Martel v. Inhabitants of Town of Old Orchard Beach

• Citation: 404 A.2d 994
• Parties: Gertrude M. MARTEL v. INHABITANTS OF the TOWN OF OLD ORCHARD BEACH.
• Decision Date: 10 August 1979
• Court: Maine Supreme Court

Page 994

404 A.2d 994

Gertrude M. MARTEL v. INHABITANTS OF the TOWN OF OLD ORCHARD BEACH.

Supreme Judicial Court of Maine.

Aug. 10, 1979.

Rocheleau & Fournier, P. A., Ronald P. Lebel (orally), Lewiston, for plaintiff.

Bernstein, Shur, Sawyer & Nelson, F. Paul Frinsko (orally), Portland, for defendant.

Before McKUSICK, C. J., and POMEROY, ARCHIBALD, DELAHANTY and NICHOLS, JJ.

NICHOLS, Justice.

On July 5, 1978, the Plaintiff, Gertrude M. Martel, a resident of Androscoggin County, commenced in Superior Court in that county an action against the Defendant, the Inhabitants of the Town of Old Orchard Beach, seeking damages for personal injuries which she sustained almost one year earlier on July 10, 1977 when she tripped over the metal base of a parking meter which projected above the surface of a sidewalk. She alleged her injuries were caused by the negligence of the Defendant Town in its maintaining this sidewalk.

Upon the motion of the Defendant Town, on September 19, 1978, the Superior Court ordered this action dismissed for improper venue unless within 10 days of that order the Plaintiff moved to transfer the action to the docket of that Court in York County.

From that order the Plaintiff brings this appeal, asserting alternatively (a) venue was properly laid in the county of her residence, and (b) if her initial choice of venue was wrong, the action should not be dismissed but transferred to the proper county.

Upon her second ground we sustain the appeal.

A threshold question is whether there has been a final judgment from which an appeal may be taken pursuant to Rule 73(a), M.R.Civ.P. Ordinarily, no appeal will lie unless the appeal is from a final judgment or comes within certain enumerated exceptions to the rule. Boyle v. Share, Me., 377 A.2d 458, 460 (1977). A judgment becomes final when it disposes of the action and leaves no further question for the future consideration of the court. In re Spring Valley Development, Me., 300 A.2d 736, 754 (1973).

It has been held that a denial of a motion for change of venue or an order transferring an action to a proper venue is non-appealable, Codex Corp. v. Milgo Electronic Corp., 553 F.2d 735 (1st Cir. 1977); American Fidelity Ins. Co. v. United States District Court for No. District of Cal., 538 F.2d 1371 (9th Cir. 1976). Here, by contrast, the effect of the Superior Court's order was that, once the ten day period had expired, the action was terminated. Thus, that order operated as a final judgment although the dismissal did not under Rule 41(b)(3), M.R.Civ.P., constitute an adjudication on the merits. See Mobile Tankers Co. v. Mene Grande Oil Co., 363 F.2d 611 (3rd Cir. 1966), Cert. denied, 385 U.S. 945, 87 S.Ct. 318, 17 L.Ed.2d 225 (1966), 9 Moore's Federal Practice § 110.13(6) ("order dismissing an action for improper venue . . . is a final order and is appealable"); Annot., 49 A.L.R.2d 1036 (1956).

With that threshold question behind us, we next review the decision of the Superior Court as to the appropriate venue.

The Plaintiff urges that the Maine Tort Claims Act ¹ is applicable to her claim; that, under that Act absent any express venue provisions, the general venue rules set forth in 14 M.R.S.A. § 501 (Supp.1978) ² apply, and that she was thus permitted to commence the action in the county where she resides.

She is in error. 14 M.R.S.A. § 8113(2) (Supp.1978) ³ states that where a statute outside the Maine Tort Claims Act provides a waiver of immunity, that statute shall be the exclusive method for recovery of funds in any "fact situation" to which it applies. We observe that 23 M.R.S.A. § 3655 (Supp.1978) ⁴ provides such a waiver of immunity and does encompass the fact situation presented in the case before us. See Moriarty v. City of Lewiston, 98 Me. 482, 57 A. 790 (1904) (plank obstructing sidewalk); Hutchings v. Inhabitants of Sullivan, 90 Me. 131, 37 A. 883 (1897) (depression in sidewalk). ⁵

In this case the Plaintiff's exclusive method for recovery was an action brought pursuant to 23 M.R.S.A. § 3655. Venue is governed, therefore, by the provisions of 14 M.R.S.A. § 505 (1964); that statute directs in pertinent part:

(A)ll actions against towns for damages by reason of defects in highways shall be brought and tried in the county in which the town is situated.

The Town of Old Orchard Beach being located in York County, we conclude that for this action venue was improperly laid in Androscoggin County.

