Frost v. Peoples Drug Store, Incorporated

• Decision Date: 31 October 1974
• Docket Number: No. 6431.,No. 6472.,No. 6473.,No. 6474.,6431.,6472.,6473.,6474.
• Citation: 327 A.2d 810
• Parties: Delores D. FROST et al., Appellants, v. PEOPLES DRUG STORE, INCORPORATED, et al., Appellees. MAY DEPARTMENT STORES t/a the Hecht Company et al., Appellants, v. Pilin TIRDTHAMUTID et al., Appellees.
• Court: D.C. Court of Appeals

Page 810

327 A.2d 810

Delores D. FROST et al., Appellants, v. PEOPLES DRUG STORE, INCORPORATED, et al., Appellees.

MAY DEPARTMENT STORES t/a the Hecht Company et al., Appellants, v. Pilin TIRDTHAMUTID et al., Appellees.

No. 6431.

No. 6472.

No. 6473.

No. 6474.

District of Columbia Court of Appeals.

Argued December. 14, 1972.

Decided October 31, 1974.

Harold A. Sakayan, Rockville, Md., with whom Erwin A. Alpern, Washington, D. C., was on the brief, for appellants in No. 6431.

J. Roy Thompson, Jr., Washington, D. C., with whom John Jude O'Donnell, Washington, D. C., was on the briefs, for appellees in No. 6431, and for appellants, May Dept. Stores in Nos. 6472, 6473, and 6474.

Denver H. Graham, Washington, D. C., for appellant, Mut. Protective Association, in No. 6474.

William S. Burroughs, Jr., Arlington, Va., with whom Jerry K. Emrich, Arlington, Va., was on the brief, for appellees in Nos. 6472, 6473, and 6474.

Before REILLY, Chief Judge, PAIR, Associate Judge, and HOOD, Chief Judge, Retired.

REILLY, Chief Judge:

These cases are before us on appeals from orders entered in the Superior Court disposing of motions for dismissal filed by defendants on the ground of forum non conveniens.

In No. 6431, a damage action for personal injuries incurred at a retail pharmacy in Prince George's County, Maryland, the trial judge granted the motion to dismiss, noting that a suit arising out of the same incident had been filed by the same plaintiffs in the county court.

In Nos. 6472, 6473, and 6474, another trial judge refused to dismiss three damage actions brought by sisters following their assertedly false arrest for shoplifting in an Arlington branch store of the Hecht Company, despite the pendency of a suit stemming from the same incident in the Virginia courts. Because of the common issue presented to us, we consolidated both sets of cases for argument and consideration.

A threshold question is one of jurisdiction to entertain these appeals. With certain exceptions not applicable here, the jurisdiction of this court is limited, under D.C.Code 1973, § 11-721(a) to "final orders and judgments of the Superior Court." As the order entered in No. 6431 was a dismissal, it is clear that the appeal from such order is properly before us, for even though issued on a pretrial motion, it is clearly a final order for it terminated the action in the Superior Court.¹

A more difficult problem is presented by the orders denying dismissal in the second set of cases. It is now urged that these appeals should be dismissed on the premise that an order denying dismissal was not a final order but an interlocutory one, and hence, if erroneous, could eventually be challenged on appeal after trial and entry of final judgment.

It appears that in this jurisdiction, however, such premise is unfounded in light of a decision of this court, which is binding upon us, Wilburn v. Wilburn, D. C.App., 192 A.2d 797 (1963). There, the trial court after denying a pretrial motion to dismiss on the doctrine of forum non conveniens, thereby causing the parties to go to trial which resulted in a verdict against the movant, reconsidered its earlier ruling sua sponte and dismissed the case. This court deemed the dismissal an abuse of discretion. The reasoning of the opinion was that the very inconvenience which the doctrine seeks to avoid had already occurred and consequently a post-trial ruling could not rectify the situation.

The corollary of the Wilburn opinion is that an appellate court would be equally powerless to remedy on post-trial appeals from final judgments, an erroneous pretrial denial of a motion to dismiss for forum non conveniens. The irretrievability of the situation at that point has led the United States Court of Appeals for the Ninth Circuit to question the soundness of the prevailing federal doctrine that district court rulings on motions for transfer of venue under 28 U.S.C. § 1404(a) are interlocutory and not appealable.² The rule of nonappealability developed tinder this federal statute, however, applies to the grant as well as the denial of transfer motions.³ But as this court is compelled to deem pretrial dismissals as final and hence appealable, to hold otherwise on the appealability of refusals to dismiss would place plaintiffs and defendants on an unequal footing with " respect to rulings on forum non conveniens for, as we have already noted, the Wilburn doctrine accords a degree of finality to an order which might otherwise be interlocutory.

