2020 Georgia Code
Title 9 - Civil Practice
Chapter 10 - Civil Practice and Procedure Generally
Article 2 - Venue
Part 1 - General Provisions
§ 9-10-31. Actions Against Certain Codefendants Residing in Different Counties; Pleading Requirements; Application

1. The General Assembly finds that Paragraph IV of Section II of Article VI of the Georgia Constitution permits a trial and entry of judgment against a resident of Georgia in a county other than the county of the defendant's residence only if the Georgia resident defendant is a joint obligor, joint tort-feasor, joint promisor, copartner, or joint trespasser.
2. Subject to the provisions of Code Section 9-10-31.1, joint tort-feasors, obligors, or promisors, or joint contractors or copartners, residing in different counties, may be subject to an action as such in the same action in any county in which one or more of the defendants reside.
3. In any action involving a medical malpractice claim as defined in Code Section 9-9-60, a nonresident defendant may require that the case be transferred to the county of that defendant's residence if the tortious act upon which the medical malpractice claim is based occurred in the county of that defendant's residence.
4. If all defendants who reside in the county in which an action is pending are discharged from liability before or upon the return of a verdict by the jury or the court hearing the case without a jury, a nonresident defendant may require that the case be transferred to a county and court in which venue would otherwise be proper. If venue would be proper in more than one county, the plaintiff may elect from among the counties in which venue is proper the county and the court in which the action shall proceed.
5. Nothing in this Code section shall be deemed to alter or amend the pleading requirements of Chapter 11 of this title relating to the filing of complaints or answers.

(Orig. Code 1863, § 3315; Code 1868, § 3327; Code 1873, § 3404; Code 1882, § 3404; Civil Code 1895, § 4952; Civil Code 1910, § 5529; Code 1933, § 3-204; Ga. L. 1999, p. 734, § 1; Ga. L. 2001, p. 4, § 9; Ga. L. 2005, p. 1, § 2/SB 3.)

The 2005 amendment, effective February 16, 2005, added subsection (a); redesignated former subsection (a) as present subsection (b); in subsection (b), substituted "Subject to the provisions of Code Section 9-10-31.1, joint" for "Joint or joint and several" at the beginning and deleted the former second sentence which read "If, however, the court determines prior to the commencement of trial that: (1) The plaintiff has brought the action in bad faith against all defendants residing in the county in which the action is brought; or (2) As a matter of law, no defendant residing in the county in which the action is brought is a proper party, the action shall be transferred to the county and court which the plaintiff elects in which venue is proper. The burden of proof on the issue of venue shall be on the party claiming improper venue by a preponderance of evidence."; added subsection (c); redesignated former subsection (b) as present subsection (d); substituted "or upon the return of a verdict by the jury or the court hearing the case without a jury" for "the commencement of trial" in the first sentence of subsection (d); deleted former subsection (c) which read: "If all defendants who reside in the county in which the action is pending are discharged from liability after the commencement of trial, the case may be transferred to a county and court in which venue would otherwise lie only if all parties consent to such transfer."; deleted former subsection (d) which read: "For purposes of this Code section, trial shall be deemed to have commenced upon the jury being sworn or, in the instance of a trial without a jury, upon the first witness being sworn."; and deleted former subsection (f) which read: "This Code section shall apply to actions filed on or after July 1, 1999."

- Ga. Const. 1983, Art. VI, Sec. II, Para. IV.

- Pursuant to Code Section 28-9-5, in 1999, "tort-feasors" was substituted for "tortfeasors" in the first sentence of subsection (a) (now subsection (b)).

- Ga. L. 1999, p. 734, § 2, not codified by the General Assembly, provides: "It is the intent of the General Assembly through this Act to provide for a fairer and more predictable rule of venue in actions involving joint or joint and several tort-feasors, obligors or promisors, or joint contractors, or copartners, residing in different counties; to establish venue in such actions prior to the commencement of trial in a manner that is fair and constitutionally sound; to eliminate the waste of time and resources to courts and parties under the vanishing venue doctrine; and to bring the law of venue into conformity with the language of Article IV, Section II, Paragraph IV of the Georgia Constitution of 1983."

Ga. L. 2005, p. 1, § 1, not codified by the General Assembly, provides: "The General Assembly finds that there presently exists a crisis affecting the provision and quality of health care services in this state. Hospitals and other health care providers in this state are having increasing difficulty in locating liability insurance and, when such hospitals and providers are able to locate such insurance, the insurance is extremely costly. The result of this crisis is the potential for a diminution of the availability of access to health care services and a resulting adverse impact on the health and well being of the citizens of this state. The General Assembly further finds that certain civil justice and health care regulatory reforms as provided in this Act will promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims and will thereby assist in promoting the provision of health care liability insurance by insurance providers. The General Assembly further finds that certain needed reforms affect not only health care liability claims but also other civil actions and accordingly provides such general reforms in this Act."

