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Andrews v. Blue Ridge NH Associates, LLC

Court of Appeals of Georgia, First Division

November 4, 2019

ANDREWS
v.
BLUE RIDGE NH ASSOCIATES, LLC et al.

          BARNES, P. J., MERCIER and BROWN, JJ.

          Barnes, Presiding Judge.

         Donna Andrews, as the Administrator of the Estate of Johnny Lee Fleak (the "decedent"), brought this negligence, premises liability, and wrongful death action against Chatsworth HCC, LLC d/b/a Chatsworth Health Care Center, Inc. ("Chatsworth HC"), Chatsworth Health Care Limited Partnership ("Chatsworth LP"), Blue Ridge Health Care, LLC ("Blue Ridge HC"), Blue Ridge NH Associates, LLC ("Blue Ridge Associates"), [1] HLTC, Inc., and several John Doe defendants. The trial court subsequently entered an order granting three motions filed by the defendants: Chatsworth LP and Blue Ridge HC's motion to dismiss them as improper parties; the Chatsworth-Blue Ridge Defendants' motion to dismiss for improper venue, or alternatively, to transfer based on the doctrine of forum non conveniens; and HLTC's motion to transfer based on the doctrine of forum non conveniens. Andrews now appeals these rulings. For the reasons discussed below, we vacate in part, reverse in part, and remand for further proceedings consistent with this opinion.

         The record reflects that the decedent received care and treatment at two nursing home facilities pertinent to this appeal, Chatsworth Health Care Center in Murray County and Regency Park Health and Rehabilitation in Whitfield County. According to the plaintiff's complaint, the decedent was dependent on staff and mechanical lifts for transfers on and off of his bed because he was paralyzed in his left extremities. The complaint alleged that on July 24, 2015, the nursing staff at Chatsworth Health Care Center improperly operated a mechanical lift and dropped the decedent while returning him to bed, causing him to suffer a fractured left leg and hip. The complaint further alleged that the decedent later was admitted to Regency Park Health and Rehabilitation, but the staff failed to monitor him for pressure sores, and he developed a decubitus ulcer in the left hip and buttocks area.

         Following the decedent's death from complications alleged to have arisen from his injuries, Andrews, as the administrator of his estate, brought the present lawsuit on March 14, 2018, in the State Court of DeKalb County. The complaint alleged that the Chatsworth-Blue Ridge Defendants owned, operated, and/or managed Chatsworth Health Care Center and that HLTC managed Regency Park Health and Rehabilitation. The complaint also alleged that the defendants were responsible for the negligent acts of their agents and employees at those nursing home facilities, and that the Chatsworth-Blue Ridge Defendants failed to keep the premises safe for residents and invitees of Chatsworth Health Care Center such as the decedent. The complaint asserted multiple claims against the defendants, including claims for professional and ordinary negligence, premises liability, violations of the Omnibus Budget Reconciliation Act, negligent hiring, training, and supervision, and wrongful death.

         Venue in DeKalb County was founded upon the residence of Blue Ridge HC and Blue Ridge Associates based on the location of the registered office that they maintained in that county. Both companies were served at the registered office.

         The defendants filed their respective answers, denying liability.[2] The defendants also filed several motions, including: Chatsworth LP and Blue Ridge HC's Motion to Dismiss Improper Parties; the Chatsworth-Blue Ridge Defendants' Motion to Dismiss for Improper Venue, or Alternatively To Transfer Forum Non Conveniens; and HLTC's Motion for Forum Non Conveniens Transfer.[3] Additionally, HLTC thereafter filed a motion seeking to stay all discovery.

         Following a hearing in which the parties presented oral argument and the trial court stayed all further discovery, the trial court entered an order granting the defendants' motions in March 2019 (the "March 2019 Order").[4] First, the trial court ruled that Chatsworth LP and Blue Ridge HC should be dismissed as improper parties (a) based on affidavits and other documents that those two companies filed reflecting that they never owned, operated, or managed either of the nursing home facilities where the decedent allegedly was injured and (b) based on an alleged admission made by plaintiff's counsel at the hearing that the two companies would be dismissed from the case. Second, the trial court ruled that venue in DeKalb County could not be predicated on the residency of Blue Ridge Associates because that company's registered office changed from DeKalb County to Dawson County as of February 27, 2018, before Andrews filed her complaint. Third, the trial court ruled that venue should be transferred from the State Court of DeKalb County to the Superior Court of Whitfield County based on the doctrine of forum non conveniens.

