Richardson v. GilbertRichardson v. Gilbert
Wе granted the defendant’s application for interlocutory appeal of the trial court’s order granting the plaintiff’s motion to transfer venue in this wrongful death medical malpractice case. Because the defendant waived her venue defense, the plaintiff could not require the trial court to transfer the case to the county where the defendant resided when the suit was filed. Accordingly, we reverse.
In August 2009, the Spalding County court entered a discovery scheduling order to which the parties consented, which directed Gilbert to identify her expert trial witnesses by November 2009 and make them available for deposition before Januаry 15, 2010. In November 2009, the trial court granted Gilbert’s motion to dismiss three defendants without prejudice, leaving the action pending against Tenet HealthSystem Spalding, Inc., Spalding Regional Hospital, and Richardson. In April 2010, Richardson moved to dismiss the complaint or in the alternative compel Gilbert to identify her standard of care experts, and two weeks later, the trial court granted Gilbert’s motion to dismiss without prejudice Tenet HealthSystem Spalding, Inc. and Spalding Regional Hospital. This left Richardson as the only remaining defendant. In mid-May 2010, Gilbert responded tо the motion to dismiss and moved for additional time to find a new expert.
In July 2010, Gilbert moved to transfer venue to Clayton County, arguing that venue was proper only in that county because that is where Richardson resided when the suit was filed in 2003 and she was the only remaining defendant. Richardson opposed the motion, specifically waiving her venue defenses and arguing that she and Gilbert currently lived in Spalding County, all of the professional treatment at issue had occurred in Spalding County, Gilbert voluntarily dismissed the other two Spalding County defendants, and Gilbert did not seek to transfer the case to Clayton County until three months after Richardson filed her motion to dismiss or compel.
Richardson argues on appeal that Gilbert lacked standing to objeсt to venue or jurisdiction over Richardson, who had waived those defenses. Gilbert responds that venue was рroper in the county where Richardson lived when suit was filed. While venue would be proper in Clayton County beсause Richardson lived there when Gilbert filed suit in November 2003, our law does not give Gilbert the power to require the court to transfer the case to Clayton County.
A defendant has the right to be tried in her county of residence, Ga. Const. 1983, Art. VI, Sec. II, Par. VI, and because service within a reasonable time relates back to the original date of the filing, the defendant’s residence when the action was filed is where venue lies. Franek v. Ray,
In this case, the plaintiff sought to require the court to transfer venue to the county of the defendant’s residence at the time suit was filed. While venue would be proper in that county, “[pjersonal jurisdiction and vеnue are defenses for the defendant to raise, and may be waived, even though properly presеrved in the pleadings.” (Footnotes omitted.) Exum v. Melton,
Judgment reversed.
Notes
This court previously addressed the sufficiency of Gilbert’s expert affidavits and the legal standard used to determine her diligence in serving the defendants in Tenet Healthcare Corp. v. Gilbert,
If all defendants who reside in the county in which an action is pending are discharged from liability before or upon the return of a verdict by the jury or the court hearing the case without a jury, a nonresident defendant may require that the case be transferred to a county and court in which venue would otherwise be proper.
If venue would be proper in more than one county, the plaintiff may elect from among the counties in which venue is proper the county and the court in which the action shall proceed.