ROSS Et Al. v. WATERS
332 Ga. App. 623
| Ga. Ct. App. | 2015Background
- Aprile B. Waters had a left total hip arthroplasty performed by Dr. William Ross at Ross Orthopaedic in DeKalb County in July 2007 and later alleged malpractice leading to a second surgery in October 2008.
- Waters first sued Ross and Ross Orthopaedic in Fulton County in July 2009; the case was stayed for Ross’s military service (SCRA) in 2010, stayed lifted in 2012, and voluntarily dismissed September 2012.
- Ross Orthopaedic was administratively dissolved in September 2012.
- Waters filed a renewal action in DeKalb County State Court on March 1, 2013 seeking to revive her malpractice claim.
- Defendants moved to dismiss or transfer for improper venue (arguing venue lay in Fulton County) and also argued the five-year statute of repose barred the action and was not tolled by the SCRA.
- The trial court denied the motions; on interlocutory appeal the Court of Appeals reversed for improper venue and directed transfer to Fulton County for consideration of the statute-of-repose issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether venue in DeKalb County was proper for renewal suit against a dissolved domestic corporation | Waters argued venue proper in DeKalb because the cause of action arose there and the corporation formerly had an office there | Defendants argued venue proper in Fulton because Ross Orthopaedic’s last registered office before dissolution was in Fulton and venue is determined at time suit is filed | Venue improper in DeKalb; suit must be tried in Fulton where corporation last maintained its registered office prior to dissolution |
| Whether the trial court could rule on statute-of-repose defense absent proper venue | Waters implicitly treated trial court as having authority to decide tolling under SCRA | Defendants argued court lacked authority to decide merits because venue was improper | Court declined to decide on statute-of-repose due to lack of venue and remanded for transfer so Fulton court can address it |
Key Cases Cited
- Roberson v. Northrup, 302 Ga. App. 405 (accept well-pled allegations on motion to dismiss)
- Colony Bank Worth v. Caterpillar Fin. Servs. Corp., 281 Ga. App. 397 (suits against joint tortfeasors residing in different counties may be tried in either county)
- Savannah Laundry & Machinery Co. v. Owenby, 186 Ga. App. 130 (venue determined by facts at time suit is initiated; dissolved corporation’s last registered office controls venue)
- Chung v. Hair Trend USA, 322 Ga. App. 429 (orders entered by court without venue are void)
- Coastal Transp., Inc. v. Tillery, 270 Ga. App. 135 (court must transfer civil case when venue lies elsewhere)