Wegman v. Wegman

• Decision Date: 21 September 2016
• Docket Number: A16A0771
• Citation: 338 Ga.App. 648,791 S.E.2d 431
• Parties: Wegman v. Wegman et al.
• Court: Georgia Court of Appeals

338 Ga.App. 648

791 S.E.2d 431

Wegman

v.Wegman et al.

A16A0771

Court of Appeals of Georgia.

September 21, 2016

Kurt Robert Hilbert, for Appellant.

John F. Manning, Atlanta, for Appellee.

Branch

, Judge.

Following his mother's death, Marc Wegman brought suit against his four brothers alleging that they conspired to deprive him of his proper share of a family partnership and of his mother's will. The trial court dismissed the action on the ground of forum non conveniens largely because the estate and the partnership were based in Louisiana. Marc contends the trial court erred, in part because the trial court was not authorized to dismiss a case for forum non conveniens without a motion on that ground and a statutorily-required stipulation from the defendants. We agree and reverse.

“[W]hen 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, 570, 740 S.E.2d 136 (2013)

(footnote omitted). Accordingly, we will review this case for an abuse of discretion. Id. ; see also Hawkins v. Blair , 334 Ga.App. 898 –899, 780 S.E.2d 515 (2015).

In the verified complaint and the attached documents, Marc Wegman averred that he, his mother, and his four brothers (the brothers) were partners in the Wegman Limited Partnership. Following the death of his mother in Louisiana, the partnership terminated, and the partnership agreement required that the assets be liquidated and the proceeds distributed among the brothers. In addition, their mother's will provided that her assets should be distributed evenly to all five brothers after accounting for one or more loans to Marc. On November 5, 2014, however, Marc, a Georgia resident, filed suit against his brothers in the Superior Court of Cobb County, asserting various claims, including conspiracy to defraud, stemming from his belief that the brothers failed to distribute to him his proper share of the proceeds of both the partnership and the will, as well as certain items of personal property. Marc also requested a temporary restraining order preventing the brothers from disposing of any contested property during the litigation. The court eventually granted a consent temporary restraining order and interlocutory injunction against Myles, the only defendant brother who lives in Georgia.

After being served with the suit, two brothers, Joseph and Myles, timely filed unverified¹ pro se answers, and two brothers, Bradley and Brent, went into default; Bradley later filed an untimely verified answer. Neither Joseph, Myles, or Bradley raised a defense of forum non conveniens in their answer. Marc later moved for default judgment against Bradley and also sought to compel discovery.

On March 16, 2015, Joseph and Myles, now represented by counsel, moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim. In their motion, Joseph and Myles asserted that Bradley, who lives in Louisiana, was both the executor of their mother's estate, which was being probated in Louisiana, as well as the managing general partner of the partnership, which was also located in Louisiana. Joseph and Myles argued that Marc's allegation of a conspiracy between the brothers, including Myles, the Georgia resident, “is a fiction created within Marc's Complaint in an attempt to establish a basis for subject matter jurisdiction within a Georgia Court, rather than filing the case in the proper venue of the State of Louisiana.”

At a June 1, 2015 hearing on the motion to dismiss, Joseph and Myles argued that the court did not have subject matter jurisdiction and that Marc's complaint failed to state a claim; they also questioned whether the court was “the proper forum” for the issues raised in the complaint, especially given that Bradley was the “sole person” responsible for decisions related to the will and the partnership. Counsel for Joseph and Myles consistently referred to this issue as one of “jurisdiction” regarding the properties and assets in Louisiana, and he never mentioned the doctrine of forum non conveniens nor argued that the Georgia forum, although proper, was inconvenient for the parties. The defendants also argued that there was no evidence of any conspiracy to defraud between the defendant brothers. Accordingly, they concluded, “if there is an issue at all, the issue is between Mr. Marc Wegman and Mr. Bradley Wegman and not [the other defendant brothers.]”

Marc countered that his allegations of torts against joint tortfeasors were properly brought in Georgia where one of the defendants lived; he also argued that the court had personal jurisdiction over all of the defendants. Finally, Marc argued that the Georgia court was the proper forum under the long-arm statute. At that point, the court interjected, “[i]t's not a forum non conveniens argument.” Marc agreed, but the court returned to the topic of forum non conveniens after finding that it had jurisdiction and that venue was proper in the superior court:

What I think is—without making a ruling, just letting you hear what I am thinking, I think that under Georgia law, general partnership law, long-arm statute and all that, I think that they can file right here. Listening to the facts of the case, from the first time I heard this what has always been in my mind is whether or not this is forum non conveniens. That's just the way I think of it. There are certain times when you could file here but it needs to be there. I'm not saying this is one of them.

