Hawkins v. Blair

• Decision Date: 20 November 2015
• Docket Number: No. A15A1376.,A15A1376.
• Citation: 334 Ga.App. 898,780 S.E.2d 515
• Parties: HAWKINS et al. v. BLAIR et al.
• Court: Georgia Court of Appeals

334 Ga.App. 898

780 S.E.2d 515

HAWKINS et al.

v.BLAIR et al.

No. A15A1376.

Court of Appeals of Georgia.

Nov. 20, 2015.

Dennis T. Cathey, Cornelia, James L. Ford Sr., Matthew Adam Cathey, Atlanta, for Appellants.

William Paul Jones, Atlanta, Kent T. Stair, for Appellees.

BRANCH, Judge.

Charles Jordan Hawkins and Jacob Nathaniel Hawkins, residents of South Carolina, filed suit in Fulton County against James A. Blair, III, a resident of South Carolina and an attorney with Nexsen Pruet, LLC, which is located in South Carolina, alleging that Blair illegally transferred money from their personal bank accounts at Morgan Stanley in Atlanta to Nexsen Pruet's bank accounts in Greenville, South Carolina, allegedly for legal fees arising out of a previous action. Jordan and Jacob appeal the trial court's dismissal of their complaint on the ground of forum non conveniens. For the reasons shown below, we affirm.

We review the trial court's decision to grant a motion to dismiss on the basis of forum non conveniens for abuse of discretion. Gowdy v. Schley,

317 Ga.App. 693, 695(2), 732 S.E.2d 774 (2012) ; Collier v. Wehmeier, 313 Ga.App. 421, 422, 721 S.E.2d 919 (2011). "That said, the discretion of the trial court is not without some limits, and when an appeal properly is taken from the grant or denial of a motion to dismiss under the doctrine of forum non conveniens, the appellant is entitled to meaningful appellate review, even if that review is only for an abuse of discretion." Wang v. Liu, 292 Ga. 568, 569–570(1), 740 S.E.2d 136 (2013) (footnote omitted). Also, "we will affirm the trial court's findings on disputed factual questions relating to venue if there is any evidence to support them." Killearn, Inc. v. Southern Structural, 308 Ga.App. 494, 495, 707 S.E.2d 882 (2011).

The allegations in the complaint and other parts of the record show that in July 2007, Jordan and Jacob's father, a South Carolina resident, contacted Blair, also a South Carolina resident, to represent his sons in a case alleging mismanagement of a trust intended in part to benefit Jordan and Jacob, who were less than 18 years old at the time. The appellants' father paid Blair $20,000 in legal fees, and in July 2008, Blair, acting pro hac vice, filed suit in Stephens County, Georgia, where the trust had been established and where the trustees lived. (As the trial court noted, Stephens County borders South Carolina.) During the course of the litigation and thereafter, the appellants' father paid Blair over $39,000 in additional fees and expenses associated with the litigation. The case was tried in September and October of 2009, Jordan and Jacob prevailed, and the Stephens County court entered a final judgment awarding them $46,323 in damages and $163,560 in attorney fees and expenses against the defendant trustees. Thereafter, the appellants' father received an invoice from Blair for $166,865.05.

The complaint further alleges that one year later, on October 8, 2010, the trial court ordered that the custodial accounts from the trust, which were located at Morgan Stanley in Atlanta, be distributed to Jordan and Jacob because they had attained eighteen years of age. The court's order stated that the custodial accounts should be distributed "pursuant to written instructions of counsel for the [Appellants], Nexsen Pruet, LLC." Beginning on October 19, 2010, and continuing for eight months, Blair, without notifying his clients or receiving their authorization, directed Morgan Stanley to make six wire transfers totaling between $117,000 and $120,000 from the custodial accounts to a Nexsen Pruet account in Greenville, South Carolina. In September 2012, Jordan and Jacob requested that Blair provide "a simple accounting of exactly when their money was removed from Morgan Stanley and how much was moved." According to the appellants, Blair has not responded satisfactorily.

