Piven v. Comcast

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Sylvia B. Piven, et al. v. Comcast Corporation, et al., No. 48, Sept. Term, 2006. VENUE IMPROPER JOINDER IN AN ACTION FOR TRESPASS TO LAND LOCATED ENTIRELY IN THE COUN TY WH ERE TH E ACT ION IS B ROUG HT, IT IS N OT PER MISSIB LE TO JOIN AN ACTION FOR A SEPARATE TRESPASS TO LAND LOCATED ENTIRELY IN A DIFFERENT COUNTY WHEN THE TWO PARCELS ARE NOT CONTIGUOUS OR UNDER COMMO N OWNERSHIP AND HAVE NO O THER CONNECTION WITH EACH OTHER. In the Circuit C ourt for Ba ltimore Co unty Case #03C040057810C IN THE COURT OF APPEALS OF MARYLAND No. 48 September Term, 2006 ______________________________________ SYLVIA B. PIVEN, ET AL. v. COMCAST CORPORATION, ET AL. ______________________________________ Bell, C.J. Raker *Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: February 9, 2007 *Wilner, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. The issue before us is whethe r, in an action f or trespass to la nd located solely in one county, it is permissible to join an action for trespass to land located solely in a different county when the two parcels of land are not contiguous and have no common ownership. The Circuit Court for Baltimore County said no, the Court of Special Appe als said no, an d we s hall say n o. BACKGROUND In May, 20 04, Sylvia Pive n, a resident o f, and ow ner of real p roperty located solely in, Baltimore County, and Stanley and Donna Chaplinski, residents of, and owners of property located solely in, Baltimore City, filed an action in the Circuit Court for Baltimore County against fifteen named Comcast companies and 99 unnamed John Doe Comcast Corporation[s] one or more of which were alleged to have unlawfully placed or directed the placement of one or more cables or wires across the plaintiffs land without the plaintiffs permission.1 The action purported to be a class a ction on be half of no t only 1 The nam ed defen dants we re the Com cast Corp oration, a Pe nnsylvania corporation with its principal office in Philadelphia; Comcast of Maryland, a Colorado corpor ation w ith its prin cipal of fice in P hiladelp hia; Co mcast o f Baltim ore City, L .P., a limited p artnersh ip with its princip al offic e in De nver; C omca st of Ba ltimore C ity, Inc., a Maryland corporation; Comcast Telephony Communications of Maryland, a Maryland corporation ; Comca st of Delm arva, a De laware co rporation w ith its principal o ffice in Miami; C omcast B usiness C ommu nications, Inc ., a Pennsylvan ia corporatio n with its principal office in Bala Cynwyd, Pennsylvania; Comcast of Howard County, a Maryland corporation; Comcast Cable of Maryland, Inc., a Delaware corporation with its principal office in Philadelphia; Comcast of Harford County, L.L.C., a Maryland corporation; Comcast of Maryland Limited Partnership, a Maryland limited partnership; Comcast of Elkton, Inc., a Delaware corporation with its principal office in Englewood, Colorado; Comca st Phone o f Maryland , Inc., a Colora do corpo ration with its p rincipal off ice in Piven and the Chaplinskis but all persons who own property (or otherwise control the relevant possessory interest in the property) upon which any of the defendants, whom the plaintiffs ref erred to colle ctively as Com cast, had run wires as alleg ed. That w ould include pla intiffs and p roperty throug hout the S tate; the com plaint alleges th at the class is com posed of thou sands, a nd pos sible ten s of tho usand s, of me mbers . The complaint contained three causes of action. Count I was for trespass that by stringing its wires across the plaintiffs properties without permission from the plaintiffs who own those properties, one or more of the various Comcast defendants entered upon the land unlawfully, intruded upon the respective plaintiffs possessory interest in the land, and caused them to suffer unspecified damages. As relief, the plaintiffs asked for compensatory damages, an injunction either granting the plaintiffs legal ownership of the wires over their property or requiring Comcast to remove the wires, interest, and attorneys fees. Count II, which incorporated all of the previous averments relating to the trespass, sought damages for unjust enrichment, the basis for which was that it would be inequitable for Comcast to retain the benefit conferred on it by its unlawful use of the plaintiffs property. Count III, which also incorporated the previous averments, was Englewoo d, Colorado; Com cast Cable Com munications, Inc., perhaps, a D elaware entity w ith its prin cipal of fice in P hiladelp hia; Co mcast o f Easte rn Sho re, Inc., a Delaware corporation with its principal office in Tulsa, Oklahoma, and every other Comcast or related entity, currently unidentified that does, or may have, liability for the matters complained of herein, which the plaintiffs refer to as John Doe Comcast Corpo ration 1 - 99. -2- characterized as an action to quiet title. It, too, was based on the claim that Comcast had substantially interf ered with o ne or mo re exclusive possessory pr operty interests h eld by the plaintiffs. Counts II and III soug ht precisely the same relief as Cou nt I. The complaint alleged that venue lay in Baltimore