McCabe v. Lundell
McCabe v. Lundell
Opinion of the Court
Appellee-plaintiff brought suit against appellant-defendant, alleging a tort claim for assault and battery. Appellant answered and filed a counterclaim against appellee. Subsequently, appellant moved to disqualify appellee’s attorney and to add him as a party-defendant to the counterclaim. The trial court denied appellant’s motion, but certified its order for immediate review. Appellant applied for an interlocutory appeal and the instant appeal results from the grant of his [application.
1. OCGA § 9-11-13 (h) provides as follows: “When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim L . ., the court shall order them to be brought in as defendants as provided in this chapter, if jurisdiction of them can be obtained.” [(Emphasis supplied.) The first issue for resolution is a determination if what is meant by obtaining “jurisdiction” over a potential defend-mt-in-counterclaim.
The phrase “as provided in this chapter” that is employed in )CGA § 9-11-13 (h) refers to OCGA § 9-11-19. Co-op Mtg. Investments Assoc. v. Pendley, 134 Ga. App. 236, 238 (1) (214 SE2d 572) 1975). OCGA § 9-11-19 (a) relates to the joinder of “[a] person who
Reading this statutory language in pari materia, it is clear that venue is not a relevant inquiry in the initial determination of whether to add a defendant-in-counterclaim. Instead, the reference in OCGA 9-11-13 (h) to the existence of “jurisdiction of [potential defendants-in-counterclaim]” obviously contemplates only a determination as to whether jurisdiction over the person of potential defendants-in-counterclaim can be obtained. Thus, “[w]hen the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim . . ., the court shall order them to be brought in as defendants ... if jurisdiction of them can be obtained [through service of process].” If the motion to join is granted and the defendant-in-counterclaim is thereafter served, then the actually “joined [rather than potentially joinable] party” may contest venue by filing a motion to dismiss which is to be treated by the trial court as a motion to transfer pursuant to Uniform Superior Court Rule 19. If venue is shown to be proper elsewhere, it would then be incumbent upon the trial court to enter an appropriate order. Such an appropriate order might sever the counterclaim for separate trial pursuant to OCGA § 9-11-42 (b) and transfer only the severed counterclaim while retaining jurisdiction and venue over the main action. See McCormick v. Rissanen, 177 Ga. App. 623 (340 SE2d 268) (1986).
Since the instant case concerns the denial of an initial motion fori joinder pursuant to OCGA § 9-11-13 (h), resolution is not dependent upon a venue analysis. As noted, venue would be a relevant inquiry only in a case wherein a motion for joinder pursuant to OCGA § 9-11-13 (h) has been granted and the defendant-in-counterclaim has been served and has elected to contest venue. To hold otherwise would be to misconstrue the provisions of OCGA § 9-11-13 (h) and to under mine the concept of judicial economy implicit in Uniform Superioi Court Rule 19. If jurisdiction over the person of a proper potentia defendant-in-counterclaim can be obtained, any issue of imprope: venue as to him should be raised and resolved in the context of subsequent motion to transfer. Judicial resolution of the merits of th< claim as against him should not be delayed by urging improper venui as the basis for an order denying his joinder as the defendant-in counterclaim in an existing action.
2. There is no contention that appellee’s counsel is not subject t service of process and that jurisdiction over his person cannot, there fore, be obtained. Accordingly, the propriety of the trial court’s orde denying the motion to add appellee’s counsel as a defendant-in-cour
3. Insofar as the motion to disqualify is concerned, appellant has stated that he will call appellee’s counsel as a witness and, under the record before us, it appears that appellee’s counsel should be considered a material witness. Accordingly, the trial court erred in denying appellant’s motion for disqualification of appellee’s counsel. Cherry v. Coast House, Ltd., 257 Ga. 403, 405 (3) (359 SE2d 904) (1987).
Judgment affirmed in part and reversed in part.
Concurring Opinion
concurring specially.
I I concur fully in Division 3 and concur in the result reached by the majority in Division 2. However, I cannot concur with the ration-lie advanced in Division 1 or with all that is said in Division 2 because I disagree with the majority’s interpretation of OCGA § 9-11-13 |h).
