Brewster v. Woodhaven Building and Development: Immediate Appeals Now Permitted Of Orders


Transferring Circuit Court Venue by Leslie Hayes Russo


Leslie Hayes Russo received her law degree from the Columbus School of Law at Catholic University, where she was a member of the Law Review and commencement speaker on behalf of the graduates. She served as a law clerk to the Honorable Theodore G. Bloom of the


Court of Special Appeals (retired). Ms. Russo has previously served as legislative assistant and speech writer to US Senator Patrick J. Leahy and clerk to The Honorable Ronald J. Wortheim, D.C. Superior Court. Her publications include, “Final Judgments and Interlocutory Appeals,” Appellate Practice for the Maryland Lawyer: State and Federal (1994, MICPEL), and “Prior Conviction Impeachment in the District of Columbia: What Happened When the Courts Ran Out of Luck?” 35 Cath. U.L. Rev. 1157 (1986). Ms. Russo is a senior associate at Israelson, Salsbury, Clements & Bekman, L.L.C. Her practice concentrates in civil litigation, with an emphasis on personal injury practice.


Ed. Note: In the Summer 2000 Trial Re-


porter, Ms. Russo’s article, “Can We Appeal Now?” discussed final judgments and ap- pealable interlocutory orders. This follow-up article addresses a recent decision of the Court of Appeals permitting the immediate appeal of an order granting a motion to transfer an action from one circuit court to another cir- cuit court, and the implications for the Plaintiffs’ bar. An order denying a motion to transfer, however, is not, an immediately appealable final judgment.


As night follows day, a motion to trans-


fer on grounds of improper venue or inconvenience follows the plaintiff’s se- lection of a favorable (or less hostile) forum. If an order to transfer issues, the usual course has been to proceed to trial of the action in the non-chosen forum and, in the event of an adverse outcome, to raise the question of the propriety of the transfer order in an appeal at the con- clusion of the action. In Brewster v. Woodhaven Building and Development, Inc., No. 82, Sept. Term, 1999 (Court of Appeals, filed August 22, 2000), the plain- tiffs took the road less traveled and immediately appealed an order transfer- ring their action from the Circuit Court of Baltimore County to the Circuit Court for Carroll County.


In a split decision


(4-3) authored by Judge Irma S. Raker, the Court of Appeals held that the trans- fer order was, indeed, a final judgment and, therefore, immediately appealable.1


1


Brewster v. Woodhaven Building and De- velopment, Inc., No. 82, Sept. Term, 1999 (Court of Appeals, filed August 22, 2000), at p. 1. For ease of reference, the majority opinion will be referred to below as Brewster; the opinion of the three dissenting members will be referred to as Dissent. The opinion, expected to be published shortly in the ad- vance sheets, is available on Lexis at 2000 Md. Lexis 514. The Court of Appeals de- nied a motion for reconsideration on Octo- ber 6, 2000.


4


The Court reiterated, however, that or- ders denying a motion to transfer are not final judgments and may not be immedi- ately appealed on that basis. In a blistering dissent, Judge Alan


Whether or not “unprecedented,” the decision has significant implications because it gives plaintiffs the option to file an appeal from an order of transfer within thirty days of its entry on the docket, or to wait until the litigation has concluded in the transferee court.3


Whether and


under what circumstances plaintiffs’ coun- sel should elect to take an immediate appeal is another matter. In Brewster, plaintiffs, the owners of


certain riparian lands along the Piney Run in Baltimore County, brought actions in the Circuit Court for Baltimore County, against a developer, homeowners’ associa- tion, and Carroll County Commissioners for property damage caused by polluted storm water runoff.4


The defendants


moved to dismiss on grounds of improper venue under Rule 2-322(a)(2) and, in the alternative, for transfer to a more conve- nient forum under Rule 2-327 (c). The trial court issued an order transferring the action to the Circuit Court for Carroll County “as a matter of convenience...or for proper venue” because it concluded that the majority of expected witnesses were in that County.5


Plaintiffs imme-


diately appealed that order, urging that the order of transfer was a final judgment and/or an interlocutory order immedi- ately appealable under the collateral order


2 Dissent at 12-13. 3 Brewster, at 15. 4 Id. at 2.


5 Id. at 2-3. Trial Reporter


Wilner, joined by Judges Lawrence F. Rodowsky and Dale R. Cathell, termed the decision “unprecedented,” and pre- dicted that it would sow further confusion “over what is or is not a final judgment,” create lengthy delays in the trial of cases, and engender dozens of additional ap- peals.2


doctrine.6


The Court of Special Appeals, without opinion, dismissed the appeal.7 The Court of Appeals granted certio-


rari. On appeal to that Court, the defendants (respondents) argued that, to be immediately appealable as a final judg- ment, an order must deprive the party of the means to pursue the claims at issue in any circuit court, and that an order that merely terminated a case in a particular court did not constitute a final judg- ment.8


The plaintiffs (petitioners) argued that, to be final, the judgment need only deny the party the ability to litigate the action in the particular court that issued the judgment and that the availability of another forum was not relevant. 9


The


Court of Appeals held that an order grant- ing a transfer of an action from one Circuit Court to another Circuit Court was a final judgment and remanded the matter to the Court of Special Appeals to consider the merits of the appeal.10


While


the Court acknowledged, in Brewster, that no single issue had generated more ap- peals than the question whether a trial court’s order was appealable,11


it urged


that there was nevertheless “one principle of appealability to which this Court has continuously adhered, one that is simple and understandable. An order which ter-


6


See, e.g., Pittsburgh Corning v. James, 353 Md. 657 (1999). The collateral order doc- trine is discussed in Ms. Russo’s previous ar- ticle, “Can We Appeal Now?” in the June 2000 Trial Reporter, and in greater detail in Chapter 14 of APPELLATE PRACTICE FOR THE MARYLAND LAWYER: STATE AND FEDERAL, @ Paul Mark Sandler, Andrew D. Levy, MICPEL (2d. Ed. 2000)(hereafter “Appellate Practice”). This latter publication is soon to be released. 7 Brewster, at 3. 8 Id. at 4. 9 d. at 3-4.


10Id. at 1, 15. 11Id. at 22.


Fall 2000


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