Nace v. Miller

HOTTEN, J. Appellee, Tamara Hamilton Miller, filed a complaint for professional malpractice against Barry J. Nace, Esq., appellant, in the Circuit Court for Prince George’s County. Appellant requested that the case be transferred to the Circuit Court for Montgomery County on the ground of forum non conveniens. The court granted the request and transferred the case. After a third party complaint was filed against Tawanda Hamilton (“Hamilton”), appellee’s mother, she and appellee, separately, requested that the case be transferred ⁶⁰ back to Prince George’s County.

The court granted the request and appellant noted an appeal. Appellant, in his own words, presents the following questions: I. Did the Circuit Court for Montgomery County abuse its discretion acting as an appellate court and in overruling the Circuit Court for Prince George’s County’s final judgment as to venue?

II

Did the Circuit Court for Montgomery County err in transferring this action to the Circuit Court for Prince George’s County, a county where venue is improper?

III

Did the' Circuit Court for Montgomery County abuse it[]s discretion when transferring this action to the Circuit Court for Prince George’s County on the basis of forum non conveniens? For the reasons that follow, we shall affirm the judgment of the Circuit Court for Montgomery County. BACKGROUND On January 27,1997, appellant settled a medical malpractice suit on behalf of appellee for the amount of $530,228.40. Not long after, appellant petitioned the Circuit Court for Montgomery County, the presiding court, to be the guardian of appellee’s settlement proceeds.

Appellant, without knowing that the petition was denied, acted as the guardian of the proceeds. However, on August 20, 2007, the Circuit Court for Montgomery County granted the petition nunc pro tunc. At some point during the guardianship, Hamilton informed appellant that she had failed to pay property taxes for 2002. Appellant petitioned the Circuit Court for Montgomery County for $14,284.37 to satisfy the outstanding taxes.

The petition also indicated that the property would be transferred to appellee, requested funds to address current taxes, and funds to secure property insurance. The Circuit Court for Montgomery County released the funds, but neither appellant nor Hamilton purchased property insurance. On two other occasions, appellant petitioned the Circuit Court for Montgomery ⁶¹ County for funds to secure property insurance. However, property insurance was never purchased.

On March 14, 2004, a fire ravaged appellee’s residence, and she and her mother lost everything. Appellant subsequently filed an “Emergency Motion for Release of Funds.” The Circuit Court for Montgomery County granted the request and released $5,000 for shelter and clothing. Approximately two years after the fire, appellant petitioned the court to secure funds to repair appellee’s residence. 1 The court granted the request and released approximately $80,000 to repair the residence and replace clothing and goods that were destroyed in the fire. On April 1, 2008, appellee filed a complaint in the Circuit Court for Prince George’s County, alleging legal malpractice for failure to purchase an insurance policy and submit annual fiduciary reports while acting as a guardian.

On November 10, 2008, appellant filed a motion to transfer venue. Appellant argued that Prince George’s County was not the proper venue because he did not reside in the county, nor did he habitually engage in the practice of law in the county. Instead, appellant asserted that Montgomery County was the proper forum because he resided and maintained an office there. Appellee countered that Prince George’s County was the proper venue because she resided there and the cause of action arose from a guardianship action that should have been pursued there.

Appellee also asserted that the case should not be transferred to Montgomery County because that would reward appellant for his negligent misfiling. On January 26, 2009, the Circuit Court for Prince George’s County granted the motion and transferred the case to the Circuit Court for Montgomery County. Appellee filed a motion for reconsideration, which was denied. On August 21, 2009, appellant filed a third-party complaint against Hamilton, seeking contribution and/or indemnification.

Hamilton filed a ⁶² motion to dismiss, or in the alternative, a motion to transfer. In her motion, Hamilton argued that appellant failed to state a claim upon which relief could be granted. Hamilton also posited that Prince George’s County was the proper venue because she neither worked nor resided in Montgomery County, the cause of action arose there, and the majority of witnesses resided there. In opposition, appellant highlighted his intention to voluntarily dismiss the third-party complaint against Hamilton.

Appellant, nevertheless, argued that there were sufficient facts upon which relief could be granted because Hamilton was responsible for obtaining insurance on the residence she lived in, had a duty to care for her daughter, and that the property was not titled to appellee at the time of the fire. Appellant further argued that the motion to transfer should be denied because the Circuit Court for Prince George’s County had previously decided the issue. Appellant then asserted that Montgomery County, regardless, presented a minor inconvenience, and that the transfer request would not serve the interests of justice. Appellee, separately, responded and argued that Prince George’s County was the proper venue because the guardianship action should have been brought there.

