Opinion
11-P-1006
03-08-2012
CLARENCE F. CARLETON v. SUMNER B. GILLETTE & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from the dismissal, pursuant to Mass.R.Civ.P. 12(b)(3), 365 Mass. 754 (1974), of his first amended complaint (FAC). We vacate the bulk of the judgment and remand for entry of an order of transfer to an appropriate venue.
Venue is controlled by G. L. c. 223, § 1, inserted by St. 1973, c. 1114, § 83, which provides that an action shall be 'brought in the county where one of [the parties] lives or has his usual place of business.' We look to the allegations of the FAC to determine whether sufficient facts were pleaded to establish venue in Suffolk County, which is where suit was brought.
The FAC alleged that the plaintiff was incarcerated at the Massachusetts Correctional Institution at Norfolk (MCI Norfolk) in Norfolk County at the time of filing. For purposes of G. L. c. 223, § 1, 'an inmate 'lives' both in the county where he maintains his domicile and in the county in which he is incarcerated at the time suit is brought.' Bolton v. Krantz, 54 Mass. App. Ct. 193, 194 (2002). The FAC, however, is silent as to any domicile other than MCI Norfolk at the time suit was brought in 2010. Although one attachment to the FAC shows an address in Suffolk County eight years earlier, at the time of the accident, that was an insufficient basis upon which to establish venue for purposes of a suit brought in 2010. Moreover, several other documents show the plaintiff claiming residence in Middlesex County instead. Turning to the defendants, the FAC alleges that Attorney Sumner B. Gillette does business in Quincy (Norfolk County), that Attorney Maureen K. McNally does business in Worcester (Worcester County), and that defendant Commerce Insurance Company has a place of business in Webster (Worcester County). In summary, the FAC does not support a conclusion that venue properly lies in Suffolk County.
The plaintiff also argues that the judge should have transferred the case to the proper venue, pursuant to G. L. c. 223, § 15, rather than to have dismissed it. General Laws c. 223, § 15, permits a Superior Court judge, within his or her discretion, to transfer a case to the proper venue upon motion. The statute does not require that a judge order that a case be transferred when no motion has been made; however we see nothing in the statute that divests the court of power to order transfer even in the absence of a motion.
Section 15, inserted by St. 1973, c. 1114, § 85, states: 'If an error in venue is discovered at any stage of the proceedings of a civil action in the supreme judicial or superior court, the court may, upon motion of either party, order the action, with all papers relating thereto, to be removed to the proper county upon terms to the defendant . . . .'
In this case, the docket shows no written motion in the trial court, nor does the record support the plaintiff's contention that he made an oral motion below. However, he requests an order of transfer in his brief to us, and we treat this request as a motion. The defendants have offered no reason, and we perceive none, as to why transfer to an appropriate venue should not occur, apart from the absence of a motion to transfer.
The plaintiff states in his brief that he requested transfer during the hearing on the motion to dismiss. No transcript has been included in the appendix, however, nor was any transcript ordered by the plaintiff. 'An appellant's obligation to include those parts of the trial transcript . . . ' which are essential for review of the issues raised on appeal . . . is a fundamental and long-standing rule of appellate civil practice." Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995), quoting from Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991). See Callahan v. Eastern Bank & Trust Co., 437 Mass. 1020, 1021 (2002) (appellant's obligation to create record that substantiates allegations made on appeal).
We accordingly affirm that much of the lower court's judgment as finds that venue does not lie in Suffolk County, but vacate the remainder of the judgment and remand so that an order of transfer may enter. See G. L. c. 223, § 15; West v. New York, N.H. & H.R. Co., 233 Mass. 162, 164 (1919) (Supreme Judicial Court may order transfer under predecessor to G. L. c. 223, § 15). See also G. L. c. 211A, § 10 (Appeals Court has concurrent jurisdiction with Supreme Judicial Court). The Superior Court judge should determine to which county the case is most appropriately transferred.
So ordered.
By the Court (Cypher, Cohen & Wolohojian, JJ.),