Accordingly, in September 2013, Jordan and Jacob filed suit in Fulton County against Blair and Nexsen Pruet for professional malpractice, conversion, and larceny by a fiduciary, and they demanded punitive damages. They averred that venue was proper in Fulton County because the conduct giving rise to their claims-the wire transfers-occurred at Morgan Stanley in Atlanta. On November 26, 2013, Blair and Nexsen Pruet answered and moved to dismiss based on lack of personal jurisdiction and forum non conveniens. The motion triggered an automatic stay of discovery through February 24, 2014. Nevertheless, Jordan and Jacob served discovery on Blair and Nexsen Pruet in December 2013 and January 2014, prompting the defendants to move for a protective order. In February 2014, Jordan and Jacob filed a motion to allow jurisdictional discovery pursuant OCGA § 9–11–12(j)(4) and, later, a motion to compel answers to the earlier discovery requests. The defendants then renewed their motion to stay discovery while the motion to dismiss was pending. In August 2014, the trial court entered a final order upholding personal jurisdiction over the defendants but granting the defendants' motion to dismiss on the basis of forum non conveniens. The present appeal ensued.¹

Jordan and Jacob contend that the trial court erred by failing to timely rule on the motion to dismiss; by failing to address their discovery requests prior to ruling on the motion to dismiss; and by granting the motion to dismiss.

1. Because the defendants filed a motion to dismiss with their answer, discovery was stayed for 90 days under OCGA § 9–11–12(j)(1). That Code section further provides that under those circumstances, "[t]he court shall decide the motion to dismiss within the 90 days provided in this paragraph." Id. Jordan and Jacob appear to contend that the trial court was not authorized to grant the motion to dismiss after that time. We disagree and find no error. See Charles H. Wesley Ed. Foundation v. State Election Bd., 282 Ga. 707, 709(2), 654 S.E.2d 127 (2007) ("[L]anguage contained in a statute which, given its ordinary meaning, commands the doing of a thing within a certain time, when not accompanied by any negative words restraining the doing of the thing afterward, will generally be construed as merely directory and not as a limitation of authority, and this is especially so where no injury appeared to have resulted from the fact that the thing was done after the time limited by the plain wording of the Act.") (citations and punctuation omitted). Here, OCGA § 9–11–12(j) does not provide a remedy or penalty for a trial court's failure to decide such a motion within the stated time, and although Jordan and Jacob claim delay as a harm, they have not shown any specific harm that resulted from the trial court dismissing the action at a later point in time.

2. Jordan and Jacob contend the trial court erred by ruling on the motion to dismiss without allowing them to obtain discovery related to the issue of forum non conveniens. But Jordan and Jacob have not articulated any evidence which they hope such discovery would uncover that would be relevant to that issue. We therefore find no abuse of discretion by the trial court by failing to rule on the appellants' discovery motion. See Settles Bridge Farm v. Masino, 318 Ga.App. 576, 581(4), 734 S.E.2d 456 (2012) (trial court did not abuse discretion in refusing to lift stay and extend discovery where plaintiff did not make "a good cause showing that there was other evidence necessary for resolution of the motion to dismiss").

3. Jordan and Jacob contend the trial court erred by dismissing their complaint under the doctrine of forum non conveniens. We disagree.

A Georgia court will dismiss an action if "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." OCGA § 9–10–31.1(a). When addressing a motion to dismiss on this ground, a trial court must consider seven 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 appellant's 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 appellant's choice of forum.

Id. The defendants bore the burden of showing that the factors support dismissal. Collier v. Wehmeier, 313 Ga.App. 421, 422, 721 S.E.2d 919 (2011). Although the statute does not require it, the "better practice" is for the trial court to make "specific findings on each of the enumerated statutory factors." Wang, 292 Ga. at 570(1), 740 S.E.2d 136.

In this case, the trial court made findings on each of the seven factors. The trial court found that the first, fourth, fifth and sixth factors weighed in favor of dismissal, with the fifth being the most persuasive, and that only the seventh factor weighed in favor of Jordan and Jacob. The second and third factors did not favor either party. As shown below, there was some support for each of the trial court's findings, and we therefore find no abuse of discretion.

(a) The trial court found that the first factor—relative ease of access to sources of proof—favored dismissal, because every party to the suit was a resident of South Carolina and the Nexsen Pruet law offices were located in South Carolina. The court noted that "aside from the bank and its employees in Atlanta, no other proof would need to be accessed in Fulton County." On appeal, Jordan and Jacob contend this conclusion is factually erroneous because, they argue, the bank and its employees are the most critical nonparty witnesses in the action in that they have knowledge of what Blair told them to gain access to the appellants' money.

But the appellants' case turns more on whether Blair was authorized...