Hansford v. District of Columbia

ELDRIDGE, Judge. The principal issues in this case concern the authority of a Maryland court to exercise jurisdiction in a tort suit against the District of Columbia, where the District's allegedly ¹¹⁵ tortious conduct occurred on a federal enclave within the State of Maryland, over which enclave the State had ceded “exclusive jurisdiction” to the United States. In June 1987 Carl Sewanti Richardson escaped from the juvenile detention facility known as Oak Hill Youth Center, located near Laurel, in Anne Arundel County, Maryland. The facility is operated by the District of Columbia.

During the time after his escape and before his recapture, Richardson killed Thomas T. Hansford, Jr., in Prince George’s County, Maryland. Richardson was convicted in the Circuit Court for Prince George’s County, on August 3, 1988, of felony murder. On August 15, 1988, the decedent’s parents, Thomas T. Hansford, Sr., individually and as personal representative of the decedent’s estate, and Mary Dell Hansford, instituted the present suit in the Circuit Court for Prince George’s County against the District of Columbia, Mr. J.E. Neil Ollivierra, then Acting Superintendent of Oak Hill Youth Center, and Carl Sewanti Richardson. In their complaint, the plaintiffs alleged that the District of Columbia through its employees failed to “properly supervise and maintain custody and control” over Richardson and thereby negligently allowed him to escape from the Oak Hill Youth Center.

It was also alleged that the District, by its employees at Oak Hill, was negligent in failing to “recapture [Richardson] in a timely manner.” The District was alleged to be responsible, under the doctrine of respondeat superior, for the negligent acts of its employees. Furthermore, the plaintiffs alleged that, at the time of Richardson’s escape, the District of Columbia had a policy or custom of permitting escapees from the Oak Hill Youth Center to remain at large. The complaint stated that one of every three detainees was permitted to be missing from the facility. The plaintiffs argued that the District’s negligent policy or custom of allowing Richardson to remain at large violated the decedent’s civil rights by depriving him of his life without due process of law.

The plaintiffs, therefore, claimed damages under 42 U.S.C. § 1983 . ¹¹⁶ Finally, the complaint included an “assault and battery” count which applied only to the action against Richardson. The plaintiffs, in asserting that the Circuit Court for Prince George’s County could exercise jurisdiction in the case, relied on, inter alia, Maryland Code (1974, 1989 Repl.Vol.), §§ 3-902, 3-904, 6-101 and 6-103 of the Courts and Judicial Proceedings Article. 1 They also stated that they had complied with the provision of District of Columbia law which requires that notice of intent to sue the District be filed within six months of the incident alleged. D.C.Code § 12-309 (1981). The District filed, on the same day, both a motion to dismiss and an answer to the complaint.

The motion to dismiss asserted, with regard to the District, a lack of jurisdiction over the person. The motion also claimed that Mr. Ollivierra was immune from suit and that the complaint failed to state a cause of action against either the District or Mr. Ollivierra. Although the plaintiffs in their opposition to the motion to dismiss did not raise the issue, the circuit court, at the hearing on the motion to dismiss, sua sponte raised a question about the timeliness of the motion. Maryland Rule 2-322 provides in pertinent part as follows: “PRELIMINARY MOTIONS “(a) Mandatory.—The following defenses shall be made by motion to dismiss filed before the answer, if an answer is required: (1) lack of jurisdiction over the person, (2) improper venue, (3) insufficiency of process, and ¹¹⁷ (4) insufficiency of service of process.

If not so made and the answer is filed, these defenses are waived. “(b) Permissive.—The following defenses may be made by motion to dismiss filed before the answer, if an answer is required: (1) lack of jurisdiction over the subject matter, (2) failure to state a claim upon which relief can be granted, (3) failure to join a party under Rule 2-211, and (4) governmental immunity. If not so made, these defenses and objections may be made in the answer, or in any other appropriate manner after answer is filed.” Counsel for the District of Columbia and for Mr. Ollivierra told the court that he had filed the motion to dismiss prior to filing the answer. The docket entries, however, read as if the answer were filed first. The circuit court found that counsel had in fact filed the motion to dismiss before filing the answer.

The circuit court then heard arguments on the motion to dismiss. The attorney in the Office of the Corporation Counsel of the District of Columbia, who represented both the District and Mr. Ollivierra, contended that, under Maryland law, the circuit court lacked jurisdiction over the District of Columbia, a foreign municipal corporation. Counsel, relying on Phillips v. Baltimore, 110 Md. 431 , 72 A. 902 (1909), argued that a municipal corporation can be sued only in the courts of the jurisdiction where it is situated. It was also claimed that Mr. Ollivierra was immune from suit because he was a public official engaged in discretionary duties.

