Walsh v. Crescent Hill Co.

• Decision Date: 16 September 1957
• Docket Number: No. 2031.,2031.
• Citation: 134 A.2d 653
• Parties: Mr. and Mrs. John A. WALSH, Mr. and Mrs. Americo Mosesso, Mr. and Mrs. Basile Gargone, et al., Appellants, v. CRESCENT HILL CO., Inc., I. L. Lewis Associates, Inc., Jolles Brothers, Inc., et al., Appellees.
• Court: D.C. Court of Appeals

Page 653

134 A.2d 653

Mr. and Mrs. John A. WALSH, Mr. and Mrs. Americo Mosesso, Mr. and Mrs. Basile Gargone, et al., Appellants, v. CRESCENT HILL CO., Inc., I. L. Lewis Associates, Inc., Jolles Brothers, Inc., et al., Appellees.

No. 2031.

Municipal Court of Appeals for the District of Columbia.

Argued July 29, 1957.

Decided September 16, 1957.

Frederick T. M. Crowley, Washington, D. C., with whom L. Lawrence de Nicola, Washington, D. C., was on the brief, for appellants.

Mark P. Friedlander, Washington, D. C., with whom Jacob Sandler, Washington, D. C., was on the brief, for appellees.

Before HOOD and QUINN, Associate Judges, and CAYTON (Chief Judge, Retired) sitting by designation under Code, § 11-776 (b).

CAYTON, Acting Judge.

Twenty-nine plaintiffs, all residents of Maryland, brought seven actions in the Municipal Court, claiming damages for fraud and misrepresentations concerning heating plants in newly built homes they had bought in Maryland. Named as defendants were three corporations: the builder-seller of the houses, the heating subcontractor, and the builder's selling agent.¹ On motion of plaintiffs the seven actions were ordered consolidated. Then followed a defense motion to dismiss the actions on the ground of forum non conveniens. In connection with that motion the trial court called on counsel to file affidavits as to the place of residence of plaintiffs, names and addresses of witnesses, and other information bearing on the motion. After such affidavits were filed the court granted the motion to dismiss. Plaintiffs have appealed.

The doctrine of forum non conveniens has a long and interesting history in the common law of England and of our own country, and has been the subject of discussion in many courts including the Supreme Court and the United States Court of Appeals in this jurisdiction. One of the most comprehensive reviews of the subject is found in Gulf Oil Corporation v. Gilbert, 1947, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055. Upholding the action of a district judge who had dismissed an action under the forum non conveniens doctrine, the Supreme Court ruled, inter alia, that a trial court is not required to respect a plaintiff's choice of forum; that it is not always true that a court having jurisdiction must exercise it; that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute; that among the factors to be weighed in determining whether another forum is more convenient are availability of compulsory process for attendance of unwilling witnesses and cost of obtaining attendance of willing witnesses; possibility of view of premises if view would be appropriate; and all other practical problems that make trial of a case easy, expeditious and inexpensive. The opinion noted that there may be questions as to enforceability of a judgment, and referred to the administrative difficulties which may follow heavy filings in congested centers. The Court referred also to the oft repeated statements that a plaintiff should not be permitted to vex, harass or oppress a defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy. "But," the Court continued, "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." 330 U.S. at page 508, 67 S. O. at page 842. However, the Court prefaced all the above statements by saying, "Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts * * *." 330 U.S. at page 508, 67 S.Ct. at page 843. Later, discussing the question of availability of witnesses, the Court said that such matters are for the trial court "to decide in exercise of a sound discretion." 330 U.S. at page 511, 67 S.Ct. at page 844.

The highest court in this jurisdiction has consistently held that decision on the question of forum non conveniens is entrusted to the discretion of the trial court and that such will not be disturbed on appeal except for a clear abuse of discretion. Gross v. Owen, 1955, 95 U.S.App. D.C. 222, 221 F.2d 94, citing various earlier decisions. Hopson v. Hopson, 1955, 95 U.S.App.D.C. 285, 221 F.2d 839.

Less than a year ago, in a case in which the issue was seemingly not raised by the parties, the same appeals court took the initiative in declaring judicial policy, and said:

"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." Nee v. Dillon, 1956, 99 U.S.App.D.C. 332, 334, 239 F.2d 953, 955.

All, or nearly all, the views and rules above recited have some bearing on the case before us. (We have cited federal cases, but the doctrine is one of common law origin and involves the exercise of an inherent judicial power. Hence there is no question that it is available to defendants in the Municipal C...