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Court of Appeals of Georgia.

LAMB et al. v. JAVED et al.

No. A09A2234.

Decided: January 19, 2010

Kimberly Waters Grant, L. Lin Wood Jr., for Appellant. Hunter S. Allen Jr., Ashley Dianne Phillips, for Appellee.

Ronald and Mary Lamb challenge the judgment entered upon the jury's verdict against them in this medical malpractice case, complaining that the case was transferred and then adjudicated out of their preferred venue. For reasons that follow, this appeal is dismissed.

In 2003, the Lambs filed their action in Fulton County Superior Court against Tariq Javed, M. D.; Kennestone Hospital, Inc. d/b/a WellStar Kennestone Hospital; and WellStar Health System, Inc. The corporate defendants filed a motion to transfer the case to Cobb County under Georgia's forum non conveniens statute, OCGA § 9-10-31.1 In so doing, they pointed out that their registered offices were in Cobb County; the hospital, where the alleged professional negligence occurred, was located in Cobb County; and that even the Lambs themselves lived in Cobb County. In addition, the corporate defendants claimed that the only connection the case had with Fulton County was that the defendant physician, Javed, maintained a residence in Fulton County. The corporate defendants accompanied their transfer motion with Javed's affidavit, wherein the physician supported the transfer and cited various circumstances and demands of his neurosurgery practice, which was exclusively in Cobb County.

Pursuant to OCGA § 9-10-31.1:

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 different county of proper venue within 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 different county of proper venue within this state, the venue shall be transferred to the appropriate county. In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to [seven enumerated factors].1

The Fulton County Superior Court held a hearing. Each side, having briefed the issues, further orally argued their contrary positions on whether consideration of the seven statutory factors warranted a venue transfer. The court thereafter denied the transfer motion. This ruling was vacated on interlocutory appeal in Kennestone Hosp. v. Lamb2 because “[i]n its denial of the motion, the trial court in this case did not make express findings addressing the factors set forth in OCGA § 9-10-31.1(a), either orally or in its written order.”3

On remand, the Fulton County Superior Court granted the motion. The case proceeded to trial in Cobb County Superior Court, where a jury found against the Lambs. Seeking relief from the judgment entered upon the defense verdict, the Lambs challenge the transfer.

1. The Lambs contend that the Fulton County Superior Court “erred by failing to respect and carry into full effect in good faith the decision and direction of the Court of Appeals in Kennestone Hospital v. Lamb ” in that it failed to make oral or written findings of fact reflecting an analysis of the seven factors enumerated in OCGA § 9-10-31.1(a).

But rather than complain about this specific issue below-for example, by seeking reconsideration from the transferring court, raising an objection in the receiving court,4 or seeking interlocutory review5 -the Lambs acquiesced to the transfer order. In their appellate brief, they reveal:

Rather than delaying the trial of the case, which had already been pending for four and a half years, Appellants elected not to attempt to appeal the venue decision at that time. Instead, Appellants requested an expedited trial setting from the Cobb County Superior Court judge assigned the case and the case was tried to a defense verdict․

The Lambs claim that they nevertheless preserved this claim of error because they filed a notice of appeal within thirty days of entry of final judgment.

By the time final judgment was entered, however, the Lambs had waived the issue. Georgia law is clear: “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further.”6 A party cannot ignore that which he or she thinks to be error, take a chance on a favorable outcome, and complain later.7

The Lambs chose not to challenge the propriety of the transfer ruling on the grounds asserted in this division, despite having options and opportunity to do so. And there is no dispute that the Cobb County Superior Count had subject-matter jurisdiction over medical malpractice cases and that venue was also proper in that county. Consequently, by their own litigation strategy, the Lambs waived the specific contention argued here.8

2. The Lambs contend that the Fulton County Superior Court erred by granting the transfer motion, arguing-as they did below9 -that consideration of the seven factors enumerated by OCGA § 9-10-31.1(a) did not warrant a transfer. According to the Lambs, the corporate defendants failed to meet their burden,10 yet the trial court transferred the case based upon its erroneous belief that Kennestone Hosp. had reversed, rather than vacated, its decision.11

At its core, this appeal continues the Lambs' effort to have their case adjudicated in the Fulton County Superior Court. Accordingly, the Lambs are requesting us to reach the merits of whether the Fulton County Superior Court erred when it determined that their “action would be more properly heard” in Cobb County and therefore “decline[d] to adjudicate the matter under the doctrine of forum non conveniens.”12 Generally, an appropriate remedy for an erroneous transfer of a case from the original forum to another forum under OCGA § 9-10-31.1(a) is to return the case to the original forum,13 but we must dismiss the Lambs' appeal as moot.14 As the Lambs have admitted in their appellate brief,15 based in part upon their own strategy, their medical malpractice case has already been adjudicated.

What is more, in this appeal, the Lambs have asserted no trial error nor any other error by the Cobb County Superior Court. Even assuming, without deciding, that the venue transfer by the Fulton County Superior Court was error, the Lambs have simply shown no harm by the adjudication of their case in Cobb County Superior Court.16 Consequently, they have demonstrated no basis to disturb the judgment entered upon the Cobb County jury's verdict.17

Under these circumstances, it is too late for the Lambs to obtain what they continue to seek-adjudication of their case in Fulton County Superior Court. Thus, any determination by this court regarding whether the Fulton County Superior Court was authorized under the forum non conveniens statute to transfer their case to Cobb County Superior Court for adjudication would be “an abstract exercise unrelated to any existing facts or rights.”18 Where, as here, “the questions presented have become moot,” the appeal is properly dismissed.19 “We take this opportunity to re-emphasize that the party seeking review of [an adverse ruling] has the obligation to exercise the mechanisms available to produce a timely result.”20

Appeal dismissed.


