Ehca Cartersville, LLC v. Turner

• Decision Date: 13 February 2006
• Docket Number: No. S05A2066.,No. S05A1560.,S05A1560.,S05A2066.
• Citation: 280 Ga. 333,626 S.E.2d 482
• Parties: EHCA CARTERSVILLE, LLC v. TURNER. Garland v. Earle et al.
• Court: Georgia Supreme Court

280 Ga. 333

626 S.E.2d 482

EHCA CARTERSVILLE, LLC v. TURNER.

Garland v. Earle et al.

No. S05A1560.

No. S05A2066.

Supreme Court of Georgia.

February 13, 2006.

Reconsideration Denied March 14, 2006.

Daniel S. Reinhardt, Carmie Lee Ann McCurry, Michael Emmett Johnson, Troutman Sanders, L.L.P.; Robert G. Tanner, Rachel Alexis Fuerst, Terrance C. Sullivan, Weinberg, Wheeler, Hudgins, Gunn & Dial, Atlanta, for Appellant in No. S05A1560.

Laura M. Shamp, Brown & Shamp; Jonathan Marigliano, Hall, Booth, Smith & Slover, P.C.; David Frank Root, Thomas S. Carlock, Eric Jeffrey Frisch, Carlock, Copeland, Semler & Stair, L.L.P., Atlanta, for Appellee in No. S05A1560.

H. Andrew Owen Jr., Roger Edward Harris, Owen, Gleaton, Egan, Jones & Sweeney, L.L.P., Atlanta; Charles Madden Cork III, Gambrell & Stolz, Macon; John T. Marshall, William V. Custer IV, Eric Peter Schroeder, Powell Goldstein, L.L.P., Atlanta, Amici Appellant in No. S05A1560.

Philip C. Henry, Wendy Goodwin Huray, Henry, Spiegal, Fried & Milling, L.L.P., Atlanta, for Appellant in No. S05A2066.

Thomas S. Carlock, Carlock Copeland Semler & Stair, L.L.P.; Daniel James Huff, Huff Powell & Bailey; Rolfe Millar Martin, Owen, Gleaton, Egan, Jones & Sweeney; Terrance C. Sullivan, Rachel Alexis Fuerst, Weinberg, Wheeler, Hudgins, Gunn & Dial; Thurbert E. Baker, Atty. Gen.; Daniel S. Reinhardt, Michael Emmett Johnson, Thomas Ernest Borton IV, Troutman Sanders, L.L.P., Atlanta, for Appellee in No. S05A2066.

Charles Madden Cork III, Gambrell & Stolz, Macon, Amicus Appellant in No. S05A2066.

John T. Marshall, William V. Custer IV, Eric Peter Schroeder, Powell Goldstein, L.L.P., Atlanta, Amicus Appellee No. S05A2066.

SEARS, Chief Justice.

We granted applications for interlocutory appeal in these two cases to consider the constitutionality of OCGA § 9-10-31(c) and of OCGA § 9-10-31.1(a), which were enacted as part of the Tort Reform Act of 2005.¹ For the reasons that follow, we conclude that OCGA § 9-10-31(c) violates the provision of our Constitution providing for venue in actions against joint tortfeasors,² but that OCGA § 9-10-31.1(a) does not.

1. Art. VI, Sec. II, Par. IV of the Georgia Constitution provides that "[s]uits against... joint-tortfeasors ... residing in different counties may be tried in either county." Relying on this provision, the plaintiffs in both of the present cases filed their medical malpractice actions in a county of residence of a joint tortfeasor. The counties where the plaintiffs filed the actions, however, were not the counties where the torts occurred. In each case, a defendant who resided in the county where the tort occurred moved to have the case transferred to that county pursuant to OCGA § 9-10-31(c). That Code section provides that, in a medical malpractice action, "a nonresident defendant may require that the case be transferred to a county of that defendant's residence if the tortious act upon which the medical malpractice claim is based occurred in the county of that defendant's residence." The plaintiffs, on the other hand, contended that, under § 9-10-31(c), if a nonresident defendant may require that a case be tried in the county of his residence, venue is limited to that county, and the case may no longer be tried in the county of residence of any joint tortfeasor, thus violating the joint tortfeasor provision of the Constitution. In Case No. S05A1560, the trial court held that § 9-10-31(c) was unconstitutional, but in Case No. S05A2066, the trial court reached the opposite conclusion. We conclude that § 9-10-31(c) violates the joint tortfeasor venue provision of our Constitution.