County under Maryland Code § 6-201 et seq. of the C ourts and Ju d. Proc. A rticle (CJP) o n the theory tha t either this jurisdiction is a venue applicable to all Defendants; or, if there is no single venue applicable to all Defendants, one (or more) of them may be sued in this venue and that each d efend ant is en gaged in a vo cation in this jurisd iction. The defendants moved to dismiss the complaint on both venue and jurisdictional grounds, and, in the alternative, asked for a more definite statement of facts. As to venue, they asserted that [c]laims involving distinct properties located in different jurisdictions and owned by different plaintiffs cannot be combined in one jurisdiction. The motion for a more definite statement asked that the plaintiffs be required to state what lines the plaintiffs were complaining about, whether they were above or below ground, whether they were connected to utility poles, and whether the lines originated or terminated on the plaintiffs properties. The court conducted a hearing on the motion in January, 2005. At that point, no class had been certified, so the court treated the action as involving only the named plaintiffs Ms. Piven, whose property was in Baltimore County, and the Chaplinskis, whose property was in Baltimore City. After hearing from counsel and consulting the -3- relevant statutes, the court found merit in both the venue objection and the request for more definite facts. It concluded that the actions sounded in trespass, which was a local action that had to be brought in the county where the land was located, and that it was impermissible to bring, or join, a claim for trespass to property in Baltimore City in an action in B altimore C ounty. The co urt granted th e motion to dismiss, but w ith leave to amend, to provide facts as to the specific properties involved, including whether the Comca st lines are alleg ed to run o ver or und er the prope rty and wha t Comca st specifically did to the pro perty. The cou rt made ve ry clear to coun sel that the C haplinskis c laim could not b e filed in Ba ltimore Co unty and that if th e Chaplin skis claim w as joined in any amend ed comp laint withou t a certification o f a class, the am ended co mplaint w ould be dismissed.2 The plaintiffs promptly filed an amended complaint that, in most respects, was virtually identical to the initial one. Although there were some additional allegations regarding the various defendants, the Chaplinskis claim, despite the court s earlier ruling and warning, was once again included. That produced another motion to dismiss which, after a hearing, the court granted, this time without leave to amend. Noting again the fact that no class had been certified (and musing whether, in light of the Class Action Fairness Act of 2005 (Pub. L. No. 109-2, 119 Stat. 4, and, in particular, 28 U.S.C. § 1453), the 2 We need n ot address here wh ether any of the three counts could be brought as a class action. -4- case would remain in State court if the proposed class were to be certified), the court continued to treat the issue as simply wh ether an ac tion for tresp ass to real pro perty located in B altimore C ity could be filed in Baltimo re Coun ty, and its answe r continued to be no. In a reported opinion, the Court of Special Appeals affirmed, holding that the issue was governe d by CJP § 6 -203(b)(1) (iv), which r equires that a n action fo r trespass to land be brought in the county where all or any portion of the land is located, and that an action for trespass to land in B altimore City simply could not be brou ght in Baltimore Coun ty. Piven v. Comcast, 168 Md. App. 221, 895 A.2d 1118 (2006). We granted certiorari and shall affirm. DISCUSSION The relevant laws relating to venue where an action may be brought are set forth in CJP §§ 6-201 through 6-203.3 Section 6-201 states the general rules that (1) [s]ubject to the provisions of §§ 6-202 and 6-203 and unless otherwise provided by law, a civil action shall be brought in a county where the defendant resides, carries on a regular business, is employed, or habitually engages in a vocation, (2) a corporation may also be sued wh ere it maintains its principal offices in the State, and (3) if there is more than one defendant and there is no single venue applicable to all defendants, all may be 3 Our references to those statutes are to the current version of them. In 2005, the Legislature made some non-substantive style changes to § 6-203. See 2005 Md. Laws. ch. 464, § 3. -5- sued in any county in which any of them could be sued or in the county where the cause of action arose. Section 6-202 provides some alternative venues in thirteen enumerated situations, only three of which are cited by Piven and the Chaplinskis and bear any mention. Section 6-202(3) permits an action against a corporation which has no principal place of business in the State to be filed in the county where the plaintiff resides; § 6-202(7) permits an action for possession of real property to be filed in a county where a portion of the land upon which the action is based is located; and § 6-202(13) provides that in a local action in which the defendant cannot be found in the county where the