Payton-Henderson v. Evans

MOYLAN, J. This case presents an illuminating contrast between a Motion to Dismiss for Improper Venue and a request for a discretionary transfer of venue on the ground of forum non conveniens. Because either may result in a transfer of venue, they are not infrequently confused with each other. On the afternoon of Friday, May 7, 2004, a senseless and tragic shooting occurred as students at Randallstown High School in Baltimore County were leaving the school following the conclusion of an after-school charity basketball game. Matthew T. McCullough, a student at Randallstown High who had been suspended from school for several days, and Tyrone D. Brown drove up to the school’s parking lot and got out of a black BMW.

McCullough got into a fist fight with one of the ²⁷² students. Brown retrieved a handgun from the BMW and fired into the crowd of students. Brown then handed the gun to McCullough, who also fired into the crowd. Several students were struck by the random shots, including William J. Thomas, III, who was seriously and permanently injured.

Thomas and his mother, Edna Payton-Henderson, were the plaintiffs below and are the appellants before us. They filed, on May 4, 2007, a complaint in the Circuit Court for Baltimore City, charging a number of defendants with the negligent failure to have prevented the injury to Thomas. The defendant-appellees are 1) Thomas Evans, who was on May 7, 2004, the principal of Randallstown High School; 2) the Board of Education of Baltimore County; 3) the Baltimore County Police Department; 4) Officer Richard J. Barney of the Baltimore County Police Department; 5) Officer Ricardo Hester of the Baltimore County Police Department; 6) one of the shooters, Matthew T. McCullough, and 7) the other shooter, Tyrone D. Brown. On June 15, 2007, the defendants Evans and the Board of Education filed a Motion to Dismiss for Improper Venue or, in the alternative, a Motion to Transfer the Trial to Baltimore County on Grounds of Forum Non Conveniens.

All of the other defendants except McCullough and Brown ultimately joined in the motions. McCullough was convicted on November 23, 2004, of multiple counts of first-degree assault and is serving a 100-year prison sentence at the Roxbury Correctional Institution in Hagerstown. Brown entered guilty pleas to attempted second-degree murder and various weapons charges and is serving a 50-year sentence at the Maryland Correctional Training Center, also in Hagerstown. Neither McCullough nor Brown has responded to any of the pleadings in any way.

A hearing on the motion was conducted before Judge George L. Russell, III on August 6, 2007. At the conclusion of the hearing, Judge Russell denied the Motion to Dismiss for Improper Venue but granted the Motion to Transfer the Trial ²⁷³ to Baltimore County on the Ground of Forum Non Conveniens. Motion to Dismiss For Improper Venue The general rule as to the proper venue in which to bring a civil action is spelled out in Maryland Code, Courts and Judicial Proceedings Article, § 6-201: (a) Civil actions. — Subject to the provisions of §§ 6-202 and 6-203 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. (Emphasis supplied). Section 6-201 is implemented by Maryland Rule 2-322(a), which provides in pertinent part: The following defenses shall be made by motion to dismiss filed before the answer, if an answer is required: ... (2) improper venue ....

If not so made and the answer is filed, these defenses are waived. (Emphasis supplied). With respect to their Motion to Dismiss for Improper Venue, the key allegation made by the defendants was: Since no Defendant resides, carries on a regular business, is employed, habitually engages in a vocation, or maintains principal offices in Baltimore City as required by § 6-201 of the Courts and Judicial Proceedings Article of the Maryland Code, nor is it the forum where this cause of action arose, as required by § 6-201(b) or § 6-202(8), Balti ²⁷⁴ more City is an improper venue. Accordingly, this action should be dismissed.

(Emphasis supplied). Although the defendants’ motion was phrased as a Motion to Dismiss for Improper Venue, Maryland Rule 2-322(c) makes clear that, “In disposing of the motion, the court may dismiss the action or grant such lesser or different relief as may be appropriate.” (Emphasis supplied). If a judge were to determine, pursuant to Courts and Judicial Proceedings Article, § 6-201, that the venue of a pending case was improper, the typical relief granted would be to transfer the case to a county where the venue would be proper. Indeed, Maryland Rule 2-327(b) expressly provides: 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.

In its Commentary on Rule 2-322, Paul V. Niemeyer and Linda M. Schuett, Maryland Rules Commentary (2d ed.1992), p. 189, explains: The court is not required to dismiss when it grants a motion under this rule____If the court determines ... that venue is improper, it should transfer the case to the appropriate court, as permitted by section ... (b) of Rule 2-327. Although a transfer instead of dismissal is discretionary, dismissal rarely serves a useful purpose. (Emphasis supplied).

