WEGMAN v. WEGMAN Et Al.
338 Ga. App. 648
Ga. Ct. App.2016Background
- Marc Wegman, a Georgia resident, sued his four brothers in Cobb County Superior Court asserting conspiracy and related claims arising from distribution of proceeds from the Wegman Limited Partnership and their mother's will (assets and probate primarily in Louisiana).
- Marc sought temporary restraining order; court entered consent TRO and interlocutory injunction as to Myles (a Georgia resident).
- Two brothers (Joseph, Myles) later, with counsel, moved to dismiss for lack of subject-matter jurisdiction and failure to state a claim; Bradley and Brent were in default (Bradley later filed an untimely verified answer).
- At a hearing, the trial court indicated concern about forum non conveniens, asked parties to brief that issue, but defendants did not file a motion under OCGA § 9-10-31.1 or the statute-of-limitations waiver stipulation required by that statute.
- The trial court dismissed the entire complaint on forum non conveniens grounds after analyzing the § 9-10-31.1 factors; Marc appealed arguing the court lacked authority to dismiss on that ground absent a party motion and the statutory stipulation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court could dismiss sua sponte for forum non conveniens without a written motion under OCGA § 9-10-31.1 | Wegman: dismissal was improper because defendants never moved to dismiss on forum non conveniens and no stipulation was filed | Defendants: superior court was not the proper forum given Louisiana locus of estate/partnership; court may decline jurisdiction | Court: Reversed — statute requires a written motion by a party and the stipulation; court abused discretion in dismissing sua sponte |
| Whether the statutory stipulation to waive statute-of-limitations is mandatory before dismissal | Wegman: lack of stipulation renders dismissal unauthorized | Defendants: did not file stipulation; trial court suggested it might require one after ruling | Court: The stipulation is a mandatory condition precedent to dismissal under § 9-10-31.1(b) |
| Whether failure to raise forum non conveniens in initial responsive pleading waives the defense | Wegman: defendants waived by not raising it earlier | Defendants: forum non conveniens is distinct from venue and may be raised later | Court: Failure to raise forum non conveniens in answer does not waive right to move under § 9-10-31.1 (not a Rule 12-type waived defense) |
| Whether dismissal of entire suit was improper because some defendants were in default | Wegman: defaults admitted jurisdiction and venue, so entire suit should not have been dismissed | Defendants: argued actions centered in Louisiana; some defendants active in dismissal motion | Court: Not reached as dispositive; remand needed given reversal on Division 1 |
Key Cases Cited
- Wang v. Liu, 292 Ga. 568 (Ga. 2013) (appellate review of forum non conveniens dismissal is for abuse of discretion)
- Holtsclaw v. Holtsclaw, 269 Ga. 163 (Ga. 1998) (Georgia courts have no inherent power to decline jurisdiction in transitory actions absent statute)
- Sigala (AT & T Corp. v. Sigala), 274 Ga. 137 (Ga. 2001) (statutes codifying forum non conveniens prevail over common law; limited inherent authority in special circumstances)
- Couch v. Red Roof Inns, 291 Ga. 359 (Ga. 2012) (statutory provisions in derogation of common law must be strictly construed)
- Hewett v. Raytheon Aircraft Co., 273 Ga. App. 242 (Ga. Ct. App. 2005) (statutory stipulation is mandatory condition precedent to dismissal under Georgia forum non conveniens statute)
- Richards v. Johnson, 219 Ga. 771 (Ga. 1964) (common-law rule that forum non conveniens cannot defeat Georgia resident's right to sue where jurisdiction exists)