Kulikov v. Baffoe-Harding

WOODWARD, J. On March 27, 2012, appellee, Kadija Baffoe-Harding, filed the instant action against appellant, Aleksey Kulikov, in the Circuit Court for Prince George’s County, Maryland, alleging negligence on the part of appellant in the operation of his motor vehicle that caused a motor vehicle-pedestrian collision on June 2, 2011, in Montgomery County, Maryland. In response, appellant filed a motion to dismiss or change the venue from Prince George’s County to Montgomery County, because, according to appellant, Montgomery County was the only proper venue for the case. The circuit court disagreed, and denied appellant’s motion on June 18, 2012. After the circuit court denied his motion for reconsideration, appellant appealed, and presents the following two questions for our review, which we have rephrased: 1.

Can appellant immediately appeal the circuit court’s denial of his motion to transfer for improper venue under Rule 2-327(b)? 2. If appellant’s appeal is cognizable at this time, did the circuit court err in denying appellant’s motion to transfer for improper venue under Rule 2-327(b)? ¹⁹⁵ As explained below, we answer Question 1 in the negative, and thus dismiss the instant appeal. Consequently, we do not reach Question 2. BACKGROUND On June 2, 2011, appellee was crossing Friendship Boulevard in Chevy Chase, Montgomery County, Maryland when appellant made a left turn and struck her with his car.

Appellee filed a complaint alleging negligence in the Circuit Court for Prince George’s County on March 27, 2012. In response, appellant filed on May 3, 2012, a Motion to Dismiss or in the Alternative to Transfer Action based on improper venue (“Motion to Dismiss/Transfer”). In an affidavit attached to the motion, appellant stated that “at the time [he] received the lawsuit papers,” he (1) resided in Montgomery County, and (2) was not employed, did not carry on regular business, and did not habitually engage in a vocation in Prince George’s County. Appellant also stated that the accident giving rise to the lawsuit occurred in Montgomery County.

Thus, appellant argued, venue was only proper in Montgomery County under Maryland law. See Md. Code (2006, 2013 Repl. Vol.), §§ 6-201(a), 6-202(8) of the Courts & Judicial Proceedings (II) Article (“CJ”). 1 Appellee did not oppose the motion. By order dated June 18, 2012, the circuit court denied appellant’s Motion to Dismiss/Transfer.

On July 17, 2012, ¹⁹⁶ appellant filed a motion for reconsideration. Appellee again did not oppose the motion. By order filed on August 13, 2012, the circuit court denied appellant’s motion for reconsideration. Appellant filed a timely notice of appeal on August 24, 2012.

DISCUSSION Appellant is appealing from the trial court’s denial of his Motion to Dismiss/Transfer. The motion to dismiss was based on improper venue under Maryland Rule 2-322(a) (“Improper Venue (Dismiss) Motion”). The motion to transfer was based on improper venue under Rule 2-327(b) (“Improper Venue (Transfer) Motion”) (collectively “Improper Venue Motion”). In the instant appeal, appellant does not claim that the trial court’s denial of the Improper Venue (Dismiss) Motion is immediately appealable.

Appellant focuses solely on the court’s denial of the Improper Venue (Transfer) Motion. Appellant recognizes that under the language of Maryland appellate opinions, a trial court’s grant of an Improper Venue (Transfer) Motion and a motion to transfer for forum non conveniens under Rule 2-327(c) (“Inconvenient Forum Motion”) are immediately appealable as final judgments, but the denial of these motions is not immediately appealable. Nevertheless, appellant contends that both the grant and denial of an Improper Venue (Transfer) Motion should be immediately appealable. Appellant reasons that the different treatment, for immediate appealability purposes, of the grant and denial of the motions is based on cases reviewing trial court rulings on Inconvenient Forum Motions, not Improper Venue (Transfer) Motions.

Moreover, according to appellant, not allowing an immediate appeal when a trial court denies an Inconvenient Forum Motion “makes sense,” because “venue is actually proper in both forums [sic].” Conversely, appellant asserts that the denial of Improper Venue (Transfer) Motion “has the harsh result of depriving [appellant] of his fundamental and substantial right to be sued in the county in which he resides.” In addition, appellant argues that equity and judicial economy considerations demand that he be able to immediately ¹⁹⁷ appeal the denial of his motion, because otherwise he would be forced to go through the lengthy and expensive process of defending himself in a “foreign county,” only to then re-litigate the matter in the proper venue. He further contends that “public cost[s],” including “maintaining court dockets, court congestion and the use of citizen’s [sic] time for jury duty,” should be considered in cases of improper venue, and that these costs favor the immediate appeal of all orders granting or denying an Improper Venue (Transfer) Motion. Thus, appellant claims that an immediate appeal should be allowed for the denial of an Improper Venue (Transfer) Motion. Appellee counters that this Court recently examined and reaffirmed the different treatment, for immediate appeal purposes, of the grant and denial of an Improper Venue (Transfer) Motion.

