Smith v. Johns Hopkins Community Physicians, Inc.

59 A.3d 1070, 209 Md. App. 406, 2013 WL 254858, 2013 Md. App. LEXIS 2
CourtCourt of Special Appeals of Maryland
DecidedJanuary 23, 2013
DocketNo. 1191
StatusPublished
Cited by5 cases

This text of 59 A.3d 1070 (Smith v. Johns Hopkins Community Physicians, Inc.) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Johns Hopkins Community Physicians, Inc., 59 A.3d 1070, 209 Md. App. 406, 2013 WL 254858, 2013 Md. App. LEXIS 2 (Md. Ct. App. 2013).

Opinion

CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), J.

When more than one venue is legally proper for the trial of a ease, the possibility of transferring the case from a less convenient, albeit legally proper, forum to a more convenient forum has been a part of Maryland law since 1984. In that year the Court of Appeals promulgated Maryland Rule of Procedure 2-327(c),1 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 mildly ponderous Latin tag of forum non conveniens which we place on this procedural phenomenon refers, of course, to the inconvenient or less convenient forum from which transfer is sought to a “forum more convenient” or, should the classicists insist, a forum conveniens.

Now before us, in a nutshell, is a case in which the plaintiffs filed their claim in Baltimore City; the defendant sought a transfer to Baltimore County on the ground of forum non conveniens; the trial judge granted the transfer; and the plaintiffs have appealed. The case is a perfect vehicle to examine, one-by-one, the elements of forum non conveniens law.

[410]*410The Present Case

This medical malpractice and wrongful death action was filed in the Circuit Court for Baltimore City on April 18, 2012, by the appellants, Bernadine I. Smith as personal representative of the estate of William P. Smith, Jr.; by Bernadine I. Smith as the surviving spouse; and by the three surviving children of William P. Smith, Jr. The suit was brought against the appellee, the Johns Hopkins Community Physicians, Inc.

On June 15, 2012, the appellee filed a Motion to Transfer the case from Baltimore City to Baltimore County on the ground of forum non conveniens. On July 16, 2012, Judge Evelyn Omega Cannon granted the Motion to Transfer. The appellants appeal that granting of the motion, claiming 1) that it was substantively erroneous on the merits of the transfer issue and 2) that, quite aside from the merits, it was procedurally erroneous because Judge Cannon failed to exercise her discretion.

An Expedited Appeal

By agreement of all parties, this case comes to us as an expedited appeal pursuant to Maryland Rule of Procedure 8-207(b). Oral argument before this Court took place on January 11, 2013. Accordingly, our decision in this case should be rendered within 20 days of argument, to wit, no later than January 31, 2013.

Immediate Appealability

This case, of course, has not yet been tried. That is, indeed, part of the reason why it is before us on an expedited schedule. The whole procedural phenomenon of transferring venue is an instance of pre-combat maneuvering for advantageous position. Good tacticians always carefully scrutinize the topography before battle is joined. Under the circumstances, the question naturally arises as to whether the case is, in its present posture, immediately appealable or whether the grant of the transfer is but a non-appealable interlocutory order.

[411]*411The case law makes it clear in that regard that although a denial of a transfer of venue is not immediately appealable, the granting of such a motion is. Judge Sharer dealt with appealability in Cobrand v. Adventist Healthcare, Inc., 149 Md.App. 431, 437-38, 816 A.2d 117 (2003):

We first review whether the grant of a motion to transfer is immediately appealable____The grant of a motion to transfer is an immediately appealable final judgment, whereas the denial of such a motion is not. ... Because appellants challenge the grant of appellee’s motion, this case is properly before us on appeal.

(Emphasis supplied). In Payton-Henderson v. Evans, 180 Md.App. 267, 281, 949 A.2d 654 (2008), this Court reaffirmed that earlier holding:

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.

(Emphasis supplied).

In Brewster v. Woodhaven Building and Development, Inc., 360 Md. 602, 615-16, 759 A.2d 738 (2000), Judge Raker explained the rationale behind this transfer/nontransfer dichotomy:

[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.

(Emphasis supplied). Smith v. State Farm Mutual Auto. Ins. Co., 169 Md.App. 286, 293, 900 A.2d 301 (2006); DiNapoli v. [412]*412Kent Island, LLC, 203 Md.App. 452, 470, 38 A.3d 509, cert. granted, 427 Md. 62, 46 A.3d 404 (2012).

In Payton-Henderson v. Evans, 180 Md.App. at 282, 949 A.2d 654, this Court went on to treat the converse:

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.

(Emphasis supplied). The present case, wherein the transfer was granted, is, therefore, properly before us.

The Allocation of the Burden of Persuasion

To the moving party is allocated the burden of persuasion. In Odenton Dev. Co. v. Lamy, 320 Md. 33, 40, 575 A.2d 1235 (1990), Judge Chasanow made that allocation of the burden explicit:

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Cite This Page — Counsel Stack

Bluebook (online)
59 A.3d 1070, 209 Md. App. 406, 2013 WL 254858, 2013 Md. App. LEXIS 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-johns-hopkins-community-physicians-inc-mdctspecapp-2013.