Ford v. Uniroyal Goodrich Tire Co.

• Decision Date: 18 February 1998
• Docket Number: Nos. A97A2505,A97A2506,s. A97A2505
• Citation: 231 Ga.App. 11,497 S.E.2d 596
• Parties: , 98 FCDR 826 FORD v. UNIROYAL GOODRICH TIRE COMPANY et al. (Two Cases).
• Court: Georgia Court of Appeals

Page 596

497 S.E.2d 596

231 Ga.App. 11, 98 FCDR 826

FORD v. UNIROYAL GOODRICH TIRE COMPANY et al. (Two Cases).

Nos. A97A2505, A97A2506.

Court of Appeals of Georgia.

Feb. 18, 1998.

Reconsideration Denied March 9, 1998.

Certiorari Granted Sept. 18, 1998.

Smolar, Roseman, Brantley & Seifter, Yehuda Smolar, G. Grant Brantley, James I. Seifter, Atlanta, Antoinette D. Johnson, Marietta, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., Cordelle, for appellant.

Love & Willingham, Daryll Love, Allen S. Willingham, Robert P. Monyak, Atlanta, for appellees.

SMITH, Judge.

These related appeals mark the return to this Court of two related personal injury actions that arose in 1989 and were originally tried in Fulton County. Previous appeals resulted in remand of both actions for new trial. See Uniroyal Goodrich Tire Co. v. Ford, 218 Ga.App. 248, 461 S.E.2d 877 (1995) (Ford I ), aff'd. in part and rev'd in part, Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226, 476 S.E.2d 565 (1996) (Ford II ), on remand, 224 Ga.App. 187, 481 S.E.2d 6 (1997) (Ford III ). The plaintiff-appellants have settled with the sole Fulton County defendant, and this appeal involves a single issue: the appropriate venue for these cases after settlement and dismissal of that defendant. In each case, the trial court wrote an excellent, thorough, complete, and correct order granting defendant-appellees' motions to transfer. We adopt the text of the trial court's orders, in slightly modified form, as our opinion in this case.

These cases arose out of a vehicular collision that occurred on August 26, 1989. Appellants Claudia and Franklin Ford were passengers in a van when one of the tires on the vehicle separated and wrapped itself around the rear axle. The van was immobilized, stranding the occupants in the middle of I-85 where they were then struck in the rear by another vehicle. As a result, Franklin Ford suffered severe and permanent brain damage and Claudia Ford suffered a badly fractured leg. Ford I, supra at 249, 461 S.E.2d 877.

The Fords filed suit in Fulton County against International Automotive Corporation d/b/a NTW and Uniroyal Goodrich Tire Company, a Delaware corporation (the UGTC Corporation). Uniroyal Goodrich Tire Company, a New York partnership (the UGTC Partnership), the actual manufacturer of the tire at issue, was not sued. NTW, the tire retailer, was a resident of Fulton County and an alleged joint tortfeasor with the UGTC Corporation.

During the lawsuit, NTW settled with the Fords, denying liability and obtaining broad and general releases. When the Fords did not dismiss NTW, the UGTC Corporation moved to enforce the settlement and have NTW dismissed. UGTC also moved to transfer venue. The trial court denied the motion on the grounds that NTW was still a party to the lawsuit because cross-claims between NTW and the UGTC Corporation were still pending. Thereafter, NTW and the UGTC Corporation settled the cross-claims, fully releasing each other and dismissing the claims. The UGTC Corporation and NTW thereupon jointly moved again to enforce the settlements and to have NTW dismissed; the trial court denied the motion. In addition, the trial court, on its own motion, added the UGTC Partnership. Ford I, supra at 251-252(2), 461 S.E.2d 877.

This Court held that the trial court's order declining to dismiss NTW and directing that it remain a defendant during the trial was reversible error. Id. at 256-257(4), 461 S.E.2d 877. We directed that upon remand, NTW's settlements be enforced and NTW be dismissed from the lawsuit. The only remaining defendants in the case are the UGTC Corporation and the UGTC Partnership, appellees here.

Appellees moved for transfer of the action due to improper venue, contending that venue in Fulton County vanished with the dismissal of the only Fulton County resident in the case. The Fords insist that venue in Fulton County is still proper because one of the partners of the UGTC partnership is subject to suit there. The trial court granted appellees' motions to transfer, and we affirm.

UGTC Partnership

A partnership's residency is determined by statute. OCGA § 9-10-90 provides: "[T]he term 'nonresident' includes ... a partnership ... not residing, domiciled, organized, or existing in this state at the time a claim or cause of action under Code Section 9-10-91 arises.... The term 'nonresident' shall also include ... a partnership ... [that], at the time a claim or cause of action arises under Code Section 9-10-91, was residing, domiciled, organized, or existing in this state and subsequently becomes a resident, domiciled, organized, or existing outside of this state as of the date of perfection of service of process."

