Burchfield v. West Metro Glass Co.
340 Ga. App. 324
| Ga. Ct. App. | 2017Background
- On July 29, 2014, a vehicle driven by Stephen Prince collided with a vehicle driven by Donna Burchfield in Fulton County; Prince was working for West Metro Glass at the time.
- Burchfield sued West Metro Glass and Prince in State Court of Fulton County on March 24, 2015; West Metro Glass was served April 8, 2015.
- Defendants answered on May 29, 2015, asserting improper venue but did not file a notice of removal within 45 days.
- On November 11, 2015 (well after 45 days), defendants moved to transfer venue; the trial court granted the motion, concluding venue was improper in Fulton County.
- The appellate court granted interlocutory review and held venue was proper in Fulton County because the tort occurred there and West Metro Glass failed to timely invoke the removal procedure under OCGA § 14-2-510(b)(4).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether venue was proper in Fulton County under OCGA § 14-2-510(b)(4) | Venue proper in Fulton because the tort originated in Fulton County | Venue improper because defendants are not Fulton residents; transfer appropriate | Venue was proper in Fulton County under § 14-2-510(b)(4) (tort occurred there) |
| Whether an answer asserting improper venue can substitute for the statutory notice of removal | N/A (Burchfield argued statutory removal requirements control) | West Metro Glass argued its answer effectively served as notice of removal | Rejected: an answer asserting improper venue is not a timely notice of removal under the statute |
| Whether a motion to transfer filed after 45 days preserved removal rights | N/A | Motion to transfer (filed after 45 days) served to remove case | Rejected: removal motion filed outside the 45-day statutory period does not preserve removal rights (Huddle House distinguished) |
| Whether venue proper as to joint tortfeasor Prince if proper as to West Metro Glass | Venue proper as to both defendants | N/A (defendants challenged venue generally) | If venue is proper as to one joint tortfeasor it is proper as to the other; so venue proper as to Prince too |
Key Cases Cited
- Bd. of Regents of the Univ. System of Ga. v. Jordan, 335 Ga. App. 703 (Ga. Ct. App. 2016) (undisputed facts + de novo review of legal application)
- Pandora Franchising v. Kingdom Retail Group, 299 Ga. 723 (Ga. 2016) (§ 14-2-510(b)(4) creates venue where tort originated and provides removal procedure)
- Huddle House v. Paragon Foods, 263 Ga. App. 382 (Ga. Ct. App. 2003) (motion to transfer filed within 45 days can preserve removal right)
- HD Supply v. Garger, 299 Ga. App. 751 (Ga. Ct. App. 2008) (venue proper as to one joint tortfeasor is proper as to other joint tortfeasors)