Ron Johnson, Jr. Enters. v. Hartry

• Decision Date: 04 January 2022
• Docket Number: A21A0302
• Court: Georgia Court of Appeals
• Parties: RON JOHNSON, JR. ENTERPRISES, INC. v. HARTRY et al.

RON JOHNSON, JR. ENTERPRISES, INC.
v.
HARTRY et al.

No. A21A0302

Court of Appeals of Georgia, Third Division

January 4, 2022

DOYLE, P. J., REESE and BROWN, JJ.

Brown, Judge.

We have consolidated these interlocutory appeals in which Ron Johnson, Jr. Enterprises, Inc. ("RJE") and Norfolk Southern Railway Co. (hereinafter collectively "Defendants") challenge the trial court's order granting Winford and Geraldine Hartry's motion to transfer venue from Spalding County to Clayton County. For the reasons that follow, we reverse.^[1]

1

This is the third appearance of this case before this Court. See Hartry v. Ron Johnson Jr. Enterprises, 347 Ga.App. 55 (815 S.E.2d 611) (2018) ("Hartry II"); Norfolk Southern R. Co. v. Hartry, 316 Ga.App. 532 (729 S.E.2d 656) (2012). The facts underlying this appeal are not in dispute. In June 2010, a collision occurred between a Norfolk Southern train and a truck operated by RJE. Winford Hartry, the engineer of the train, suffered injuries as a result of the collision. Winford and his wife, Geraldine, sued Norfolk Southern and RJE in Clayton County, where the collision occurred.^[2] In February 2013, the Clayton County State Court granted Norfolk Southern's motion for summary judgment.^[3] Following the grant of summary judgment

2

to Norfolk Southern, and before the order became final after appeal, the Hartrys consented to a transfer of the action from Clayton County to Spalding County, where RJE maintains its registered agent and registered office.^[4]

A November 2014 trial in Spalding County resulted in a mistrial/hung jury. A second trial in November 2016 resulted in a plaintiffs' verdict against RJE. On appeal from the final judgment entered on the verdict, this Court reversed the February 2013 order granting summary judgment to Norfolk Southern and set aside the judgment against RJE. See Hartry II, 347 Ga.App. at 58 (1) (b). In that opinion, we noted that Norfolk Southern remained a defendant on retrial. Id. at 67 (4) (a). The Supreme Court affirmed our ruling, and the case was remanded for retrial. Norfolk Southern R. Co. v. Hartry, 307 Ga. 566 (837 S.E.2d 303) (2019).

3

Upon remand, the Hartrys moved to transfer the action back to Clayton County, contending that, with the addition of Norfolk Southern back into the case, they have a right to insist that venue be returned to the forum originally selected. Norfolk Southern and RJE both opposed the motion. Specifically, Norfolk Southern argued that venue is not mandatory in Clayton County and that re-transferring the action to Clayton County would be a waste of judicial resources since the case has been pending and twice tried in Spalding County during the past seven years. Following a hearing, ^[5]the Spalding County court granted the motion to transfer without explanation. The trial court, however, certified its order for immediate review, and this Court granted Norfolk Southern's and RJE's applications for interlocutory appeal to consider whether the trial court erred in granting the motion to transfer venue back to Clayton County.^[6]

4

Defendants contend that the trial court erred in granting the motion to transfer venue back to Clayton County. The crux of their argument is that there is no constitutional or statutory authority in Georgia law allowing the trial court to transfer the case back to Clayton County upon remand, and that because venue in Spalding County is proper as to both defendants, the trial court should have denied the motion to transfer venue. Put another way, once the Hartrys consented to transfer the case to Spalding County, the trial court was without any legal authority to re-transfer venue to the original forum, and given that the General Assembly has not enacted a statute allowing trial courts to transfer venue under the circumstances presented in this case, we must reverse the transfer order.^[7] While the Hartrys agree that no statute exists which authorizes a state court to transfer venue to another state court when both courts have proper venue, they contend that the trial court was required to transfer the case

5

back to Clayton County in order to return the parties "'precisely to the positions in which they would have stood' before the erroneous [grant of] summary judgment" to Norfolk Southern. According to the Hartrys, longstanding case law provides that when a judgment is reversed by an appellate court, the parties are returned to the position they were in before the entry of that reversed judgment. See, e.g., Franklyn Gesner Fine Paintings v. Ketcham, 259 Ga. 3, 4 (6) (a) (375 S.E.2d 848) (1989). In their view,

the summary judgment in favor of Norfolk Southern was the 'foundation to support' the transfer order from Clayton County to Spalding County. When the summary judgment was reversed, the foundation for the transfer order no longer existed - it became "outlawry" - and it too was

...