The trial court then asked both parties to draft a proposed order detailing their arguments regarding the motion to dismiss. But instead of instructing that the proposed orders address the claims in the motion to dismiss—subject matter jurisdiction and failure to state a claim—the court told the brothers to focus instead on forum non conveniens:

[W]hat you need to do is not so much argue the facts, which would be kind of a summary judgment type thing, because [Marc] is absolutely correct. He's pled what he needs to plead. I'm not concerned with subject matter jurisdiction. There is no court in Georgia other than the Superior Court that hears these cases, so I have the subject matter jurisdiction. I think I probably have personal jurisdiction, but I want to hear from you on that issue, but you need to be concentrating on the forum non conveniens.

When Marc asked for clarification regarding what to put in the proposed order, given that the court's instruction that it was “not concerned with subject matter jurisdiction,” the court asked the parties to discuss personal jurisdiction briefly but to focus their proposed order on forum non conveniens:

I'm just telling you that the Judge is sitting up here saying is this a case of a convenient forum or not, and that's really what I'm kind of thinking about, and that's where the judge has some discretion so—but I appreciate your arguments.

Although Marc submitted a proposed order, none of the defendant brothers submitted a proposed order regarding forum non conveniens or amended any previous filings to raise a defense of forum non conveniens. On September 29, 2015, the court entered an order in which it analyzed the seven factors in the forum non conveniens balancing test as given in OCGA § 9–10–31.1

and dismissed Marc's case against all four defendants on that ground.²

1. Among other things, Marc argues that the trial court did not have the authority to dismiss the case on the ground of forum non conveniens given that the defendants never moved for dismissal on that ground and never filed a stipulation required by the forum non conveniens statute. We agree.

Until relatively recently, Georgia trial courts had no authority to decline jurisdiction in a transitory action³ brought in a Georgia court by a Georgia resident where jurisdiction of a defendant could be obtained; in other words, Georgia common law did not allow dismissal of such actions based on forum non conveniens. See Holtsclaw v. Holtsclaw , 269 Ga. 163–164, 496 S.E.2d 262 (1998)

(Georgia courts have no inherent authority to decline to exercise the jurisdiction otherwise granted by the Georgia constitution); Richards v. Johnson , 219 Ga. 771, 776, 135 S.E.2d 881 (1964) (even in a court of equity, the doctrine of forum non conveniens cannot defeat the legal right of a Georgia plaintiff to bring an otherwise proper action in a Georgia county where it has jurisdiction over the defendant); Atlantic Coast Line R. Co. v. Wiggins , 77 Ga.App. 756, 760, 49 S.E.2d 909 (1948) (“the doctrine of forum non conveniens [can]not defeat jurisdiction ... for residents of Georgia in cases where jurisdiction of a defendant can be obtained”); but see AT & T Corp. v. Sigala , 274 Ga. 137, 549 S.E.2d 373 (2001)

(adopting the doctrine of forum non conveniens in cases involving foreign plaintiffs). Accordingly, in Georgia “the doctrine of forum non conveniens is generally controlled by statutory provisions.” Holtsclaw , 269 Ga. at 164, 496 S.E.2d 262 (citations omitted); see, e.g., OCGA § 50–2–21 (effective July 1, 2003) (allowing application of forum non conveniens for a “civil cause of action of a nonresident accruing outside this state”); compare Sigala , 274 Ga. at 137, 549 S.E.2d 373 (holding that Georgia courts may exercise their inherent power to dismiss cases brought by nonresident aliens). As explained by our Supreme Court, “statutes codifying the doctrine [of forum non conveniens] will prevail over the common law.” Sigala , 274 Ga. at 141, 549 S.E.2d 373.

In 2005, the legislature enacted OCGA § 9–10–31.1

“to provide that the courts of this state may under certain circumstances decline to decide cases under the doctrine of forum non conveniens.” 2005 Ga. Laws, p. 1, § 2 (2005). As shown above, this statute was adopted in derogation of the common law, and it therefore “must be limited strictly to the...