         1. We first address the threshold jurisdictional question of whether Andrews was required to follow this Court's interlocutory appeal procedures to obtain appellate review.[5] We answer that question in the negative because the trial court's March 2019 Order was directly appealable under OCGA § 9-11-56 (h).

         OCGA § 5-6-34 (b) governs the method for pursuing appeals of interlocutory orders. See Grogan v. City of Dawsonville, 305 Ga. 79, 82 (2) (823 S.E.2d 763) (2019). Under that statutory subsection, a party seeking to appeal must first obtain a certificate of review from the trial court and then must obtain permission from the appellate court to pursue the appeal. See id. "Once the trial court and then an appellate court grant a party permission to appeal an interlocutory order, the party must file a notice of appeal within a specified period to confer jurisdiction on the appellate court." Id. "The failure to follow the interlocutory appeal requirements, when applicable, generally deprives this Court of jurisdiction." Eidson v. Croutch, 337 Ga.App. 542, 543 (788 S.E.2d 129) (2016).

         In its March 2019 Order, the trial court transferred venue of the case to a different county, and a trial court's ruling to transfer venue is considered interlocutory in nature and is subject to the procedures governing interlocutory appeals. Mauer v. Parker Fibernet, 306 Ga.App. 160, 161 (701 S.E.2d 599) (2010). Consequently, Andrews was required to follow the interlocutory appeal procedures unless there was another statutory basis for filing a direct appeal. Andrews argues that a direct appeal of the March 2019 Order was authorized based on OCGA § 9-11-56 (h), [6] which allows for the direct appeal of a trial court's partial grant of summary judgment. Andrews notes that in the March 2019 Order, in addition to transferring venue, the trial court granted Chatsworth LP and Blue Ridge HC's Motion to Dismiss Improper Parties, and she contends that the motion was in substance and effect a motion for summary judgment and that the trial court's ruling on the motion should be viewed as the grant of summary judgment to those two parties. Consequently, because the grant of summary judgment "on any issue or as to any party" is directly appealable under OCGA § 9-11-56 (h), Andrews maintains that she had the right to directly appeal the trial court's grant of the Motion to Dismiss Improper Parties. And, because "when a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court, "[7]Andrews argues that it also was within her right to appeal the trial court's venue-related rulings contained in the March 2019 Order. We agree with Andrews.

         In their brief filed in support of their Motion to Dismiss Improper Parties filed in the court below, Chatsworth LP and Blue Ridge HC noted that the complaint alleged that they managed Chatsworth Health Care Center during the time that the decedent suffered his injuries, but they asserted that those "allegations [were] factually inaccurate," that neither company "has ever operated, controlled, or otherwise managed[ ] Chatsworth Health Care Center," and that they "lack[ed] . . . involvement with the allegations at issue." Chatsworth LP asserted that it was a land holding company, and both companies contended that the operating agreement for Chatsworth Health Care Center reflected that they were not involved in the ownership, operation, or management of that nursing home facility. In support of their assertions, Chatsworth LP and Blue Ridge HC each submitted an affidavit from Dana Karschner, who was the general partner and general counsel for Chatsworth LP and the managing member and general counsel for Blue Ridge HC. Karschner averred that during the time period in question, Chatsworth LP did not operate a skilled nursing home facility in Murray County, did not employ anyone at such a facility, and "was not in charge of daily maintenance, repairs, or any other aspect evidencing control or operation of [such] a . . . facility." Karschner similarly averred that during the pertinent time period, Blue Ridge HC did not own, operate, or control a skilled nursing home facility in Murray County, did not employ anyone there, and was not in charge of maintenance or repairs. Karschner further averred that Blue Ridge HC was formed as a company after the events at issue in this case and was administratively dissolved as a business entity in 2017, without ever having transacted any business in Georgia. Records purportedly from the Corporate Division of the Secretary of State of Georgia for Blue Ridge HC also were included as exhibits to the Motion to Dismiss Improper Parties. Based on the affidavits and exhibits, Chatsworth LP and Blue Ridge HC requested that the trial court dismiss them from the case with prejudice.

