Head v. Brown

578 S.E.2d 555, 259 Ga. App. 855, 2003 Ga. App. LEXIS 285
CourtCourt of Appeals of Georgia
DecidedFebruary 25, 2003
DocketA02A2366
StatusPublished
Cited by2 cases

This text of 578 S.E.2d 555 (Head v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Head v. Brown, 578 S.E.2d 555, 259 Ga. App. 855, 2003 Ga. App. LEXIS 285 (Ga. Ct. App. 2003).

Opinion

Mikell, Judge.

Carolyn Head appeals two orders entered on June 14, 2002, by Senior Judge Don A. Langham, in which he vacated the order of Judge Christopher Edwards transferring the underlying case from Upson County to Muscogee County for trial and denied reconsideration of Judge Edwards’s order voluntarily recusing himself.

This case began in 1995, when Head filed a medical malpractice action in Upson County Superior Court against Benjamin Brown, M.D., Louis Mameli, M.D., Thomaston Obstetrical & Gynecological Associates, P.C., and Upson County Hospital, Inc. d/b/a Upson Regional Hospital. The case was originally assigned to Judge Paschal English, who recused himself in 1998.

It then was assigned to Judge Edwards, and trial was specially set on January 3, 2000. After two days of individual voir dire, Judge Edwards determined, that an impartial jury could not be impaneled in Upson County because many of the prospective jurors had direct and indirect relationships with the defendant doctors and the hospital. Sua sponte, on February 3, 2000, pursuant to OCGA § 9-10-50, he ordered that venue in the case be transferred to a county to be mutually agreed upon by the parties or to be selected by him in the évent the parties could not agree. The defendants sought an interlocutory appeal of Judge Edwards’s order; however, we denied their application, and the Supreme Court denied their petition for certiorari. On December 21, 2000, Judge Edwards ordered that the trial would take place on April 23, 2001, in Muscogee County.

On February 21, 2001, Judge Edwards voluntarily recused himself, after he learned that his former law firm had a lien for attorney fees against the hospital’s insurance company, stemming from unrelated litigation with which he was involved before taking judicial office. The case was then assigned to Upson County Superior Court Judge Johnnie Caldwell. In March 2001, Head sought reconsideration of Judge Edwards’s recusal order, and the defendants filed a motion for reconsideration of the order transferring venue to Muscogee County. It does not appear from the record that Judge Caldwell ruled on the motions. Head moved to disqualify Judge Caldwell. Senior Judge John Langford heard the motion on June 19, 2001, and issued an order disqualifying Judge Caldwell.

Next, Senior Judge Langham was appointed to preside over the [856]*856case. On June 14, 2002, he granted the defendants’ motion to vacate Judge Edwards’s orders changing venue of the case to Muscogee County and denied Head’s motion for reconsideration of Judge Edwards’s voluntary recusal order. This appeal followed. We affirm.

1. First, Head argues that Judge Langham, acting as an Upson County Superior Court judge, lacked jurisdiction to vacate the orders changing venue after Judge Edwards transferred the case to Muscogee County. However, Head ignores the fact that nothing in the February 3 and December 21, 2000, orders indicates that jurisdiction was being transferred or that the case would not be heard by Judge Edwards.1 The orders simply provide that the case would be tried in the Muscogee County Courthouse in front of Muscogee County jurors. Additionally, the February 3 order states that motions in limine would be set “on a regularly scheduled Upson County hearing day,” which indicates that Judge Edwards intended to retain jurisdiction over pretrial matters.

OCGA § 9-10-50 (a) and (b), on which Judge Edwards’s orders were based, provide that after conducting voir dire, if a trial judge finds that an impartial jury cannot be impaneled in the county where a civil case is pending, that case may be transferred to a county agreed upon by the parties or, in the event that the parties cannot agree, to a county selected by the judge. See generally Claxton Poultry Co. v. City of Claxton, 155 Ga. App. 308, 311 (1) (C) (271 SE2d 227) (1980).

Davis and Shulman’s Georgia Practice and Procedure provides an instructive distinction between the concepts of venue and jurisdiction in civil cases:

The principal point to be remembered about venue is that it denotes a place, that is to say, a geographical division actually created by statute or otherwise, and having physical boundaries on the surface of the earth. Since we quite properly say that when a matter is not subject to a court because of the venue, the court does not have jurisdiction, some confusion between the terms has inevitably resulted. This confusion can best be avoided by remembering that in its essence, the term “jurisdiction” means power and authority, and “venue” means a geographical location. It is said, therefore, for the purpose of simplicity, that jurisdiction is power, and venue is place.

Ruskell, § 5-1, p. 137 (2001 ed.). Here, it is apparent from the February 3 and December 21, 2000, orders that Judge Edwards intended [857]*857for Upson County to retain power over the case while changing the place where the trial would be conducted.

Head cites Johnston v. State, 118 Ga. 310 (45 SE 381) (1903), in which the Supreme Court held that when venue in a criminal case has been changed, the county from which the case was transferred loses jurisdiction to try the accused. Id. at 312. In addition to the obvious distinction that Johnston was a criminal case, it is also distinguishable from the case at bar because the defendant in Johnston was actually tried in the county to which venue had been transferred. It was not until after a mistrial resulted that the original county sought to try the defendant again on a new indictment based on the same conduct. The Supreme Court concluded that the original county lacked jurisdiction to try that defendant. Id. Here, there is no indication in the record that the case was ever assigned to a Muscogee County judge or that any rulings were entered other than those in Upson County. Furthermore, it is clear from Johnston that the Supreme Court contemplated the possibility that an order changing venue might be revoked when the Court stated that “[t]he superior court of Whitfield county has the exclusive right to try the accused as long as the order changing the venue to that county stands unrevoked and unchanged” (Emphasis supplied.) Id. at 314.

Accordingly, we conclude that Judge Langham’s order vacating Judge Edwards’s previous orders was not void for lack of jurisdiction and affirm on this ground.

. 2. In two related errors, Head argues that even if Judge Lang-ham had jurisdiction over the case, he erred in vacating the February 3 and December 21, 2000, orders transferring venue. Head contends that because there is no indication that Judge Edwards abused his discretion in determining that an impartial jury could not be found in Upson County, Judge Langham acted improperly by vacating the previous orders. However, this appeal concerns the validity of Judge Langham’s June 6, 2002, order, which is the most recent ruling on the issue of venue. Regardless of which individual judge actually entered the June 14, 2002, order, it was the trial court who vacated its own previous orders changing venue. Therefore, we must consider whether the court abused its discretion in taking that action, not whether the earlier orders constituted an abuse of discretion.

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578 S.E.2d 555, 259 Ga. App. 855, 2003 Ga. App. LEXIS 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/head-v-brown-gactapp-2003.