319 Ga. App. 72
Ga. Ct. App.2012Background
- Gilbert filed a wrongful death medical malpractice action in Fulton County in 2003 against 11 defendants.
- In 2008, summary judgment was granted for Tenet Healthcare Corporation, the only Fulton County resident for venue purposes.
- On January 12, 2009, the Fulton County court transferred the remaining defendants to Spalding County under OCGA § 9-10-31(d).
- Discovery scheduling in Spalding in 2009-2010 led to dismissal of several defendants, leaving Richardson as the only remaining defendant.
- Gilbert sought to transfer venue to Clayton County in 2010, arguing Richardson resided there when suit was filed; Richardson waived venue defenses and claimed current residence in Spalding.
- The trial court ultimately granted the transfer to Clayton County in 2011, finding venue proper there after dismissals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can plaintiff compel transfer to Richardson's county of residence despite waiver? | Gilbert argues venue lies where Richardson resided when suit filed. | Richardson waived venue defenses and contends venue remains in Spalding, where parties currently reside and treatment occurred. | No; Richardson waived venue, so transfer to Clayton was improper. |
| Effect of waiver on plaintiff's standing to object to venue | Plaintiff may elect among proper venue counties. | Waiver defeats plaintiff's ability to compel transfer. | Waiver defeats plaintiff's standing to require transfer. |
Key Cases Cited
- Franek v. Ray, 239 Ga. 282 (1977) (venue proper where defendant resided when action filed)
- Exum v. Melton, 244 Ga. App. 775 (2000) (defenses waived; trial court retains jurisdiction over nonresident)
- Fletcher v. Hatcher, 278 Ga. App. 91 (2006) (plaintiff lacks standing to object to venue over nonresident)