2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 6 - Trials
§ 9-11-42. Consolidation; Severance

1. Consolidation. When actions involving a common question of law or fact are pending before the court, if the parties consent, the court may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
2. Separate trials. The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue, or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.

(Ga. L. 1966, p. 609, § 42.)

- For article discussing counterclaims and crossclaims under the Georgia Civil Practice Act, see 4 Ga. St. B.J 205 (1967). For article, "Synopses of 1968 Amendments to the Appellate Procedure Act and Georgia Civil Practice Act," see 4 Ga. St. B.J. 503 (1968). For article discussing liability of corporate directors, officers, and shareholders under the Georgia Business Corporation Code, and as affected by provisions of the Georgia Civil Practice Act, see 7 Ga. St. B.J. 277 (1971). For article, "Mass Torts and Litigation Disasters," see 20 Ga. L. Rev. 429 (1986). For article, "A Comment on Mass Torts and Litigation Disasters," see 20 Ga. L. Rev. 455 (1986). For article, "Georgia Law of Alimony," see 4 Ga. St. B.J. 54 (1999).

ANALYSIS

• General Consideration
• Consolidation
• Separate trials

This section parallels § 9-11-24. - O.C.G.A. § 9-11-42 does not preclude consolidation of claims involving common questions of law or fact if the parties do not consent and, furthermore, that section parallels rather than limits O.C.G.A. § 9-11-24(b). Branch v. Maxwell, 203 Ga. App. 553, 417 S.E.2d 176, cert. denied, 203 Ga. App. 905, 417 S.E.2d 176 (1992).

O.C.G.A. § 9-11-42 seeks to further judicial convenience or avoid prejudice, not to circumvent the requirements of O.C.G.A. § 9-11-54. Cable Holdings of Battlefield, Inc. v. Lookout Cable Serv., Inc., 173 Ga. App. 355, 326 S.E.2d 552 (1985).

Construction with O.C.G.A. § 9-11-20. - Because the numerous claims involving the various plaintiffs did not arise out of the same transaction, occurrence, or series of transactions or occurrences, but the claims were merely similar, involving common questions of law and fact, and thus could have been consolidated in accordance with O.C.G.A. § 9-11-42(a), the trial court erred in denying the defendants' motion to sever those claims. Lincoln Elec. Co. v. Gaither, 286 Ga. App. 558, 649 S.E.2d 823 (2007).

When the issues are not complex and are so closely related that essentially the same evidence would be presented in the trial of an original complaint and a counterclaim, judicial economy would dictate that the claim and counterclaim should be tried together. Wheels & Brakes, Inc. v. Capital Ford Truck Sales, Inc., 167 Ga. App. 532, 307 S.E.2d 13 (1983).

Jurisdiction over a third-party direct damage claim is not destroyed if the original action is settled or disposed of in some fashion before adjudication of such claim; but the court, in the exercise of the court's discretion, either may proceed with the claim or dismiss the claim. Cohen v. McLaughlin, 250 Ga. 661, 301 S.E.2d 37 (1983).

Being tried with a codefendant who has prior convictions that are made known to the jury does not result in prejudice requiring reversal. Givens v. State, 184 Ga. App. 498, 361 S.E.2d 830, cert. denied, 184 Ga. App. 909, 361 S.E.2d 830 (1987).

- O.C.G.A. § 9-11-42 did not apply to a party's motion for contempt because a motion for contempt was not an "action" within the meaning of the statute, and a trial court did not err in conducting a joint contempt hearing involving two parties without the consent of one of the parties. Cook v. Smith, 288 Ga. 409, 705 S.E.2d 847 (2010).