The District and Mr. Ollivierra further argued that the complaint failed to state a cause of action because there was no special relationship between the plaintiffs and these two defendants giving rise to a special duty. They also maintained that there was no causal connection between the alleged negligence of these defendants and the death of Thomas T. Hansford, Jr., and that there was no basis in law for the § 1983 claim. ¹¹⁸ On September 8, 1989, the circuit court dismissed the action against the District of Columbia, holding that a municipal corporation could not be sued, in transitory actions, outside the jurisdiction in which it is located. The circuit court’s holding was based entirely on Phillips v. Baltimore City, supra, 110 Md. 431 , 72 A. 902 , which involved venue principles and the construction of a venue statute. The circuit court refused to dismiss any part of the action against Mr. Ollivierra.

The court stated that more factual development was required before it could render a decision on Mr. Ollivierra’s defense of governmental immunity. The court also held that more factual development was needed before it could rule on the arguments that Mr. Ollivierra and the District owed no duty to the plaintiffs, that there was no causal connection between the death and alleged negligence of these defendants, and that there was no basis in law for the § 1983 claim. The plaintiffs noted an appeal to the Court of Special Appeals on October 6, 1989. On December 4, 1989 the circuit court certified as final the judgment in favor of the District of Columbia.

Rule 2-602(b). 2 In its brief in the Court of Special Appeals, the District argued' that it had complied with the filing requirements of Rule 2-322(a), and that the circuit court correctly held that, because the District was a municipal corporation, it could ¹¹⁹ not be sued outside its boundaries. Although not raised in the circuit court, the District contended in the Court of Special Appeals that there was another rationale for affirming the dismissal of the complaint against the District. The District argued that Maryland’s cession of exclusive jurisdiction over the land upon which Oak Hill Youth Center rests deprived the circuit court of its ability to exercise jurisdiction over acts and omissions occurring on that land. The District maintained that, although in 1943 Maryland expressly reserved jurisdiction over lands leased or ceded to the United States, this reservation expressly did not “ ‘affect the jurisdiction and authority of the State over land or persons, property, and transactions on land that the United States or its unit has acquired on or before May 31, 1943 to the extent that the State ceded jurisdiction under ...

Chapter 743, §§ 2 and 3, of the Acts of the General Assembly of 1906.’ ” (District’s brief at 14, quoting, Code (1984, 1992 Cum.Supp.), § 14-102(b) of the State Government Article.) The Court of Special Appeals affirmed the judgment, although for a different reason than that relied upon by the circuit court. Hansford v. District of Columbia, 84 Md. App. 301 , 578 A.2d 844 (1990). The intermediate appellate court held that a Maryland court could not exercise jurisdiction over the District of Columbia in this case because the District’s alleged negligence occurred on a federal enclave which was ceded prior to 1943. The plaintiffs filed in this Court a petition for a writ of certiorari raising the following three issues (although in a somewhat different order): (1) whether the trial court erred in granting the District’s “motion to dismiss due to lack of personal jurisdiction where” the District had allegedly filed the motion after filing its answer; (2) whether the trial court erred in holding that the District, as a municipal corporation, could not be sued outside of the jurisdiction in which it is located; (3) whether the Court of Special Appeals erroneously affirmed the trial court’s dismissal of the complaint against the District on the ground that the trial court ¹²⁰ could not exercise jurisdiction where the District’s alleged tortious conduct occurred on a federal enclave ceded prior to 1943.

The District did not file a cross-petition or a conditional cross-petition for a writ of certiorari. Thereafter this Court granted the plaintiffs’ petition, 321 Md. 709 , 584 A.2d 708 (1991). I. The plaintiffs continue to insist in this Court that, because the docket entries state that the District’s answer was filed before its motion to dismiss was filed, the District has waived its right to argue issues which must be raised in a preliminary motion. As previously stated, Rule 2-322(a) requires that the defenses of lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process, be made in a motion to dismiss before an answer is filed.

If not so made, the right to assert these defenses is waived. The District’s counsel represented to the trial judge that the motion to dismiss was filed prior to the answer. The trial judge indicated that the order of entries on the docket does not necessarily reflect the order in which the documents were filed. The trial judge stated: “I’m not going to conclude that you have waived the right to raise the matters contained in the motion raising preliminary objection merely because the clerk in shuffling papers put one ahead of the other.” Assuming arguendo that the contemporaneous filing of the motion and the answer would not satisfy the requirement of Rule 2-322(a), the trial court’s finding that the motion was filed first is not clearly erroneous.

Moreover, we note that the trial court’s conclusion is supported by the date and time stamps on the pleadings. The plaintiffs’ argument that the District waived its right to assert the defense of lack of jurisdiction over the person is without merit. ¹²¹ II. The District’s sole “lack of jurisdiction” argument in the circuit court was that, as a matter of Maryland law, the District of Columbia may not be sued in a Maryland court for transitory actions because the District is a municipal corporation which may not be sued outside of the District of Columbia. The District’s argument is based upon one case, involving venue principles and the construction of a Maryland venue statute, which supports the proposition that a Maryland municipal corporation can be sued only in the county where it is situated.

