Armin Oskouei v. Orthopaedic & Spine Surgery of Atlanta, LLC

FIRST DIVISION
ANDREWS, J.,
RAY and MCMILLIAN, 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

January 18, 2017

In the Court of Appeals of Georgia
A16A2098. OSKOUEI et al. v. ORTHOPAEDIC & SPINE
SURGERY OF ATLANTA, LLC.

RAY, Judge.

This appeal stems from litigation between two physicians and various entities

they control. Armin Oskouei, M. D. and Ortho Sport & Spine Physicians, LLC, filed

an application for interlocutory appeal from a trial court’s order dismissing their

counterclaim against James L. Chappuis, M. D., Orthopaedic & Spine Surgery of

Atlanta, LLC, and William T. Marlow. The motion to dismiss argued the existence

of a prior pending action. The trial court dismissed the counterclaim pursuant to

OCGA §§ 9-2-5 (a) and 9-11-12. For the reasons that follow, we reverse.

We review a trial court’s ruling on a motion to dismiss de novo. See Brock v.

C & M Motors, Inc., 337 Ga. App. 288, 290 (1) (787 SE2d 259) (2016).
 OCGA § 9-2-5 (a) provides:

No plaintiff may prosecute two actions in the courts at the same time for
the same cause of action and against the same party. If two such actions
are commenced simultaneously, the defendant may require the plaintiff
to elect which he will prosecute. If two such actions are commenced at
different times, the pendency of the former shall be a good defense to
the latter.

The instant appeal turns on the pendency of two actions filed in the Superior

Court of Fulton County at different times and involving some of the same parties. The

first, Ortho Sport & Spine Physicians Savannah LLC v. James Chappuis, M. D.,

Chappuis Properties, LLC, Orthopaedic & Spine Surgery Center of Atlanta, LLC,

and Jordan Strudhoff, No. 2015cv264010, was filed August 3, 2015 (hereinafter the

“First Lawsuit”). The second, from which this appeal springs, was filed August 18,

2015, and is styled Orthopaedic & Spine Surgery of Atlanta, LLC, William T. Marlow

and James L. Chappuis, M. D. v. Armin Oskouei, M. D. and Ortho Sport & Spine

Physicians, LLC, No. 2015cv264703 (hereinafter the “Second Lawsuit”). On October

5, 2015, Oskouei and Ortho Atlanta filed their verified answer and counterclaim to

the Second Lawsuit. The parties agree that Ortho Sport & Spine Physicians Savannah

LLC (hereinafter “Ortho Savannah”), which is a plaintiff in the First Lawsuit, is a

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separate and distinct legal entity from Atlanta-based Ortho Sport & Spine Physicians,

LLC (hereinafter “Ortho Atlanta”), which is a counter-claimant in the Second

Lawsuit, although both entities are owned by Oskouei. 1

Chappuis and the other parties with which he is associated successfully argued

that this counterclaim should be dismissed, contending that the claims raised by Ortho

Savannah in the First Lawsuit and the counterclaim filed by Oskouei and his other

company, Ortho Atlanta, in the Second Lawsuit were virtually identical. While the

claims are similar, to merit dismissal under OCGA § 9-2-5 (a), not only must the

causes of action be the same, but also the parties also must be the same. See Creel v.

Welker & Assocs., Inc., 174 Ga. App. 877, 877 (332 SE2d 5) (1985). The appellants

argue that the trial court erred in dismissing the case because the parties in the First

and Second Lawsuits are “distinct and independent.”

As an initial matter, appellees Chappuis and his company, Orthopaedic & Spine

Surgery Center of Atlanta, LLC, function as defendants in the First Lawsuit and also

must defend against Oskouei and Ortho Atlanta’s counterclaim in the Second

1
See Kensington Partners, LLC v. Beal Bank Nevada, 311 Ga. App. 196, 196-
197 (1) (715 SE2d 491) (2011) (a party may make binding factual admissions in
judicio in its pleadings, motions, and brief).

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Lawsuit.2 However, the parties that function as plaintiffs in the First Lawsuit and, for

purposes of the counterclaim, in the Second Lawsuit are not identical.

Despite a confusing similarity between the names of the various medical

entities at issue, as noted above, both sides agree that the entity functioning as the

plaintiff in the First Lawsuit (Ortho Savannah) and the entities functioning as

plaintiffs in the counterclaim in the Second Lawsuit (Oskouei and Ortho Atlanta) are,

in fact, separate and distinct. Specifically, while Oskouei is a party in the Second

Lawsuit, he is not a party at all in the First Lawsuit. Oskouei is considered a separate

entity from his companies, Ortho Savannah and Ortho Atlanta. See generally Old Nat.

Villages LLC v. Lenox Pines, LLC, 290 Ga. App. 517, 520 (659 SE2d 891) (2008)

(“[A] member of a limited liability company . . . is considered separate from the

company and is not a proper party to a proceeding by or against a limited liability

company, solely by reason of being a member of the limited liability company”)

(citation omitted.); Miller v. Steelmaster Material Handling Corp., 223 Ga. App. 532,

532-534 (1) (478 SE2d 601) (1996) (finding that president/sole stockholder and his

2
See McLain Bldg. Materials, Inc. v. Hicks, 205 Ga. App. 767, 769 (1) (423
SE2d 681) (1992) (although parties may occupy opposite roles as plaintiffs and
defendants between the two suits at issue, their status must be viewed in relation to
the duplicative cause of action; therefore, a counterclaim may provide this identity
of status).

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company were separate entities for the purpose of application of OCGA § 9-2-5 (a),

and that any judgment gained against president in suit to which company was not a

party would not be enforceable against company).

Oskouei’s company, Ortho Atlanta, is a party in the Second Lawsuit, but it also

is not a party to the First Lawsuit, which involves a different Oskouei company,

Ortho Savannah.

“Georgia law clearly establishes that a plaintiff may not prosecute two actions

in the courts at the same time for the same cause of action against the same party[.]”

Steve A. Martin Agency, Inc. v. PlantersFIRST Corp., 297 Ga. App. 780, 781 (1) (678

SE2d 186) (2009) (emphasis supplied). However, we find no prohibition against

different plaintiffs, as exist in the two lawsuits at issue here and as acknowledged by

both sides, pursuing similar causes of action against defendants who are the same.

Compare Creel, supra at 877 (affirming dismissal under OCGA § 9-2-5 (a) where the

plaintiffs, albeit in different configurations, were pursuing similar causes of action

against the same defendants). As such, we agree that the trial court erred in

dismissing the counterclaim.

Appellees do not on appeal argue that the claims against them were filed by the

same plaintiffs. Rather, they contend that we should affirm the trial court’s dismissal

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under the right for any reason rule because Ortho Atlanta allegedly is not a real party

in interest with respect to appellants’ counterclaim and because Oskouei lacks

standing to assert claims for alleged injuries to Ortho Savannah. However, Appellees

raised neither of these points below, nor did the trial court rule upon them, and we

will not do so in the first instance. Even in the context of de novo review, this Court

does not apply the right for any reason rule to uphold a decision of the trial court

based on a ground not raised below. See Hobbs v. Great Expressions Dental Centers

of Ga., P. C., 337 Ga. App. 248, 249, n. 2 (786 SE2d 897) (2016).

Judgment reversed. Andrews, and McMillian, JJ., concur.

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