545 S.E.2d 95 | Ga. Ct. App. | 2001
Directlink India (P) Limited (“Directlink”) sued US Professionals, LLC (“US Professionals”) for money owed on a commercial contract account. US Professionals filed a timely answer that raised the defense of improper venue and simultaneously moved to dismiss the complaint based upon improper venue. After these pleadings were filed, the trial court approved the withdrawal request of US Professionals’ counsel. Before withdrawing, US Professionals’ counsel pro
Subsequently, the trial court notified US Professionals by mail that the case was set for a nonjury trial on June 8, 2000. When US Professionals failed to appear for trial, the trial court entered a judgment against it in the amount of $66,579.31 and dismissed its counterclaim. The trial court’s written order and judgment makes no mention of any ruling on US Professionals’ motion to dismiss based upon improper venue.
1. Because the record does not show that the trial court ruled on or otherwise disposed of US Professionals’ timely motion to dismiss for improper venue,
2. Our holding in Division 1 of this opinion renders appellant’s remaining enumerations of error moot.
Judgment vacated and case remanded with direction.
Directlink contends the trial court struck US Professionals’ answer, counterclaim, and motion to dismiss as a result of its failure to appear for trial. However, the record before us contains no transcript of the proceedings before the trial court on June 8, 2000, and the trial court’s written order does not include any such ruling.
OCGA § 9-11-12 (b) provides in pertinent part:
Every defense . . . to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion in writing: ... (3) Improper venue. ... A motion making any of these defenses shall be made before or at the time of pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.