Appellate Decisions Edited by Mark E. Herman
Mark E. Herman, of the Law Office of William G. Koldner, PA of Baltimore is a member of MTLA’s Board of Governors and is a member of its President’s Club as a Supporter. Mr. Herman is certified in trial advocacy by the National Board of Trial Advocates. He is also a member of the Baltimore City Bar Association and is an arbiter/mediator on its Fee Arbitration Committee.
Civil Procedure
Court of Special Appeals CIVIL PROCEDURE – IMPROPER VENUE – STATUTE OF LIMITA- TIONS TOLLED BY FILING OF ORIGINAL COMPLAINT WHEN SUBSEQUENT DISMISSAL BASED SOLELY ON PROCEDURAL GROUNDS OF IMPROPER VENUE.
Facts: A woman involved in an automo- bile accident on Charles Street in Baltimore County mistakenly filed a law- suit in Baltimore City, apparently believing that the accident had occurred in the City. The suit was filed five weeks before the statute of limitations was to expire. The defendant filed a motion to dismiss based on improper venue and sub- mitted an affidavit in support thereof stating that the accident occurred in Bal- timore County and that she lived and worked in Baltimore County. A Baltimore City circuit court judge dismissed the claim without prejudiced based on im- proper venue. On appeal, the plaintiff claimed that the circuit court abused its discretion in dismissing the case. Plain- tiff claimed that because limitations had expired, she could no longer file in Balti- more County.
Held: The trial court did not abuse its dis- cretion in dismissing the case rather than transferring it to Baltimore County. The court held, based on Bertonazzi v. Hillman, 241 Md. 361 (1966), that the statue of limitations was stayed by filing suit in the wrong venue. Plaintiff had a five-week window after the dismissal of the Baltimore City action to re-file in Baltimore County.
Tammie Lynn Smith v. Cara Nicole Smith, No. 1866, Sept. Term, 2001, filed Septem- ber 12, 2002. Opinion by Salmon, J.
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CIVIL PROCEDURE – VENUE – MOTION TO TRANSFER VENUE – MD. RULE 2- 327 (c) – CONVE- NIENCE OF THE PARTIES AND WITNESSES – INTERESTS OF JUS- TICE – COURT DID NOT ABUSE ITS DISCRETION WHEN IT TRANSFERRED ACTION TO A MORE CONVENIENT FORUM, AS DETERMINED BY MD. RULE 2-327 (c) - COURT REVEIWED ALL FAC- TORS, AND FOUND THAT THE BALANCE OF THOSE FACTORS WEIGHED STRONGLY IN FAVOR OF THE MOVING PARTY.
Cobrand v. Adventist Healthcare, Inc., No. 0076, September Term, 2002, filed Febru- ary 5, 2003. Opinion by Sharer, J.
Evidence
Court of Special Appeals EVIDENCE – EXPERTS – DEMON- STRATING CASUAL CONNEC- TION BETWEEN APPELANT’S NEGLIGENCE AND STROKE AND RESULTING DEATH OF EIGHTY – SEVEN YEAR OLD PATIENT WHO SUFFERED FROM VARIOUS MEDI- CAL PROBLEMS ASSOCIATED WITH ADVANCED AGE WAS A COMPLICATED MEDICAL ISSUE REQUIRING EXPERT TESTIMONY; TRIAL COURT ERRED IN ADMIT- TING WIFE’S TESTIMONY ON THE ISSUE OF PERMANENCY WITHOUT SUPPORTING MEDI- CAL TESTIMONY; TRIAL; COURT ERRED IN ABDICATING ITS RE- SPONSIBILITY TO RULE ON MOTION THEREBY ABUSING ITS DISCRETION BY FAILING TO EX- ERCISE ITS DISCRETION; THE LOWER COURT STATED: “THE COURT IS GOING TO DENY THE MOTION FOR NEW TRIAL TO AL- LOW THE COURT OF SPECIAL
Trial Reporter
APPEALS TO MAKE A DETERMI- NATION ON A NUMBER OF ISSUES THAT MIGHT BE THE SUBJECT OF APPEAL IN THIS CASE.”
Greater Metropolitan Orthopedics, P.A., et al. v. Sue Ward, Personal Representative of the Estate of Archibald Ward, No. 2417, Sept. Term, 2001, decided November 6, 2002. Opinion by Davis, J.
False Imprisonment
Court of Special Appeals FALSE IMPRISONMENT; SUM- MARY JUDGMENT; MARYLAND RULE 2-501(a); MD. CODE (2002 REPL. VOL.), CTS. & JUD. PROC. (C.J.) Section 5-402; MERCHANT WHO, AT THE TIME OF DETEN- TION OR ARREST HAD PROBABLE CAUSE TO BELIEVE THAT THE PERSON COMMITTED THE CRIME OF THEFT, UNDER C.J. Sec- tion 5-402, CANNOT BE HELD CIVILLY LIABLE FOR FALSE AR- REST OR FALSE IMPRISONMENT; SUMMARY JUDGMENT WAS PROPERLY GRANTED IN FAVOR OF MERCHANT WHO MONI- TORED CASHIER AND DIS- COVERED CASHIER CHARGED APPELLANT $90.99 FOR GROCER- IES FOR WHICH THE PURCHASE PRICE WAS $172.89. WHETHER AP- PELLANT KNEW THE CASHIER OR WAS COMPLICIT IN CASHIER’S SCHEME WAS IRRELEVANT BE- CAUSE THE ONLY ISSUE IS WHETHER THE UNDISPUTED FACTS AND THE INFERENCES DEDUCIBLE THEREFROM IN- ELUCTABLY WOULD LEAD A FACT FINDER TO CONCLUDE THAT THE MERCHANT HAD REASON TO BELIEVE APPELLANT WAS IN- VOLVED IN THEFT.
(Continued on page 44) Spring 2003
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