We next advert to the disposition made of this case after the Superior Court had correctly decided the appropriate venue.

The order of the Superior Court permitted the Plaintiff to move for the transfer to its docket in York County within a period of 10 days. There is no statute providing generally for changes of venue in civil actions. Neither do our statutes provide a mechanism for a change of venue for the purpose of securing an impartial trial because of local prejudice, or because of the disqualification or bias of a justice, upon the motion of an aggrieved party. ⁶ Our statutes contain no provision for a change of venue in civil actions upon a party's motion for the convenience of witnesses or otherwise to meet the ends of justice.

In sum, while the Legislature has made certain provisions for venue in Superior Court, it has not completely covered this area of the law. ⁷ The case before us not being governed by those statutes, it remains for the court to provide for such change of venue as may be needed to secure the just determination of the action.

In most jurisdictions rules have been promulgated, or statutes enacted, requiring the transfer of a civil action rather than its dismissal where venue is shown to have been improper. ⁸ See Goldlawr v. Heiman, 369 U.S. 463, 466-67, 82 S.Ct. 913, 8 L.Ed.2d 39, 42 (1962); Merrill, Lynch, Pierce, Fenner & Smith v. National Bank of Melbourne & Trust Co., 238 So.2d 665, 667 (Fla.1970); Salay v. Braun, 427 Pa. 480, 235 A.2d 368, 372 (1967); Ex parte Phillips, 275 Ala. 80, 152 So.2d 144, 148 (1963); Cannon v. Tuft, 3 Utah 2d 410, 285 P.2d 843, 844-45 (1955); Wiggins v. Finch, 232 N.C. 391, 61 S.E.2d 72, 73 (1950); See generally Annot., 3 A.L.R.Fed. 467 (1970); Note, 27 Okla.L.Rev. 745 (1974).

Although these decisions are generally grounded in statutory provisions or court rules relating to venue, their pattern, nevertheless, is a useful guide in filling the interstices of our own incomplete venue provisions. We conclude that in an action, such as this, governed by the venue provision of 14 M.R.S.A. § 505 (1964), where the Superior Court finds the venue to have been improperly laid, it shall make an affirmative finding as to the proper venue and shall, if it be in the interest of justice, transfer such case to any county in which it could have been brought. ⁹

We reach this result in view of the patent injustice to a plaintiff in the dismissal of his Superior Court action merely because he made an erroneous, but well-intentioned, guess regarding the existence of some elusive fact or the resolution of some complex legal question upon which venue provisions often may turn. ¹⁰

Illustratively, in the case before us the Plaintiff's action may now be barred by the statute of limitations because of her counsel's good faith argument that her cause of action was governed by the Maine Tort Claims Act and, in turn, 14 M.R.S.A. § 501 (Supp.1978), the apparently applicable venue provision.

Furthermore, this result is in the spirit of Rule 1, M.R.Civ.P., which ordains that our rules of civil procedure should be construed to secure the just determination of every action, and of the provisions of 4 M.R.S.A. § 57 (1964), which would have us eschew dismissal for "technical errors in pleading alone."

The Superior Court erred in ordering this cause dismissed without first determining that a compelling reason required that result. The record before us contains no evidence of any reason, much less a compelling one, to dismiss the Plaintiff's action, rather than transfer it.

In the circumstances of the case before us justice requires that the Superior Court order this action transferred to its docket in York County.

The entry is:

Appeal sustained.

Order of dismissal vacated.

Remanded for further proceedings consistent with the opinion herein.

WERNICK, J., did not sit.

GODFREY, Justice, dissenting.

I see no error by the Superior Court. The judge gave plaintiff an opportunity to change venue, and she did not avail herself of it. Plaintiff has offered no excuse for her failure to act after she was told to take her action to York County within ten days or have her case dismissed. I do not understand why that was not an entirely correct way of handling the problem in view of the fact that our rules and statutes provide no express mechanism to effect transfer of venue.

The Superior Court's disposition of the matter had at least the virtue of giving plaintiff an incentive to remove her case expeditiously after she found her action had been brought in the wrong county. I see no such incentive in the rule adopted by the majority.

1 14 M.R.S.A. § 8101 Et seq. (Supp.1978).

2 14 M.R.S.A. § 501 (Supp.1978) reads in full:

Personal and transitory actions, except process of foreign attachment and except as provided in this chapter, shall be brought, when the parties live in the State, in the county where any plaintiff or defendant lives; and when no plaintiff lives in the State, in the county where any defendant lives; or in either case any such action may be brought in the county where the cause of action took place. Improper venue may be raised by the defendant by motion or by answer, and if it is established that the action was brought in the wrong county, it shall be dismissed and the defendant allowed double costs. When the plaintiff and defendant live in different counties at the commencement of any action, except process of foreign attachment, and during its pendency one party moves into the same county with...