Wilde v. Swanson

• Decision Date: 01 September 1988
• Docket Number: No. 12,12
• Citation: 314 Md. 80,548 A.2d 837
• Parties: Hugh F. WILDE, Sr. t/a The Tides Motel v. Carol SWANSON, et al. ,
• Court: Maryland Court of Appeals

Page 80

314 Md. 80

548 A.2d 837

Hugh F. WILDE, Sr. t/a The Tides Motel v. Carol SWANSON, et al.

No. 12, Sept. Term, 1988.

Court of Appeals of Maryland.

Oct. 25, 1988.

Jayson L. Spiegel (Joel M. Savits, Geoffrey T. Hervey, Jordan, Coyne, Savits & Lopata, on brief), Rockville, for petitioner.

John Marshall, Rockville, Cynthia Callahan, Gaithersburg, on brief, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

RODOWSKY, Judge.

We issued certiorari to the Court of Special Appeals in this case in order to review two issues relating to venue. The first is whether the dismissal from an action of one of multiple defendants, based on lack of venue, can be certified under Md. Rule 2-602 as a final judgment immediately appealable by the plaintiff. The second involves the interpretation and interrelation of certain of the venue provisions of Md.Code (1974, 1984 Repl.Vol.), §§ 6-201 through 6-203 of the Courts and Judicial Proceedings Article (CJ). We shall hold that there is an appealable judgment and that CJ § 6-202 presents optional venues, alternative to those provided by § 6-201. Our conclusions agree with those of the Court of Special Appeals. Swanson v. Wilde, 74 Md.App. 57, 536 A.2d 694 (1988).

Petitioner, one of the defendants below, Hugh F. Wilde, Sr. (Wilde), owns and operates the Tides Motel in Ocean City, Worcester County, Maryland. The complaint in this case alleges that in the early morning of June 16, 1986, James Brunzell (James), then a guest at the Tides Motel, was assaulted and beaten on the parking lot of the motel by three persons, namely, Ralph B. Caparotti, Jr. (Caparotti), Stephen Craig Hansberger (Hansberger) and Scott Allen Daymude (Daymude). James, through his parents and guardians, Carol Swanson and David L. Brunzell, together with his parents in their own right and not as his representatives, sued the three alleged assailants and Wilde in the Circuit Court for Montgomery County. Caparotti and Daymude are residents of Montgomery County while Hansberger is a resident of Frederick County. Wilde resides and does business exclusively in Worcester County. In count VII of the complaint, James, and in count VIII, his parents, allege that Wilde negligently breached a duty to James, as a guest at the Tides Motel, to take reasonable measures to protect James. Counts IX and X rest on the theory that Wilde breached an implied warranty of safe lodging. Wilde's co-defendants are not joined in counts VII through X. The claims against them, sounding in assault and battery, in negligence, and in intentional and negligent infliction of emotional distress, are found in counts I through VI. Count XI is the parents' claim against all defendants for the loss of James's services and reasserts all liability theories alleged earlier in the complaint.

Wilde moved "to dismiss plaintiffs' Complaint" for the reasons, inter alia, that "Montgomery County constitutes improper venue" and "[v]enue is proper in Worcester County, Maryland as to the remaining defendants as the cause of action arose in Worcester County, Maryland." Judge Calvin R. Sanders ordered Wilde dismissed from the case. Subsequently Judge J. James McKenna, on motion of the plaintiffs and pursuant to Rule 2-602(b), certified the judgment in favor of Wilde to be final and the plaintiffs appealed. The Court of Special Appeals denied a motion by Wilde to dismiss the appeal and reversed the circuit court on the merits, holding that Wilde was suable in Montgomery County in this action. We granted Wilde's petition for certiorari.

I

A

Wilde submits that this appeal does not lie because a dismissal on venue grounds is not a final judgment. In his brief he argues that there is no final judgment because there is no determination on the merits. With respect to the plaintiffs' claims against him, Wilde says that the venue determination is not "final in the traditional sense," Planning Board v. Mortimer, 310 Md. 639, 651, 530 A.2d 1237, 1243 (1987), it is not "an ultimate disposition of an individual claim," Curtis-Wright Corp. v. General Electric Co., 446 U.S. 1, 7, 100 S.Ct. 1460, 1464, 64 L.Ed.2d 1, 11 (1980), and it is not "completely dispositive of an entire claim or party," Snowden v. Baltimore Gas & Electric Co., 300 Md. 555, 563, 479 A.2d 1329, 1333 (1984). At oral argument Wilde recognizes that the dismissal of a defendant for want of jurisdiction over the person of that defendant is a final judgment, although there is no adjudication on the merits. See, e.g., Camelback Ski Corp. v. Behning, 307 Md. 270, 513 A.2d 874 (1986), vacated and remanded, 480 U.S. 901, 107 S.Ct. 1341, 94 L.Ed.2d 512 (1987), opinion on remand, 312 Md. 330, 539 A.2d 1107 (1988). He explains the inconsistency by submitting that an adjudication on the merits is not required for finality when the appealed judgment in effect holds that no court in the forum state has jurisdiction over the person of the dismissed defendant. Thus the only opportunity for appellate review in the forum state at the behest of a plaintiff whose claim has been dismissed for lack of in personam jurisdiction is by appeal from the challenged ruling. Dismissals for want of venue on the other hand, Wilde argues, are susceptible of appellate review in the forum state following judgment on the merits in a new action instituted by the plaintiff in an appropriate venue of the forum state.