This Court has addressed two previous cases in which plaintiffs have contended that statutory venue provisions violated the joint tortfeasor venue provision of our Constitution.³ In Glover,⁴ the plaintiffs sued MARTA in Dekalb County, the county of residence of one of MARTA's joint tortfeasors. Because a statute limited venue of actions against MARTA to the Superior Court of Fulton County, MARTA contended that the action against it in Dekalb County had to be dismissed. MARTA also contended that the statutory venue provision was a constitutional term on which the State had consented to be sued. The plaintiffs, however, contended that the statutory venue provision was unconstitutional because it violated the constitutional joint tortfeasor venue provision. The trial court ruled in favor of MARTA, but on appeal, this Court reversed. We held that the State's waiver of sovereign immunity was not conditioned on the statutory venue provision, and that, as there was no constitutional authority for the statutory venue provision, the constitutional joint tortfeasor venue provision could not be varied by the statute.⁵

In Campbell v. Dept. of Corrections,⁶ we addressed a situation similar to that presented in Glover. In Campbell, the plaintiff contended that OCGA § 50-21-28, which provides that venue in tort actions against the State under the Georgia Tort Claims Act is in the county where the loss occurred, contravened the joint tortfeasor venue provision of our Constitution. We concluded, however, that it did not, as the General Assembly had the authority under Art. I, Sec. II, Para. IX (a) of the Constitution to enact § 50-21-28.⁷ In this regard, Art. I, Sec. II, Para. IX (a) authorized the General Assembly to set the terms and conditions of any State waiver of sovereign immunity. We held that, although a statute could not by itself contravene a constitutional provision, "OCGA § 50-21-28 is the implementation of a constitutional amendment authorizing not only the adoption of the [Georgia Tort Claims Act] but also the limitation on the waiver of sovereign immunity."⁸

The defendants in these actions contend that OCGA § 9-10-31(c) is authorized by Art. VI, Sec. II, Para. VIII of the Constitution, and that, even if it is not, OCGA § 9-10-31(c) simply does not violate the joint tortfeasor provision of the Constitution. We will address the latter contention first. As for this contention, the defendants contend § 9-10-31(c) does not violate the rationale of Glover because it authorizes, as in the present cases, the transfer of venue from one county where venue would be appropriate to another county where venue would be appropriate, whereas the statute in Glover had no provision for a transfer and simply authorized a trial court to dismiss an action filed against MARTA in any county other than Fulton County. However, this distinction is insufficient to save § 9-10-31(c). The joint-tortfeasor venue provision provides that an action against joint-tortfeasors may be "tried" in the county of residence of either tortfeasor. In Glover, the statute permitted the plaintiff to try the action in the county of residence of only one joint-tortfeasor, MARTA, and the Court in Glover thus held that the statute was unconstitutional. Similarly, in the present case, once a nonresident tortfeasor moves to transfer an action under § 9-10-31(c), the case may only be tried in one county, the county of that tortfeasor's residence. For the foregoing reasons, we conclude that the defendants' attempts to distinguish the present cases from Glover are unavailing.

The defendants, however, also contend that § 9-10-31(c) is authorized by Art. VI, Sec. II, Para. VIII of the Constitution, which provides that the "power to change venue in civil and criminal cases shall be vested in the superior courts to be exercised in such manner as has been, or shall be, provided by law."

Initially, we note that both of the trial courts in the present cases are state courts, and that the defendants contend that the term "superior courts" in Art. VI, Sec. II, Para. VIII should be construed to include "state courts." We agree. State courts were not created until 1970,⁹ and they have concurrent jurisdiction with the superior courts in certain civil and criminal cases.¹⁰ If the term "superior courts" were construed so as not to include "state courts," then state courts would not have the right to change venue in trials, including criminal trials,¹¹ when, for instance, a fair and impartial jury could not be obtained.¹² This result is unreasonable, and leads us to conclude that the term "superior courts" in Art. VI, Sec. II, Para. VIII must be construed to include "state courts."

The defendants correctly contend that Art. VI, Sec. II, Para. VIII authorizes the General Assembly to enact laws that permit the superior and state courts to exercise the power to change venue. The defendants, however, incorrectly contend that OCGA § 9-10-31(c) is a proper exercise of that authority. Art. VI, Sec. II, Para. VIII, vests the power to change venue in the courts, whereas OCGA § 9-10-31(c) vests the power, not in the courts, but in nonresident defendants who reside in the county where the tort occurred. Such a defendant may require a court to transfer venue by simply filing a motion to transfer, thus divesting the courts of any power over the decision to change venue.

For the foregoing reasons, we conclude that OCGA § 9-10-31(c) violates Art. VI, Sec. II, Para. IV of our Constitution. Accordingly, in Case No. S05A1560, we affirm the trial court's ruling that § 9-10-31(c) is unconstitutional, and in Case No. S05A2066, we reverse the trial court's ruling that § 9-10-31(c) is constitutional.

2. OCGA § 9-10-31.1(a) provides that a trial court may decline to exercise jurisdiction over a case and may transfer it to "a different county of proper venue within this state" if the court determines that "the interest of justice" and "the convenience of the parties" warrant that course of action. The statute sets forth seven factors for the trial court to consider in determining whether to transfer venue under the doctrine of forum non conveniens.¹³

In Case No. S05A2066, one of the defendants moved the trial court to transfer venue under the doctrine of forum non conveniens pursuant to § 9-10-31.1(a). The plaintiff...