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Ross v. Waters

Court of Appeals of Georgia

June 26, 2015

ROSS et al.
v.
WATERS

Venue. DeKalb State Court. Before Judge Purdom.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Robert G. Tanner, Robert P. Marcovitch, Henry C. DeBardeleben IV, for appellants.

Kenneth M. Sissel, Alan B. Gordon, for appellee.

MILLER, Judge. Andrews, P. J., and Branch, J., concur.

OPINION

Page 196

Miller, Judge.

Aprile B. Waters filed a medical malpractice suit against Dr. William A. J. Ross and Ross Orthopaedic Wellness Center, P.C., (collectively the " Defendants" ) in DeKalb County State Court. Thereafter, the Defendants filed a motion to dismiss for improper venue and a motion to dismiss because they allege the statute of repose was not tolled under the Servicemembers Civil Relief Act (SCRA). The trial court denied both motions. We granted the Defendants' application for interlocutory review and this appeal ensued. After a thorough review, we reverse because venue was improper in DeKalb County.

The record shows that on July 26, 2007, Waters received a left total hip arthroplasty by Dr. Ross at Ross Orthopaedic Wellness Center (" Ross Orthopaedic" ) located in DeKalb County and having its registered office in Fulton County. After the surgery, Waters experienced severe pain in her left hip until October 2008, when she had another doctor perform a second surgery on her hip. Waters's expert, an orthopedic surgeon, opined that the left total hip arthroplasty [332 Ga.App. 624] performed by Dr. Ross was not medically necessary and deviated from the required standard of care of orthopedic surgeons.

In July 2009, Waters filed a complaint for damages in Fulton County State Court against the Defendants alleging a claim of medical malpractice. On May 25, 2010, the case was stayed because Dr. Ross was beginning his military duty with the United States Army. The stay was lifted in June 2012, and the case was scheduled for trial on September 18, 2012. On September 14, 2012, Waters voluntarily dismissed her complaint. In the same month, Ross Orthopaedic was administratively dissolved.

On March 1, 2013, Waters filed a renewal action against the Defendants in DeKalb County State Court. Subsequently, the Defendants filed their motion to dismiss or transfer based on improper venue, arguing that venue was proper in Fulton County where Dr. Ross was domiciled and where Ross Orthopaedic had its registered office prior to its administrative dissolution. The Defendants also filed a motion to dismiss arguing that Waters's complaint was barred under the five-year statute of repose for medical malpractice suits and that the statute of repose was not tolled by Dr. Ross's military service under the SCRA.

Following a hearing, the trial court found that venue was proper in DeKalb County because Ross Orthopaedic had its principal office in DeKalb County prior to its dissolution. The trial court also found that the plain and unambiguous text of § 526 (a) of the SCRA tolled the five-year statute of repose for medical malpractice suits under OCGA § 9-3-71 (b).

1. The Defendants contend that the trial court erred by denying their motion to dismiss/transfer venue to Fulton County. We agree.

In ruling on a motion to dismiss, the trial court must accept as true all well-pled material allegations in the complaint and must resolve any doubts in favor of the ...

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