A Courts Article, § 6-201 motion to dismiss, therefore, will almost invariably, but not invariably, result in a transfer of venue. What is now § 6-201 is a law, with a long and venerable pedigree, designed for the benefit of defendants in civil cases. In Zouck v. Zouck, 204 Md. 285, 291 , 104 A.2d 573 (1954), Judge Hammond spoke of its purpose. It has been stated that its purpose is to afford residents of the State an opportunity to avoid the defense of actions in counties distant from their homes or places of employment. ²⁷⁵ (Emphasis supplied).

See also Woodcock v. Woodcock, 169 Md. 40, 47-48 , 179 A. 826 (1935), where the Court of Appeals explained: The purpose of the statute according a defendant, in other than the excepted cases, the right to be sued in the jurisdiction of his residence, and not in a jurisdiction foreign to him, is a salutary protection to all citizens of the state alike, and should be carefully guarded. It is evidently designed to accord a defendant the right to defend in a jurisdiction which better suits his own convenience, and ordinarily is preferable to him. In Swanson v. Wilde, 74 Md.App. 57, 61-63 , 536 A.2d 694 , aff'd, Wilde v. Swanson, 314 Md. 80 , 548 A.2d 837 (1988), Judge Wilner for this Court traced what is now § 6-201 back to the Laws of 1801, ch. 74, § 11, even while noting, 74 Md.App. at 62 n. 3, 536 A.2d 694 , that the “statute had British and colonial antecedents.” Whereas the first manifestation of the statute confined the venue to the county wherein the defendant resided, the opportunity for selecting a venue was modestly broadened in 1888. Although the statute was put in more modern form in the codification of 1860 (see Md.Code Ann. (1860), art. 75, § 87), its substance remained essentially intact until the addition of another “proviso” in 1888 — that “any person who resides in one county but carries on any regular business, or habitually engages in any avocation or employment in another county, may be sued in either county.” 1888 Md. Laws. ch. 456.

At that point, a defendant could be sued (1) in the county where he lived, (2) in the country where he regularly worked, or (3) in any county if he had absconded from his county of residence or if process directed to his county of residence was returned non est. 74 Md.App. at 62 , 536 A.2d 694 (emphasis supplied). In a two-step process beginning in 1945 and culminating in the Acts of 1954, ch. 60, the Legislature essentially provided what is now, with only stylistic changes at the time of the code revision process of 1974, Courts and Judicial Proceedings ²⁷⁶ Article, subsection 6-201(b). See also Eck v. State Tax Commission of Maryland, 204 Md. 245, 248-54 , 103 A.2d 850 (1954); Lampros v. Gelb, 153 Md.App. 447 , 837 A.2d 229 (2003). In deciding a Motion to Dismiss for Improper Venue, in stark contrast to deciding whether to transfer a case on the ground of forum non conveniens, there is no balancing of competing interests and the trial judge has no discretion.

The venue chosen by the plaintiff is either proper, as a matter of law, or it is not. Whereas in a forum non conveniens case the focus is on everybody, in an improper venue case it is exclusively on the defendant or defendants. In a case involving multiple defendants under § 6-201(b), if so much as a single defendant, out of a hundred defendants, resides or works or does business in the county chosen by the plaintiff, venue in that county is, as a matter of law, proper, and the case may not be dismissed for improper venue. (That does not mean, of course, that the case may not be transferred to another venue for another and very different reason.) One of the multiple defendants in this case was one of the shooters, Tyrone Brown.

Whether Baltimore City, therefore, was a proper venue under § 6-201(b) wherein “all may be sued” depends upon whether Baltimore City was a proper venue wherein “any one of them [to wit, Tyrone Brown] could be sued.” That, in turn, depends upon the residential status of Tyrone Brown. At the time of the May 7, 2004 shooting at Randallstown High School, Tyrone Brown lived at 4200 Newbern Avenue in Baltimore City. At the time of the hearing on the motion, by dramatic contrast, he was serving a 50-year sentence at the Maryland Correctional Training Center in Washington County. With almost every conceivable consideration screaming Baltimore County, the plaintiffs stretched and strained to get the tip of the little toe of the case into Baltimore City.

The plaintiffs argue that Tyrone Brown’s presence in Washington County is involuntary and that his domicile, therefore, remains in Baltimore City. Their rationale, if they needed one (they ²⁷⁷ don’t), would have been shaky. In terms of travel time and of logistical convenience, Tyrone Brown, if summoned to the trial, is going to be coming, under heavy guard, from Hagerstown and not from 4200 Newbern Avenue in Zone 15. As a wry factual observation, the comment of Judge (now Chief Judge) Krauser in Stidham v. Morris, 161 Md.App. 562, 565 , 870 A.2d 1285 (2005), would appear to be right on target.