Phillips v. Baltimore City, supra, 110 Md. 431 , 72 A. 902 . Prior to Phillips v. Baltimore City, this Court in Baltimore City v. Turnpike Co., 104 Md. 351 , 65 A. 35 (1906), held that an action against Baltimore City, based on the City’s alleged trespass upon the plaintiff’s land located in Baltimore County, was properly brought in the Circuit Court for Baltimore County. Rejecting the City’s assertion that the suit should have been brought in Baltimore City, the Court relied upon the principle that local actions should be brought in the jurisdiction where the land lies. See Gunther v. Dranbauer, 86 Md. 1, 6 , 38 A. 33 (1897).

In the Turnpike Co. case, the City’s entire reliance in this Court was upon the rule, set forth in several out-of-state cases, that “a municipal corporation [can] be sued in its own Courts only, even in the case of a local action.” 104 Md. at 351 , 65 A. 35 . This Court rejected the rule, stating ( 104 Md. at 357 , 65 A. at 36 ): “We have been referred to no decision in this State, that holds that a municipal corporation should not be bound by the rules of law, which are applicable to other litigants and no sound reason can be given why they should be excepted. The contention of the appellant, if carried to its logical conclusion, would result in depriving municipalities in the State, which have no Courts, from suing or being sued____” ¹²² Nevertheless, a few years later in Phillips v. Baltimore City, the Court did apply, in a transitory action against Baltimore City, the venue rule that a municipal corporation could be sued only in its own courts. 110 Md. at 436 , 72 A. at 904 . The Court held that this general rule was applicable to transitory actions in the absence of a statute modifying the rule.

The Phillips Court limited the holding in Baltimore City v. Turnpike Co. to local actions only. The Phillips Court then considered whether the venue statute relating to bringing suit against a corporation, which was then in effect, had changed this general rule. The Court held that the venue statute, which declared inter alia that a “corporation of this State” could be sued in any county where it regularly transacted business, 3 did not apply to a municipal corporation. 110 Md. at 437 , 72 A. at 905 . Phillips has no application to the present case.

The rule that was applied in Phillips is that a Maryland municipality, sued in a Maryland court in a transitory action, should be sued where it is situated. The District of Columbia is not a Maryland municipal corporation and is not situated in a Maryland county. In the context of this case, it is a nonresident corporate defendant. 4 Adoption of the District’s argument would lead to the adoption of a venue rule which would grant foreign municipal corporations the unique privilege of being immunized from suit in the State of Maryland. The Supreme Court of Kansas addressed this issue in Hillhouse v. City of Kansas City, 221 Kan. 369, 373 , 559 ¹²³ P.2d 1148, 1151 (1977), stating: “there is no sound reason why a foreign municipal corporation should be treated any differently from foreign private corporations.” We agree with the Supreme Court of Kansas and hold that a foreign municipal corporation is subject to the same venue rules as any private corporation.

Phillips has no application to this case for another reason. In Phillips , this Court construed a venue statute which stated that a “corporation of this State may be sued in any county ... where it regularly transacts business.” This venue statute no longer exists. The comparable general venue statute now reads in pertinent part as follows (Code (1974, 1989 Repl.Vol.), § 6-201 of the Courts and Judicial Proceedings Article): “[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.” Thus, with respect to suits where regular business is carried on, the broader term “defendant” is used to encompass persons and corporations. The District of Columbia is certainly a “defendant.” The Phillips Court’s analysis of whether the former venue statute concerning “corporations” included Maryland municipal corporations has little relevance to an action brought against the “defendants” under the present venue statute.

Even if the venue statute had not been changed, this Court in Eck v. State Tax Comm. of Md., 204 Md. 245, 252 , 103 A.2d 850, 854 (1954), pointed out that “the [venue] rule applied in the Phillips case ... is not universal and has been subject to criticism____” The court in Eck declined to apply the Phillips holding with respect to suits against public officials relating to the performance of their official duties. 204 Md. at 253-254 , 103 A.2d at 854-855 . The majority of jurisdictions which have reassessed the issue reject the notion that a municipal corporation is not subject to the same venue rules as other corporations. See, e.g., Cacho v. Superior Court, 170 Ariz. 30, 32 , 821 P.2d ¹²⁴ 721, 723 (1991); Lawless v. Village of Park Forest South, 108 Ill.App.3d 191, 195-196 , 438 N.E.2d 1299, 1302 (1982); Guy v. Pennsylvania R. Co., 87 N.E.2d 712, 714 (Ohio Ct. of App., Cuyahoga Cty., 1949); City of Cushing v. Coryell, 400 P.2d 174, 175-176 (Okl.1965). But see, Ex parte City of Birmingham, 507 So.2d 471, 473-474 (Ala.1987).