subject matter of the action is located, suit may be brought in any county in which venue is proper under § 6201. Section 6-203 sets for th certain excep tions to th e gene ral rule sta ted in § 6 -201. Section 6-2 03(b)(1)(iv) provides, in r elevant par t, that venue in an action o f trespass to land is in the c ounty whe re all or any portio n of the su bject matter o f the action is located. Section 6-203(b)(2) adds that, if the property lies in more than one county, the court in which proc eedings are first brought ha s jurisdiction over the entire property. In an action for trespass to land, the subject matter of the action is the trespass the intrusion upon the land and the interference with the plaintiff s alleged right of possession and use of the land and that necessarily is where the land itself is situated. Under § 6203, therefore, an action for trespass to land must be brought in the county where all or -6- any portion of the land is located, and it may not be brought anywhere else. In an effort to escape the clear meaning and intent of § 6-203(b), Piven and the Chaplinskis make essentially two arguments. First, relying largely on Roessner v. Mitchell, 122 Md. 460, 89 A. 722 (1914), they treat their unconnected properties (and the unconn ected prop erties of all of th e other puta tive class me mbers) no t as the separa te subject matter of a separate trespass to those individual properties but rather as though each of those parcels comprise but a part of a larger, aggregate subject matter of the action that re lates to the alleg ed trespasse s to all of the p roperties. Th eir point, in this regard, is that th e Chaplin skis prope rty in Baltimore C ity is merely a portion o f a who le that comp rises both the Chaplins ki and the P iven prop erties (and the properties o f all other putativ e class mem bers), and th at the action c ould theref ore lie in any cou nty in which any of the properties (portions of the whole) are located, either under § 6-203(b) or under § § 6-20 1 or 6-2 02(3), (7 ), or (13) . The second argument is that, even if the Chaplinskis action for trespass under Count I of the amended complaint cannot be brought in Baltimore County, Counts II and III co nstitute tr ansitory, rathe r than loc al, ac tions and may b e bro ught in an y county, including Baltimore County, in which any of the multiple defendants could be sued. Neither arg ument ha s any merit. Maryland has long recognized a distinction between local actions, which must be brought where the subject matter of the action is located, and transitory actions, which -7- ordina rily may be b rough t where ver the d efend ant wo rks, lives , or has a princip al offic e. The Court first explained the derivation and purpose of the distinction in Crook v. Pitcher, 61 Md. 510, 513 (1884) and recounted that explanation and provided a broader history in Kane v. Schulmeyer, 349 M d. 424, 708 A.2d 10 38 (1998 ). As we o bserved in Kane, the v enue doctrin e ha s an a ncie nt lin eage , one that o rigin ally w as tie d to the ea rly, and long-since discarded, role of jurors as knowledgeable witnesses rather than as impartial determiners of fact based on evidence heard in court. Id. at 430, 708 A.2d at 1041. It was important, in that earlier time, for plaintiffs to state with precision not just the county but also the particular district or hundred within which the cause of action arose, in order that the sheriff might summon as jurors persons who were presumed to be acqua inted w ith the na ture of t he trans action th ey were c hosen to try. That requirement, tying venue to the immediate neighborhood where the cause of action arose , continued into the Sev enteenth C entury in Eng land, but w as eventua lly found inconvenient, especially in transactions that might happen partly in one place and partly in another; hence, the Crook v. Pitcher Court noted, arose the distinction between local and transitory actions. 61 Md. at 513. The Court explained: If the cause of action could only have arisen in a particular place, the action is local, and the suit must be brought in the county or place in which it arose. Actions for damages to real property, actions on the case for nuisances, or for the obstruction of one s right of way, are according to all the authorities loc al. On the o ther hand, a ctions for inju ries to the pers on, or to -8- personal property, actions on contracts, and in fact all actions founded on transactions, which might have taken place anywh ere, are tr ansitory. Id. (citation omitted). There has been little change over the years to the requirement that a local action be brought where the cause of action arose. Most of the changes in the venue rules have come by statute a nd hav e conc erned w here tra nsitory ac tions m ay be bro ught. See Kane, supra, 349 M d. at 432-34 , 708 A.2d at 1042-4 4. The pro blem, as the Court ob served in Gunther v. Dranbauer, 86 Md. 1, 6 (189 7), was not so mu ch with the elemen tary principles tha t local actions m ust be brou ght whe re the cause of action a rose while transitory actions may be commenced wherever the defendant works or resides, but rather with the ap plication of th ose princip les, in particular