Although no rationale was offered by appellant for his choice of forum, his selection suggests that, while home may be where the heart is, it is not necessarily where the largest recovery lies. All of that, however, is beside the point when dealing with the venue statute rather than with the issue of forum non conveniens. If the plaintiffs have selected a legally permissible venue, there is nothing further to be considered under § 6-201. The plaintiffs do not need to offer any rationale or justification.

They may, as a matter of pure trial tactics, pick any permissible venue they deem advantageous, and the hope for a large recovery would be as good a tactical consideration as any other. The appellees nonetheless argue doggedly that § 6-201 (a) is concerned not with where a defendant is domiciled but only with the “county where the defendant resides.” They insist that domicile and residence are not necessarily the same. What matters, their argument goes, is not where a defendant votes but how far he will have to come to the courthouse. The law itself is murky on this troublesome issue of where an incarcerated prisoner actually resides.

Did Captain Dreyfus, one might ask, ever reside on Devil’s Island or did he remain, during all those hellish years, a resident of Paris? The burden of persuasion was on the proponents of the motion to dismiss, and on this question of Tyrone Brown’s residence, Judge Russell gave the plaintiffs the benefit of the doubt. The plaintiff argues that charging documents from the Motor Vehicle Administration as well as other documents demonstrate that Mr. Brown’s residence at the time he ²⁷⁸ committed the act for which he’s accused was Baltimore City. Further, Plaintiff argues that Mr. Brown has not voluntarily relinquished his residency.

And there is an indication after his service of what can only be characterized as a lengthy prison sentence he would return back. There’s no indication that he has abandoned his residence in Baltimore City. As a result he is not a resident of Washington County but is in fact a resident of Baltimore City for the purpose of venue. (Emphasis supplied).

Accordingly, Judge Russell denied the defendants’ Motion to Dismiss for Improper Venue. Addressing first the mandatory version of the statute after reviewing the case law that has been submitted by counsel, as well as the well thought out, well articulated arguments in this case, after reviewing attorney general’s opinion as well as the federal cases outlining venue, I will consider Mr. Brown a resident of Baltimore City for the purposes of the mandatory venue statute. There is no indication that Mr. Brown has abandoned his residence and there is case law supporting the notion that his transfer to Washington County was an involuntary one. I believe that the case law supporting in the Federal circuits supporting residency of Mr. Brown lying in Baltimore City are more persuasive under the circumstances although I certainly do understand a well thought out arguments of counsel on taking the other position.

(Emphasis supplied). The defendants have challenged that ruling by way of a contingent cross-appeal. Because (as will now be discussed) they will prevail, however, in their effort to have the case removed from Baltimore City to Baltimore County, albeit for another reason, it is unnecessary for us to resolve the issue of a prisoner’s residence for purposes of Rule 2-327(c). Our discussion of venue law should nonetheless help to illustrate the difference between statutory venue law, on the one hand, ²⁷⁹ and the rule of court dealing with forum non conveniens, on the other.

A Shifting of Gears: Forum Non Conveniens By contrast with the long statutory history of the venue law, tracing back to 1801 and beyond, the flexibility to transfer a case “solely on a forum non conveniens basis” only became a part of Maryland law as late as 1984 with the promulgation by the Court of Appeals of what is now Maryland Rule 2-327(c). Lennox v. Mull, 89 Md.App. 555, 562, 598 A.2d 847 (1991). Under the very different rules of the game governing forum non conveniens, victory by the plaintiff on the issue of proper venue by no means augurs a concomitant victory when confronting that very different claim. As Judge Sharer explained in Cobrand v. Adventist Healthcare, Inc., 149 Md.App. 431, 438 , 816 A.2d 117 (2003): Even though venue may be proper in one jurisdiction, a court has the discretion to transfer actions to another competent jurisdiction pursuant to the forum non conveniens doctrine.

(Emphasis supplied). Urquhart v. Simmons, 339 Md. 1, 10 , 660 A.2d 412 (1995), similarly described a transfer based on that alternative rationale: Maryland Rule 2-327(c) permits a trial court to transfer an action on the grounds of forum non conveniens upon motion of any party when it appears that it would be more convenient for the parties and witnesses to have the case heard in another appropriate venue and the interests of justice would be served. This rule permits an action to be transferred to another appropriate venue even though a plaintiffs choice of venue is proper. (Emphasis supplied).

The discretion to order a transfer stems from Maryland Rule 2-327(c), which provides and has provided since 1984: ²⁸⁰ (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. (Emphasis supplied). There are, to be sure, limitations on the transfer.