- For annual survey article discussing trial practice and procedure, see 51 Mercer L. Rev. 487 (1999). For annual survey of trial practice and procedure, see 56 Mercer L. Rev. 433 (2004). For article on 2005 amendment of this Code section, see 22 Ga. St. U.L. Rev. 221 (2005). For annual survey of trial practice and procedure, see 57 Mercer L. Rev. 381 (2005). For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007). For survey article on trial practice and procedure, see 60 Mercer L. Rev. 397 (2008). For note discussing problems with venue in Georgia, and proposing statutory revisions to improve the resolution of venue questions, see 9 Ga. St. B.J. 254 (1972). For note, "Venue in Multidefendant Civil Practice in Georgia," see 6 Ga. State U.L. Rev. 427 (1990). For note on 1999 amendment to this section, see 16 Ga. St. U.L. Rev. 7 (1999).

JUDICIAL DECISIONS

Action against joint defendants to be brought in county of residence of either.

- Ga. L. 1949, §§ 4-6 (see O.C.G.A. § 15-21-56) did not overrule Ga. Const. 1976, Art. VI, Sec. II, Para. IV (see Ga. Const. 1983, Art. VI, Sec. II, Para. VI), providing that civil actions generally shall be brought in the county of the defendant's residence; where there are joint defendants, however, such an action may be brought in the county of residence of either. Banks County v. Stark, 88 Ga. App. 368, 77 S.E.2d 33 (1953).

- Where a county board of education contracted with a construction company to renovate a portion of an elementary school, but, during renovation, a fire (allegedly caused by the contractor's negligence) partially destroyed not only the section being renovated, but other portions of the school building as well, and a "builder's risk" insurance policy covering the renovation named as insureds both the construction company and the county board of education, although the construction company was a resident of Stephens County, the board of education sued both the insurance company and the construction company in Rabun County, the locale of the insured property, as "joint obligors," it was held that the defendants were not joint obligors. The school district's actions were not only for different injuries but one was ex contractu (against the insurance company) and the other was ex delicto (against the construction company). Currahee Constr. Co. v. Rabun County Sch. Dist., 180 Ga. App. 471, 349 S.E.2d 487 (1986).

A contractor and a county were not joint obligors as the obligation of the contractor arose from its breach of a contractual promise to pay supplier while the alleged obligation of county arose from the alleged breach of its statutory duty to require a good and sufficient payment bond. J & A Pipeline Co. v. DeKalb County, 208 Ga. App. 123, 430 S.E.2d 13, modified on other grounds, DeKalb County v. J & A Pipeline Co., 263 Ga. 645, 437 S.E.2d 327 (1993).

- Service in another county by the sheriff of the county where suit was brought and where a joint obligor resided was permitted. Re/Max 100 of Sandy Springs, Inc. v. Tri-Continental Leasing Corp., 177 Ga. App. 111, 338 S.E.2d 542 (1985).

- An individual defendant who lives outside the state does not "reside" in Georgia so as to be subject to the joint obligor venue provisions, and venue against the nonresident individual is proper only where authorized by the long-arm statute. Goodman v. Vilston, Inc., 197 Ga. App. 718, 399 S.E.2d 241 (1990).

- Where residents and nonresidents are joint obligors or joint tortfeasors, action against them may be brought in any county in the state in which jurisdiction can be obtained over the nonresident defendant. Nelson Assocs. v. Grubbs, 135 Ga. App. 947, 219 S.E.2d 607 (1975).

- Consent judgment entered against the sole resident defendant/joint tortfeasor did not amount to a discharge from liability entitling the nonresident defendants/joint tortfeasors to transfer the action. Nalley v. Baldwin, 261 Ga. App. 713, 583 S.E.2d 544 (2003).

- In a wrongful death medical malpractice suit, the trial court erred in granting the plaintiff's motion to transfer venue of the case because the remaining defendant had waived the defendant's venue defenses and, therefore, the plaintiff had no standing to require the trial court to transfer the case to the county where the defendant resided when the suit was filed. Richardson v. Gilbert, 319 Ga. App. 72, 733 S.E.2d 783 (2012).

- Where a nonresident admits jurisdiction, the defendant against whom substantial relief is prayed is a resident, and a second defendant is a joint obligor of the first, venue is proper as to all parties. Cheek v. Savannah Valley Prod. Credit Ass'n, 244 Ga. 768, 262 S.E.2d 90 (1979).