         In granting the Motion to Dismiss Improper Parties, the trial court found that Chatsworth LP had "successfully show[n] the Court that it is merely a land holding company that never owned, operated, or managed a skilled nursing facility," and that Blue Ridge HC had "successfully show[n] that it was first formed as a business entity in 2016, after the events at issue in this case, never owned, operated, or managed a skilled nursing facility at any time, and was administratively dissolved as a business entity in 2017." In support of its findings, the trial court relied on the affidavits submitted in connection with the motion "attesting to these facts regarding Defendants Chatsworth LP and Blue Ridge HC."

         We conclude that the trial court effectively awarded summary judgment to Chatsworth LP and Blue Ridge HC when it granted their Motion to Dismiss Improper Parties. "A summary judgment is a judgment on the merits of the underlying claims or defenses." First Christ Holiness Church v. Owens Temple First Christ Holiness Church, 282 Ga. 883, 885 (655 S.E.2d 605) (2008). See Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 614 (208 S.E.2d 459) (1974) (noting that "a motion for summary judgment is designed to test the merits of the claim") (citations and punctuation omitted). The trial court concluded that Chatsworth LP and Blue Ridge HC should be dismissed from the case based on those defendants' evidentiary submissions that they did not own, operate, control, or manage the pertinent nursing home facilities. Such a conclusion constituted a ruling on the merits of Andrews's claims, including her premises liability claim. See Whatley's Interiors v. Anderson, 176 Ga.App. 406, 407 (3) (336 S.E.2d 326) (1985) (ruling that defendant "had no interest in the subject property" was a ruling "on the merits of the claim" and "should . . . have been treated as a grant of summary judgment rather than a dismissal"). See generally Anderson v. Atlanta Committee for Olympic Games, 273 Ga. 113, 118 (5) (537 S.E.2d 345) (2000) (summary judgment properly granted to defendant on plaintiffs' premises liability claim where defendant did not own or occupy the property where the plaintiffs were injured); Dixon v. Infinity Broadcasting East, 289 Ga.App. 71, 72 (1) (656 S.E.2d 211) (2007) (affirming summary judgment to defendant, where evidence showed that defendant had no contractual responsibility for the condition of the premises where the injury occurred and thus owed no duty to the plaintiff); Holiday Inns v. Newton, 157 Ga.App. 436, 436 (278 S.E.2d 85) (1981) (summary judgment should have been granted to defendant where unrebutted evidence showed "that it was not an owner or in control of the premises and that it had no control of the owner-operator of the premises or any of its agents or employees"). Because the trial court's determination that Chatsworth LP and Blue Ridge HC did not own, operate, control, or manage the facilities "terminated, rather than merely abated, each claim against [them] and left only the claims against [the other defendants]," the court's ruling constituted a grant of summary judgment in favor of Chatsworth LP and Blue Ridge HC. Redding v. Walker, 225 Ga.App. 653, 654-655 (1) (485 S.E.2d 252) (1997) (physical precedent only).

         It is true that in their brief filed in support of their Motion to Dismiss Improper Parties, Chatsworth LP and Blue Ridge HC cited to OCGA § 9-11-21.[8] But "[t]here is no magic in nomenclature, and we judge pleadings, motions and orders not by their name but by their function and substance, being always mindful to construe such documents in a manner compatible with the best interests of justice." Nelson & Hill, P.A. v. Wood, 245 Ga.App. 60, 64 (2) (537 S.E.2d 670) (2000). OCGA § 9-11-21 is a procedural mechanism for adding or dropping parties by order of the trial court without requiring the dismissal of the entire action. See Intl. Maintenance Corp. v. Inland Paper Bd. & Packaging, 256 Ga.App. 752, 755 (2) (569 S.E.2d 865) (2002) (noting that plaintiff can voluntarily dismiss his or her case without court permission under certain circumstances under OCGA § 9-11-41 (a), but "dismissing fewer than all defendants is considered to be 'dropping' a party and requires the court's permission" under OCGA § 9-11-21); Young v. Rider, 208 Ga.App. 147, 148 (1) (430 S.E.2d 117) (1993) (OCGA § 9-11-21 "provide[s] procedural relief for plaintiffs who sue too many or too few parties, so that misjoinder of parties is not ground for dismissal of an action") (citations and punctuation omitted). A trial court's decision whether to permit the adding or dropping of parties under OCGA § 9-11-21 requires the court to exercise its discretion, Manning v. Robertson, 223 Ga.App. 139, 141 (1) (476 S.E.2d 889) (1996), and the statute is not a device for dismissing the claims of parties on the merits. See Benedek v. Board of Regents of Univ. System of Ga., 332 Ga.App. 573, 575 (1) (b) (774 S.E.2d 150) (2015) (cautioning that trial court's analysis when considering a motion under OCGA § 9-11-21 should not be "based upon a consideration of the merits of the claim against [those] parties"). In this respect, OCGA § 9-11-21 must be read in pari materia with OCGA § 9-11-56 rather than in a manner that would circumvent the burdens and safeguards afforded by the latter statute when a movant seeks to test the substantive merits of a party's claims.[9]See Clover Realty Co. v. Todd, 237 Ga. 821, 822 (229 S.E.2d 649) (1976) (statutory provision for adding or dropping parties must be read in pari materia with other provisions of Civil Practice Act); Chan v. W-E. Trading Corp., 199 Ga.App. 76, 79 (5) (403 S.E.2d 840) (1991) (construing OCGA § 9-11-21 in pari materia with several other Civil Practice Act provisions). Accordingly, because the trial court addressed the underlying merits of the case in granting the Chatsworth LP and Blue Ridge HC's Motion to Dismiss Improper Parties, the court's ruling cannot be properly construed as an order authorizing the dropping of parties under OCGA § 9-11-21.

