Opinion
45644 Record No. 860010
Decided: June 10, 1988
Present: All the Justices
The ground of convenience to plaintiff's witnesses, assigned by the trial judge for retaining venue for a traffic accident case in a locale other than one in which the claim arose or defendant resides, did not constitute good cause under Code Sec. 8.01-265, and there was no basis for the exercise of discretion by the trial court. Accordingly, the judgment is reversed, the jury verdict set aside and the case remanded with direction for a change of venue.
Practice and Procedure — Venue — Transfer — Good Cause — Code Sec. 8.01-265
Plaintiff was injured in an automobile accident in a city of which the defendant motorist was a resident. Plaintiff was the resident of another city but filed the suit in the circuit court of a third city. Defendant objected to venue. The court denied his motion that venue be changed to the city where the accident had occurred, holding that it would be more convenient to the plaintiffs medical witness and the latter's patients if the trial were held where the suit had been filed. The case was tried and judgment entered on a jury verdict in favor of the plaintiff. Defendant appeals, contending that the trial court erred in refusing to transfer venue.
1. The ground assigned for denial of the defendant's motion is not listed as a basis for venue in either the preferred venue statute, Code Sec. 8.01-261, or the permissible venue statute, Code Sec. 8.01-262.
2. Notwithstanding code provisions calling for trial in the city or county where the defendant resides or in the city or county in which the action arose, a trial court wherein the action is commenced may, for good cause shown, retain the action for trial. Good cause includes, but is not limited to, avoidance of substantial inconvenience to the parties or the witnesses. Code Sec. 8.01-265.
3. A decision refusing to transfer an action is within the sound discretion of the trial judge, but the decision is reviewable for abuse of discretion or where the forum in which the case remained was not a proper place of venue.
4. There was no showing that trial in the city where the accident took place would result in substantial inconvenience to the parties or the witnesses and hence the cause assigned by the trial judge for retaining the action did not constitute good cause under Code Sec. 8.01-265.
5. Where the absence of good cause appears as a matter of law, there is no basis for the exercise of discretion by the trial court and this is a case of plain error.
Appeal from a judgment of the Circuit Court of the City of Norfolk. Hon. Leonard B. Sachs, judge presiding.
Reversed and remanded.
John G. Crandley (Preston, Wilson Crandley, on brief), for appellant.
Robert S. Cohen (Mary G. Commander; Goldblatt, Lipkin, Cohen, Anderson, Jenkins Legum, P.C., on brief), for appellee.
This case is here upon the appeal of John Wilkes Booth, III, the defendant, from a judgment based on a jury verdict in favor of Steven L. Broudy, the plaintiff, for $35,000. The sole question for decision is whether the trial court erred in refusing to transfer venue.
The plaintiff was injured in an automobile accident on May 12, 1983. The accident occurred in the City of Suffolk. The defendant was a resident of Suffolk and the plaintiff a resident of the City of Virginia Beach. The plaintiff filed suit in the Circuit Court of the City of Norfolk.
By proper motion, the defendant objected to venue in Norfolk and moved that venue be changed to Suffolk. Holding that it would be "more convenient" to the plaintiff's medical witness and the latter's patients if trial were held in Norfolk, the trial court denied the motion and retained the case for trial.
The ground assigned by the trial court for denying the defendant's motion is not listed as a basis for venue in either the preferred venue statute, Code Sec. 8.01-261, or the permissible venue statute, Code Sec. 8.01-262. The county or city where the defendant resides is a permissible forum, Code Sec. 8.01-262(1), as is the county or city where the cause of action, or any part thereof, arose, Code Sec. 8.01-262(4).
Notwithstanding the provisions of Code Sections 8.01-261 and — 262, however, a trial court wherein a cause of action is commenced may, "for good cause shown," retain the action for trial. Code Sec. 8.01-265. "Good cause shall be deemed to include, but not to be limited to, . . . the avoidance of substantial inconvenience to the parties or the witnesses." Id. (Emphasis added.)
Under Code Sec. 8.01-267, a decision transferring or refusing to transfer an action pursuant to Sec. 8.01-265 shall be within the sound discretion of the trial judge. Section 8.01-267 also provides, however, that "nothing [therein] shall affect the right to assign as error a court's decision concerning venue." Furthermore, a Revisers' Note to Sec. 8.01-267 states that "the trial judge's decision is reviewable on the grounds that he abused his discretion, or that the forum to which the action was transferred or in which the case was allowed to remain was not a proper place of venue under Sections 8.01-260 [] to 8.01-262." (Emphasis added.)
Code Sec. 8.01-260 provides in pertinent part that, "subject to the provisions of Sections 8.01-264 and 8.01-265, the venue for any action shall be deemed proper only if laid in accordance with the provisions of Sections 8.01-261 and 8.01-262." Code Sec. 8.01-264 provides that objection to venue shall be made by motion and that failure to object constitutes a waiver. As noted previously, Code Sec. 8.01-265 allows a trial court to retain a case for trial "for good cause shown."
[4-5] There was no showing that trial in Suffolk would result in "substantial inconvenience to the parties or the witnesses," only that trial in Norfolk would be "more convenient" to the plaintiff's medical witness and his patients. Hence, this Court holds that the ground assigned by the trial judge for retaining the action for trial in Norfolk did not constitute good cause under Code Sec. 8.01-265. And, because the absence of good cause appears as a matter of law, there was no basis for the exercise of discretion by the trial court. This Court treats the case, therefore, as one involving plain error, within the contemplation of Code Sec. 8.01-267.
Accordingly, we will reverse the judgment appealed from, set aside the verdict of the jury, and remand the case to the trial court with direction to transfer venue to the Circuit Court of the City of Suffolk for further proceedings.
Reversed and remanded.