th e failure of th e law to c learly distinguish between what are local and what [are] transitory actions. The Legislature attempted to bring greater clarity to the then-existing hodgepodge of statutes when, in the inaugural debut of modern Code Revision, it enacted CJP §§ 6201 - 6-203 in 1973. Unlike with the normal Code Revision process, a number of substantive changes were m ade wh en those sta tutes were e nacted, mo stly with respect to where transitor y actions m ay be bro ught. See Kane v. Schulmeyer, supra, 349 Md. at 435, 708 A.2d at 1044. No change was made, however, in the law requiring that local actions be brought in the county where the subject matter of the action is located or in the principle that a ctions for tres pass to land are local actio ns that mus t be broug ht where all -9- or a portion of the land is situated. Section 6-203(b)(1)(iv) cannot be read in any other manner. Piven and the Chaplinskis rely on Roessner v. Mitchell, supra, 122 Md. 460, 89 A. 722, for the undergirding proposition that their non-contiguous properties may be considered as constituen t portions of an entity comp rising both p roperties, such that a portion of the whole lies in both Baltimore City and Baltimore County and thereby provides venue in either place. As Judge Rodowsky pointed out for the Court of Special Appe als, how ever, Roessner is disting uishab le in sev eral resp ects. The Roessner case arose from a partition sale. Frederick Mitchell, a resident of Baltimore County, ow ned an un divided ha lf interest in tw o parcels of real property, on e in Baltimore Coun ty and one in Washing ton County. With som e complications that we re eventually resolved and are not relevant here, Mitchell s interest in those properties was devise d unde r his W ill to his ch ildren. T he Wi ll was p robated in Baltim ore Co unty. Because the properties could not be physically divided without loss, the children, all of whom w ere residents of Baltimore C ounty, petitioned the Circuit Court for B altimore County to sell the properties in lieu of partition. Without objection, the court entered a decree in August, 1906 directing the sale. For whatever reason, there was a significant delay in the sale o f the Wa shington C ounty prope rty, which wa s sold in M arch, 1913 to Roessner. The sale price was $5,000; Roessner made a $300 deposit and agreed to pay the $4,700 balance upon ratification. The sale was ratified in due course, but Roessner -10- refuse d to pay th e balan ce. Upon R oessner s d efault, the seller s sought an order requ iring Roes sner to com ply with the terms of sale and, upon his failure to do so, to direct that the property be resold at his risk. Roessner replied that the court was without jurisdiction to decree the sale of the Washington County property in the first instance because it was unconnected with the Baltimore County property and because none of the parties to the partition proceeding were residents of Washington County. The Circuit Court found no merit in that defense and ordered the property resold at Roessner s risk. Roessner appealed, raising the same argument made in the Circuit Court that the Baltimore County court was without jurisdiction to order the sale of property in Washington County. He urged that the predecessor statute to CJP § 6-203(b)(2) Maryland Code (1911) Art. 16, § 87, which provided that where lands lie partly in one county and partly in another, proceedings may be commenced in either county and the court in which proceedings are first commenced has jurisdiction did not apply where the lands in different counties were not connected.4 4 Section 87 provided , in relevant pa rt, that when ever lands la y partly in one cou nty and partly in another, or whenever, in equity proceedings, some defendants resided in one county and s ome in an other, that co urt shall have jurisdiction in w hich proce edings sha ll have been first commenced and that, in partition and certain other enumerated proceedings, the action shall be instituted in the court of the county where the lands lay or, if the lands were partly in one county and partly in another, in either county. The statute furthe r required tha t, where a c ourt decree ordered the sale of land lying only partly in that county, a certified copy of the complaint, decree, and report of sale be filed in the court where any other part of the land was situated. Upon receipt of those documents, the clerk was to docket and index the complaint and other proceedings and record the same as though said cause had originated in his court. That apparently was -11- This Court declined to construe the statute as applying only in cases where lands situated in different counties are co ntiguous and form one tract. The statute, the Cou rt said, was designed to avoid a multiplicity of suits and the costs attendant thereto. In that vein, the C ourt constru ed the statute a s meaning that, if the land s to be affe cted by the suit are in differ ent countie s, proceedin gs could b e comm enced w here any of th e land is situated, and the Court in which the proceedings shall have first commenced shall have jurisdiction as to all of said land without regard to the fact that such