Cited in New Orleans & N.E.R.R. v. Pioneer Plastics Corp., 224 Ga. 228, 161 S.E.2d 294 (1968); Berry v. Cordell, 120 Ga. App. 844, 172 S.E.2d 848 (1969); Burgess v. Nabers, 122 Ga. App. 445, 177 S.E.2d 266 (1970); Atlantic Aluminum & Metal Distribs. v. Adams, 123 Ga. App. 387, 181 S.E.2d 101 (1971); Carter v. Witherspoon, 228 Ga. 485, 186 S.E.2d 534 (1971); Chrysler Credit Corp. v. Barnes, 126 Ga. App. 444, 191 S.E.2d 121 (1972); Bradford v. State, 126 Ga. App. 688, 191 S.E.2d 545 (1972); Harris v. Hill, 129 Ga. App. 403, 199 S.E.2d 847 (1973); Atlanta Air Fleet, Inc. v. Insurance Co. of N. Am., 130 Ga. App. 15, 202 S.E.2d 192 (1973); State Farm Mut. Auto. Ins. Co. v. Hillhouse, 131 Ga. App. 524, 206 S.E.2d 627 (1974); English v. Milby, 233 Ga. 7, 209 S.E.2d 603 (1974); Chupp v. Henderson, 134 Ga. App. 808, 216 S.E.2d 366 (1975); Rowland v. Kellos, 236 Ga. 799, 225 S.E.2d 302 (1976); Young v. Jones, 140 Ga. App. 66, 230 S.E.2d 32 (1976); Colodny v. Dominion Mtg. & Realty Trust, 141 Ga. App. 139, 232 S.E.2d 601 (1977); Pugh v. Pou, 238 Ga. 450, 233 S.E.2d 198 (1977); Cline v. Kehs, 146 Ga. App. 350, 246 S.E.2d 329 (1978); Plaza Pontiac, Inc. v. Shaw, 158 Ga. App. 799, 282 S.E.2d 383 (1981); Fidelity & Cas. Ins. Co. v. Massey, 162 Ga. App. 249, 291 S.E.2d 97 (1982); McNeal v. Paine, Webber, Jackson & Curtis, Inc., 249 Ga. 662, 293 S.E.2d 331 (1982); Kaplan v. Krosco, Inc., 167 Ga. App. 197, 306 S.E.2d 88 (1983); DOT v. Defoor, 173 Ga. App. 218, 325 S.E.2d 863 (1984); Moore v. Thompson, 255 Ga. 236, 336 S.E.2d 749 (1985); Summerlin v. Johnson, 176 Ga. App. 336, 335 S.E.2d 879 (1985); Keller Indus., Inc. v. Summers Roofing Co., 179 Ga. App. 288, 346 S.E.2d 99 (1986); Grissett v. Wilson, 181 Ga. App. 727, 353 S.E.2d 621 (1987); Trust Co. Bank v. Shaw, 182 Ga. App. 165, 355 S.E.2d 99 (1987); Opatut v. Guest Pond Club, Inc., 188 Ga. App. 478, 373 S.E.2d 372 (1988); Michaels v. Kessler, 191 Ga. App. 103, 381 S.E.2d 103 (1989); Fowler v. Vineyard, 261 Ga. 454, 405 S.E.2d 678 (1991); Shleifer v. Bridgestone-Firestone, Inc., 223 Ga. App. 256, 477 S.E.2d 405 (1996); Bowen v. Hunter, Maclean, Exley & Dunn, 241 Ga. App. 204, 525 S.E.2d 744 (1999); Georgia Ports Auth. v. Harris, 243 Ga. App. 508, 533 S.E.2d 404 (2000); Hyman v. State, 320 Ga. App. 106, 739 S.E.2d 395 (2013); Sentinel Offender Svcs., LLC v. Glover, 296 Ga. 315, 766 S.E.2d 456 (2014); Evans v. Sangster, 330 Ga. App. 533, 768 S.E.2d 278 (2015).

Subsection (a) of O.C.G.A. § 9-11-42 applies to the consolidation of separate actions, not the separation or bifurcation of claims or issues in one case. Vitner v. Funk, 182 Ga. App. 39, 354 S.E.2d 666 (1987).

Subsection (a) of O.C.G.A. § 9-11-42 applies to dual jury trials and other procedures that combine separate actions in joint court proceedings. Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226, 476 S.E.2d 565 (1996).

