Leung v. Nunes, No., 89, Sept. Term, 1998 (Md. May 17, 1999)

The Court held that a transfer is not sustainable solely on the ground that the transfer requested is to the place where the claim arose.  The remedy for such an error is a new trial.  In reaching this holding, the Court slammed the door on interlocutory appeals, either under the collateral order doctrine or through a petition for writ of mandamus, from orders granting or denying transfer of venue.

In this three-car motor vehicle accident, which occurred in Howard County, the plaintiffs, who were residents of New Jersey, filed suit in the Circuit Court for Baltimore City. None of the defendants were residents of Maryland. One of the defendants moved to dismiss the Complaint or, in the alternative, to transfer the action to the Circuit Court for Howard County. The sole support for the motion was a police report completed by a Maryland State Police trooper who investigated the accident. The Circuit Court for Baltimore City transferred the action to the Circuit Court for Howard County.

Subsequently, a trial on liability was held in the Circuit Court for Howard County, which returned a verdict for the defendants. The plaintiffs appealed, on the sole ground that the trial court abused its discretion in transferring venue to the Circuit Court for Howard County. The Court of Special Appeals found this to be reversible error, and remanded for a new trial. The Court of Appeals granted the defendants petition for a writ of certiorari, but ultimately affirmed, and remanded the case to the Circuit Court for Baltimore City for a new trial.

The Court reiterated the decision process that must support a discretionary transfer of venue under Md. Rule 2-327(c):

When determining whether a transfer of the action for the convenience of the parties and witnesses is in the interests of justice, a court is vested with wide discretion. . . . It is the moving party who has the burden of proving that the interests of justice would be best served by transferring the action. . . . and a motion to transfer should be granted only when the balance weighs strongly in favor of the moving party. [A] court "must weigh in the balance the convenience of the witnesses and those public-interest factors of systemic integrity and fairness that, in addition, to prevent concerns, come under the heading of the interest of justice."

Slip op. At 5 (quoting Odenton Development Co. v. Lamy, 320 Md. 33, 575 A.2d 1235, 1238 (1990). Here, the Court found that where the sole factor weighing in favor of venue in Howard County was the location of the accident, that test was not met. A transfer is not sustainable solely on the ground that the transfer requested is to the place where the claim arose.

Significantly, the Court stated that "[t]his respect for the plaintiff’s choice in forum is derived largely from federal law developed under Title 28 U.S.C. §1404(a)." Slip. Op. at 6. But the Court also stated, "The plaintiff’s choice, however, is not an absolute and uncontrolled privilege that is determinative under present forum non conveniens law." Slip. Op. at 7.

The Court did not find the plaintiff’s venue privilege to be rooted in the Maryland venue statutes, which would have made it a statutory privilege, the denial of which might justify an interlocutory appeal. The Court made it clear that there can be no appeal under the collateral order doctrine of an order denying transfer of venue, citing   Pittsburgh Corning Corp. v. James,  __ Md __. ,__ A.2d ___ (1999) (No. 136, Sept. Term, 1998, filed April 23, 1999). The Court also warned that "nothing in this opinion is intended to indicate that review by mandamus in this case would have been available at the time the transfer order was entered. . . . ." Slip. Op. at 17, n.5.

The Court refused to apply the harmless error doctrine with regard to the trial court’s abuse of discretion in ordering the transfer. The Court found that would be a "a nearly impossible standard", and that "[u]nder a standard of actual prejudice a transfer resulting from an abuse of discretion would be effectively unreviewable." Slip. Op. at 17. Accordingly, the Court held that the proper remedy is a new trial in the Circuit Court for Baltimore City.

[Ed. note. This firm represented one of the defendants, Commock, throughout this appeal.  It appears that the Court’s decision was heavily influenced by the experience of federal courts under 28 U.S.C. §1404(a), which, as the Court discussed, have "struggled for decades" with the question of whether they should entertain petitions for mandamus to review orders granting or denying transfers. The Court evidently decided that the disruption  to the administration of justice resulting from potential petitions for mandamus or collateral order doctrine appeals would outweigh that resulting from the rare remand for a new trial, as in this case. Such policy judgments, of course, are the particular province of the Court of Appeals of Maryland.]

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