Appellee further argued that the Circuit Court for Montgomery County would be inconvenient because she could not drive; she depended on public transportation or others to get to Rockville; Rockville was forty miles from her house in comparison to thirteen miles from Upper Marlboro; she cared for a one-year old child; and, in comparison, travel was easier for appellant. On February 17, 2010, the Circuit Court for Montgomery County held a motions hearing. At the hearing, appellant requested that the court dismiss the third-party complaint. Hamilton objected to the voluntary dismissal because she wanted to pursue sanctions.

The court granted the dismissal and appellee subsequently argued that the case should be transferred to Prince George’s County because the cause of action occurred there. Appellee further posited that it was ⁶³ more convenient to have the case heard in Prince George’s County because that is where she resided and her disability prevented her from driving. Appellant countered that the issue was previously decided by the Circuit Court for Prince George’s County. The court informed the parties that it did not anticipate addressing the venue issue and welcomed additional pleadings.

The Circuit Court for Montgomery County reviewed the pleadings and transferred the case back to the Circuit Court for Prince George’s County. Appellant filed a motion for reconsideration and it was denied. Thereafter, appellant noted a timely appeal. DISCUSSION I. Before we determine the propriety of granting the motion to transfer, we must address appellant’s assertion that appellee, in practice, assented to the decision to transfer.

Specifically, appellant posits that appellee acquiesced to the Circuit Court for Prince George’s County’s decision because she did not note an appeal and engaged in discovery after the case was transferred to the Circuit Court for Montgomery County. A similar argument was proffered in Sigurdsson v. Nodeen, 180 Md.App. 326 , 950 A.2d 848 (2008). In that case, the defendants argued that plaintiff waived her right to appeal the decision to transfer the “Complaint for Modification of Child Custody Order” because she participated in litigation after it was transferred. See id. at 339 , 950 A.2d 848 .

In addressing the issue, we noted that waiver is a voluntary relinquishment of a right. Id. We then held that plaintiff did not waive her right to appeal because: (1) she did not voluntarily participate in the case as transferred, (2) she participated in discovery, and appeared before the court for scheduling and pre-trial conferences, because she could have faced sanctions or dismissal, (3) she requested a postponement of the pre-trial conference because of the pending appeal, (4) if she did not propound discovery she could have been precluded from en ⁶⁴ gaging in any discovery regardless of the forum, and (5) any discovery conducted in one court would be transferrable to the other court. Id. at 340 , 950 A.2d 848 .

In the present case, appellee did not immediately note an appeal, nor did she seek a postponement of pre-trial scheduling conferences. That, however, does not mean she acquiesced to the decision concerning venue. Appellee could have immediately appealed the decision because it was a final judgment; 2 however, she was not required to because “relief can be granted by an appellate court when a case has been transferred, erroneously, to another circuit court on venue ground, even after the case in the transfer court has been tried.” Id. at 339 , 950 A.2d 848 . Moreover, as noted in Sigurdsson , appellee could have been subject to sanctions, or the case could have been dismissed, if she did not participate in discovery.

Thus, we conclude that appellee did not acquiesce to the transfer decision of the Circuit Court for Prince George’s County.

II

A “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.” Md. Rule 2-327(c). Appellant, relying on Allfirst Bank v. Progress Rail Serv’s Corp., 178 F.Supp.2d 513 (D.Md.2001) and In re Cragar Indus., Inc. 706 F.2d 503 (5th Cir.1983), argues that the Circuit Court for Montgomery County improperly assumed the role of an appellate court when it overruled the transfer decision of the Circuit Court for Prince George’s County. 3 ⁶⁵ In Allfirst Bank, 178 F.Supp.2d at 517 , Progress Rail Car (“Progress Rail”) filed a complaint against Allfirst Bank (“All-first”) in state court. Allfirst removed the case to the United States District Court, Northern District of Georgia, and filed a motion to dismiss and a motion to transfer. Id.

In response, Progress Rail filed a motion to remand. Id. The court denied the motion to dismiss and the motion to remand, but transferred the case to the United States District Court, District of Maryland. Id.

