Smith v. Johns Hopkins Cmty. Physicians, Inc.

• Decision Date: 23 January 2013
• Docket Number: No. 1191,Sept. Term, 2012.,1191
• Citation: 59 A.3d 1070,209 Md. App. 406
• Parties: Bernadine I. SMITH et al. v. JOHNS HOPKINS COMMUNITY PHYSICIANS, INC.
• Court: Court of Special Appeals of Maryland

209 Md.App. 406

59 A.3d 1070

Bernadine I. SMITH et al.

v.JOHNS HOPKINS COMMUNITY PHYSICIANS, INC.

No. 1191, Sept. Term, 2012.

Court of Special Appeals of Maryland.

Jan. 23, 2013.

Katharine O. Porwick(Michael P. Smith, Salsbury, Clements, Bekman, Marder & Adkins, LLC, on the brief) Baltimore, MD, for appellant.

Nicole A. McCarus(Christina N. Billiet, Waranch & Brown, LLC, on the brief) Lutherville, MD, for appellee.

Panel: EYLER, DEBORAH S., HOTTEN, CHARLES E. MOYLAN, JR.(Retired, Specially Assigned), JJ.¹

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

When more than one venue is legally proper for the trial of a case, 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 Procedure2–327(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.

The 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 Procedure8–207(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.

The 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)and12–301.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. Kent 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:

It is the moving party who has the burden of proving that the interests of justice would be best served by transferring the action.

In Leung v. Nunes,354 Md. 217, 229, 729 A.2d 956(1999), Judge Rodowsky explained why the proponent of the transfer of venue, bearing the burden of proof, thereby loses the evidentiary tie.

[If] the balancing of factors produces an equipoise, ... the plaintiffs' choice of forum controls.

In Payton–Henderson v. Evans,180 Md.App. at 284–85, 949 A.2d 654, this Court similarly observed:

Judge Russell properly allocated the burden of persuasion to the defendants and properly described what that burden embraced:

It is the moving party who has the burden of [showing that] the interest of justice would best be served by transferring this action.

Smith v. State Farm Mutual,169 Md.App. at 296–97, 900 A.2d 301.In this case, the appellee bore the burden of justifying the transfer.

The Merits of the Transfer

The primary plaintiff, Bernadine I. Smith, lives in Baltimore County in the same home where she lived with her late husband during all of the nine years when he was being treated for a cardiac condition by the appellee.One of her children lives there with her.The other two plaintiffs live in Harford County and in Delaware.The office of the appellee is, and for the entire nine years that the decedent was under its care was, in White Marsh in Baltimore County.Dr. Raymond H. Zollinger is an employee of the appellee and was the primary care physician for the decedent during the entire nine-year period of his treatment.Dr. Zollinger lives on Caves Road in Baltimore County.All of the treatment that the decedent received at the hands of Dr. Zollinger took place in Baltimore County.

The Abuse of Discretion Standard

In our assessment of the propriety of Judge Cannon's decision to transfer the case to Baltimore County on the basis of forum non conveniens, the controlling criterion is that of whether she abused her discretion.As the Court of Appeals noted in Odenton Dev. Co. v. Lamy,320 Md. at 40, 575 A.2d 1235, “When determining whether a transfer of the action for the convenience of the parties and witnesses is in the interest of justice, a court is vested with wide discretion.”“When reviewing a motion to transfer, a reviewing court should be reluctant to substitute its judgment for that of the trial court.”Wagner v. Wagner,109 Md.App. 1, 52, 674 A.2d 1,cert. denied,343 Md. 334, 681 A.2d 69(1996);“The forum non conveniens determination is committed to the sound discretion of the trial court ... [and] may be reversed only when there has been a clear abuse of discretion.”Urquhart v. Simmons,339 Md. 1, 17, 660 A.2d 412(1995).We are loath to interfere.

Handling the Plaintiffs' Choice of Forum

We hold that Judge Cannon did not abuse her discretion in granting the transfer.A number of factors militated in favor of the transfer.The only factor arguably tilting against it is the prerogative routinely extended to a plaintiff, faced with the option of two or more permissible trial venues, to make the choice of his preferred venue.“[W]hen multiple venues are jurisdictionally appropriate, a plaintiff has the option to choose the forum.”Cobrand v. Adventist Healthcare,149 Md.App. 431, 439, 816 A.2d 117(2003).“Due consideration must ... be...