSION A. Contentions Appellants contend that the circuit court abused its discretion in granting Kent Island’s motion to transfer to the Circuit Court for Anne Arundel County because “litigation concerning [the] proposed development [the Cloisters] must be conducted in the county where the property lies, the relevant ordinances have been enacted, and all of the parties reside or do business.” Appellants argue that there was “no justification under the law for bringing the action anywhere other than Queen ⁴⁶⁶ Anne’s County.” Appellants maintain that the Circuit Court for Queen Anne’s County improperly transferred the case to Anne Arundel County as venue was “appropriate” only in Queen Anne’s County. Kent Island responds that the “grant of a motion to transfer is an immediately appealable final judgment[.]” Kent Island argues that because appellants did not appeal the Order transferring the case to the Circuit Court for Anne Arundel County within thirty days after entry of the Order, appellants “have waived the[ ] right to challenge the transfer.” B. Standard of Review “Maryland law is clear that it is error, and therefore an abuse of discretion, for a circuit court to transfer a case to another circuit court that does not have venue.

As the rules make plain, a transfer for improper venue or based on forum non conveniens ... must be made to a court in which the action being transferred ‘could have been brought,’ in the case of improper venue, or ‘might have been brought,’ in the case of convenience^]” Sigurdsson v. Nodeen, 180 Md.App. 326, 341 , 950 A.2d 848 (2008), aff'd, 408 Md. 167 , 968 A.2d 1075 (2009). “An abuse of discretion is said to occur where no reasonable person would take the view adopted by the trial court, or when the court acts without reference to any guiding rules or principles. Accordingly, when reviewing a motion to transfer, a reviewing court should be reluctant to substitute its judgment for that of the trial court.” Cobrand v. Adventist Healthcare, Inc., 149 Md.App. 431, 437 , 816 A.2d 117 (2003) (internal quotations and citations omitted). C. Relevant Law 1. Venue Maryland’s general venue statute, Md.Code Ann., Courts and Judicial Proceedings Art. (“CJP”) § 6-201 provides as follows: ⁴⁶⁷ (a) Civil actions.—Subject to the provisions of §§ 6-202[ 6 ] and 6-203[ 7 ] of this subtitle and unless otherwise provided by law, a civil action shall be brought in a county where the defendant resides, carries on a regular business, is employed, or habitually engages in a vocation.

In addition, a corporation also may be sued where it maintains its principal offices in the State. (b) Multiple defendants.—If there is more than one defendant, and there is no single venue applicable to all defendants, under subsection (a), all may be sued in a county in which any one of them could be sued, or in the county where the cause of action arose. Venue is a different and separate concept from jurisdiction. “ ‘Jurisdiction’ refers to the fundamental power of a court to decide a dispute, by virtue of the nature of the dispute (subject matter jurisdiction) and the connection between the defendant and the state (personal jurisdiction).” Sigurdsson, 180 Md.App. at 342 , 950 A.2d 848 ; see also Thacker v. Hale, 146 Md.App. 203, 224 , 806 A.2d 751 , cert. denied, 372 Md. 132 , 812 A.2d 288 (2002) (“[JJurisdiction refers to two quite distinct concepts: (i) the power of a court to render a valid decree, and (ii) the propriety of granting the relief sought.”) (emphasis in original). In Maryland, circuit courts are trial courts of general jurisdiction.

CJP § 1-501 outlines the general jurisdiction and powers of the circuit courts as follows: The circuit courts are the highest common-law and equity courts of record exercising original jurisdiction within the State. Each has full common-law and equity powers and ⁴⁶⁸ jurisdiction in all civil and criminal cases within its county, and all the additional powers and jurisdiction conferred by the Constitution and by law, except where by law jurisdiction has been limited or conferred exclusively upon another tribunal. The circuit courts also have jurisdiction over declaratory judgment and mandamus actions. See CJP § 3-403(a) (“Except for the District Court, a court of record within its jurisdiction may declare rights, status, and other legal relations whether or not further relief is or could be claimed.”); CJP § 3-8B-01 (“A court of law has jurisdiction in an action for mandamus.”).

Venue, on the other hand, “does not concern the power of a court to decide an issue. It concerns the place, among courts having jurisdiction, that an action will be litigated.” Sigurdsson, 180 Md.App. at 343 , 950 A.2d 848 (citation omitted). A determination of proper venue for an action is made “as of the time the action is filed.” Id. If the defendant in a civil case believes that the plaintiffs choice of venue is improper, then the defendant “bears the burden of proving that venue is improper.

To meet the burden of proving improper venue, the defendant must do more than merely raise a bare allegation that venue was improper, unsupported by affidavit or evidence.” Lampros v. Gelb & Gelb, P.C., 153 Md.App. 447, 452 , 837 A.2d 229 (2003) (internal citations and quotations omitted). Md. Rule 2-327(b) provides that “[i]f a court sustains a defense of improper venue but determines that in the interest of justice the action should not be dismissed, it may transfer the action to any county in which it could have been brought.” The trial court, in finding that the defense of improper venue is valid, can, therefore, either dismiss the case or transfer the action to another county where “it could have been brought.” Id. 2. Forum Non Conveniens In contrast, Md. Rule 2-327(c), provides that “[o]n motion of any party, the court may transfer any action to any ⁴⁶⁹ other circuit court where the action might have been brought if the transfer is for the convenience of the parties and witnesses and selves the interests of justice.” In reviewing a motion to transfer under Md. Rule 2-327(c), a plaintiffs choice of forum must be given “proper regard,” and the plaintiffs choice will not be “altered solely because it is more convenient for the moving party to be in another forum.” Leung v. Nunes, 354 Md. 217, 224 , 729 A.2d 956 (1999) (citations and quotations omitted). A motion to transfer may only be granted when the balance between two factors—convenience of the parties and witnesses and the interests of justice—weighs strongly in favor of the moving party.

Odenton Dev. Co. v. Lamy, 320 Md. 33, 40 , 575 A.2d 1235 (1990) (citations omitted). The party who moves to transfer an action under Md. Rule 2-327(c) bears the burden of proving that transferring the action is more convenient and better serves the interests of justice. Id.

(citations omitted). The