Immediate Appeals (Continued from page 5)
to arbitrate exists and, if so, must order the arbitration; in such cases, the order to arbitrate is immediately appealable be- cause there “is nothing left in the court – any court.”51
The arbitration setting did
not present two judgments, the dissent urged, but, rather, two separate cases, seek- ing different relief.
In contrast, the
transferred action is simply tried in the transferee court; there is no new action and the parties pick up where they left off.52
Finally, the dissent criticized the
Court’s “almost cavalier” treatment of the res judicata and collateral estoppel impli- cations of its “extraordinary” holding that “there can be more than one final judg- ment in this kind of case[.]”53
With “but
one possible contextual exception”—an equity court’s continuing jurisdiction to enter final orders in divorce or receiver- ship actions—the dissent stressed, it had “never endorsed the notion of there be- ing more than one final judgment in a single action.”54 Will Brewster’s effect, as the dissent
direly predicted, be to “create delay in the trial of cases” and engender “dozens of ad- ditional appeals? Certainly, it will have the effect of creating some additional imme- diate appeals. But the law governing the disposition of motions to transfer for con- venience favors upholding the plaintiff’s
51
Dissent at 10 (emphasis in original)(relying on Horsey v. Horsey, 329 Md. 392 (1993)). The dissent also commented that, under Sec- tion 3-209 of the Uniform Arbitration Act, the trial court can stay the litigation as to some, but not all issues; it pointed out that the Court had not yet determined whether such an or- der was an immediately appealable final judg- ment. Id. It also urged that, under Sections 3-223, 3-224 and 3-227 of the Act, post-ar- bitration award petitions may be filed to modify, vacate, or confirm and award; in its view, any final orders thereunder would be immediately appealable as these actions would constitute new actions in the circuit courts and orders issued would be immediately appeal- able unless the matter proceeded to arbitra- tion under Section 3-209. 52Dissent at 11.
selection of forum.55
Hence, to the ex- 53Dissent at 11-12. As an example, the dis-
sent had earlier remarked that if a party ob- jected to a petition to order arbitration un- der Section 3-207 of the Courts Article on the ground that the party had never agreed to arbitrate, and failed to appeal such a de- termination in that proceeding, “it may be
that...principles of res judicata or collateral estoppel would preclude an attempt to raise that issue again in a petition to vacate an award[.]” That, however, was an issue which had not yet addressed by the Court. Id. at 11 n.2.
54Dissent at 12-13.
tent that this favorable body of law is properly applied at the circuit court level, there will not be an increased need for additional immediate appeals. In such cases, the denial of the motion to transfer will not be immediately appealable. Will Brewster benefit plaintiffs? At first glance, the decision seems only good news. After all, with extremely rare ex- ception, it is plaintiffs, not defendants, who are subjected to transfer orders and moved unwillingly into unfavorable legal terrain. And, Brewster gives plaintiffs the option to immediately appeal that deter- mination, assuming there are valid grounds to do so. In cases in which there has been a transfer from an extremely fa- vorable forum to an extremely unfavorable one, the option of an immediate appeal may prove of great benefit, particularly in medical malpractice or products liability actions where expert fees can be extremely high and the goal is to avoid trying the case twice—first in the unfavorable trans- feree forum and, following a successful appeal, in the chosen forum. In cases where the imbalance is less se-
vere, and the transferee forum is only slightly worse than the transferor forum, an immediate appeal may not make sense, for time is the enemy of plaintiffs, not defendants. It may take a year from the notice of appeal and record transmission to final decision in the Court of Special
55
Rule 2-327 (c) provides that, “On motion of any party, the court may transfer an ac- tion to any other circuit court where the ac- tion might have been brought if the transfer is for the convenience of the parties and wit- nesses and serves the interests of justice.” The trial court is vested with wide discre- tion in determining whether the transfer of an action is in the interest of justice; it con- fers the authority to transfer to another court even when venue is proper in the transfer- ring court. Leung v. Nunes, 354 Md. 217 (1999). Nonetheless, the moving party has the “burden of proving that the interests of justice would be best served by transferring the
action...and a motion to transfer should be granted only when the balance weighs strongly in favor of the moving party.” Id. See also Odenton Dev. Co. v. Lamy, 320 Md. 33 (1990). Commentators on this rule have recognized that “due consideration
must...be given to the plaintiff’s selection of forum, and this selection will not be altered solely because it is more convenient for the mov- ing party to be in another forum.” P.V. Niemeyer & L.M. Schuett, Maryland Rules Commentary, 215-16 (2d ed. 1992).
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