Preview:

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0692 September Term, 2010

BARRY J. NACE v. TAMARA HAMILTON MILLER

Graeff, Hotten, Thieme, Raymond, G. Jr. (Retired, Specially Assigned), JJ.

Opinion by Hotten, J.

Filed: September 7, 2011

Appellee, Tamara Hamilton Miller, filed a complaint for professional malpractice against Barry J. Nace, Esq., appellant, in the Circuit Court for Prince George's County. Appellant requested that the case be transferred to the Circuit Court for Montgomery County on the ground of forum non conveniens. The court granted the request and transferred the case. After a third party complaint was filed against Tawanda Hamilton ("Hamilton"), appellee's mother, she and appellee, separately, requested that the case be transferred back to Prince George's County. The court granted the request and appellant noted an appeal. Appellant, in his own words, presents the following questions: I. Did the Circuit Court for Montgomery County abuse its discretion acting as an appellate court and in overruling the Circuit Court for Prince George's County's final judgment as to venue? Did the Circuit Court for Montgomery County err in transferring this action to the Circuit Court for Prince George's County, a county where venue is improper? Did the Circuit Court for Montgomery County abuse it[]s discretion when transferring this action to the Circuit Court for Prince George's County on the basis of forum non conveniens?

II.

III.

For the reasons that follow, we shall affirm the judgment of the Circuit Court for Montgomery County. BACKGROUND On January 27, 1997, appellant settled a medical malpractice suit on behalf of appellee for the amount of $530,228.40. Not long after, appellant petitioned the Circuit Court for Montgomery County, the presiding court, to be the guardian of appellee's settlement proceeds. Appellant, without knowing that the petition was denied, acted as the guardian of

the proceeds. However, on August 20, 2007, the Circuit Court for Montgomery County granted the petition nunc pro tunc . At some point during the guardianship, Hamilton informed appellant that she had failed to pay property taxes for 2002. Appellant petitioned the Circuit Court for Montgomery County for $14,284.37 to satisfy the outstanding taxes. The petition also indicated that the property would be transferred to appellee, requested funds to address current taxes, and funds to secure property insurance. The Circuit Court for Montgomery County released the funds, but neither appellant nor Hamilton purchased property insurance. On two other occasions, appellant petitioned the Circuit Court for Montgomery County for funds to secure property insurance. However, property insurance was never purchased. On March 14, 2004, a fire ravaged appellee's residence, and she and her mother lost everything. Appellant subsequently filed an "Emergency Motion for Release of Funds." The Circuit Court for Montgomery County granted the request and released $5,000 for shelter and clothing. Approximately two years after the fire, appellant petitioned the court to secure funds to repair appellee's residence.1 The court granted the request and released

approximately $80,000 to repair the residence and replace clothing and goods that were destroyed in the fire. On April 1, 2008, appellee filed a complaint in the Circuit Court for Prince George's County, alleging legal malpractice for failure to purchase an insurance policy and submit

1

Appellee and her mother were homeless for approximately two and a half years. -2-

annual fiduciary reports while acting as a guardian. On November 10, 2008, appellant filed a motion to transfer venue. Appellant argued that Prince George's County was not the proper venue because he did not reside in the county, nor did he habitually engage in the practice of law in the county. Instead, appellant asserted that Montgomery County was the proper forum because he resided and maintained an office there. Appellee countered that Prince George's County was the proper venue because she resided there and the cause of action arose from a guardianship action that should have been pursued there. Appellee also asserted that the case should not be transferred to Montgomery County because that would reward appellant for his negligent misfiling. On January 26, 2009, the Circuit Court for Prince George's County granted the motion and transferred the case to the Circuit Court for Montgomery County. Appellee filed a motion for reconsideration, which was denied. On August 21, 2009, appellant filed a thirdparty complaint against Hamilton, seeking contribution and/or indemnification. Hamilton filed a motion to dismiss, or in the alternative, a motion to transfer. In her motion, Hamilton argued that appellant failed to state a claim upon which relief could be granted. Hamilton also posited that Prince George's County was the proper venue because she neither worked nor resided in Montgomery County, the cause of action arose there, and the majority of witnesses resided there. In opposition, appellant highlighted his intention to voluntarily dismiss the third-party complaint against Hamilton. Appellant, nevertheless, argued that there were sufficient facts

