Meyer v. Brown

Present: All the Justices

ROBERT E. MEYER

OPINION BY JUSTICE A. CHRISTIAN COMPTON

v. Record No. 971876 June 5, 1998

REGINALD D. BROWN

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

James B. Wilkinson, Judge

In this appeal of a judgment in favor of a plaintiff in a

personal injury action, the dispositive question is whether the

trial court erred in overruling the defendant’s objection to venue.

In October 1994, appellee Reginald D. Brown, the plaintiff

below, was injured in a collision in Prince George County between a

motorcycle he was operating and a motor vehicle driven by appellant

Robert E. Meyer, the defendant below. In October 1996, the

plaintiff filed the present negligence action against defendant in

the Circuit Court of the City of Richmond seeking recovery in

damages for his injuries.

The defendant filed an objection to venue and moved the trial

court to transfer the action to either the Circuit Court of Prince

George County or the Circuit Court of Chesterfield County. The

defendant asserted that venue was not proper in the City of

Richmond because the accident happened in Prince George County and

defendant “resides and works in Chesterfield County.” Following a

hearing, at which the parties presented defendant’s deposition on

the issue, the trial court overruled the objection.

The case proceeded to trial before a jury, which fixed

plaintiff’s damages at $1 million. The court entered judgment on

the verdict and we awarded defendant this appeal.

Defendant assigns three errors, but we shall discuss only the

second: “The court erred in ruling that [defendant] was subject to

venue in the City of Richmond when the accident sued upon happened

in Prince George County and [defendant] lived and worked in

Chesterfield County.”

Code § 8.01-260 provides, as pertinent to this appeal, that

“the venue for any action shall be deemed proper only if laid in

accordance with the provisions of §§ 8.01-261 and 8.01-262.” Code

§ 8.01-261, enumerating forums deemed “preferred” places of venue,

is inapplicable here.

Code § 8.01-262, enumerating “permissible” forums, applies.

In subsection (3), the statute provides that a permissible forum

shall be a county or city “[w]herein the defendant regularly

conducts affairs or business activity.” The question then becomes

whether, under the facts presented, this defendant regularly

conducted affairs or business activity in the City of Richmond.

According to defendant’s deposition testimony, given upon

examination by plaintiff’s attorney, defendant was a 20-year

employee of Tredegar Industries, which is “basically an aluminum

and plastics company.” The defendant, a resident of Chesterfield

County, had worked at the company’s Chesterfield County business

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location since 1989. He was Tredegar’s “insurance manager,”

administering company property and casualty insurance. Defendant’s

employer owned no facility within the City of Richmond.

Defendant’s employment required him “to go into” the City

“[o]n occasion” to confer with two separate insurance brokers,

which maintained offices within the City. He would visit one

broker “[n]ot more than once a year” and would “be in the office”

of the other “[m]aybe six times during the year.” Visits to the

brokers were “spaced out” during the year but occurred “a little

more often in the fall” in connection with discussions regarding

January 1 renewals of insurance contracts. Defendant’s job duties

also required him to attend insurance seminars “perhaps” three

times a year at private clubs within the City.

Defendant also testified he travelled through the City

“[t]wice a year, perhaps” on “pleasure” trips en route to Northern

Virginia to visit a son. Additionally, he said, he was “in the

City of Richmond either to pass through or stop somewhere for

whatever reason no more than four or five times in a year on

average.”

According to the testimony, defendant “never” enters the City

for entertainment, for “shopping,” or for medical attention. He

belongs to no professional or social organizations located within

the City and he has not been in the City “within the last two years

at any time for a social or recreational purpose of any kind.”

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Urging affirmance of the judgment, the plaintiff argues the

trial court did not abuse its discretion in retaining venue.

According to plaintiff, the “deposition transcript describes

uniform business activities and affairs that the defendant conducts

on a regular basis within the City of Richmond.” Elaborating,

plaintiff contends “defendant’s activities in the City of Richmond

are usual and customary by occurring approximately once per month

for business purposes in addition to six or seven visits per year

for personal affairs, occur at regular intervals because they are

evenly distributed throughout the year, and are regular in

destination because his almost monthly trips pursuant to his

employment are to one of two businesses on seven occasions and to

one of two clubs for educational seminars on the remaining

occasions, such that these routine activities are clearly ‘regular’

business activity or affairs, according to the plain language of

Virginia Code § 8.01-262(3).” We disagree.

An objection to venue is addressed to the sound discretion of

the trial court, and the court’s action in overruling the objection

will not be reversed on appeal unless the record affirmatively

reflects an abuse of discretion. See Norfolk and W. Ry. Co. v.

Williams, 239 Va. 390, 392, 389 S.E.2d 714, 715 (1990). The party

objecting to venue has the burden of establishing that the chosen

venue is improper. The defendant has met that burden in this case,

even though the facts were developed by the plaintiff.

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In plain language, the General Assembly has specified that

permissible venue under these circumstances shall be in the county

or city “[w]herein the defendant regularly conducts affairs or

business activity.” The customary meaning of the noun “affairs” in

this context is, “commercial, professional, or public business,”

Webster’s Third New International Dictionary 35 (1971), and “[a]

person’s concerns in trade or property; business,” Black’s Law

Dictionary 57 (6th ed. 1990). The term refers to employment-related

or personal business dealings as opposed to activity that is purely

personal, such as recreational pursuits. Therefore, the evidence

of defendant’s pleasure trips through the City to visit a son and

of his passing through the City or stopping there “for whatever

reason” fails to demonstrate that defendant “conducts affairs or

business activity” within the City.

Thus, the issue remains whether evidence of defendant’s seven

visits per year to insurance brokerage firms and three appearances

per year at business seminars qualifies under the statute as

“regularly” conducting affairs or business activity within the

City. We hold it does not.

The customary meaning of the adverb “regularly” in this

context is, “in a regular, orderly, lawful, or methodical way,”

Webster’s 1913. The customary meaning of the adjective “regular”

in this context is, “Steady or uniform in course, practice, or

occurrence; not subject to unexplained or irrational variation.”

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Black’s 1285. Indeed, we have said, “In common parlance, a

‘regularly’ employed person is one required to work every working

day. Similarly, a person ‘regularly required to perform service at

night’ is one required to work at night every working day.” Gomes

v. City of Richmond, 220 Va. 449, 452, 258 S.E.2d 582, 584 (1979).

Regular action is more frequent than casual or occasional action.

The evidence shows that defendant’s activity within the City

of Richmond on behalf of his employer was merely casual or

occasional, and not conducted in an orderly, methodical way.

Significantly, defendant said he was required to enter the City “on

occasion” to confer with the brokers, these sporadic visits being

“spaced out” during the year but occurring “more often in the

fall.” In sum, defendant’s activity in the City was not so

frequent as to be performed “regularly” within the meaning of

§ 8.01-262(3).

Accordingly, because the record affirmatively reflects the

trial court abused its discretion in refusing to sustain

defendant’s objection to venue, the judgment appealed from will be

reversed and the case will be remanded for a new trial. Upon

remand, the trial court shall conduct a hearing and shall order

this action transferred to either Prince George County or

Chesterfield County, in accordance with the provisions of Code

§ 8.01-264.

Reversed and remanded.

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