Trial court committed reversible error in ordering a dual jury trial without the consent of the parties. Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226, 476 S.E.2d 565 (1996).

- Trial court's finding that parties agreed through counsel to consolidate cases and that the cases have been treated as one since that time removes such consolidation from the prohibition of this section against consolidation without the parties' consent. Wright v. Thompson, 236 Ga. 655, 225 S.E.2d 226 (1976).

At a hearing on a motion for summary judgment in a declaratory judgment action brought by a beneficiary of a will, the executor's counsel acknowledged that the parties and issues between that case and the one filed by the executor were the same and agreed to the consolidation of the two cases. Counsel's agreement to the consolidation was sufficient to meet the consent requirement of O.C.G.A, § 9-11-42(a). Bandy v. Henderson, 284 Ga. 692, 670 S.E.2d 792 (2008).

Trial court did not err by consolidating brothers' action seeking to set aside quitclaim deeds their mother gave her daughter and grandson with a separate pending action in which the brothers sought to prove that a will the mother executed was invalid because the procedure the parties' agreed to did not amount to consolidation of the actions under O.C.G.A. § 9-11-42(a), and the daughter and grandson waived any claim that the actions were improperly consolidated without their consent; the daughter, grandson, and brothers entered into a consolidated pre-trial order, which controlled only the trial of the action seeking to invalidate the two quitclaim deeds, and on the day the trial commenced in that action, the trial court entered an order stating that although the court had technically consolidated the two actions, with the agreement of the parties and with the trial court's approval, the two civil actions would be tried separately with the action seeking to invalidate the quitclaim deeds being tried first by a jury and the action concerning the will to be tried later by the trial court sitting without a jury. Schaffer v. Fox, 303 Ga. App. 584, 693 S.E.2d 852 (2010).

Trial court did not err by consolidating a creditor's two cases under O.C.G.A. § 9-11-42 because the creditor not only consented, but the creditor actually requested the consolidation at a hearing regarding a discovery dispute; the fact that the creditor later rescinded the consent did not render erroneous the trial court's failure to separate the cases. Thomas v. Brown, 308 Ga. App. 514, 707 S.E.2d 900 (2011).

When trial judge ordered consolidation of related actions without parties' consent, reversal on appeal is not required when the county superior court had jurisdiction and venue over party on counterclaim by reason of party's being made a codefendant in adoption suit. Herring v. McLemore, 248 Ga. 808, 286 S.E.2d 425 (1982).

Dismissal of actions under § 9-11-41. - Contention that dismissal of actions with prejudice under O.C.G.A. § 9-11-41 was improper because some or all of the actions should have been consolidated under O.C.G.A. § 9-11-42 was without merit since the consent of all parties is required for consolidation. Zohoury v. Zohouri, 218 Ga. App. 748, 463 S.E.2d 141 (1995).

Divorce action brought by wife and claim of equitable interest brought by bank pending before the court both involved competing claims relative to the husband's property; the court was correct to consolidate the two. First Nat'l Bank v. Blackburn, 254 Ga. 379, 329 S.E.2d 897 (1985).

Consolidation of a husband's and a wife's separate negligence lawsuits, though arising out of the same accident, required the consent of the parties, since the actions raised separate issues regarding comparative negligence. Robinson v. Hall, 177 Ga. App. 181, 338 S.E.2d 699 (1985). But see Stenger v. Grimes, 260 Ga. 838, 400 S.E.2d 318 (1991).

- It was undisputed that, although the condemnees were all related, the three parcels of property at issue were separately owned and differed in acreage. Thus, any consolidation would create an action involving distinct parties with distinct claims uniting against one party; therefore, O.C.G.A. § 9-11-42(a) applied and the condemnation petitions could not be consolidated without the company's consent. Ga. Transmission Corp. v. Worley, 312 Ga. App. 855, 720 S.E.2d 305 (2011).