Progress Rail subsequently filed a motion to re-transfer. Id. In reviewing the issue, the court noted that Progress Rail was requesting that it “act as an appellate court and reverse the ruling made by Judge Thrash.” Id. The court, however, was unwilling to “play ‘jurisdictional ping-pong’ and retransfer” the case.

Id. (citing Moses v. Bus. Card Express, Inc., 929 F.2d 1131 , 1137 (6th Cir.1991)). The court noted that a ruling from another court constituted the rule of the case, which provides that a “decision should continue to govern the same issues in subsequent stages in the same case[,]” and that “the transferor court ... should not retrans-fer ‘except under the most impelling and unusual circumstances’ or if the transfer order is ‘manifestly erroneous.’ ” Allfirst Bank, 178 F.Supp.2d at 517 (quoting In Cragar, 706 F.2d at 505 ).

Thereafter, the court held that there was no showing that Judge Thrash’s decision was clearly erroneous as a matter of law, there were no injustices that would manifest if the case was not re-transferred, and there was no interest of justice that required the court to “second-guess” a discretionary decision of a sister court. Id. at 517-18 . In In re Cragar, 706 F.2d at 504 , Jerrell Robinson (“Robinson”), a resident of Louisiana, was injured in Mississippi while driving a vehicle manufactured by General Motors Corporation (“General Motors”), equipped with tires manufactured by ⁶⁶ Cragar Industries (“Cragar”). Robinson filed a complaint against General Motors in the United States District Court, Northern District of Mississippi.

Id. Not long after, Cragar was joined as a co-defendant. Id. Cragar submitted a motion to dismiss, which was granted, arguing that Mississippi’s long-arm statute was not available to Robinson.

Id. In response, Robinson filed a motion to transfer to the United States District Court, Western District of Louisiana, and the case was subsequently transferred. Id. After the case was transferred, Cragar filed a motion for summary judgment, which was granted, arguing Robinson’s claims against Cragar were barred by Louisiana’s statute of limitations.

Id. Not long after, General Motors filed a motion for summary judgment and asserted the same argument. Id. In response, Robinson requested that the case be transferred to the Northern District of Mississippi, because there were six witnesses that would testify if the case was transferred, and the Western District of Louisiana’s docket was “crowded.” Id. at 504-05 .

The court granted Robinson’s request and transferred the case to the Northern District of Mississippi. Id. at 505 . General Motors noted an appeal. See id.

On appeal, General Motors argued that the decision to transfer was an abuse of discretion because it acted contrary to the law of the case doctrine, and there was an insufficient basis for its decision. Id. 4 In reviewing the issue, the court articulated: Certainly, the decision of a transferor court should not be reviewed again by the transferee court. Starnes v. McGuire, 168 U.S.App. D.C. 4, 512 F.2d 918, 924 (D.C.Cir. 1974) (en banc). Such an independent review would implicate those concerns which underlie the rule of repose and decisional order we term the law of the case.

We have said: ⁶⁷ “If the motion to transfer is granted and the case is transferred to another district, the transferee-district should accept the ruling on the transfer as the law of the case and should not re-transfer ‘except under the most impelling and unusual circumstances’ or if the transfer order is ‘manifestly erroneous.’ ” United States v. Koenig, 290 F.2d 166 , 173 n. 11 (5th Cir.1961), aff'd, 396 U.S. 121 , 90 S.Ct. 396 , 24 L.Ed.2d 305 (1969). Failure to abide the original transfer order contains the additional potential mischief of tossing cases back and forth to the detriment of an adjudication of the underlying merits of the case and respect due sister courts. It does not follow, however, that a transferee court is powerless to act where the original purposes of the transfer have been frustrated by an unforeseen later event. See 15 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3846 (1976).

When such unanticipatable post-transfer events frustrate the original purpose for transfer, a return of the case to the original transferor court does not foul the rule of the case nor place the transferee court in a position of reviewing the decision of its sister court. It, instead, represents a considered decision that the case then is better tried in the original forum for reasons which became known after the original transfer order. In sum, we decline to adopt a per se rule forbidding a return of a transfer by the transferee court of a transferred case. Id.

The court then held that it was unwilling to review the motion to transfer because it was unable to discern any event that was reasonably unforeseen, there were no new facts discovered, nor were there any new witnesses that were located. Id. Although federal case law is persuasive with regard to Md. Rule 2-327(c), we decline to accept the federal court’s reluctance to review a sister court’s transfer order. The law of the case doctrine, which was the underlying rationale in Allfirst Bank and In re Cragar, and the reason federal courts generally do not re-review a motion to transfer, has been applied differently in Maryland.

