Wang v. Liu

• Decision Date: 18 March 2013
• Docket Number: No. S12A1485.,S12A1485.
• Citation: Wang v. Liu, 292 Ga. 568, 740 S.E.2d 136 (Ga. 2013)
• Parties: WANG v. LIU.
• Court: Georgia Supreme Court

292 Ga. 568

740 S.E.2d 136

WANG

v.LIU.

No. S12A1485.

Supreme Court of Georgia.

March 18, 2013.

Robert Richard Long, IV, John Ludlow Latham, Brandon Raynard Williams, Alston & Bird LLP, William Gordon Leonard, Gregory George Schultz, Taylor, English & Duma, LLP, Atlanta, for appellant.

John M. Tatum, Rachel Christina Young, Hunter, Maclean, Exley & Dunn, P.C., Savannah, Charles M. Yoon, Yoon & Kim, LLP, New York, for appellee.

BLACKWELL, Justice.

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 A few weeks later, the trial court entered an interlocutory injunction that prohibited Wang from transferring certain assets while the lawsuit is pending, and Wang moved to dismiss the lawsuit pursuant to the doctrine of forum non conveniens. In February 2012, the trial court denied the motion to dismiss the lawsuit, stayed the lawsuit pending the resolution of a related lawsuit in China, and ordered that “the interlocutory injunction is hereby made permanent.” Wang appeals from the denial of his motion to dismiss and from the order making permanent the interlocutory injunction. Upon our review of the record and briefs, we conclude that Wang has failed to show that the trial court abused its discretion when it denied his motion to dismiss, but we conclude that the trial court erred when it entered a permanent injunction without adequate notice to, or the consent of, the parties. Accordingly, we affirm the denial of the motion to dismiss, but we vacate the order making permanent the interlocutory injunction.

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 standard that appears in OCGA § 9–10–31.1(a):

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 plaintiff'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 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, 282 Ga. 554, 556(3), 651 S.E.2d 664 (2007). That said, the discretion of the trial court is not without some limits,² 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. Considering the number, variety, and nature of the statutory factors that necessarily must inform the discretion of the trial court, meaningful appellate review is possible only if the record reflects in some way the thinking that led the trial court to exercise its discretion as it did.

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., 317 Ga.App. 289, 292, 728 S.E.2d 925 (2012); GrayRobinson, P.A. v. Smith, 302 Ga.App. 375, 377(1), 690 S.E.2d 656 (2010); Georgia Cas. & Sur. Co. v. Valley Wood, Inc., 290 Ga.App. 177, 178(1), 659 S.E.2d 410 (2008); Kennestone Hosp. v. Lamb, 288 Ga.App. 289, 289–290, 653 S.E.2d 858 (2007); Federal Ins. Co. v. Chicago Ins. Co., 281 Ga.App. 152, 153, 635 S.E.2d 411 (2006); Hewett v. Raytheon Aircraft Co., 273 Ga.App. 242, 248–249(2), 614 S.E.2d 875 (2005). Although this Court never has said that such specific findings are required absolutely, we previously have noted the existence of such findings in the record of an appeal from the grant of a motion to dismiss under OCGA § 9–10–31.1, thereby signaling that such findings are an important aid to meaningful appellate review. See Hawthorn Suites, 282 Ga. at 556–557(3), 651 S.E.2d 664 (noting that “the trial court set forth in its order a detailed analysis of all seven factors to be considered under the statute” and reciting the findings of the trial court on each factor). Today, we acknowledge explicitly that specific findings on each of the enumerated statutory factors are a better practice, but we cannot conclude that such findings are required absolutely in every case.

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, 302 Ga.App. at 378(1), 690 S.E.2d 656 (because the record did not adequately explain the decision of the trial court, appellate court “cannot determine whether the trial court's denial of the motion to dismiss ... was or was not an abuse of discretion.”). That said, the detail required to adequately explain the essential reasoning of the trial court will depend upon the peculiar circumstances of the case, the closeness of the questions involved, and the ground upon which the court decides the motion. We suppose that some case might require a finding on each factor to adequately explain the decision, but we cannot say that such findings always (or even usually) are required. To the extent that the Court of Appeals held otherwise in Park Ave. Bank, 317 Ga.App. at 292, 728 S.E.2d 925,GrayRobinson, 302 Ga.App. at 377(1), 690 S.E.2d 656,Georgia Cas. & Sur. Co., 290 Ga.App. at 178(1), 659 S.E.2d 410,Kennestone Hosp., 288 Ga.App. at 289–290, 653 S.E.2d 858,Federal Ins. Co., 281 Ga.App. at 153, 635 S.E.2d 411, and Hewett, 273 Ga.App. at 248–249(2), 614 S.E.2d 875, we overrule those decisions.

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],” ³ but the judge subsequently invited counsel to “go through all the seven factors.” Counsel for both parties did so and advanced competing colorable arguments on several of the factors. At the conclusion of the hearing, the trial judge announced simply that “I'm not going to dismiss the case,” without offering any further explanation for the decision. And in a subsequent written order, the trial court stated simply that “Defendant's Motion to Dismiss Plaintiff's Complaint Based on Forum Non Conveniens is DENIED.” The record in this case does not offer a sufficient glimpse into the thinking of the trial court so as to allow for meaningful appellate review.

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...