1.  OCGA § 9-10-31.1(a). This subsection further lists the seven factors as: (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)(1-7).

2.  288 Ga.App. 289 (653 S.E.2d 858) (2007).

3.  Id.

4.  See, e.g., Hosp. Authority of Gwinnett County v. Rapson, 283 Ga.App. 297, 298(1) (641 S.E.2d 286) (2007) (where appellants filed an emergency motion to transfer case back to original forum before case was tried, appellants had not waived objections to transfer by failing to appeal transfer order or by continuing to litigate case after it was transferred, including entering into a consent order, filing motions in limine, and participating in discovery).

5.  See, e.g., Ga. Casualty & Surety Co. v. Valley Wood, 290 Ga.App. 177-178(1) (659 S.E.2d 410) (2008) (on interlocutory appeal, vacating order transferring case under OCGA § 9-10-31.1, where trial court failed to make requisite findings); Kennestone Hosp., supra at 290 (on interlocutory appeal, vacating order on motion to transfer venue under OCGA § 9-10-31.1, where trial court did not expressly weigh and consider factors listed in statute).

6.  Compton v. State, 281 Ga. 45, 46(2) (635 S.E.2d 766) (2006) (citation and punctuation omitted).

7.  Facey v. Facey, 281 Ga. 367, 368-369(1) (638 S.E.2d 273) (2006).

8.  See Abushmais v. Erby, 282 Ga. 619, 621-622(2) (652 S.E.2d 549) (2007) (where appellants failed to challenge propriety of transfer order from magistrate court to superior court, despite multiple opportunities to do so, and there was no dispute that superior court would have subject matter jurisdiction over that type of action had the transfer order been proper, appellants waived any contention they may have had regarding the magistrate court's authority to transfer action); Facey, supra; Compton, supra; Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829(2) (573 S.E.2d 389) (2002) (cited in Abushmais, supra at 622, for the proposition that “[f]airness to the trial court and to the parties demands that legal issues be asserted in the trial court”). Accord Agri-Cycle LLC v. Couch, 284 Ga. 90, 91(1) (663 S.E.2d 175) (2008) (a litigant who has knowledge of all the facts may not sit idly by while a trial verdict is entered against him and then set the whole procedure aside on a venue defense which should have been raised prior thereto). Compare Ga. Casualty & Surety Co., supra; Kennestone Hosp., supra; Hewett v. Raytheon Aircraft Co., 273 Ga.App. 242 (614 S.E.2d 875) (2005) (vacating dismissal order and remanding case, where trial court did not make specific findings of fact and conclusions of law showing basis for its dismissal of the action under OCGA § 9-10-31.1).

9.  As acknowledged above, the record shows that the Lambs briefed and orally argued at the hearing the issue whether consideration of the seven statutory factors warranted transfer. Thus, they did not waive this specific issue. See Hosp. Authority of Gwinnett County, supra at 298(1).

10.  See R.J. Taylor Memorial Hosp. v. Beck, 280 Ga. 660, 662(3) (631 S.E.2d 684) (2006) (movants to transfer venue have the burden to show that the factors set forth in OCGA § 9-10-31.1(a) support the transfer).

11.  Notwithstanding the Lambs' assertion, the court expressly set forth in its transfer order that, inter alia, the statute listed seven factors for consideration; and that it had “review[ed] and appl[ied] those seven factors as are relevant to the present case.” The court further expressly included additional specifics with regards to several of the seven factors in support of its determination that transfer was warranted.

12.  OCGA § 9-10-31.1(a).

13.  See Hosp. Authority of Gwinnett County, supra at 298(2).

14.  See City of Comer v. Seymour, 283 Ga. 536, 537 (661 S.E.2d 539) (2008) (a case is moot when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights; when the act that is the subject of the sought-after relief is completed, then the matter is moot and no longer subject to appeal).

15.  See Division 1, supra. See generally Garnett v. Hamrick, 280 Ga. 523, 524(1) (630 S.E.2d 384) (2006) (admission in brief to facts indicating mootness is considered a solemn admission in judicio which will support a dismissal for mootness).

16.  See generally OCGA § 5-6-34(d), which provides that where, as here, an appeal is taken under subsection (a) of that Code section, “all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court․ Nothing in this subsection shall require the appellate court to pass upon questions which are rendered moot.” (Emphasis supplied.)

17.  DeKalb County v. Metro Ambulance Svcs., 253 Ga. 561, 562(1) (322 S.E.2d 881) (1984) (burden is on the appellant to establish error, as well as harm; error which is harmless will not be cause for reversal).

18.  City of Comer, supra; see Collins v. Lombard Corp., 270 Ga. 120, 121(1) (508 S.E.2d 653) (1998). However, we may consider an issue if the error complained of is capable of repetition, yet would likely evade judicial review. City of Comer, supra n. 1. Transfer orders in the future would not necessarily evade judicial review.

19.  OCGA § 5-6-48(b)(3); see Brown v. Spann, 271 Ga. 495, 496 (520 S.E.2d 909) (1999) (appeal dismissed where relief sought by appellants could not be granted); Babb v. Putnam County, 269 Ga.App. 431 (605 S.E.2d 33) (2004) (citing fundamental rule of both equitable jurisprudence and appellate procedure that if the thing sought to be enjoined in fact takes place, the grant or denial of the injunction becomes moot); Turpen v. Rabun County Bd. of Commrs ., 245 Ga.App. 190, 192(1) (537 S.E.2d 435) (2000) (where sale that was sought to be enjoined was completed, the question of injunctive relief was moot) (physical precedent only).

20.  Kendall v. Delaney, 282 Ga. 482, 483 (651 S.E.2d 685) (2007).

PHIPPS, Judge.

SMITH, P.J., and BERNES, J., concur.

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