lands are contiguous and form one tract or parcel of land. Id. at 463-64, 89 A. at 723. As noted by Judge Rodowsky, the issue in Roessner was not venue, but jurisdiction, and that is significant. Roessner was collaterally attacking the jurisdiction of the Ba ltimore C ounty co urt to ord er the pa rtition sal e of pro perty in W ashing ton Co unty. He was not a party to that proceeding, however, and the decree he attacked was a final judgment that had been entered, by consent of the parties, seven years earlier. Although the two parcels, lying in different counties, were not contiguous, they had been under the common ownership of the parties predecessor in title, and remained under common ownership by virtue of the predecessor s W ill that had been probated in B altimore County. The interests of all of the parties to the partition action were identical, and all of the parties were resident in Baltimore County. There was a sufficient connection between done in Roessner; certified copies were filed with the Circuit Court for Washington Cou nty. -12- the Circuit C ourt for B altimore C ounty and the interests that the parties befo re it had in the Washington County property to afford jurisdiction under the statute. Finally, as we have observed, the statute construed in Roessner specifically required that certified copies of the complaint, decree, and report of sale be filed with the clerk of the court in each c ounty where a portion o f the land was situate and that the clerk of that court docket and record those documents the same as though said cause had originated in his court. The statute thus tended to treat the proceeding as though it had commenced as well in each county where the land was located. In that light, it is not surprising that the Court, responding to a jurisdictional challenge, gave an expansive meaning to the statute, to avoid, as it said at 122 Md. 464, 89 A. at 723, a multiplicity of suits and the costs and expenses of such suits. That is not th e case here . Those req uirements c ontained in the 1911 s tatute construed in Roessner are not fou nd in §§ 6 -202 or 6-2 03. That o mission, co upled w ith the comprehensive revision of the venue laws in 1973, militates against such an expansive reading of §§ 6-202 and 6-203. The Legislature clearly intended that an action for trespass to a separate parcel of land be brought in the county where all or some part of that parcel is located. This distinction, which lies at the heart of the distinction between local and transitory actions, p recludes P iven and th e Chaplin skis from a ggregating their separate properties, located in different counties, into a greater whole and regarding them as -13- merely a portio n of that w hole, and th at, in turn, destro ys any pretense o f venue in Baltimore County with respect to the Chaplinski property under CJP § 6-202 or § 6203(b)(2). As to § 6-202(3), even if the Comcast defendants that allegedly committed a trespass on the Chaplinski property have no principal place of business in Maryland, the proper venue would still be Baltimore City, where the Chaplinskis reside. That is true as well with § 6-202(7); to the extent the action cou ld in any way be construed as one to recover po ssession of real property, it cou ld be brou ght only wh ere a portion of the land is located, and, as to the Chaplinskis, that is in Baltimore City. Section 6-202(13) has no application, as there has been no allegation that the Comcast defendants cannot be found in Baltimore City. An assertion of venue under § 6-203(b)(2) fails because no portion o f the Cha plinski p rope rty lies in Baltim ore C ounty. Finally, Piven and the Chaplinskis urge that, even if the Chaplinskis are precluded from pursuing their trespass action in Baltimore County, they are not precluded from pursuing Counts II and III of their amended complaint, for unjust enrichment and to quiet title, in that county, those being, in their view, transitory actions. We disagree. As Judge Rodowsky observed for the Court of Special Appeals, courts must ordinarily look beyond labels and conclusory averments and make determinations based on the substance of the allegations o f a pleadin g. Counts II and III of th e amend ed comp laint are foun ded solely on an alleged trespass, and they seek precisely the same relief prayed in Count I. They stand no differently, for venue purposes, than Co unt I. -14- Ordinarily, the appropriate remedy in a case of this kind would be to transfer the actions by the Chaplinskis to the Circuit Court for Baltimore City pursuant to Maryland Rule 2-327(b) and permit the Piven action to proceed in Baltimore County. That option was o ffered to the pla intiffs in conne ction w ith the in itial com plaint, an d they reje cted it. The ability to transfer, rather than dismiss, an action based on a finding of improper venue is discretionary, and in light of the plaintiffs refusal to avail themselves of that option, and their insistence that the action include the Chaplinskis claim, we find no abuse of discretion in th e court dism issing the am ended co mplaint. JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS. -15-

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