- Trial court's order that venue was proper in Twiggs County was proper in a declaratory judgment action between an owner and a corporation arising from leases between the parties for facilities because one of the facilities at issue was located in Twiggs County and the corporation's subsidiary, a co-defendant, had an office and transacted business in Twiggs County. Mariner Healthcare, Inc. v. Foster, 280 Ga. App. 406, 634 S.E.2d 162 (2006).

- In order to maintain action against a nonresident joint tortfeasor, it is essential that a cause of action be alleged and proven against the resident defendant. Chitty v. Jones, 210 Ga. 439, 80 S.E.2d 694 (1954).

- Where joint tortfeasors residing in different counties are sued in the county of one, and on the trial of the case the resident defendant is discharged and a verdict returned solely against the nonresident defendant, the court is without jurisdiction to enter a judgment against the nonresident defendant. O'Neill v. Western Mtg. Corp., 153 Ga. App. 151, 264 S.E.2d 691 (1980).

- Where a single suit is brought against several joint tortfeasors in a county where one of them is a resident, and the others reside outside the county, a consent judgment and an agreement not to enforce the judgment constitute a finding that the resident is liable and do not deprive the trial court of jurisdiction over the nonresident defendants in the county where suit was brought. Motor Convoy, Inc. v. Brannen, 194 Ga. App. 795, 391 S.E.2d 671, aff'd, Frazier v. State, 195 Ga. App. 109, 393 S.E.2d 262 (1990).

- A corporation which is sued as a joint tortfeasor and is deemed to be a resident of the same county as other joint tortfeasors with which it is joined and is also considered to be a resident of another county in which neither of the other joint tortfeasors resides is a resident of a "different" county within the meaning of this section. Richards v. Johnson, 219 Ga. 771, 135 S.E.2d 881 (1964) (see O.C.G.A. § 9-10-31).

- Even where a defendant corporation has no office, agent, or place of business in the county where action is brought, and regardless of whether the other defendant was an independent contractor or an employee of the corporation, venue is proper if the petition alleges facts which state a claim against the defendants as joint tortfeasors and the noncorporate defendant is a resident of the county in which the action is brought. Del-Cook Timber Co. v. Brown, 124 Ga. App. 67, 183 S.E.2d 81 (1971).

- A nonresident corporation is, for purposes of action, a resident of the county of this state in which it has an office, agent, and place of business, and an action will lie against such corporation and a resident joint defendant tortfeasor in such county, even though the resident joint tortfeasor resides in a different county. Nelson Assocs. v. Grubbs, 135 Ga. App. 947, 219 S.E.2d 607 (1975).

Fact that partnership has place of business in state does not establish venue as to the partners. Reading Assocs., Ltd. v. Reading Assocs. of Ga., Inc., 236 Ga. 906, 225 S.E.2d 899 (1976).

Constitutional and statutory provisions as to venue of actions against partners apply to limited partnership. Farmers Hdwe. of Athens, Inc. v. L.A. Properties, Ltd., 136 Ga. App. 180, 220 S.E.2d 465 (1975).

- A partnership may be sued in any county in which one partner resides but it cannot be sued in a county where none of the partners reside even if the partnership may be doing business in the latter county. Farmers Hdwe. of Athens, Inc. v. L.A. Properties, Ltd., 136 Ga. App. 180, 220 S.E.2d 465 (1975).

There is no basis for distinction as to partners who may be sued in county of either. Nelson Assocs. v. Grubbs, 135 Ga. App. 947, 219 S.E.2d 607 (1975).

- Partnership may be sued in any county in which one of the partners has such a residence as will confer upon the courts of that county jurisdiction over the partner's person, regardless of the place of the partner's citizenship. Nelson Assocs. v. Grubbs, 135 Ga. App. 947, 219 S.E.2d 607 (1975).

Venue in an action against the guarantor of unpaid promissory notes was not lost merely because no final judgment for money damages was entered against resident joint obligors, where summary judgment was granted against all joint obligors and final judgment for money damages was entered against only the guarantor, who resided in another county, and the others could not satisfy the liability of their debt. Hodge Residential, Inc. v. Bankers First Fed. Savs. & Loan Ass'n, 199 Ga. App. 474, 405 S.E.2d 302 (1991).

- After venue vanishes, the trial court still retains jurisdiction to order the case transferred to a court where venue is appropriate and the court also retains jurisdiction to consider and grant a defendant's motion to dismiss on a matter of abatement, such as insufficiency of service of process, rendering the need to transfer moot. Exum v. Melton, 244 Ga. App. 775, 536 S.E.2d 786 (2000).