In Kearney v. Berger, 416 ⁶⁸ Md. 628, 641 (2010) (quoting Reier v. State Dep’t of Assessments & Taxation, 397 Md. 2, 21 , 915 A.2d 970 (2007) (quoting Fid.-Baltimore Nat’l Bank & Trust Co. v. John Hancock Mut. Life Ins. Co., 217 Md. 367, 372 , 142 A.2d 796 (1958))), the Court of Appeals outlined the law of the ease doctrine, and articulated: Once [an appellate court] has ruled upon a question properly presented on an appeal, or, if the ruling be contrary to a question that could have been raised and argued in that appeal on the then state of the record, as aforesaid, such a ruling becomes the “law of the case” and is binding on the litigants and [courts] alike, unless changed or modified after reargument, and neither the questions decided [nor] the ones that could have been raised and decided are available to be raised in a subsequent appeal. See also Chesley v. Goldstein & Baron, 145 Md.App. 605, 630 , 806 A.2d 296 (2002) (quoting Turner v. Hous.

Auth. of Baltimore City, 364 Md. 24, 32 , 770 A.2d 671 (2001)) (“[A] trial court is bound by the decision of an appellate court in the case before it ... ‘unless [the ruling is] changed or modified after reargument, and neither the questions decided nor the ones that could have been raised and decided are available to be raised in a subsequent appeal.’ ”). In Maryland, the law of the case doctrine is rooted in appellate framework, and its purpose is to prevent piecemeal litigation. Reier, 397 Md. at 21 , 915 A.2d 970 . In the absence of the doctrine, “ ‘any party to a suit could institute as many successive appeals as the fiction of his imagination could produce new reasons to assign as to why his side of the case should prevail, and the litigation would never terminate.’ ” Id.

(quoting Fid.-Baltimore. Bank, 217 Md. at 372 , 142 A.2d 796 ). In comparison, the law of the case doctrine in the federal system “prevents the relitigation of settled issues in a case, thus protecting the settled expectations of parties, ensuring uniformity of decisions, and promoting judicial efficiency.” Little Earth of the United Tribes, Inc. v. U.S. Dept. of Hous. & Urban Dev., 807 F.2d 1433, 1441 (1986). ⁶⁹ As evident above, the law of the case doctrine in Maryland and in the federal system strive to prevent unnecessary appeals. However, as exhibited in Allfirst Bank and In re Cragar, in the federal system, the doctrine can be applied in the absence of an appellate decision.

Notwithstanding similar functions of the doctrines, we decline to hold that the law of the case doctrine precludes sister circuit court’s from readdressing a motion in the absence of an appellate decision, a hallmark of our law of the case doctrine. Thus, in the case sub jud/ice, because a decision by a sister court cannot be considered a decision from an appellate court, we conclude that the Circuit Court for Montgomery County was not precluded from reviewing the motion to re-transfer pursuant to the law of the case doctrine. Moreover, we note that Scott v. State, 379 Md. 170 , 840 A.2d 715 (2004), is instructive because the Court of Appeals determined that the law of the case doctrine was not applicable to subsequent decisions made by coordinate judges. There, the defendant filed a motion to correct an illegal sentence, asserting the term “balance of Natural Life” may cause ambiguity that could bar the possibility of parole, and that the use of the term “consecutive” was “deficient” because it did not provide a start date to his sentence.

Id. at 175-76 , 840 A.2d 715 . The court concluded that correctional authorities would not imprison the defendant for life without parole because they were confused, and that it was clear that his sentences were supposed to run consecutive to each other. Id. 176-77 , 840 A.2d 715 . The defendant then filed a petition for post conviction relief.

Id. at 178 , 840 A.2d 715 . Approximately a year later, because his first petition was dismissed without prejudice, the defendant filed a second petition. Id. In the second petition, the defendant argued that the language used to sentence him was deficient because the court stated “[consecutive to] sentence now being served,” and that Judge Byrnes erred by revising his sentence.

Id. Judge Smith concluded that the sentencing language was not confusing because six original commitment records, and four sentence modifications, referred to case ⁷⁰ numbers and counts that provided clarity. Id. at 178-79 , 840 A.2d 715 . Judge Smith also concluded that Judge Byrnes did not err in revising the commitment records because