Killearn, Inc. v. Southern Structural, Inc.
308 Ga. App. 494
| Ga. Ct. App. | 2011Background
- In 2004, Southern Structural filed breach of contract and fraud claims against Killearn, Majestic Residential, LLC, and various individuals.
- Cobb County jury awarded Southern $532,510.55 against Killearn and $790,330.55 against Majestic for fraud and breach of contract respectively, but found no piercing of the corporate veil as to individual defendants.
- Drayton Baker, a resident of Cobb County, and other defendants resided in Henry or Newton Counties.
- Killearn moved to transfer venue; Southern opposed, arguing against retroactive application of OCGA § 9-10-31(d) and/or that it is unconstitutional.
- The trial court initially denied the motion; on remand it explained it would not retroactively apply § 9-10-31(d), effectively denying the transfer.
- The Court of Appeals reversed, holding that § 9-10-31(d) should be retroactively applied and that the statute’s constitutionality was not properly preserved for appellate review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retroactive application of § 9-10-31(d)? | Killearn argues retroactive application is proper. | Southern argues retroactivity would violate substantive rights. | Statute retroactively applicable; denial of transfer reversed. |
| Constitutionality of § 9-10-31(d)? | Killearn contends constitutionality issues were raised properly. | Southern did not preserve constitutional challenge in the trial court. | Not reachable/decided due to Division 1 ruling; issue not reviewed. |
Key Cases Cited
- Robinson v. Star Gas of Hawkinsville, 243 Ga.App. 112 (2000) (vanishing venue-related denial of relief discussed)
- Nalley v. Baldwin, 261 Ga.App. 713 (2003) (statutory amendments and venue considerations)
- EHCA Cartersville v. Turner, 280 Ga. 333 (2006) (retroactive application of venue statutes analyzed)
- Jones v. State, 272 Ga. 900 (2000) (venue is procedural; retrial considerations)
- Brunswick Landing, LLC v. Glynn County, 301 Ga.App. 288 (2009) (application of venue statutes in Georgia appellate review)
- City of Decatur v. DeKalb County, 284 Ga. 434 (2008) (constitutional preservation requirements for appellate review)