Crawford v. Randle

• Decision Date: 08 March 1989
• Docket Number: No. 77787,77787
• Citation: 191 Ga.App. 112,381 S.E.2d 77
• Parties: CRAWFORD v. RANDLE.
• Court: Georgia Court of Appeals

Page 77

381 S.E.2d 77

191 Ga.App. 112

CRAWFORD v. RANDLE.

No. 77787.

Court of Appeals of Georgia.

March 8, 1989.

Rehearing Denied March 29, 1989.

Greer, Klosik & Daugherty, John F. Daugherty, William L. Swank II, Atlanta, for appellant.

A. Kenneth Secret, William N. Robbins, Atlanta, for appellee.

BEASLEY, Judge.

Randle sued Crawford and Malone in Fulton County for injuries which she suffered in an auto accident in Clayton County. Malone, a resident of Fulton County, filed a cross-claim against Crawford, a Clayton County resident. Defendant Crawford appeals the trial court's denial of her Motion to Transfer and Set Aside Verdict.

In her answer to the complaint, Crawford admitted residency in Clayton County but "denies that she is subject to the jurisdiction of this court." No answer was filed to the cross-claim which alleged jurisdiction over Crawford, but none is required, OCGA § 9-11-7(a), and the allegations in the cross-claim stand denied. OCGA § 9-11-8(d).

The proposed pretrial order was jointly submitted by counsel for all parties and entered by the court at the beginning of the trial. In Crawford's outline of the case, she stated that issues for determination by the jury were "[l]iability as to which or both Defendants or a mixture of liability on the part of any combination of all parties including the Plaintiff." There is no mention in the pretrial order of the claim of lack of jurisdiction over Crawford.

Crawford testified at the trial, contending that the accident was not her fault but that of co-defendant Malone, for cutting back in front of her car and causing her to run into him and him into plaintiff.

Crawford requested a charge, given by the court, that "even though a Plaintiff may sue one or more Defendants in the same action, the jury, by its verdict, can bind one and relieve another, as the evidence may authorize, one of the defendants being found liable while the other is adjudged not guilty of any negligence that proximately caused the collision."

The jury returned a verdict in favor of plaintiff against Crawford only and in favor of Malone on his cross-claim against Crawford, on a form submitted by Crawford. Malone, the resident defendant, was not held liable. After the verdict had been examined by counsel, the jury had been excused, and the court had requested counsel for plaintiff to prepare a judgment, counsel for Crawford made an oral motion to dismiss the case and to send it to Clayton County, on the ground that the court no longer had jurisdiction of Crawford. Plaintiff and Malone contended that the issue had been waived by not being included in the pretrial order and that Crawford's affirmative participation in the trial amounted to a waiver. The court requested a written motion, and Crawford submitted her Motion To Transfer And Set Aside Verdict.

1. All three of the enumerations deal with the court's denial of the motion and entry of judgment against Crawford.

The only portions of the transcript submitted by Crawford in her appeal are her testimony and the colloquy between court and counsel after the verdict was returned. These reflect that she was a resident of Clayton County and that the motion to set aside and transfer was made immediately after the verdict was returned and examined by counsel.

The court's order denying the motion and entering judgment against Crawford gave the following reasons for the denial: (1) she did not "affirmatively plead improper venue or lack of jurisdiction" prior to trial or during trial; (2) the issue was not mentioned in the pretrial order; (3) at no time during the trial or prior to verdict was the issue raised by defendant; (4) the submission by her of an alternative verdict form which allowed the jury to answer a question on the general liability of all defendants as opposed to the court's which would have required an answer as to each defendant; and (5) the submission by defendant of her request to charge. The court concluded that these acts amounted to a waiver by Crawford of that defense and estopped her from raising it.

Art. VI, Sec. II, Par. IV of the Georgia Constitution provides that "[s]uits against ... joint tort-feasors ... residing in different counties may be tried in either county." OCGA § 15-1-2 states that "lack of jurisdiction of the person [unlike jurisdiction of the subject matter] may be waived, insofar as the rights of the parties are concerned...." The issue here is one of the jurisdiction of the person or venue. See generally Williams v. Fuller, 244 Ga. 846, 262 S.E.2d 135 (1979).

The only basis upon which the State Court of Fulton County could have acquired jurisdiction over Crawford's person was by the joining of her with a resident defendant as provided by the above-quoted constitutional provision. Southeastern Truck Lines v. Rann, 214 Ga. 813, 815, 108 S.E.2d 561 (1959).

Addressing the court's reasons sequentially, the court was incorrect in stating that Crawford had not asserted lack of venue and jurisdiction in her answer; she did. This was done even though at the time there was jurisdiction and venue as to her. Taylor v. Career Concepts, 184 Ga.App. 551, 552, 362 S.E.2d 128 (1987). "The only time the defense of lack of jurisdiction over the person of the nonresident [defendant] because of ... nonresidency would be valid ... is in the event of a judgment in favor of the resident joint defendant.... [Cit.]" Lansky v. Goldstein, 136 Ga.App. 607, 608(2), 222 S.E.2d 62 (1975); cited in Taylor, supra.

The court's further reliance on OCGA § 9-11-12(h) would have been misplaced even if the defense had been omitted from Crawford's responsive pleading. " 'It is obvious that one can not waive a defense under CPA § 12(h)(1) which does not exist at the time responsive pleadings are required. Furthermore, in 1974, the legislature amended CPA § 60(d) ... by adding "a motion to set aside shall also lie to attack a judgment based upon lack of jurisdiction over the person ..., regardless of whether such lack of jurisdiction appears upon the face of the record or pleadings." The effect of this amendment is to prevent waiver of the defense of lack of jurisdiction under CPA § 12(h)(1) by allowing it to be raised in a motion to set aside under CPA § 60(d).' [Cits.]" Evans v. Montgomery Elevator Co., 159 Ga.App. 834, 835, 285 S.E.2d 263 (1981). Similarly, at the time of the entry of the pretrial order and during the trial, venue and jurisdiction of Crawford were appropriate.

While it is true that actions of the non-resident defendant or counsel can waive the defense of personal jurisdiction, with the exception of Southern Nitrogen Co. v. Manuel, 110 Ga.App. 597, 139 S.E.2d 453 (1964) and Davis v. Waycross Coca-Cola Bottling Co., 60 Ga.App. 390, 3 S.E.2d 863 (1939), dealt with below, the cases so holding have all involved situations where, after the resident defendant had been released from the case, the non-resident defendant sought a ruling from the court on the merits of the case, thereby submitting to the jurisdiction of the court. Taylor, supra (resident defendant granted summary judgment, after which plaintiff moved for summary judgment against non-resident, who appeared at the hearing and argued on the merits); Harrell v. Gomez, 174 Ga.App. 8, 329 S.E.2d 302 (1985) (a motion for directed verdict was granted to the resident defendant, after which the non-resident moved for a directed verdict on the merits); Vanguard Ins. Co. v. Beasley, 167 Ga.App. 625, 307 S.E.2d 56 (1983) ...