Distinction between subsection (b) and § 9-11-21. - Severance under O.C.G.A. § 9-11-21 may be principally directed to the separation of claims within multiclaim litigation because of the peculiar relationship or status of parties with respect to particular claims. O.C.G.A. § 9-11-42(b), on the other hand, appears to be devoted to the convenience of adjudication, the avoidance of prejudice, and the interests of expedition and economy as dictated by the characteristics and elements of proof of the claims themselves. Vitner v. Funk, 182 Ga. App. 39, 354 S.E.2d 666 (1987).

- Separate trials cannot be justified when result is to require the defendant to try the same case twice. Lincoln Land Co. v. Palfery, 130 Ga. App. 407, 203 S.E.2d 597 (1973).

- As a general rule, question of severance is a matter of discretion for the trial judge. Lansky v. Goldstein, 141 Ga. App. 345, 233 S.E.2d 437 (1977).

Under subsection (b) of Ga. L. 1966, p. 609, § 42 (see now O.C.G.A. § 9-11-42), court has broad discretion in granting a motion for severance of a third-party claim, a counterclaim, or a cross-claim, and that discretion will not be interfered with unless the discretion appears to have been abused. Southern Concrete Co. v. Carter Constr. Co., 121 Ga. App. 573, 174 S.E.2d 447 (1970); Jackson v. International Harvester Co., 190 Ga. App. 765, 380 S.E.2d 306 (1989).

Granting of a separate trial as to any separate issue is a discretionary matter for the trial judge, and there will be no reversal thereof absent a clear and manifest abuse of that discretion. Sollek v. Laseter, 124 Ga. App. 131, 183 S.E.2d 86 (1971).

Severance to try a counterclaim separately or to hold a bifurcated trial on the issues of liability and damages is largely a matter of discretion for the trial judge, and absent clear and manifest abuse of that discretion, it will not be interfered with on appeal. Wheels & Brakes, Inc. v. Capital Ford Truck Sales, Inc., 167 Ga. App. 532, 307 S.E.2d 13 (1983).

Severance is largely a matter of discretion for the trial judge, and absent clear and manifest abuse of that discretion, it will not be interfered with on appeal. Southern Guar. Ins. Co. v. Nixon, 194 Ga. App. 398, 390 S.E.2d 638 (1990).

In an action against a physician for medical malpractice, fraud, and loss of consortium, the trial court did not abuse the court's discretion in severing the issue of professional negligence from the trial of issues of liability for, and amount of, punitive damages. Hanie v. Barnett, 213 Ga. App. 158, 444 S.E.2d 336 (1994).

Trial court did not abuse the court's discretion in trifurcating pharmaceutical malpractice case against pharmacist and respondeat superior case against pharmacy when the wrong medication was dispensed to the customer as the trial court had already found against the pharmacist on the issues of duty and breach of duty and against the pharmacy's potential respondeat superior liability; thus, trifurcation of the remaining issues involving causation, compensatory damages, and punitive damages was necessary to avoid improperly influencing the jury in the jury's deliberations. Moresi v. Evans, 257 Ga. App. 670, 572 S.E.2d 327 (2002).

Trial court's denial of a former supervisor's motion to sever a trial commenced by a former employee, alleging a variety of torts arising from the supervisor's alleged improper touching of the employee, was not an abuse of discretion under O.C.G.A. § 9-11-42(b) as there was no showing that the supervisor's interest could not be adequately protected by a limiting instruction to the jury with respect to the liability of the former supervisor and the employer. MARTA v. Mosley, 280 Ga. App. 486, 634 S.E.2d 466 (2006).

Trial court did not err in denying a motion filed by owners of land to bifurcate a trespass action filed against the owners by a holder of an easement in light of the holder's failure to file a response to the motion; under O.C.G.A. § 9-11-42(b), whether to grant such a motion was a matter of discretion for the trial judge, the trial judge was not required to sever the trial solely because the owners requested it, and denial of the motion was not an abuse of discretion in that the parties' verified pleadings disputed the facts surrounding the holder's ownership, and the trial judge wished to resolve questions of fact regarding the easement's ownership. Paine v. Nations, 283 Ga. App. 167, 641 S.E.2d 180 (2006).

