Mountain Area Recommended Contractors & Providers v. Margo Vuchetich ( 2018 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
January 10, 2018
The Court of Appeals hereby passes the following order:
A18D0242. MOUNTAIN AREA RECOMMENDED CONTRACTORS &
PROVIDERS v. MARGO VUCHETICH et al.
This breach of contract action – which comes to us by way of an application
for discretionary appeal – involves the third identical claim arising from a purported
agreement for the plaintiff, Mountain Area Recommended Contractors & Providers,
to repair the Fannin County vacation home of the defendants, Margo Vuchetich and
Richard Molina. The defendants maintain their domicile and primary residence in
Gwinnett County.
The plaintiff filed a first breach of contract action against the defendants1 in the
Fannin County Magistrate Court, which transferred the case to the Gwinnett County
Magistrate Court based on its finding that venue was proper there. The Gwinnett
County Magistrate Court dismissed the case based on the plaintiff’s failure to appear.
The plaintiff then filed a second breach of contract action against the defendants in
the Fannin County Magistrate Court, which again transferred the case to the Gwinnett
County Magistrate Court based on venue.
Subsequently, the plaintiff filed this third breach of contract action against the
defendants in the Fannin County Magistrate Court. When the defendants objected to
proceeding with the third case because the second case remained pending, the
plaintiff voluntarily dismissed the second case without prejudice. The Fannin County
Magistrate Court transferred the third case to the Gwinnett County Magistrate Court
1
Molina may not have been made a defendant in the first action, but this issue
is not germane to our instant ruling.
based on venue. The Gwinnett County Magistrate Court entered judgment on the
plaintiff’s claim in favor of the defendants, and the plaintiff appealed to the Gwinnett
County Superior Court.
In the Gwinnett County Superior Court, the plaintiff filed a motion to transfer
to the Fannin County Superior Court, arguing that under Ga. Const. of 1983, Art. VI,
Sec. II, Par. VI – providing that all civil cases other than those specifically excepted
“shall be tried in the county where the defendant resides” – a defendant “resides” in
both the county where he or she has a primary residence and the county where he or
she has a second or vacation home. The Gwinnett County Superior Court denied the
motion, finding that under the Constitution the defendants only resided in Gwinnett
County because they lived there year-round. The defendants filed a motion to dismiss
the plaintiff’s appeal to the superior court, arguing that the appeal was barred under
OCGA § 15-10-41 (b) (2) because the first two cases had been dismissed. The
superior court granted the motion. The plaintiff then filed this application for
discretionary appeal of both the denial of the plaintiff’s motion to transfer and the
grant of the defendants’ motion to dismiss.
We conclude that the application should be transferred to the Georgia Supreme
Court. The Supreme Court has exclusive jurisdiction over “[a]ll cases involving the
construction of . . . the Constitution of the State of Georgia[.]” Ga. Const. of 1983,
Art. VI, Sec. VI, Par. II (1); see Atlanta Independent School System v. Lane, 266 Ga.
657, 657-658 (1) (469 SE2d 22) (1996). Because the plaintiff’s motion to transfer
called into question the construction of one of the Georgia Constitution’s venue
provisions and the trial court rejected the plaintiff’s proposed interpretation, it
appears that jurisdiction over the application may lie in the Supreme Court, despite
the fact that the application may ultimately be resolved on other grounds. See
Harrison v. Wigington, 269 Ga. 388, 388 (497 SE2d 568) (1998) (“If a constitutional
question is raised and ruled on below, [the Supreme] [C]ourt has exclusive appellate
jurisdiction, and this is true, although upon a consideration of the entire case, [the
Supreme] [C]ourt determines that a decision upon such constitutional questions is not
necessary to a proper solution of the case, and makes no decision thereon.”)
(punctuation omitted). While the Supreme Court does not have exclusive jurisdiction
over cases that “involve merely the application of well-known constitutional
principles,” Turner v. State, 176 Ga. 823, 823 (169 S.E. 21) (1933), and the Supreme
Court has generally equated a defendant’s residence with domicile for purposes of
venue, see Sorrells v. Sorrells, 247 Ga. 9, 11 (3) (274 SE2d 314) (1981); Youmans
v. Hickman, 179 Ga. 684 (177 S.E. 238) (1934), it does not appear that the Supreme
Court has addressed the discrete constitutional venue issue presented here.
As the Supreme Court has the ultimate responsibility for determining appellate
jurisdiction, see Saxton v. Coastal Dialysis & Med. Clinic, 267 Ga. 177, 178 (476
SE2d 587) (1996), this application is hereby TRANSFERRED to the Supreme Court
for disposition.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
01/10/2018
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk.