Chung v. Hair Trend USA, Inc.
322 Ga. App. 429
| Ga. Ct. App. | 2013Background
- Hair Trend sued Koo Pil Chung and Mae Hwa Chung (doing business as Beauty Mart) on an account in Sumter County; initial Sumter service attempt failed.
- Hair Trend effected subsequent "notorious service" in Douglas County at an address listing a "manager," but the record does not show whether that was a residence, business, or authorized agent.
- Appellants answered asserting improper venue in Sumter County and stated they lived in Gwinnett County; they filed a timely motion to dismiss for improper venue.
- Hair Trend moved to transfer to Douglas County (alleging defendants resided there) and later moved for summary judgment; the trial court granted the transfer and then granted summary judgment.
- Appellants filed a motion for relief from judgment and timely appealed; the appeal divested the trial court of jurisdiction to rule further while pending.
- The Court of Appeals vacated the summary judgment and remanded because the trial court ruled on summary judgment without first resolving the properly-raised venue challenge and service/venue facts were unclear.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint/record established proper venue | Hair Trend: a bare allegation of venue/residence is sufficient and appellants waived venue by not opposing transfer | Appellants: original complaint failed to plead venue facts; they timely moved to dismiss and maintained Gwinnett residence | Court: Vacated judgment and remanded — trial court must decide venue first; complaint lacked venue facts and service/venue unresolved |
| Validity of service and effect on jurisdiction | Hair Trend: service by notorious service in Douglas County sufficed | Appellants: record does not show actual service at residence or authorized agent; therefore jurisdiction may be lacking | Court: Service facts are unclear; without actual service judgment may be void; cannot proceed without resolving service/venue |
| Waiver of venue defense by failure to respond to motions | Hair Trend: failure to respond to transfer/summary judgment waived venue defense | Appellants: properly raised venue defense in pleading and motion to dismiss; venue is jurisdictional and not waived absent actual service | Court: Rejected waiver argument here; timely venue challenge prevents judgment until resolved |
| Effect of notice of appeal on trial-court actions | N/A (issue raised by court) | N/A | Court: Notice of appeal divested trial court of jurisdiction to rule further on motion for relief after appeal filed |
Key Cases Cited
- Grant v. State of Ga., 304 Ga. App. 133 (divesting trial court jurisdiction after notice of appeal)
- First American Title Ins. Co. v. Broadstreet, 260 Ga. App. 705 (order entered by a court without venue is void)
- Focus Healthcare Med. Ctr. v. O’Neal, 253 Ga. App. 298 (no actual service allows collateral attack on jurisdiction)
- Chancey v. Hancock, 225 Ga. 715 (complaint must state facts establishing venue)
- Neely v. Jones, 264 Ga. App. 795 (failure to respond to summary judgment may waive right to present evidence but does not automatically entitle movant to judgment)
- Morgan v. Berry, 152 Ga. App. 623 (properly raised venue defense not waived by allowing default)
- Williams v. Willis, 204 Ga. App. 328 (error to rule on summary judgment before disposing of properly raised venue/transfer motion)
- US Professionals, LLC v. Directlink India (P) Ltd., 247 Ga. App. 679 (service and venue principles cited)