Trial court did not abuse the court's discretion by amending a pretrial order to allow for bifurcation of a trial, upon the motion of the defendants, because at the hearing on the motion to amend, the plaintiff never objected on the grounds that the timing of the motion to bifurcate caused any injustice; therefore, no reversible error occurred with regard to the plaintiff's timing argument. Bolden v. Ruppenthal, 286 Ga. App. 800, 650 S.E.2d 331 (2007), cert. denied, No. S07C1831, 2007 Ga. LEXIS 756 (Ga. 2007).

Trial court properly refused to transfer a dispossessory action wherein the landlord was granted a writ of possession from the county civil court to the superior court under O.C.G.A. § 15-10-45(d) based on the tenant filing a counterclaim as that statute only applied to magistrate courts, not the county civil court. Further, whether or not the trial court erred by failing to inquire as to whether the parties were willing to consent to consolidation of the claims could not be determined as the appealing tenant failed to provide a transcript of the bifurcated or dispossessory hearings. Roberts v. Strong, 293 Ga. App. 466, 667 S.E.2d 632 (2008).

Trial court was authorized to conclude, after extensive discussion with the parties, that bifurcation of an insured's breach of an insurance contract and bad faith failure to pay benefits claims was appropriate under O.C.G.A. § 9-11-42(b) because coverage turned on whether the insured's debilitating condition arose from an injury or sickness, and the discrete coverage issue had to be resolved first since bad faith was irrelevant absent coverage. Saye v. Provident Life & Accident Ins. Co., 311 Ga. App. 74, 714 S.E.2d 614 (2011), cert. denied, No. S11C1857, 2011 Ga. LEXIS 984 (Ga. 2011).

- Language of this section is broad enough to permit the trial court discretion in granting severance to issues raised by intervening parties. McGowan v. North Ga. Prod. Credit Ass'n, 246 Ga. 135, 269 S.E.2d 25 (1980).

- In an action related to utility rates, the trial court improperly deprived the plaintiffs of an opportunity to litigate the plaintiffs' claims for damages under RICO and the Sherman Act since the court granted the plaintiffs' motion to sever those claims from another claim based on the alleged unreasonableness of the rates charged, but then, after a trial on the latter claim, ruled that the plaintiffs had abandoned the plaintiffs' claims under RICO and the Sherman Act by not raising those claims during the trial. Management By Design, Inc. v. Lakeview Utils., Inc., 233 Ga. App. 711, 505 S.E.2d 37 (1998).

When questions of law and fact are similar, but not the same, it is an abuse of the trial court's discretion to refuse severance upon timely motion. Paulsen Street Investors v. EBCO Gen. Agencies, 224 Ga. App. 507, 481 S.E.2d 246 (1997).

- There is no provision for severance when there is a single issue but more than one defense is presented. Sheffield v. Lewis, 246 Ga. 19, 268 S.E.2d 615 (1980).

- Motion for severance because of the admission of evidence against a defendant that a second defendant believes is highly prejudicial to that defendant is untimely when the questionable evidence was listed in the pretrial order but the motion was not made until the trial. Gorlin v. Halpern, 184 Ga. App. 10, 360 S.E.2d 729 (1987), rev'd on other grounds sub nom. Burgess & Brown v. Gorlin & Long, 258 Ga. 127, 365 S.E.2d 405 (1988).

- In a divorce case in which the paramour of the husband became a named party because the husband allegedly fraudulently transferred assets to the paramour, the paramour was not entitled to severance of the fraudulent conveyances claim under O.C.G.A. § 9-11-42(b) as the paramour could not demonstrate the requisite harm by showing prejudice to the husband, and the paramour was not prejudiced by the joint trial because the fact of the paramour's affair with the husband would have been admissible in a separate trial. Moore v. Moore, 281 Ga. 81, 635 S.E.2d 107 (2006).

