Appeals.
In the event the plaintiff pre-
vails in the Court of Special Appeals, the defendant may petition the Court of Ap- peals for a writ of certiorari. While most venue motions do not involve issues of public importance meriting review by the Court of Appeals,56
if a writ of certiorari is granted, another year’s time may pass 56
One issue potentially worthy of certiorari would be whether transfers between circuit courts under Rule 2-327 (d) are immediately appealable under Brewster. Rule 2-327 (d) vests the trial court with the discretion to transfer an action, for pretrial proceedings or trial, to another venue in which the action could have been brought for purposes of consolidation with other ac- tions involving common questions of law or fact. The trial court may transfer the entire action, or “any claims or issues” in the action, to the transferee court. Rule 2-327 (d)(1). An order entered pursuant to this Rule must specify if the entire action or portions thereof is being transferred. Obviously, an order transferring only discrete “claims or issues” would not be immedi- ately appealable as the transferring court would retain jurisdiction over the claims or issues not so transferred; the orders entered by the transferee court as to those claims and issues would be binding on the transferor court. Rule 2-327 (d)(5)(B)(iii). Nor would an order transferring the action for discovery purposes only be an immediately appealable final judgment. More dif- ficult are the questions whether an order transferring the entire action for purposes of trial to another circuit court would be immediately appealable and when the thirty days would begin to run. Certainly, it is argu- able that the transfer of an entire action for consolida- tion in another circuit court, like a transfer for conve- nience, effectively terminates the action in the trans- ferring circuit court. The Rule specifies that, when an action has been transferred in its entirety, and the “trans- ferred action has been terminated by entry of judg- ment [in the transferee court], it shall not be remanded but the clerk of the transferee court shall notify the clerk of the transferor court of the entry of the judg- ment.” Rule 2-327(d)(5)(A). However, the Rule fur- ther provides that the transferor court retains the au- thority to amend the transfer order “from time to time as justice requires.” Rule 2-327 (d)(4). Would the retention of this modest authority render non-final any order of the transferor court of the entire action? May the transferee court, prior to the conclusion of the action transferred, transfer the action back to the transferring court?
The transfer is not effective until
there has been “acceptance of the transfer by the cir- cuit administrative judge having administrative author- ity over the court to which the actions” have been transferred.” Rule 2-327 (d)(3)(B). If Brewster per- mitted an immediate appeal of an order transferring the entire action, would the thirty days run from the date the transfer order was entered on the docket of the transferor court, the effective date of the transfer (if different from the date of execution) or at the time of the transferee court’s acceptance of the action is dock- eted in the transferee court? Because any order which was not so accepted by the transferring court would not be effective, the time for noting an appeal would more likely run from the docketing of that acceptance. However, the particular wording of the order will be determinative.
Fall 2000
until an opinion is issued. In the interim, the Circuit Court action may be stayed and valuable time will be lost in which to conduct discovery, to preserve the testi- mony of witnesses whose memories will dim, or the testimony of parties who have poor prognoses. In fact, in Brewster, the trip from the date of the transfer order to the date on which the Court of Appeals denied the defendants/respondents’ mo- tion for reconsideration and remanded to the Court of Special Appeals took a pe- riod of some twenty months (February 1, 1999 to October 6, 2000). It will then take additional months for the Court of Special Appeals to issue a decision on the merits of the plaintiffs’ appeal in Brewster. Finally, immediate appeal poses one huge problem—offers of settlement are simply more likely when there is a firm, impend- ing trial date; a lengthy appeal process only discourages resolution. In many cases, then, waiting to appeal an adverse venue ruling until after the conclusion of the trial will remain the better option. Ironically, Brewster may have some- what muddied up the appellate waters. In the event plaintiffs choose to take the
usual course, and await an appeal until the conclusion of the case on the merits, Brewster’s dissenting members have now suggested any number of creative argu- ments defendants might raise to challenge the timeliness of the post-verdict appeal of the venue issue, including arguments of waiver and the possible application of the doctrines of res judicata and collateral estoppel. Who knows what majority will emerge when these issues are squarely raised?
With characteristic understatement,
the Court of Appeals has previously con- ceded that the question whether a judgment is final is a matter that is “not always readily capable of delineation.”57 One thing is certain—Brewster will not serve to simplify the already complicated task of skating safely across the thin legal ice between the premature and the timely appeal.
57
Peat, Marwick, Mitchell & Co. v. The Los Angeles Rams Football Co., 284 Md. 86, 91 (1978). See also Cant v. Bartlett, 292 Md. 611, 614 (1982).
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