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MEYER v. BROWN (59749)


MEYER v. BROWN


June 5, 1998

Record No. 971876

ROBERT E. MEYER

v.

REGINALD D. BROWN

OPINION BY JUSTICE A. CHRISTIAN COMPTON

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

James B. Wilkinson, Judge

Present: All the Justices


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 Sec. 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 Sec. 8.01-261
and 8.01-262." Code Sec. 8.01-261, enumerating forums
deemed "preferred" places of venue, is inapplicable
here.

Code Sec. 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 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."

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 Sec. 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.

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."
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
Sec. 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
Sec. 8.01-264.

Reversed and remanded.

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