OCGA § 9-11-13 (h) provides that “the court shall order [the ad-itional parties] to be brought in as defendants as provided in this
Moreover, even assuming Co-op Mtg. Investments Assoc. v. Pendley, 134 Ga. App. 236, 238 (1) (214 SE2d 572) (1975), cited by the majority, was correct in concluding that the “in this chapter” language in OCGA § 9-11-13 (h) refers to OCGA § 9-11-19 (but see Ga. L. 1966, p. 626, § 13 (h), which shows that in the original enactment of OCGA § 9-11-13 (h), which has not been amended, the reference was to the entire Civil Practice “Act”), nothing in OCGA § 9-11-19 suggests that jurisdiction and venue should be inquired into only after the party is added. It does not modify the jurisdictional prerequisite in OCGA § 9-11-13 (h), but instead imposes additional requirements regarding the connection of the proposed additional party to the underlying action. Further, when in an ongoing action such as this one, the court knows before the additional defendant is added that it does not have venue, in the interest of judicial economy the trial court should inquire into its jurisdiction in advance. Accordingly, I conclude that venue is a threshold question that must be addressed by the courts when considering a motion to add a party pursuant to OCGA § 9-11-13 (h).
In the instant case, the record reveals that jurisdiction over ap-pellee’s counsel as a counterclaim defendant cannot be obtained because venue against him would not lie in Cobb County where the suit is pending. The attorney is a Georgia resident but does not reside in Cobb County, and appellee, the current counterclaim defendant, is a resident of Alabama. As a general rule, our Constitution provides that for in personam actions, venue lies in the county of the defendant’s place of residence. Ga. Const., Art. VI, Sec. II, Pars. I, VI (1983). Although the Constitution states that “[s]uits against . . . joint tort' feasors residing in different counties may be tried in either county,” (Art. VI, Sec. II, Par. IV), an individual defendant who lives outside the State does not “reside” in Georgia for purposes of this joint tortfeasor venue provision. Goodman, supra. While a nonresident such as appellee, who voluntarily institutes a lawsuit in a Georgie court is deemed to submit herself, for all purposes of that suit, to th( jurisdiction of the courts of the county in which the suit is pending
I am authorized to state that Presiding Judge McMurray and Presiding Judge Birdsong join in this special concurrence.
Concurring in Part
concurring in part and dissenting in part.
I concur in Divisions 1 and 3. However, the presence of the attorney as a joint tortfeasor is required for the granting of “complete relief” to McCabe. Although, as the majority states, it is not required that all joint tortfeasors be joined in a single suit, they should be added under OCGA § 9-11-13 (h) when it is requested and they can be served, in order for there to be complete relief to a wronged party. As quoted in Stein v. Burgamy, 150 Ga. App. 860, 861 (3) (258 SE2d 684) (1979): “ ‘This provision “complete relief” embraces the desirability of avoiding repetitive lawsuits on essentially the same facts or subject matter, as well as the desirability of joining those in whose absence there might be a grant of hollow or partial relief to the parties before the court.’ [Cit.]”
In Stein, the bank officer was being added individually to the counterclaim against the bank because “ ‘directors or officers of a corporation are liable for their fraudulent acts and representations to persons who are injured thereby.’ ” In Co-op Mtg. Investments &c. v. Pendley, 134 Ga. App. 236 (1) (214 SE2d 572) (1975), the case quoted in Stein, joinder of the general partner with the limited partnership was necessary to give complete relief, i.e., to reach the assets of the general partner. Otherwise there is just a “judicial juggle,” said the
The same obtains here, where there is an alleged joint tortfeasor, and the “desirabilities” expressed in Co-op as the philosophy underlying the requirement have waxed stronger since 1979 instead of waning. Not only the increasing caseload in the courts and increasing costs of lawsuits to courts and litigants, but also the spirit of the intervening constitutional provision requiring court rules which provide for “the speedy, efficient, and inexpensive resolution of disputes” support this. 1983 Ga. Const., Art. VI, Sec. IX, Par. I.
Reference
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- McCABE v. LUNDELL
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