Somewhat similar considerations caused us to conclude that the intent of Congress was to extend to juvenile delinquency proceedings the statutory right of a prosecutor to an interlocutory appeal from a suppression order entered before the trial of a person charged with a criminal offense. A contrary holding would have rendered a suppression order, even though clearly erroneous, beyond correction. District of Columbia v. M.E.H., D.C.App., 312 A.2d 561 (1973).

In criminal prosecutions the factor of irreparability is the rationale of the doctrine that orders denying reduction of bail are appealable before trial even though it is well established that only a sentence constitutes a final judgment in such a case. See Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Unless such orders were immediately reviewable, there would be no way of curing wrongful pretrial detention save by some cumbersome collateral proceeding like habeas corpus or mandamus.

The term "final orders" in the statute which governs our jurisdiction, § 11-721(a) supra, is not limited to "final judgments which terminate an action." Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541 at 545, 69 S.Ct. 1221 at 1225, 93 L.Ed. 1528 (1949). There, the Supreme Court in construing this same statutory wording in 28 U.S.C. § 1291 held that an order determining the right to security in a civil action was appealable on the ground that the claimed right would not be merged in the final judgment. Just this year the Supreme Court cited Cohen as controlling in rejecting a contention that a district court order permitting a suit to proceed as a class action and allocating cost, was not directly appealable. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 2148-2150, 40 L.Ed.2d 732 (1974).

The broad scope of the Cohen holding was recognized by this court in a case where an order denying a motion for voluntary dismissal without prejudice was drawn into issue. Raney v. D. C. Transit System, Inc., D.C.Mun.App., 166 A.2d 261 (1960). In reversing this order on the authority of Cohen, this court said:

Orders based upon procedural steps which have a final irreparable effect upon the rights of the parties are none the less appealable though they do not finally terminate the action. An order is appealable if it is a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it. . . . (footnote omitted.) Id. at 262.

The issue then is whether the asserted right of a defendant not to be forced to trial in the Superior Court merges in the final judgment, where the prior denial of such right may be reviewed and corrected. It is plain to us that this question must be answered in the negative. For if the cases in which the May Department Stores have appealed the orders denying dismissal are allowed to proceed to trial and final judgment, it will be too late effectively to review such orders and the right to a different forum, if applicable, will be lost irreparably. Accordingly, we hold that the appeals in Nos. 6472, 6473, and 6474 are properly before us and must be decided.

In reaching this conclusion, we are not unmindful that some litigants may use their right to appeal pretrial orders denying dismissal for purely dilatory reasons. This court, however, can guard against such procedural abuses by granting, upon motion, expedited review so that the appeal will not substantially delay the trial of the case.

So far as the standard for judicial review is concerned, this court has held that trial court decisions respecting forum non conveniens will not be overturned on appeal except for a clear abuse of discretion. Midland Finance of Cumberland v. Green, D.C.App., 279 A.2d 518 (1971); Hardy v. Hardy, D.C.App., 202 A.2d 389 (1964). But this does not mean that trial courts have unlimited discretion for, as the Wilburn case shows departure from well established criteria for applying the doctrine [of forum non conveniens] can be a ground for reversal. In domestic relations cases, for example, it has been held that . the public policy of the District of Columbia does not require its courts to take jurisdiction of a matrimonial dispute between two persons who are neither domiciled in the District nor even residents thereof. . . ." Curley v. Curley, 74 App.D.C. 163, 165, 120 F.2d 730, 732, cert. denied, 314 U.S. 614, 62 S.Ct. 114, 86 L.Ed. 494 (1941).⁴ Moreover, in Walsh v. Crescent Hill Co., supra n. 1, which recognized the "clear abuse of discretion" principle, this court also quoted with approval an observation of the United States Court of Appeals for this circuit in Nee v. Dillon, 99 U.S.App.D.C. 332, 334, 239 F.2d 953, 955 (1956):

In a situation of this sort we think the District Court should make inquiry at pre-trial or at the trial itself with respect to the reasons why the doctrine of forum non conveniens should not be applied, even though jurisdiction in the strict sense can be obtained here under established rules. Cf. Gross v. Owen, 1955, 95 U.S.App.D.C. 222, 221 F.2d 94. In matters of this kind, plaintiffs from other jurisdictions should normally resort to their own courts: the courts of the District of Columbia, burdened as they are, should not without good reason be asked to make inquiry concerning events happening outside their jurisdiction or enter decrees with respect to property located elsewhere.

In Nee v. Dillon, supra, the circuit...