-3-

upon which relief could be granted because Hamilton was responsible for obtaining insurance on the residence she lived in, had a duty to care for her daughter, and that the property was not titled to appellee at the time of the fire. Appellant further argued that the motion to transfer should be denied because the Circuit Court for Prince George's County had previously decided the issue. Appellant then asserted that Montgomery County,

regardless, presented a minor inconvenience, and that the transfer request would not serve the interests of justice. Appellee, separately, responded and argued that Prince George's County was the proper venue because the guardianship action should have been brought there. Appellee further argued that the Circuit Court for Montgomery County would be inconvenient because she could not drive; she depended on public transportation or others to get to Rockville; Rockville was forty miles from her house in comparison to thirteen miles from Upper Marlboro; she cared for a one-year old child; and, in comparison, travel was easier for appellant. On February 17, 2010, the Circuit Court for Montgomery County held a motions hearing. At the hearing, appellant requested that the court dismiss the third-party complaint. Hamilton objected to the voluntary dismissal because she wanted to pursue sanctions. The court granted the dismissal and appellee subsequently argued that the case should be transferred to Prince George's County because the cause of action occurred there. Appellee further posited that it was more convenient to have the case heard in Prince George's County

-4-

because that is where she resided and her disability prevented her from driving. Appellant countered that the issue was previously decided by the Circuit Court for Prince George's County. The court informed the parties that it did not anticipate addressing the venue issue and welcomed additional pleadings. The Circuit Court for Montgomery County reviewed the pleadings and transferred the case back to the Circuit Court for Prince George's County. Appellant filed a motion for reconsideration and it was denied. Thereafter, appellant noted a timely appeal. DISCUSSION I. Before we determine the propriety of granting the motion to transfer, we must address appellant's assertion that appellee, in practice, assented to the decision to transfer. Specifically, appellant posits that appellee acquiesced to the Circuit Court for Prince George's County's decision because she did not note an appeal and engaged in discovery after the case was transferred to the Circuit Court for Montgomery County. A similar argument was proffered in Sigurdsson v . Nodeen , 180 Md. App. 326 (2008). In that case, the defendants argued that plaintiff waived her right to appeal the decision to transfer the "Complaint for Modification of Child Custody Order" because she participated in litigation after it was transferred. See id . at 339. In addressing the issue, we noted that waiver is a voluntary relinquishment of a right. Id . We then held that plaintiff did not waive her right to appeal because: (1) she did not voluntarily participate in the case as transferred,

-5-

(2) she participated in discovery, and appeared before the court for scheduling and pre-trial conferences, because she could have faced sanctions or dismissal, (3) she requested a postponement of the pre-trial conference because of the pending appeal, (4) if she did not propound discovery she could have been precluded from engaging in any discovery regardless of the forum, and (5) any discovery conducted in one court would be transferrable to the other court. Id . at 340. In the present case, appellee did not immediately note an appeal, nor did she seek a postponement of pre-trial scheduling conferences. That, however, does not mean she acquiesced to the decision concerning venue. Appellee could have immediately appealed the decision because it was a final judgment;2 however, she was not required to because "relief can be granted by an appellate court when a case has been transferred, erroneously, to another circuit court on venue ground, even after the case in the transfer court has been tried." Id . at 339. Moreover, as noted in Sigurdsson , appellee could have been subject to sanctions, or the case could have been dismissed, if she did not participate in discovery. Thus, we conclude that appellee did not acquiesce to the transfer decision of the Circuit Court for Prince George's County.

See Brewster v . Woodhaven Building & Development, Inc ., 360 Md. 602, 615-16 (2000) ("[A]n 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.") (italics omitted). -6-

2

II. A "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." Md. Rule 2-327(c). Appellant, relying on Allfirst Bank v . Progress Rail Serv .'s Corp ., 178 F. Supp. 2d 513 (D. Md. 2001) and In re Crager Indus ., Inc . 706 F.2d 503 (5th Cir. 1983), argues that the Circuit Court for Montgomery County improperly assumed the role of an appellate court when it overruled the transfer decision of the Circuit Court for Prince George's County.3 In Allfirst Bank , 178 F.Supp.2d at 517, Progress Rail Car ("Progress Rail") filed a complaint against Allfirst Bank ("Allfirst") in state court. Allfirst removed the case to the United States District Court, Northern District of Georgia, and filed a motion to dismiss and a motion to transfer. Id . In response, Progress Rail filed a motion to remand. Id . The court denied the motion to dismiss and the motion to remand, but transferred the case to the United States District Court, District of Maryland. Id . Progress Rail subsequently filed a motion to re-transfer. Id . In reviewing the issue, the court noted that Progress Rail was requesting that it "act as an appellate court and reverse the ruling made by Judge Thrash." Id . The

Md. Rule 2-327(c) was derived from 28 U.S.C.

Download Nace v. Miller.pdf

Maryland Law