Appellee observes: [T]he current case law is absolutely clear that the denial of a Motion to Dismiss or Motion to Transfer filed pursuant to Maryland Rule 2-327(b) is not to be treated any differently than the denial of a Motion to Dismiss or Motion to Transfer filed pursuant to Maryland Rule 2-327(c). According to appellee’s reading of Maryland case law, Improper Venue (Transfer) Motions and Inconvenient Forum Motions can be the subject of immediate appeal only if granted. We agree with appellee. Improper Venue & Inconvenient Forum Motions An Improper Venue (Dismiss) Motion is based upon Rule 2-322(a).

Under Rule 2-322(a), the defense of improper venue “shall be made by motion to dismiss filed before the answer.” Rule 2-322(a) further provides that, if such motion is not made and the answer is filed, the defense of improper venue is waived. 2 In the alternative, an Improper Venue (Transfer) Motion under Rule 2-327(b) gives the trial court the option to ¹⁹⁸ transfer the case, instead of dismissing it, where there is improper venue. Maryland Rule 2 — 327(b) states: (b) Improper venue. If 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. On the other hand, an Inconvenient Forum Motion is brought by a party under Rule 2-327(c), which provides: (c) Convenience of the parties and witnesses.

On motion of any party, the court may transfer any action to any other circuit court where the action might have been brought if the transfer is for the convenience of the parties and witnesses and serves the interests of justice. The Case Law In Brewster v. Woodhaven Building & Development, Inc., the Court of Appeals addressed the issue of whether a trial court’s grant of an Inconvenient Forum Motion is a final judgment and thus immediately appealable. 360 Md. 602, 606, 607-08 , 759 A.2d 738 (2000). In Brewster, the plaintiffs were (1) the owners of riparian land along the Piney Run in Baltimore County, and (2) the Piney Run Preservation Association. Id at 606, 759 A.2d 738 .

The defendants included the developer of a housing development and shopping center in Carroll County, the home owners association for the housing development, and the owners of the shopping center. 3 Id. at 607 , 759 A.2d 738 . The Piney Run is a stream with its headwaters in Carroll County that flows from Carroll County across northern Baltimore County to the Loch Raven Reservoir. Id. The plaintiffs brought suit in Baltimore County alleging, inter alia, that the storm water runoff from the ¹⁹⁹ housing development and shopping center polluted the Piney Run and damaged the plaintiffs’ property.

Id. Several of the defendants filed an Improper Venue (Dismiss) Motion, or in the alternative, an Inconvenient Forum Motion to transfer the case from Baltimore County to Carroll County. Id. at 607-08 , 759 A.2d 738 . The trial court granted the defendants’ Inconvenient Forum Motion, but did not reach the defendants’ Improper Venue (Dismiss) Motion.

Id. The plaintiffs appealed the order of transfer, but this Court dismissed the appeal on the grounds that an order granting an Inconvenient Forum Motion is not a final judgment, and is thus not immediately appealable. Id. at 608 , 759 A.2d 738 . Because the trial court’s order did not settle the merits of the case, the Court of Appeals focused on the defendants’ “narrower argument” that for an order to be a final judgment, “it must deny the party challenging it the ability to litigate the case in any forum.” Id. at 610-11 , 759 A.2d 738 .

The Court rejected this contention, stating: We have never explicitly stated that an inability to pursue the substance of a claim in any forum is a requirement of finality, and we reject this notion now. An order putting the appellant out of eveiy court is simply one type of instance of a final judgment. This proposition is entirely consistent with the proposition that an order putting an appellant out of a particular court is also a final judgment. It follows that an order transferring a case from one circuit court to another, for proper venue or for a more convenient forum, and thereby terminating the litigation in the transferring court, is a final judgment and thus immediately appealable.

