Tighe v. Rivera

This is an action in tort for property damages. The sole question posited for review is the propriety of the trial court’s sua sponte dismissal of the plaintiffs complaint on the grounds of improper venue.2

The report and docket entries indicate the following: Upon the defendant’s failure to answer the plaintiff’s complaint, the plaintiff filed a Dist./Mun. Cts. R. Civ. P. Rule 55(a) motion for a default. A default was subsequently entered against the defendant. A hearing for the assessment of damages and for the entry of a default judgment was thereafter held pursuant to a Rule 55(b) (2) motion filed by the plaintiff. The defendant did not appear at the hearing, and the matter was taken under advisement by the Trial justice.

The case was eventually dismissed sua sponte by the trial court and costs were awarded to the absent defendant. The apparent basis of the court’s dismissal order was a G. L. c.223 question of improper venue.

1. A charge of improper venue is generally an affirmative defense that is deemed waived if not seasonably pleaded or otherwise raised. Dist./Mun. Cts. R. Civ. P. Rule 12(h); Sebastian v. Carroll, 353 Mass. 465, 468 (1968); Universal Supply Co. v. Hildreth, 287 Mass. 538, 541 (1934); Maker v. Bouthier, 242 Mass. 20, 24 (1922). Unlike jurisdiction, venue is essentially a procedural matter which in no way affects or challenges the inherent authority of a district court forum to entertain and to dispose of the matter in controversy. Paige v. Sinclair, 237 Mass. 482, 483-484 (1921); Hazard v. Wason, 152 Mass. 268, 270(1890). It is obvious that any defect in venue inherent in the case sub judice must be deemed to have been waived in view of the default and continued absence of the defendant. In consequence of such waiver, the trial court herein was expressly empowered by virtue of G. L. c.218, §2A to adjudge the plaintiff s claim. See, in general, Paige v. Sinclair, supra at 483-484.

2. Given the essence of venue as a waivable defense, we find no permissible basis for the trial court’s sua sponte dismissal order herein.3 A district court’s authority to remedy *32a defect in venue is limited to the provisions of G. L. c.218, §2A and Dist./Mun. Cts. R. Civ. P. Rule 12(b). Both statute and rule render a motion by the defendant or other party a prerequisite to the court’s transfer of the action to a court of proper venue or to the court’s dismissal of the action. It may be noted that prior to its 1973 amendment, G.L.c.223, §15 did permit the Supreme Judicial and Superior Courts only to order a nonsuit, upon the court’s own motion, in any civil action instituted in the wrong county. Said statute was never made applicable to the District Court Department. Moreover, St. 1973, c.1114, §§85 and 351 conformed G. L. c.223, §15 to the Massachusetts Rules of Civil and Appellate Procedure. An error in venue may now be corrected under this statute in the Supreme Judicial and Superior Courts solely by a transfer of the action upon motion of either party. Assuming arguendo that former G. L. c.223, § 15 had applied to the district courts, the 1973 amendment of said statute would indicate a conclusive legislative proscription of the sua sponte dismissal order entered by the trial court herein.

The trial court’s order of dismissal is hereby vacated. This case is remanded for an assessment of damages and for the entry of a default judgment against the defendant pursuant to Dist./Mun. Cts. R. Civ. P., Rule 55.

So ordered.