                               FIFTH DIVISION
                              MCFADDEN, P. J.,
                           BRANCH and BETHEL, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                      June 2, 2017




In the Court of Appeals of Georgia
 A17A0306. WOODARD EVENTS, LLC v. COFFEE HOUSE
     INDUSTRIES, LLC.

      BETHEL, Judge.

      Woodard Events, LLC, f/k/a Scaling New Heights, LLC, (“Woodard Events”)

appeals from the dismissal of its action based on the application of the doctrine of

forum non conveniens. Woodard Events argues that the trial court abused its

discretion in granting the dismissal because it misapplied the test for forum non

conveniens set forth in OCGA § 9-10-31.1 (a), accepted representations of counsel

as evidence, and ignored precedents permitting parties to litigate claims in more than

one state. We affirm because the trial court made written findings of fact, supported

by the evidence, reflecting an analysis of the procedural framework of the statute,
specifically considering and weighing each of the seven factors in OCGA § 9-10-31.1

(a).

       The record shows that Woodard Events (a Georgia limited liability company)

had Coffee House Industries, LLC, (a California limited liability company) perform

several projects for it on an ad hoc basis. Over the course of several months, the

parties negotiated a contract under which Coffee House would provide several

different types of services. Coffee House’s primary project was to prepare for and

conduct a business conference in New Orleans, as well as a similar conference

scheduled to occur in the Bahamas sometime later. Coffee House continued

performing work for Woodard Events and/or Joseph Woodard personally during the

contract negotiations. At some point, a dispute arose between the parties that resulted

in Coffee House filing suit in California against Joseph Woodard individually.

Woodard Events then filed suit against Coffee House in Georgia, seeking damages

for breach of contract, fraud, punitive damages, unjust enrichment, and attorney fees.

Coffee House moved to dismiss the complaint on several grounds, including that the

trial court should decline to adjudicate the case under OCGA § 9-10-31.1.

       Following a hearing and after considering the factors set forth in OCGA § 9-

10-31.1 (a), the trial court granted Coffee House’s motion. In particular, the trial court

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found the following factors favored dismissal: (1) availability and cost of compulsory

process for attendance of unwilling witnesses; (2) unnecessary expense or trouble to

the defendant not necessary to the plaintiff’s own right to pursue his or her remedy;

(3) administrative difficulties for the forum courts. The trial court also found that the

relative ease and access to sources of proof and possibility of viewing the premises

did not favor either party. Finally, the trial court ruled that local interests and

traditional deference given to a plaintiff’s choice of forum favored Woodard Events.

      We turn first to the grant of Coffee House’s motion to dismiss under the

doctrine of forum non conveniens. A Georgia court will dismiss an action if “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 forum outside this state.” OCGA § 9-10-

31.1 (a). When a trial court considers whether to grant such a motion, it must give

consideration to the factors that appear in OCGA § 9-10-31.1(a):

      (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; (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.

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OCGA § 9-10-31.1 (a). “The application of the statutory standard to the peculiar

circumstances of a particular case is a matter committed to the sound discretion of the

trial court[,]” and we review the trial court’s decision for abuse of discretion. Wang

v. Liu, 292 Ga. 568, 569 (1) (740 SE2d 136) (2013) (citation omitted). The trial court

must “set out upon the record the essential reasoning that forms the basis for its

exercise of discretion” in deciding whether to grant a motion to dismiss for forum non

conveniens. Id. at 570 (1).

      (a) Woodard Events argues that in considering ease of access to sources of

proof, as well as the possibility of viewing the premises, the trial court overlooked the

fact that some of the witnesses are located in Georgia, as are the computer systems,

equipment, and software. Woodard Events further argues that the trial court failed to

adequately consider that some of the work on the marketing materials was performed

in Georgia, as well. In its order, the trial court recognized Woodard Events’

contention that “many of the physical machines that were worked on are in Georgia”

and that the witnesses to the work performed and the misrepresentations live in

Georgia. However, the trial court indicated that Woodard Events did not argue that

the machines would be necessary evidence, did not address how many potential

witnesses would be called, and did not show that viewing the premises would be

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necessary to the maintenance or defense of the action. The trial court concluded that