We do not agree. The very general definition of "final judgment" in CJ § 12-101(f) "does not attempt to specify what is an appealable final judgment or order, and leaves that determination to the case law." Warren v. State, 281 Md. 179, 183, 377 A.2d 1169, 1171 (1977). As early as Boteler & Belt v. State, 7 G. & J. 109, 112-13 (1835), this Court said:

"[T]he well established rule [is] that no appeal can be prosecuted to this Court, until a decision has been had in the Court below, which is so far final, as to settle, and conclude the rights of the party involved in the action, or denying to the party the means of further prosecuting or defending the suit." [Emphasis added.]

Recently, Judge Eldridge, writing for the Court in Houghton v. County Comm'rs of Kent County, 307 Md. 216, 513 A.2d 291 (1986) (deciding motion for reconsideration of opinion at 305 Md. 407, 504 A.2d 1145 (1986)), summed up the cases as follows:

"We have said on numerous occasions that 'the "accepted test in determining finality" is whether "[t]he effect of the court's ruling was to put the plaintiff out of court and deny her the means of further prosecuting her case...." ' Mooring v. Kaufman, 297 Md. 342, 347, 466 A.2d 872 (1983) (quoting McCormick v. St. Francis De Sales Church, 219 Md. 422, 426-427, 149 A.2d 768 (1959)). See, e.g., Litton Bionetics v. Glen Constr., 292 Md. 34, 42, 437 A.2d 208 (1981); Smith v. Taylor, 285 Md. 143, 146-147, 400 A.2d 1130 (1979); Hillyard Constr. Co. v Lynch, 256 Md. 375, 380, 260 A.2d 316 (1970); Gittings v. State ex rel. Ockerme, 33 Md. 458, 461 (1871)."

307 Md. at 221, 513 A.2d at 293.

Wilde's theory of finality clashes with the particular final judgment appealed in Houghton. The complaint in that case asserted three counts, two of which were adjudicated by orders granting a motion to dismiss for failure to state a claim. The plaintiff then voluntarily dismissed the remaining count, thereby effecting a final judgment. Houghton, 305 Md. 407, 504 A.2d 1145. A single voluntary dismissal is without prejudice unless otherwise specified in the notice of dismissal. Md. Rule 2-506(c). Not only was there no adjudication on the merits of one of the claims in Houghton, but the defendants, who were county commissioners, remained at all times available to the service of process in this State.

Wilde's theory also clashes with this Court's view of finality in administrative appeals. An order of a circuit court remanding an administrative appeal to a state or local agency for further proceedings is a final judgment without any adjudication by the circuit court on the merits. See Department of Public Safety v. LeVan, 288 Md. 533, 419 A.2d 1052 (1980).

Further, this Court has not made finality turn on a distinction between jurisdiction over the person and venue, as argued by Wilde. Davidson Transfer & Storage Co. v. Christian, 197 Md. 392, 79 A.2d 541 (1951), involved a tort action against multiple defendants filed in the Eighth Judicial Circuit. Because the venue privilege of two defendants was violated, the court quashed the writ of summons served on them and entered a judgment of non pros in their favor. The co-defendants immediately entered an appeal which this Court entertained, saying, "It is conceded that the appeal is not premature. State, to use of Bickel v. Pennsylvania Steel Co., 123 Md. 212, 91 A. 136 [ (1914) ]." 197 Md. at 394, 79 A.2d at 542. In Bickel the appeal was taken from the dismissal of an action against a nonresident corporate defendant which had been found not to be doing business in Maryland. Thus, Davidson Transfer makes no distinction for finality purposes between dismissals of a defendant for lack of venue and for lack of jurisdiction over the person. ¹

Dismissals based on the absence of venue have been recognized as final judgments in Sherman v. American Federation of Musicians, 588 F.2d 1313 (10th Cir.1978), cert. denied, 444 U.S. 825, 100 S.Ct. 46, 62 L.Ed.2d 31 (1979); Board of County Comm'rs of Madison County v. Grice, 438 So.2d 392 (Fla.1983); Pasquier, Batson & Co. v. Ewing, 367 So.2d 28 (La.App.1978), cert. denied, 368 So.2d 136 (La.1979); Martel v. Inhabitants of the Town of Old Orchard Beach, 404 A.2d 994 (Me.1979); St. Louis-San Francisco Railway Co. v. Superior Court, 290 P.2d 118 (Okla.1955) (dicta); and Pittsburgh Elevator Co. v. West Va. Bd. of Regents, 310 S.E.2d 675 (W.Va.1983). The same result has been reached where the dismissal was based on the lack of any convenient forum in the state where suit was filed. See ...