- Companies lacked standing to raise the issue of prejudice to a supervisor as a basis for their motion for bifurcation in an action brought by an employee against supervisor and companies for sexual harassment and negligent hiring when no harm was shown by the companies. Troutman v. B.C.B. Co., 209 Ga. App. 166, 433 S.E.2d 73 (1993).

- In an automobile collision case, it was not an abuse of discretion for the trial judge to grant the defendant's motion for a separate trial on the issue of defense of accord and satisfaction. Sollek v. Laseter, 124 Ga. App. 131, 183 S.E.2d 86 (1971).

- When a person served with process intended for another answers denying that the person is the intended defendant, and counterclaims for malicious use of process, the trial court can easily avoid any confusion between the separate trial of the counterclaim and the main action by ordering a separate trial of the counterclaim pursuant to subsection (b) of O.C.G.A. § 9-11-42. Bank South, N.A. v. Tate, 190 Ga. App. 248, 378 S.E.2d 486, cert. denied, 190 Ga. App. 897, 378 S.E.2d 486 (1989).

- If a motion to join is granted and a 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 subsection (b) of O.C.G.A. § 9-11-42 and transfer only the severed counterclaim, while retaining jurisdiction and venue over the main action. McCabe v. Lundell, 199 Ga. App. 639, 405 S.E.2d 693, cert. denied, 199 Ga. App. 906, 405 S.E.2d 693 (1991).

- In a negligence action brought by a bicyclist against insureds and the insureds' insurance carrier for injuries incurred when allegedly struck by the insured's vehicle, the trial court erred by denying the insured's motion to bifurcate claims for the trial of the negligence claim and the bicyclist's claim for benefits under former no fault insurance statute; admission of evidence of insurance coverage was inherently prejudicial in a negligence action against the insureds. Cincinnati Ins. Co. v. Reybitz, 205 Ga. App. 174, 421 S.E.2d 767 (1992).

- Court does not abuse the court's discretion by bifurcating the liability and damages issues in vehicle collision cases. Whitley v. Gwinnett County, 221 Ga. App. 18, 470 S.E.2d 724 (1996).

Bifurcation of liability and damages issues in medical malpractice action avoided prejudice to the doctors and hospital based on the patient's lengthy suffering and eventual death and the emotional, as well as financial, damages imposed on the patient's spouse and children by it. Cantrell v. Northeast Ga. Medical Ctr., 235 Ga. App. 365, 508 S.E.2d 716 (1998).

RESEARCH REFERENCES

Am. Jur. 2d.

- 1 Am. Jur. 2d, Actions, § 110 et seq. 75 Am. Jur. 2d, Trial, §§ 58 et seq., 71, 75 et seq., 80 et seq., 92 et seq.

- 1A C.J.S., Actions, § 345 et seq. 35A C.J.S., Federal Civil Procedure, §§ 43, 44, 45, 47. 35B C.J.S., Federal Civil Procedure, § 956 et seq. 88 C.J.S., Trial, § 12 et seq.

- Availability as set-off or counterclaim of claim in favor of one alone of several defendants, 10 A.L.R. 1252; 81 A.L.R. 781.

Propriety of consolidation for trial of actions for personal injuries, death, or property damage arising out of same accident, 104 A.L.R. 62; 68 A.L.R.2d 1372.

Different benefits or claims of benefit under a policy of insurance as constituting a single cause of action or separate causes, 159 A.L.R. 563.

Right of defendant sued jointly with another or others in action for personal injury or death to separate trial, 174 A.L.R. 734.

Separate trial of issues of liability and damages in tort, 85 A.L.R.2d 9.

Right of plaintiff suing jointly with others to separate trial or order of severance, 99 A.L.R.2d 670.

Propriety of separate trials of issues of tort liability and of validity and effect of release, 4 A.L.R.3d 456.

Appealability of state court order granting or denying consolidation, severance, or separate trials, 77 A.L.R.3d 1082.

Necessity of trial or proceeding, separate from main condemnation trial or proceeding, to determine divided interest in state condemnation award, 94 A.L.R.3d 696.

Intoxication of automobile driver as basis for awarding punitive damages, 33 A.L.R.5th 303.