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Court of Special Appeals Declines to Rule on Forum non Conveniens Tort Case, Where Decision Might Contravene Maryland Precedent

Kulikov v. Baffoe-Harding
Court of Special Appeals of Maryland, Case No. 1475 (November 21, 2013)
by Jhanelle A. Graham, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In Kulikov v. Baffoe-Harding, appellee, Kadija Baffoe-Harding, filed an action against appellant, Aleksey Kulikov, in the Circuit Court for Prince George’s County, Maryland, alleging negligence on the part of appellant in the operation of his motor vehicle that caused a motor vehicle–pedestrian collision on June 2, 2011, in Montgomery County, Maryland. In response, Kulikov filed a motion to dismiss or change the venue from Prince George’s County to Montgomery County, because, according to Kulikov, Montgomery County was the only proper venue for the case. The circuit court disagreed, and denied Kulikov’s motion on June 18, 2012. After the circuit court denied his motion for reconsideration, Kulikov appealed, and presented the following two (2) questions for review of the intermediate appellate court:

1. Can Kulikov immediately appeal the circuit court’s denial of his motion to transfer for improper venue under Rule 2-327(b)?
2. If Kulikov’s appeal is cognizable at this time, did the circuit court err in denying the Kulikov’s motion to transfer for improper venue under Rule 2-327(b)?

Writing for the intermediate appellate court, Judge Woodward answered Question 1 in the negative, and dismissed Kulikov’s appeal, without reaching a decision on Question 2.

On June 2, 2011, Baffoe-Harding was crossing Friendship Boulevard in Chevy Chase, Montgomery County, Maryland when Kulikov made a left turn and struck her with his car. Baffoe-Harding filed a complaint alleging negligence in the Circuit Court for Prince George’s County on March 27, 2012. In response, on May 3, 2012, Kulikov filed a Motion to Dismiss or in the Alternative to Transfer Action based on improper venue (“Motion to Dismiss/Transfer”). In an affidavit attached to the motion, Kulikov stated that “at the time [he] received the lawsuit papers,” he (1) resided in Montgomery County, and (2) was not employed, did not carry on regular business, and did not habitually engage in a vocation in Prince George’s County. Kulikov also stated that the accident giving rise to the lawsuit occurred in Montgomery County. Thus, he argued, venue was only proper in Montgomery County under Maryland law. See Md. Code (2006, 2013 Repl. Vol.), §§ 6-201(a), 6-202(8) of the Courts & Judicial Proceedings (II) Article (“CJ”). Baffoe-Harding did not oppose the motion. By order dated June 18, 2012, the Circuit Court for Prince George’s County denied Kulikov’s Motion to Dismiss/Transfer. On July 17, 2012, Kulikov filed a motion for reconsideration, and Baffoe-Harding again did not oppose the motion. By order filed on August 13, 2012, the Circuit Court for Prince George’s County denied Kulikov’s motion for reconsideration. Kulikov filed a timely notice of appeal on August 24, 2012.

On review, the Court of Special Appeals began by recognizing that, under the language of Maryland appellate opinions, a trial court’s grant of an Improper Venue (Transfer) Motion and a motion to transfer for forum non conveniens under Rule 2-327(c) (“Inconvenient Forum Motion”) are immediately appealable as final judgments, but the denial of these motions is not immediately appealable. Nevertheless, Kulikov contended that both the grant and denial of an Improper Venue (Transfer) Motion should be immediately appealable.

According to the intermediate appellate court, an Improper Venue (Dismiss) Motion is based upon Rule 2-322(a). Under Rule 2-322(a), the defense of improper venue “shall be made by motion to dismiss filed before the answer.” Rule 2-322(a) further provides that, if such motion is not made and the answer is filed, the defense of improper venue is waived. In the alternative, an Improper Venue (Transfer) Motion under Rule 2-327(b) gives the trial court the option to transfer the case, instead of dismissing it, where there is improper venue. Maryland Rule 2-327(b) states:

(b) Improper venue. If a court sustains a defense of improper venue but determines that in the interest of justice the action should not be dismissed, it may transfer the action to any county in which it could have been brought.

On the other hand, an Inconvenient Forum Motion is brought by a party under Rule 2-327(c), which provides:

(c) Convenience of the parties and witnesses. On motion of any party, the 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.

Citing Brewster v. Woodhaven Building & Development, Inc., the intermediate appellate court stated that the Maryland Court of Appeals has addressed the issue of whether a trial court’s grant of an Inconvenient Forum Motion is a final judgment and thus immediately appealable. 360 Md. 602, 606, 607-08 (2000). In Brewster, because the trial court’s order did not settle the merits of the case, the Court of Appeals focused on the defendants’ “narrower argument” that for an order to be a final judgment, “it must deny the party challenging it the ability to litigate the case in any forum.” Id. at 610-11. The Court, however, rejected this contention, stating instead:

An order putting the appellant out of every court is simply one type of instance of a final judgment . . . . This proposition is entirely consistent with the proposition that an order putting an appellant out of a particular court is also a final judgment. It follows that an 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.

In reliance upon the appellate court’s precedent in Brewster and similar cases, the Court of Special Appeals stated that Kulikov’s claim of adverse consequences flowing from the case law precedent that Maryland courts follow was not insubstantial, which motivated Kulikov’s request that the intermediate appellate court change the common law. The intermediate appellate court cited State v. Hawkins, 326 Md. 270 (1992), in which the Court of Appeals stated that the Court “has not been reluctant to change the common law, . . . when [the Court of Appeals] ha[s] found that a rule was not in the best interest of justice or that public policy called for a change.” Id. at 292. Nonetheless, the intermediate court noted that “the declaration of the common law of Maryland . . . is the primary function of the highest court in Maryland, the Court of Appeals.” Evergreen Assocs., LLC v. Crawford, 214 Md. App. 179, ___, 75 A.3d 1038, 1045 (2013). In light of this principle, the intermediate appellate court declined to change the common law as Kulikov requested, and consequently dismissed his appeal.