At the same time, an order denying a motion to transfer is not an immediately appealable final judgment, because the litigation may continue in the court issuing the order. Id. at 615-16 , 759 A.2d 738 (bold emphasis added). The Court found further support for its conclusion from the oft-stated purpose of the final judgment rule, that is, to avoid piecemeal appeals. Id. at 616 , 759 A.2d 738 .

The reason for ²⁰⁰ avoiding piecemeal appeals, according to the Court, is to promote judicial efficiency, because repeated applications to the appellate courts interrupt the trial court process. Id. The Court explained: This sort of interruption cannot occur in a case in which a motion to transfer has been granted. In the transferring court, there are no longer any proceedings to interrupt, for the proceedings have been terminated.

In the receiving court, the proceedings cannot be interrupted, because they have not yet begun. The case is otherwise when a motion to transfer is denied; to allow immediate appeal then would interrupt an ongoing trial court process. This difference justifies the distinction we make in allowing immediate appeal from the granting of a transfer order and disallowing immediate appeal from the denial of a transfer order. Id.

Similar results occurred when the Court compared decisions on motions to transfer for improper venue or inconvenient forum with decisions on motions to dismiss for improper venue. Id. at 616-17 , 759 A.2d 738 . In the latter cases, the Court observed that “[a]n order granting such dismissal is immediately appealable, while an order denying it is not.” Id. at 617 , 759 A.2d 738 . The Court concluded: With both a transfer order and a dismissal order, the party challenging the order is put out of the particular court that grants the order, while being left free to pursue the case in another court.

In both situations, there is no danger of interrupting an ongoing trial court process. Conversely, when either a transfer motion or a dismissal motion is denied, the party challenging the court’s order is not put out of court, and to permit an immediate appeal would be to interrupt the trial court’s process. Id. (emphasis added).

Accordingly, the Court held that the transfer order on the Inconvenient Forum Motion “is an immediately appealable final judgment.” Id. at 606 , 759 A.2d 738 . ²⁰¹ It is clear that under Brewster an order granting an Inconvenient Forum Motion is an immediately appealable final judgment, but an order denying such motion is not. Id. at 615-16 , 759 A.2d 738 . The Court also reaffirmed the established principle that an order granting an Improper Venue (Dismiss) Motion is immediately appealable, but an order denying the same is not. Id. at 617 , 759 A.2d 738 .

For our purposes in the case sub judice, the Court included language in its opinion expressly linking the immediate appealability, vel non, of an order granting or denying an Inconvenient Forum Motion to a similar order for an Improper Venue (Transfer) Motion. In other words, although not raised by the facts in Brewster, the Court stated that “an order transferring a case from one circuit court to another, for proper venue or for a more convenient forum ... is a final judgment and thus immediately appealable,” while an order denying such a motion to transfer “is not an immediately appealable final judgment.” Id. at 615-16 , 759 A.2d 738 (emphasis added). Within the past several years, this Court has reviewed trial court rulings on Improper Venue Motions and Inconvenient Forum Motions in two cases: Payton-Henderson v. Evans, 180 Md.App. 267 , 949 A.2d 654 (2008) and Smith v. Johns Hopkins Community Physicians, Inc., 209 Md.App. 406 , 59 A.3d 1070 (2013). In Payton-Henderson , William J. Thomas, III, was seriously and permanently injured when he was struck by a random shot from a handgun that was fired into a crowd of students who were leaving the Randallstown High School in Baltimore County after a charity basketball game. 180 Md.App. at 271-72 , 949 A.2d 654 .

Thomas and his mother, Edna Payton-Henderson, filed suit in the Circuit Court for Baltimore City, charging a number of defendants with negligent failure to have prevented the injury to Thomas. Id. at 272 , 949 A.2d 654 . The defendants filed an Improper Venue (Dismiss) Motion, or in the alternative, an Inconvenient Forum Motion, the latter seeking to transfer the case from Baltimore City to Baltimore County. Id.

The trial court denied the Improper Venue (Dismiss) Motion, because it determined that one of the ²⁰² defendants was a resident of Baltimore City for purposes of the venue statute. Id. at 278 , 949 A.2d 654 . On the other hand, the court granted the Inconvenient Forum Motion, finding that the convenience of the witnesses and parties, as well as the interests of justice, warranted a transfer of the case to Baltimore County. Id. at 272-73, 287-94 , 949 A.2d 654 .

On appeal, Thomas and Payton-Henderson challenged the grant of the