Alr Oglethrorpe, LLC v. Fidelity National Title Insurance Company ( 2019 )

FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 17, 2019
In the Court of Appeals of Georgia
A19A1485. ALR OGLETHORPE, LLC et al. v. FIDELITY
NATIONAL TITLE INSURANCE CO.
MERCIER, Judge.
ALR Oglethorpe, LLC, Jules Paderewski, Barnard Portman, Charles Idleson,
Cora Bett Thomas and Allison Stanley, all as assignees of Coleman Talley, LLP
(collectively “Assignees”), filed a complaint in the State Court of Chatham County
against Fidelity National Title Insurance Company and others (collectively “Fidelity”)
seeking contribution and indemnity for Fidelity’s alleged negligence in performing
a property title search.1 Fidelity filed a motion to transfer venue to the Superior Court
of Cobb County, arguing that a forum selection clause in the settlement agreement
between Coleman Talley and Fidelity in a related third-party action required the
1
The other defendants were Frank Peeples, Sr., Frank Peeples, Jr., Elizabeth
Peeples, and Woodchips Export Corp.
lawsuit to be filed in the Superior Court of Cobb County. Fidelity also filed a motion
for summary judgment on the Assignees’ claims. The Chatham County court granted
Fidelity’s motion to transfer venue and transferred the case to the Superior Court of
Cobb County. The Cobb County court subsequently granted Fidelity’s motion for
summary judgment. The Assignees appeal, challenging the grant of both motions.2
For the reasons that follow, we reverse the order granting the motion to transfer
venue, vacate the order granting summary judgment, and direct that the case be
transferred to Chatham County.
1. The Assignees contend that the trial court erred by granting Fidelity’s motion
to transfer the case to Cobb County, when the settlement agreement authorized the
filing of the lawsuit in Cobb County but did not require it.3 We agree.
2
The notice of appeal states that the appeal is from the grant of summary
judgment, but the Assignees’ appellate brief also enumerates as error the grant of the
motion to transfer venue. The Assignees were not required to reference both orders
in the notice of appeal for both orders to be reviewable on appeal. See Mateen v.
Dicus, 281 Ga. 455, 456-457 (637 SE2d 377) (2006).
3
The Assignees were not required to immediately appeal the Chatham County
court’s order transferring the case. See Griffith v. Ga. Bd. of Dentistry, 175 Ga. App.
533 (333 SE2d 647) (1985) (order transferring case for improper venue is not a final
judgment as the case is still pending below; thus, case is subject to interlocutory
appeal procedures). See generally Georgia Uniform Superior Court Rule 19.1; Hartry
v. Ron Johnson Jr. Enterprises, 347 Ga. App. 55, 57-58 (1) (a) (i) (815 SE2d 611)
(2018) (“[A]fter transfer, the action thereafter shall continue in the transferee court
2
This Court reviews de novo issues of law decided by the trial court. Bearoff v.
Craton, 350 Ga. App. 826, 827 (830 SE2d 362) (2019). “The construction of a
contract is a matter of law for the court under OCGA § 13-2-1, particularly where .
. . the terms are unambiguous.” Castellana v. Conyers Toyota, 200 Ga. App. 161, 165
(2) (407 SE2d 64) (1991). Further, “the trial court’s application of the law to the
undisputed facts is subject to de novo review.” Burchfield v. West Metro Glass Co.,
340 Ga. App. 324 (797 SE2d 225) (2017) (citation and punctuation omitted); see also
Tetra Tech Tesoro, Inc. v. JAAAT Tech. Svcs., 338 Ga. App. 77 (789 SE2d 310)
(2016) (a ruling on a motion to dismiss based on a forum selection clause is reviewed
de novo) (physical precedent only).
At issue is the following provision from the settlement agreement Coleman
Talley (the alleged assignor in this case) and Fidelity executed in connection with a
third-party complaint Coleman Talley had filed against Fidelity:
In the event either [Coleman Talley] or Fidelity does not desire to
arbitrate the contribution and/or indemnity issues, a lawsuit can be filed
by [Coleman Talley] against Fidelity in the Superior Court of Cobb
County.
as though initially commenced there[;] [a]nd the transferee court has the power to
review, vacate, or reissue any interlocutory or other order theretofore entered in the
action.”) (citations and punctuation omitted).
3
(Emphasis supplied.)
The Assignees argue that this provision is unambiguous - that the word “can”
authorizes a filing in Cobb County but does not prohibit filing elsewhere. We agree.
There is no language in the jurisdiction clause . . . that mandates or
requires that suit be brought in a particular forum. Although the [parties]
clearly consented to jurisdiction and venue in [Cobb County] . . . in the
event suit is instituted there, there is nothing in the jurisdiction clause to
indicate that is the exclusive forum for such proceedings. The clause
simply permits suit to be brought in a place where jurisdiction and venue
might not otherwise be proper, but it does not dictate the forum.
Carbo v. Colonial Pacific Leasing Corp., 264 Ga. App. 785, 786 (592 SE2d 445)
(2003); see Murray v. The Ed. Resources Institute, 272 Ga. App. 171 (612 SE2d 23)
(2005) (where contract clause provided: “I consent to the jurisdiction of
Massachusetts courts and to the placement of venue in Boston, Massachusetts,” such
constituted consent to said jurisdiction and did not mandate that suit be brought
there). We point out that
[w]hen the parties clearly express their intent to designate a particular
jurisdiction where all disputes must be brought, this Court has given
effect to that intent, and nothing in this opinion should be read as
leading to a contrary result. But it is also clear from our case law that
Georgia courts have always recognized a distinction between forum
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selection clauses that dictate where suit must be brought, and those that
provide only the parties’ consent to jurisdiction in the event that
proceedings are instituted in a particular forum.
Carbo, supra at 786-787. Here, “the language of the contract is plain, unambiguous,
and capable of only one reasonable interpretation[.]” City of Decatur v. DeKalb
County, 289 Ga. 612, 614 (713 SE2d 846) (2011) (citation omitted). The clause
provides that suit can be filed in Cobb County, not that it must be filed there. It does
not designate an exclusive forum for bringing suit. See Carbo, supra. The Chatham
County court thus erred in concluding that venue in Chatham was improper based on
that provision. Id. Accordingly, the grant of the motion to transfer venue is reversed.
“A trial court without venue lacks authority to issue an order or judgment, and
any such order or judgment is void.” Chung v. Hair Trend USA, 322 Ga. App. 429,
432 (745 SE2d 681) (2013) (citation omitted); see Coastal Transport v. Tillery, 270
Ga. App. 135, 140 (3) (605 SE2d 865) (2004). Inasmuch as the case should not have
been transferred, the transferee court - the Superior Court of Cobb County - was
without authority to rule on Fidelity’s motion for summary judgment. See generally
Georgia Dept. of Human Svcs. v. Dougherty County, 330 Ga. App. 581, 583 (2) (768
5
SE2d 771) (2015). Therefore, the order granting the motion for summary judgment
is vacated. See Georgia Dept. of Human Svcs., supra.
The case is hereby remanded with direction that it be transferred to the State
Court of Chatham County for further proceedings. See id.
2. Based on the foregoing, we do not reach the Assignees’ remaining claims of
error.
Judgment reversed in part, vacated in part and case remanded. Barnes, P. J.,
and Brown, J., concur.
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