McCabe v. Lundell, A90A1908

• Decision Date: 10 January 1991
• Docket Number: No. A90A1908,A90A1908
• Parties: McCABE v. LUNDELL.
• Court: Georgia Court of Appeals

Page 693

405 S.E.2d 693

199 Ga.App. 639

McCABE v. LUNDELL.

No. A90A1908.

Court of Appeals of Georgia.

Jan. 10, 1991.

Rehearings Denied March 25, 1991 and May 3, 1991.

Certiorari Denied June 7, 1991.

Donald A. Weissman, Douglas H. Pike, Atlanta, for appellant.

Glen A. Garrett, Norcross, Richard L. Moore, Rebecca S. Walton-McFalls, Marietta, for appellee.

CARLEY, Judge.

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 ..., 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 of what is meant by obtaining "jurisdiction" over a potential defendant-in-counterclaim.

The phrase "as provided in this chapter" that is employed in OCGA § 9-11-13(h) refers to OCGA § 9-11-19. Co-op Mtg. Investments Assoc. v. Pendley, 134 Ga.App. 236, 238(1), 214 S.E.2d 572 (1975). OCGA § 9-11-19(a) relates to the joinder of "[a] person who is subject to service of process " and further provides, in relevant part, that "[i]f the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action." (Emphasis supplied.)

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 S.E.2d 268 (1986).

Since the instant case concerns the denial of an initial motion for 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 undermine the concept of judicial economy implicit in Uniform Superior Court Rule 19. If jurisdiction over the person of a proper potential defendant-in-counterclaim can be obtained, any issue of improper venue as to him should be raised and resolved in the context of a subsequent motion to transfer. Judicial resolution of the merits of the claim as against him should not be delayed by urging improper venue 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 to service of process and that jurisdiction over his person cannot, therefore, be obtained. Accordingly, the propriety of the trial court's order denying the motion to add appellee's counsel as a defendant-in-counterclaim is dependent solely upon whether his presence "is required for the granting of complete relief in the determination of [appellant's] counterclaim...." (Emphasis supplied.) OCGA § 9-11-13(h). The addition of appellee's counsel is sought only on the basis that he is a joint tortfeasor with appellee. It is clear, however, that the absence of an additional alleged joint tortfeasor is no impediment to "complete relief" otherwise being granted to appellant. "[I]t is well settled that it is not required that all joint tortfeasors be joined together in an action against one, their liability being joint and several. [Cit.]" Sheet Metal Workers Intl. Assn. v. Carter, 144 Ga.App. 48, 51(4), 240 S.E.2d 569 (1977), rev'd on other grounds 241 Ga. 220, 244 S.E.2d 860 (1978). Compare Stein v. Burgamy, 150 Ga.App. 860(3), 258 S.E.2d 684 (1979) (direct liability of employee and vicarious liability of employer); Co-op Mtg. Investments Assoc. v. Pendley, supra (partnership liability). It may be "desirable" that appellee's counsel be added as a defendant-in-counterclaim. However, OCGA § 9-11-13(h) does not authorize the addition of a defendant-in-counterclaim merely because it may be "desirable." The statute mandates the addition of a defendant-in-counterclaim whose presence "is required for the granting of complete relief...." (Emphasis supplied.) This court has no authority to ignore statutory language and, in effect, rewrite statutes based upon subjective judicial determinations of "desirability." It follows, therefore, that the trial court did not err in denying appellant's motion to add appellee's counsel as a defendant-in-counterclaim because his presence is not required to afford appellant complete relief.

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 S.E.2d 904 (1987).

Judgment affirmed in part and reversed in part.

BANKE, P.J., and POPE, COOPER and ANDREWS, JJ., concur.

SOGNIER, C.J., and McMURRAY and BIRDSONG, P.JJ., concur specially.

BEASLEY, J., concurs in part and dissents in part.

SOGNIER, Chief Judge, concurring specially.

I concur fully in Division 3 and concur in the result reached by the majority in Division 2. However, I cannot concur with the rationale 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 additional parties] to be brought in as defendants as provided in this chapter, if jurisdiction of them can be obtained." (Emphasis supplied.) I read that language to mean that jurisdiction is a threshold inquiry. As in any other action, jurisdiction over a party must be established before the court can enter any rulings binding the party. Contrary to the majority's assertion, personal jurisdiction encompasses more than service of process. Venue is also a component of jurisdiction over the person, Williams v. Fuller, 244 Ga. 846, 849, 262 S.E.2d 135 (1979); Goodman v. Vilston, 197 Ga.App. 718, 721, 399 S.E.2d 241 (1990), and a court which does not have venue over a person lacks jurisdiction over that person. Williams, supra, 244 Ga. at 849-850(3, 4), 262 S.E.2d 135.

Moreover, even assuming Co-op Mtg. Investments Assoc. v. Pendley, 134 Ga.App. 236, 238(1), 214 S.E.2d 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 appellee'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 app...