Moreover, as previously discussed, this Court prior to Phillips had rejected the special venue rule for municipal corporations and had stated, in the context of venue principles, that a municipal corporation should be treated like any other litigant. Baltimore City v. Turnpike Co., supra, 104 Md. at 357 , 65 A. at 36 . In addition, there have been Maryland cases since Phillips where, without discussion, a municipal corporation has been subjected to suit outside of its county’s boundaries. See, e.g., Alexander v. Montgomery County, 87 Md.App. 275 , 589 A.2d 563 (1991) (Montgomery County sued in the Circuit Court for Prince George’s County).

We agree with the majority of jurisdictions which today reject the notion that a municipal corporation is exempt from the venue principles governing other corporations. Consequently, for several reasons, the District’s reliance upon Phillips v. Baltimore is misplaced.

III

The Court of Special Appeals held that the circuit court did not have jurisdiction over the District of Columbia because the allegedly tortious activities, giving rise to the suit against the District, occurred on a federal enclave which was acquired by the United States between the years 1906 and 1943. The land upon which Oak Hill Youth Center is situated was acquired in 1923 for governmental use by the District of Columbia. Act of February 29, 1923, ch. 148, 42 Stat. 1327 , 1360. 5 ¹²⁵ At the time of the acquisition of the land upon which Oak Hill Youth Center rests, Chapter 743, § 2, of the Acts of 1906, later codified as Maryland Code (1957), Art. 96, § 36, provided: “Exclusive jurisdiction in and over land so acquired by the United States shall be and the same hereby is ceded to the United States for all purposes except the service upon such sites of all civil and criminal process of the courts of this State, but the jurisdiction so ceded shall continue no longer than the said United States shall own such lands.” In 1943, the General Assembly limited any cession of jurisdiction over lands held by the United States to concurrent jurisdiction. Code (1984), § 14-102 of the State Government Article.

The Court of Special Appeals in its opinion stated that Maryland, between 1906 and 1943, “ ‘ceded exclusive jurisdiction to the United States for all purposes except service of process.’ ” Hansford v. District of Columbia, supra, 84 Md.App. at 306 , 578 A.2d at 846 , quoting 63 Att’y Gen. Ops. 332, 333 (1978); 61 Att’y Gen. Ops. 441, 446 (1976). The Court of Special Appeals appeared to view § 6-101 of the Courts and Judicial Proceedings Article and § 14-102 of the State Government Article as somewhat in conflict, and it ¹²⁶ attempted to reconcile the two statutes.

Section 6-101 of the Courts and Judicial Proceedings Article provides: “Definitions; jurisdiction as to federal land. “(a) For the purposes of personal jurisdiction, venue, and service of process, the following terms have the meanings indicated: “(b) “County” includes any federal enclave, reservation, or land within the geographical limits of the county. “(c) “Resident” includes a person residing on a federal enclave, reservation, or land in the State or a county. “(d) “State” includes any federal enclave, reservation, or land within the geographical limits of the State. “(e) Legislative intent.—It is the intention of the General Assembly to extend the personal jurisdiction and venue of courts of the State and the. power to serve process of those courts to any person on federal enclaves, reservations, or lands within the State to the fullest extent permitted by the Constitution and laws of the United States.” Section 14-102 of the State Government Article provides: “(a) In general.—With respect to land that the United States or any of its units leases or otherwise holds in the State, the State reserves jurisdiction and authority over the land and over persons, property, and transactions on the land to the fullest extent that is permitted by the United States Constitution and that is not inconsistent with the governmental purpose for which the land is held. “(b) Previous grants.—This section does not affect the jurisdiction and authority of the State over land or persons, property, and transactions on land that the United States or its unit has acquired on or before May 31, 1943 to the extent that the State ceded jurisdiction under: * * * * * * “(4) Chapter 743, §§ 2 and 3, of the Acts of the General Assembly of 1906____” The Court of Special Appeals concluded that, while “the legislature intended to ‘extend jurisdiction ... of courts of ¹²⁷ the state ... to any person on federal enclaves ... to the fullest extent permitted by the Constitution and laws of the United States ... it is apparent that it did not intend the extension to apply to ‘transactions on land that the United States ... has acquired on or before May 31, 1943.’ ” Hansford v. District of Columbia, supra, 84 Md.App. at 308-309 , 578 A.2d at 848 (emphasis added). Therefore, according to the intermediate appellate court, because Maryland had ceded exclusive jurisdiction to the United States, the District of Columbia could not be subject to suit in a Maryland court based upon its activities at Oak Hill Youth Center. 6 In our view, there is no conflict between § 6-101 of the Courts and Judicial Proceedings Article and § 14-102 of the State Government Article, and,