On the date of the accident, the UGTC Partnership was a New York general partnership. It was not formed or organized in Georgia or under Georgia law. It was not registered to do business in Georgia, it had no office in Georgia, its principal activities were not in Georgia, and it had no registered agent in Georgia. Because the UGTC Partnership is a nonresident, the relevant provisions of the Long Arm Statute, OCGA § 9-10-90 et seq., must be applied to determine venue. Under OCGA § 9-10-93, venue "shall lie in any county wherein a substantial part of the business was transacted, the tortious act, omission, or injury occurred, or the real property is located." ¹ In this case, the business was transacted in Alabama, where the tire was manufactured, and the act or omission took place in DeKalb County, where the collision occurred. Therefore, venue over the UGTC Partnership would be proper in DeKalb County.

The Fords contend that venue as to the partnership lies in Fulton County because one of the partners has a Fulton County registered agent and a partnership can be sued wherever one of its partners resides. ² We disagree. The plain language of the Long Arm Statute shows that the status of the defendant partnership, not the status of the individual partners, determines both residency and venue. OCGA §§ 9-10-90; 9-10-93. See Dodd v. Simpson, 191 Ga.App. 369, 370, 381 S.E.2d 585 (1989) (transfer of case against partnership to Whitfield County improper even though one partner resident of that county). The Fords' reliance on decisions predating the enactment of the Long Arm Statute is misplaced. Equally misplaced is their reliance on Reading Assoc., Ltd. v. Reading Assoc. of Ga., 236 Ga. 906, 225 S.E.2d 899 (1976), because in that action on a contract the partnership itself had an office in Fulton County and venue was established for a resident partnership under the general venue provisions of Ga. Const.1983, Art. VI, Sec. II, Par. IV. As to nonresidents, in contrast, venue must be established under the specific venue provisions of the Long Arm Statute, and the Supreme Court applied OCGA § 9-10-93 to establish venue as to a nonresident partner in the county where the business was transacted. Id. at 907, 225 S.E.2d 899.

UGTC Corporation

The UGTC Corporation, on the other hand, is a Georgia resident. Accordingly, venue is determined pursuant to OCGA § 14-2-510(b). That Code section provides that a domestic corporation may be sued "[f]or purposes of proceedings generally, in the county where its registered office is maintained," and "[f]or purposes of proceedings for damages because of torts, wrong, or injury done, in the county where the cause of action originated, if the corporation has an office and transacts business in that county." OCGA § 14-2-510(b)(1) and (3). The UGTC Corporation's registered office is located in Clayton County. The UGTC Corporation does not have an office in Fulton County or in DeKalb County. Accordingly, venue as to the UGTC Corporation is in Clayton County. Because the UGTC Partnership had consented to venue in Clayton County, the trial court offered the Fords the choice of transfer to DeKalb County or Clayton County, and they chose DeKalb County. The trial court's decision was correct. See Collipp v. Newman, 217 Ga.App. 674, 675, 458 S.E.2d 701 (1995).

On appeal, the Fords raise the additional contention that the UGTC Partnership waived the issue of venue. The dissents suggest that the UGTC Partnership made an admission in judicio. But no such waiver or admission was ever made. It is well established that a party may make admissions in judicio in its pleadings, motions, or briefs. But it is equally well established that " 'admissions in judicio apply only to facts in litigation.' [Cit.] They do not apply when the admission is merely in the nature of the pleader's opinion as to fact or law. [Cit.]" O'Brien Family Trust v. Glen Falls Ins. Co., 218 Ga.App. 379, 381(2), 461 S.E.2d 311 (1995). "The rule as to admissions in judicio applies only to admissions of fact and does not apply to opinions or conclusions. [Cits.]" Aycock v. Calk, 228 Ga.App. 172, 174, 491 S.E.2d 383 (1997). Accord Ellerbee v. Interstate Contract Carrier Corp., 183 Ga.App. 828, 829(2), 360 S.E.2d 280 (1987) (statement in pleading that service was perfected held statement of opinion not fact). Compare Nadew v. Alemu, 217 Ga.App. 438, 440, 457 S.E.2d 709 (1995), where this Court relied upon defendant's admission as to his residence, a fact, rather than venue, a legal conclusion. A response to a brief and conclusory allegation regarding venue in the pleadings of the opposing party is simply a legal conclusion or opinion of the pleader and cannot constitute an admission in judicio.

More importantly, the consolidated pretrial order entered in this case expressly superseded the pleadings as provided by Uniform Superior Court Rule 7.2. See generally Benschoter v. Shapiro, 204 Ga.App. 56, 58(3), 418 S.E.2d 381 (1992). In the pretrial order, the Fords did not contend that the venue issue was waived by an admission in judicio; instead, they asserted venue over the UGTC Partnership based upon the Fulton County defendant. Moreover, the UGTC Partnership explicitly preserved its venue defense in...