these factors did not favor either party. On appeal, Woodard Events argues that “logic

dictates” that the equipment, computer systems, and software would need to be

examined during discovery. And Woodard Events argued at the hearing on Coffee

House’s motion that computers on which work was done pursuant to the contract

were located in Georgia. But apart from its bald assertion, Woodard Events did not

argue why examination of the computer systems, equipment, and software would be

necessary in this breach of contract case, which appears to be a straightforward matter

of contract interpretation. Nor did Woodard Events point to any evidence regarding

the number of witnesses expected to be called for either side. Under these

circumstances, we cannot say the trial court abused its discretion in finding this factor

did not favor either party.

      (b) Woodard Events next argues that the trial court erred in its analysis

regarding the availability and cost of compulsory process for unwilling witnesses, and

that the evidence established that there were more witnesses located in Georgia than

in California. But, as the trial court held, Woodard Events has not shown that there

are any unwilling witnesses. In contrast, depositions of Coffee House would

potentially need to be subpoenaed or negotiated because the witnesses are located

                                           5
outside of Georgia. The trial court did not err in finding that this factor favored

dismissal. See Hawkins v. Blair, 334 Ga. App. 898, 902-03 (3) (b) (780 SE2d 515)

(2015).

      (c) With regard to the fourth factor—unnecessary expense or trouble to the

defendant not necessary to the plaintiff’s own right to pursue his or her remedy—the

trial court found that Coffee House had already filed suit against Joseph Woodard in

California and intended to add the corporate entity, Woodard Events, as a party to the

action. Woodard Events argues that the trial court should not have considered the

representation of counsel because it did not qualify as evidence. However, Woodard

Events failed to object to this effect at the hearing. “An argument not raised in the

trial court is waived and cannot be raised for the first time on appeal.” Hawkins, 334

Ga. App. at 902 (a) (citation omitted). Accordingly, the trial court’s finding on the

fourth factor is supported by the information available to the trial court at the time of

its decision.

      (d) As for administrative difficulties, the trial court found that the related

matter pending in California would likely lead to scheduling conflicts if a separate

action were permitted to proceed in Georgia. Woodard Events argues that this factor

does not favor dismissal because the majority of evidence and witnesses are located

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in Georgia, the California suit only pertained to Joseph Woodard individually, and

California’s docket was so clogged that trial would be delayed. We have already

disposed of Woodard Events’ first argument above. As for its argument that the

California suit only pertained to Joseph Woodard individually, Woodard Events’

counsel conceded that Coffee House was attempting to serve the corporate defendant,

Woodard Events, in the California suit. Finally, Woodard points to no evidence

supporting its last argument regarding the comparative strain on each state’s dockets.

We find no error in the trial court’s analysis of this factor.

      (e) Woodard Events argues that the trial court should have given greater weight

to the sixth and seventh factors—local interests and deference to the plaintiff’s choice

of forum. OCGA § 9-10-31.1 (a) requires the trial court to “give consideration” to

these factors, and the court’s order indicates that it did so. We discern no abuse of

discretion here. See Collier v. Wehmeier, 313 Ga. App. 421, 424 (2) (721 SE2d 919)

(2011).

      (f) Lastly, Woodard Events argues that the trial court ignored precedent that

“the pendency of a suit in one state between the same parties and for the same cause

of action furnishes no cause to stay or abate a new suit brought in a court of another

state.” Ambursen Hydraulic Const. Co. v. N. Contracting Co., 140 Ga. 1 (78 SE 340)

                                           7
(1913). However, this general rule must be considered in conjunction with OCGA §

9-10-31.1. Thus, while Georgia law may provide for instances where a claim may be

properly raised in a Georgia court despite the pendency of an action in another state,

the trial court may still properly find that the claim would be more appropriately

heard in another forum due to the interests of justice and convenience of the parties,

as the trial court did here. We therefore affirm the trial court’s decision to dismiss the

action on forum non conveniens grounds.

      Judgment affirmed. McFadden, P. J., and Branch, J., concur.




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