- In a personal injury action by the passenger against the estate of the driver of the vehicle in which the passenger was riding and the owner of the truck, venue over the nonresident truck owner vanished when the passenger dismissed the owner from the main action, notwithstanding a pending cross-claim for wrongful death against the owner by the estate, a joint tortfeasor which had consented to judgment against it. Airgrowers, Inc. v. Tomlinson, 230 Ga. App. 415, 496 S.E.2d 528 (1998).

- O.C.G.A. § 9-10-31(c) was not a proper exercise of the legislature's authority to enact laws which allowed the superior and state courts to change venue; furthermore, because O.C.G.A. § 9-10-31.1(a) vested power to change venue in the court, and not in a defendant, as did O.C.G.A. § 9-10-31(c), O.C.G.A. § 9-10-31.1(a) was proper under Ga. Const. 1983, Art. VI, Sec. II, Para. VIII, and did not violate Ga. Const. 1983, Art. VI, Sec. II, Para. IV. EHCA Cartersville, LLC v. Turner, 280 Ga. 333, 626 S.E.2d 482 (2006).

- Gwinnett County trial court properly granted an emergency motion by a husband and wife, in their medical malpractice action, to transfer the case back to Fulton County, based on the Supreme Court of Georgia finding that O.C.G.A. § 9-10-31(c) was unconstitutional, as: (1) the husband and wife's participation in the litigation did not waive any issue of transfer; (2) the husband and wife did not acquiesce in the transfer, and the hospital failed to show how the husband and wife waived the issue when they failed to pursue an interlocutory appeal; and (3) the husband and wife were not to be denied a remedy merely because there was no specific procedural mechanism to address their grievance; moreover, the Gwinnett County trial court's transfer order was not erroneous despite the fact that the statute that the court relied upon was later found to be unconstitutional, but rather, the result was that the case was to be tried in the original forum, which the hospital did not show was substantively prejudicial to its defense. Hosp. Auth. of Gwinnett County v. Rapson, 283 Ga. App. 297, 641 S.E.2d 286 (2007).

Cited in Rylee v. Abernathy, 210 Ga. 673, 82 S.E.2d 220 (1954); United States Cas. Co. v. American Oil Co., 104 Ga. App. 209, 121 S.E.2d 328 (1961); Byrd v. Moore Ford Co., 116 Ga. App. 292, 157 S.E.2d 41 (1967); Williamson v. Perret's Farms, Inc., 128 Ga. App. 687, 197 S.E.2d 754 (1973); White v. Fireman's Fund Ins. Co., 233 Ga. 919, 213 S.E.2d 879 (1975); Georgia Power Co. v. Busbin, 159 Ga. App. 416, 283 S.E.2d 647 (1981); Gordon v. Long State Bank, 163 Ga. App. 334, 294 S.E.2d 201 (1982); Smith v. United Ins. Co. of Am., 169 Ga. App. 751, 315 S.E.2d 265 (1984); Unger v. Bryant Equip. Sales & Servs., Inc., 173 Ga. App. 364, 326 S.E.2d 483 (1985); Edwards v. Edmondson, 173 Ga. App. 353, 326 S.E.2d 550 (1985); Calhoun County Hosp. Auth. v. Walker, 205 Ga. App. 259, 421 S.E.2d 777 (1992); Bryant v. Haynie, 216 Ga. App. 430, 454 S.E.2d 533 (1995); Sikes v. Norton, 185 Bankr. 945 (Bankr. N.D. Ga. 1995); Ga. Cas. & Sur. Co. v. Valley Wood, Inc., 290 Ga. App. 177, 659 S.E.2d 410 (2008); HD Supply, Inc. v. Garger, 299 Ga. App. 751, 683 S.E.2d 671 (2009); Tomsic v. Marriott Int'l, Inc., 321 Ga. App. 374, 739 S.E.2d 521 (2013); Granite Loan Solutions, LLC v. King, 334 Ga. App. 305, 779 S.E.2d 86 (2015).

RESEARCH REFERENCES

Am. Jur. 2d.

- 77 Am. Jur. 2d, Venue, §§ 6, 33.

- 92A C.J.S., Venue, § 116 et seq.

- Plaintiff's bona fide belief in cause of action against defendant whose presence in action is necessary to justify venue as against another defendant as sustaining venue against latter notwithstanding failure to establish cause of action, or dismissal of action, against former, 93 A.L.R. 949.

Venue of action for partnership dissolution, settlement, or accounting, 33 A.L.R.2d 914.

Independent venue requirements as to cross complaint or similar action by defendant seeking relief against a codefendant or third party, 100 A.L.R.2d 693.