In July 2011, Jing Liu sued Hao Wang in Fulton County, alleging that Wang holds stock in a Chinese company, that Wang holds this stock on behalf of Liu, that Wang has misappropriated the stock to his own use, and that Wang has wrongfully withheld distributions and other funds derived from his holding of the stock, to all of which Liu is entitled.*
1. We turn first to the denial of the motion to dismiss under the doctrine of forum non conveniens. When a trial court considers such a motion, it must apply the
If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state . . . the court shall decline to adjudicate the matter under the doctrine of forum non conveniens. As to a claim or action that would be more properly heard in a forum outside this state, the court shall dismiss the claim or action____In determining whether to grant a motion to dismiss an action ... under the doctrine of forum non conveniens, the court shall give consideration to the following factors:
(1) Relative ease of access to sources of proof;
(2) Availability and cost of compulsory process for attendance of unwilling witnesses;
(3) Possibility of viewing of the premises, if viewing would be appropriate to the action;
(4) Unnecessary expense or trouble to the defendant not necessary to the plaintiffs own right to pursue his or her remedy;
(5) Administrative difficulties for the forum courts;
(6) Existence of local interests in deciding the case locally; and
(7) The traditional deference given to a plaintiff’s choice of forum.
OCGA § 9-10-31.1 (a). The application of the statutory standard to the peculiar circumstances of a particular case is a matter committed to the sound discretion of the trial court. See Hawthorn Suites Golf Resorts v. Feneck,
By its express terms, OCGA § 9-10-31.1 requires the trial court to consider each of the statutory factors enumerated in OCGA § 9-10-31.1 (a), but it does not expressly require specific findings of fact on each factor. Nevertheless, our Court of Appeals has held on several occasions that a trial court must make specific findings on each of the enumerated factors, whether in a written order or otherwise on the record. See, e.g., Park Ave. Bank v. Steamboat City Dev. Co.,
What is required to permit meaningful appellate review is that the trial court set out upon the record the essential reasoning that forms the basis for its exercise of discretion to grant or deny a motion to dismiss under the doctrine of forum non conveniens. Without such a statement of the essential reasoning of the trial court, we frequently cannot ascertain whether the decision of the trial court was a reasoned and reasonable one in the light of the standard set out, and factors enumerated, in OCGA § 9-10-31.1 (a). See GrayRobinson,
In this case, the record reveals almost nothing about the thinking that led the trial court to deny the motion to dismiss. At the outset of the hearing on the motion to dismiss, the trial judge commented that he was inclined to deny the motion, noting his preliminary impression that “there is something fishy about [the circumstances of the case],”
That does not mean, however, that we must send this case back to the trial court to make a more explicit statement of its thinking. It appears from the record, and Wang does not dispute, that counsel for Liu prepared the written order denying the motion to dismiss — an order that, as we have noted, fails to reflect the thinking of the trial court about the motion to dismiss — and counsel for Wang approved the form of that order before it was submitted to, and entered by, the trial court. Wang had an opportunity, therefore, to insist that the trial court explain the reasons for its decision, but Wang did not do so.
Because his counsel approved the form of the order on the motion to dismiss, Wang cannot be heard to complain that the record has no explanation of the decision of the trial court so as to permit meaningful appellate review. And because the record has no explanation of that decision, Wang, as the appellant, cannot carry his burden to show that the trial court abused its discretion when it denied his motion to dismiss. See R. J. Taylor Memorial Hosp. v. Beck,
2. We turn next to the order making permanent the interlocutory injunction. Before a court enters a permanent injunction, it must give notice of a hearing at which permanent injunctive relief will be considered, unless the parties agree otherwise. See Smith v. Guest Pond Club,
Judgment affirmed in part and vacated in part.
Notes
In her complaint, Liu asserts three causes of action against Wang - conversion, breach of contract, and breach of fiduciary duty - and seeks the appointment of a receiver, the imposition of a constructive trust, an accounting, injunctive relief, and attorney fees.
Among other things, the discretion of the trial court is limited by the statutory enumeration of factors that must be considered, an enumeration that, as our Court of Appeals has said, leads to “an exercise in structured discretion founded on a [statutory] procedural framework guiding the court’s decision making process.” Hewett v. Raytheon Aircraft Co.,
We suppose that such an impression might relate to the “interest of justice,” which is, of course, one component of the forum non conveniens analysis. But we note that the trial judge offered this preliminary impression before considering any of the enumerated statutory factors, and it is unclear to us exactly what the trial judge meant by his comments in any event. The comments about the unusual circumstances of the case-are not sufficient here to enable meaningful appellate review.
We note that Wang also did not argue at the hearing on the motion to dismiss that an explained decision was required. Aparty need not await a proposed order to ask for an explained decision. Cf. OCGA § 9-11-52 (a) (findings and conclusions in rulings on interlocutory injunctions and nonjury trials “upon request of any party made prior to such ruling”).
To the extent that Kennestone Hosp.,
Liu claims that Wang did consent when he said that he was willing to leave the injunction in place “until the Chinese court case ends.” But an agreement to leave an interlocutory injunction for awhile longer during the pendency of a case does not indicate an agreement to leave it in place forever.