         In sum, we conclude that because the trial court's March 2019 Order included an award of partial summary judgment to Chatsworth LP and Blue Ridge HC, the order was subject to direct appeal pursuant to OCGA § 9-11-56 (h). As such, we have jurisdiction to review all of the trial court's rulings contained in the March 2019 Order challenged by Andrews on appeal. See Headrick v. Stonepark of Dunwoody Unit Owners Assn., 331 Ga.App. 772, 775 (1) (a) (771 S.E.2d 382) (2015).

         2. Andrews contends that the trial court erred in granting Chatsworth LP and Blue Ridge HC's Motion to Dismiss Improper Parties because (a) the court awarded summary judgment to those defendants before Andrews was afforded an opportunity to conduct adequate discovery and (b) the court erroneously construed a statement by Andrews's counsel at the motions hearing as an admission that Chatsworth LP and Blue Ridge HC would be dismissed from the case.

         (a) After Chatsworth LP and Blue Ridge HC filed their Motion to Dismiss Improper Parties, Andrews filed a response in which she argued, among other things, that the motion was premature because it went to the underlying merits of the case and she had not yet had an opportunity to conduct adequate discovery on the ownership and management of Chatsworth Health Care Center, including deposing Karschner, the affiant relied upon by the defendants to support their motion. Andrews acknowledged that Blue Ridge HC "unlikely had any involvement in [the decedent's] care considering the dates of incorporation and devolvement," but argued that she was "still entitled to test the veracity of these . . . claims related to the incorporation of [Blue Ridge HC], and the management, ownership, and control of Chatsworth Health Care Center." The trial court subsequently stayed discovery and ruled on the Motion to Dismiss Improper Parties based on the existing evidentiary record.

         The trial court erred in ruling on the Motion to Dismiss Improper Parties without first permitting the additional discovery requested by Andrews. As discussed supra in Division 1, the trial court's ruling on the motion constituted an award of summary judgment to Chatsworth LP and Blue Ridge HC, and "in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment." (Citation and punctuation omitted.) Dixon v. MARTA, 242 Ga.App. 262, 266 (3) (529 S.E.2d 398) (2000). Andrews was "entitled to all favorable inferences and reasonable doubts which may arise from a fully developed record," Shipley v. Handicaps MobilitySystems, 222 Ga.App. 101, 102 (473 S.E.2d 533) (1996), and to that end, she should have been afforded an opportunity to develop proof giving rise to triable issues of fact regarding the ownership, operation, control, and management of Chatsworth Health Care Center, including an opportunity to depose Karschner, the affiant directly associated with the operations of Chatsworth LP and Blue Ridge HC. See id. at 102-103. Under the circumstances of this case, the trial court prematurely ruled on Chatsworth LP and Blue Ridge HC's motion, and we therefore reverse the trial court's grant of partial summary judgment to those defendants and "direct that any such ruling wait until after [Andrews's] right to discovery is complete." Id. (reversing grant of ...


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