Niemeyer and Schuett, Maryland Rules Commentary, explains at 215: Obviously, if venue lies in only one circuit court and the action is filed in that court, a transfer cannot be made under this section, even if another circuit court would be more convenient for all parties and witnesses. The transferee court must be a court where the action could have been filed in the first instance. (Emphasis supplied). In Lennox v. Mull, 89 Md.App. 555, 563 , 598 A.2d 847 (1991), Chief Judge Wilner traced the derivation of Rule 2-327(c): Md. Rule 2-327(c) was derived from a Federal statute— 28 U.S.C. § 1404 (a).

See Source Note to Rule 2-327. Section 1404(a) provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” See also Odenton Development Co. v. Lamy, 320 Md. 33, 40 , 575 A.2d 1235 (1990). In Simmons v. Urquhart, 101 Md.App. 85, 98-99 , 643 A.2d 487 (1994), reversed on other grounds, Urquhart v. Simmons, 339 Md. 1 , 660 A.2d 412 (1995), Judge Harrell for this Court compared the venue law with forum non conveniens principles. Although they share some characteristics, the concepts of venue and forum non conveniens indeed are procedurally distinct.

Generally, the right to change the venue of an action is purely statutory. Therefore, once a plaintiff has chosen a ²⁸¹ proper forum as defined by the relevant venue statutes, the court maintains no discretion to alter the plaintiffs decision based on a lack of venue. In comparison, forum non conveniens refers to the discretionary power of a court to transfer an action whenever it appears that the cause may be tried more appropriately in another valid venue. Forum non conveniens is based on the assumption that both the original court and some other court fulfill all the applicable venue requirements.

In effect, forum non conveniens provides the defendant with the opportunity to prove that although a plaintiffs choice of forum may be valid under a given venue statute, private and public interest factors weigh heavily in favor of transferring the action to another appropriate forum. Accordingly, forum non conveniens allows the court, when certain conditions exist, to override the plaintiffs choice of forum. (Emphasis supplied). Immediate Appealability Judge Russell’s decision to transfer the case to Baltimore County on the ground of forum non conveniens was a final order within the contemplation of Courts and Judicial Proceedings Article, § § 12 — 101(f) and 12-301.

Although the denial of a motion to transfer a case would be only interlocutory and not immediately appealable, the affirmative order of transfer is susceptible to immediate appellate review. In Brewster v. Woodhaven Building and Development, Inc., 360 Md. 602, 615-16 , 759 A.2d 738 (2000), Judge Raker explained: [A]n 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. ²⁸² (Emphasis supplied).

See Cobrand v. Adventist Healthcare, Inc., 149 Md.App. at 437-38 , 816 A.2d 117 (“The grant of a motion to transfer is an immediately appealable final judgment, whereas the denial of such a motion is not.”). And see Wilde v. Swanson, 314 Md. 80, 81 , 548 A.2d 837 (1988); Smith v. State Farm, 169 Md.App. 286, 293 , 900 A.2d 301 (2006). The flip side of the coin, the principle that the denial of a requested transfer of venue is not immediately appealable, is attested by Lennox v. Mull, 89 Md.App. at 559-64 , 598 A.2d 847 (“[T]he order denying appellant’s petition for a change of venue is not immediately appealable.”). Thus, for appealability purposes, venue issues and forum non conveniens issues are treated the same way.

In either legal context, the grant of a change of venue is immediately appealable; but the denial of a change is not. A Threshold Requirement: A Motion For A Change of Venue The opening words of Rule 2-237(c) set out the necessary condition precedent for a judge to transfer a case to another county on the ground of forum non conveniens: “On motion of any party, the court may____” Overruling the decision of this Court to the contrary in our Simmons v. Urquhart, supra, the Court of Appeals, in its Urquhart v. Simmons, supra, held squarely that a trial judge may not, sua sponte, transfer the trial of an action to another county on the ground of forum non conveniens. A motion for a transfer, filed by one of the parties and for some reason, is a necessary condition precedent for the court to order a transfer. The motion to transfer the case, however, may be a generic transfer motion.

It need not be specifically framed as a motion to transfer on the ground of forum non conveniens. Nor need it be specifically framed as a motion objecting to improper venue under § 6-201. An undifferentiated foot in the exit door will suffice. There must, however, be some foot in the door, and it may not be the judge’s foot alone.

Urquhart v. Simmons explained: ²⁸³ [B]ecause the express language of Md. Rule 2-327(c) requires that a party first make a motion prior to a ease being transferred on the grounds of forum non conveniens, a trial court may not act on its own initiative in transferring a case under that rule. In the instant case, there was a motion filed by the defendants to transfer this action to Montgomery County. Although defendants relied on §§ 6-201 and 6-202, rather than Md. Rule 2-327(c) in their motion to transfer, we find that defendants’ motion to transfer was sufficient to permit a transfer for forum non conveniens