Smith v. Cylus

SALMON, Judge. I. On August 17, 1998, Tammie Smith (“Smith”) was involved in an automobile accident with Cara Cylus (“Cylus”). The accident occurred on Charles Street, a major thoroughfare running from Baltimore City’s inner harbor north through Baltimore County. Smith filed a complaint against Cylus in the Circuit Court for Baltimore City on July 10, 2001, five weeks before the statute of limitations expired.

In her complaint, Smith alleged (incorrectly) that the accident occurred in Baltimore City. She also alleged (incorrectly) that Cylus resided in Baltimore City. In response to the complaint, counsel for Cylus served Smith with a request for admissions. Subsequently, Cylus’s counsel filed a motion to dismiss for improper venue, or in the alternative, to transfer venue based on principles of forum non conveniens.

Cylus filed an affidavit in support of the motion stating that the accident occurred in Towson, Baltimore County, Maryland, that she resided in Towson and that she was employed at White Marsh Mall, located in Baltimore County. No answer to the complaint was filed. A hearing was held on October 5, 2001, to address Cylus’s motion to dismiss. At the hearing the trial court asked counsel for Smith his reasons for filing the claim in Baltimore City.

Counsel responded: “We were under the understanding that [the accident] happened on Charles Street, and that [Cylus] resided in Baltimore. And that’s why we filed suit ⁸⁰ here, both because we believed that this was where the situs of the accident was, and this was where [Cylus] resided.” After further questioning from the court, counsel acknowledged that he was unsure where Cylus lived at the time the complaint was filed and unsure of the exact site of the accident. Plaintiffs counsel ultimately conceded that, although the complaint was originally filed in Baltimore City in good faith, that there was no apparent connection between Baltimore City and the subject accident. Upon learning of the lack of a connection with Baltimore City, the court expressed concern that the complaint may have constituted a “false pleading” and Suggested that it believed “the case should be dismissed” for that reason.

Counsel for Smith responded by emphasizing that if the complaint was dismissed his client would have “nowhere to go” because the statute of limitations had run. The court, expressing no opinion on the issue of limitations, dismissed the claim without prejudice, saying only that the case is “going to have to be dismissed for improper venue.” II. Appellant raises two questions on appeal, viz: 1. Did appellee waive the defense of improper venue when she served appellant with a request for admissions? 2.

Did the court abuse its discretion in dismissing appellant’s complaint rather than transferring it to an appropriate venue? In support of her argument that appellee waived the defense of improper venue when she served her with requests for admissions, appellant states that “[p]ursuant to Rule 2-322, the issue of venue is a mandatory defense which must be plead before any initial filing by the defendant.” Appellant, citing Eastham v. Young, 250 Md. 516 , 243 A.2d 559 (1968), continues, “It is well established law that unless venue is raised as a preliminary issue, before filing of any other pleading, venue is waived.” ⁸¹ While appellant is correct that Rule 2-322 governs mandatory defenses, she misunderstands the rule. Rule 2-322(a) reads: “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.... ” (Emphasis added.) In the case sub judice, appellee never filed an answer. Therefore, she has not waived the defense of improper venue. 1 Appellant further argues that “the court has abused its discretion by dismissing Smith’s Complaint rather than transferring it to the Circuit Court for Baltimore County.” 2 Specifically she contends that in order to dismiss a complaint for a forum non conveniens analysis there must be an alternate forum which is available for litigation.

Johnson v. G.D. Searle & Co., 314 Md. 521 , 552 A.2d 29 (1989). No matter how inappropriate the forum may be, if the plaintiffs cause of action is barred by the statute of limitations then the matter may not be dismissed