We granted Jeffrey J. Mauer’s application for interlocutory appeal to review the trial court’s removal order, transferring the case from the Superior Court of Floyd County to the Superior Court of Chattooga County, pursuant to OCGA § 14-2-510 (b) (4), the corporate venue statute. Upon further review, we conclude that Mauer’s application was improvidently granted because Mauer failed to comply with the requirements of OCGA § 5-6-34 (b) governing interlocutory appeals. The instant appeal therefore must be dismissed.
The record shows that Mauer filed this civil lawsuit against defendants Parker Fibernet, LLC and its president, David Parker, in the Superior Court of Floyd County. The defendants asserted improper venue as an affirmative defense in their answer, contending that venue instead lay in Chattooga County, where both defendants resided. The defendants also filed a notice of removal to transfer the case to the Superior Court of Chattooga County, pursuant to OCGA § 14-2-510 (b) (4). In support of their notice of removal, the defendants submitted an affidavit showing that David Parker was a resident of Chattooga County, that Parker Fibernet’s
On February 3, 2010, after considering the arguments and evidence presented, the Superior Court of Floyd County entered a removal order transferring the case to Chattooga County. On February 12, 2010, after the case had been transferred, Mauer sought and obtained a certificate of immediate review from the Chattooga County trial judge. Mauer then filed an application for an interlocutory appeal, which this Court granted.
Even if not raised by a party, an appellate court has a duty to raise the question of jurisdiction in all cases where there may be doubt about its existence. See
Brown v. E.I. du Pont de Nemours & Co.,
A trial court’s ruling on the issue of removal or transfer of venue is not a directly appealable final judgment under OCGA § 5-6-34 (a) (1), and thus, it is subject to the procedures governing interlocutory appeals. See
Patel v. Ga. Power Co.,
[wjhere the trial judge in rendering an order, decision, or judgment, not otherwise subject to direct appeal,. . . certifies within ten days of entry thereof that the order, decision, or judgment is of such importance to the case that immediate review should be had[.]
(Emphasis supplied.) In accordance with the emphasized plain language of the statute, the same trial judge who entered the order in question must issue the certificate of immediate review. See OCGA § 5-6-34 (b). A limited exception to this rule has been recognized when the evidence shows that the trial judge was unavailable to execute the certificate. See
Freemon v. Dubroca,
In the instant case, the removal order in question was issued by the original trial judge in Floyd County. The certificate of immediate review, however, was issued by the trial judge in Chattooga County following the transfer of the case. Thére is no evidence that Mauer sought a certificate of immediate review from the original trial judge who issued the removal order or that the original triad judge was unavailable to sign the certificate before the case was transferred.
1
Likewise, there is no evidence that the removal order was reconsidered and
This conclusion is not altered by the statutory provisions of OCGA § 9-10-53 governing the conduct of proceedings following a case transfer. It is true that under OCGA § 9-10-53, “[ajfter a case
has been transferred, all further proceedings shall be conducted as if the case had been originally commenced in the court to which the same was transferred.” Although OCGA § 9-10-53 addresses the general conduct of further proceedings following a case transfer, OCGA § 5-6-34 (b) sets forth the more specific rule governing the issuance of a certificate of immediate review for interlocutory appeals. “[U]nder the rules of statutory construction, a specific statute normally prevails over a general one.”
In re Estate of Barr,
Because Mauer failed to follow the interlocutory procedures set forth in OCGA § 5-6-34 (b), the instant appeal is premature and must be dismissed. See
Griffith,
Appeal dismissed.
Notes
The trial court’s entry of a removal order does not cause it to immediately lose jurisdiction over the case or result in an immediate transfer of the case to a different venue. See Jones
v. Bienert,
We note that OCGA § 14-2-510 (b) (4), the statute upon which the removal order was based, sets forth the procedure for handling a corporate defendant’s removal of a case. Significantly, this statutory procedure offers a remedy to plaintiffs seeking to challenge a removal effectuated under its provision after the case has been transferred. The statute pertinently provides:
. . . Upon motion by the plaintiff filed within 45 days of the removal, the court to which the case is removed may remand the case to the original court if it finds that removal is improper under the provisions of this paragraph. Upon the defendant’s filing of a notice of removal, the 45 day time period for filing such notice shall be tolled until the remand, the entry of an order by the court determining that the removal is valid, or the expiration of the time period for the plaintiff to file a motion challenging the removal, whichever occurs first).]
OCGA § 14-2-510 (b) (4). Under this statutory procedure, Mauer first was required to file a motion for remand in the Chattooga County court. The Chattooga County trial judge then would have been authorized to decide upon Mauer’s motion and certify her decision for review. See
Banks v. City of Hampton,