Ford v. Uniroyal Goodrich Tire Co. , 231 Ga. App. 11 ( 1998 )

Eldridge, Judge,

dissenting.

I concur in the dissent of Presiding Judge McMurray; however, I wish to point out a case regarding admissions in judicio as to venue that controls this issue.

Uniroyal Goodrich Tire Company (“UGTC”) came into the suit by a consent order for substitution. UGTC in both suits admitted venue in Fulton County.

In Nadew v. Alemu, 217 Ga. App. 438, 440 (457 SE2d 709) (1995), this Court held that residence and venue were facts that could bind as an admission in judicio when admitted in the answer by a nonresident joint tortfeasor. “[UGTC] was in the best possible position to know both [its] county of residence and what strategies might be involved in a decision to waive venue or other available affirmative defenses. When [it] made an admission in [its] pleadings, [Ford] was not required to look behind that admission even if there was information to suggest that it should not have been made. The policy reflected in the law is so strongly in favor of allowing other parties to rely upon the admissions that the party making the admission is not even allowed to introduce evidence at trial to prove the admission is erroneous until the admission has been withdrawn. [Cits.]” Since UGTC admitted that it was subject to venue without qualification, then this admission constituted more than an admission in judicio that could be withdrawn by amendment to the pleadings. This Court found that the admission that the defendant “ ‘is subject to the jurisdiction of this court. . . . (D)efendants are subject to the jurisdiction of this court.’. . . Such an admission would appear to preclude the subsequent contention that jurisdiction over [defendant’s] person existed solely by virtue of his being a co-defendant of a resident defendant. Moreover, even assuming that [defendant’s] answer did not invalidate his defenses based upon venue and jurisdiction over the person,” this Court went on to find additional grounds for waiver. (Emphasis omitted.) Harrell v. Gomez, 174 Ga. App. 8, 10 (3) (329 SE2d 302) (1985). This was a waiver under OCGA § 9-11-12 (h) (1), because the answer made an unqualified admission of venue. The wording of the answer did not deny venue or raise the potential defense of loss of venue, which could ripen in the future or assert the defense in abatement of venue; if the answer had stated that venue was proper pursuant to suits against joint tortfeasors only, then the venue defense would not be waived in the future when the joint tortfeasor is dismissed. See generally Ga. Const. 1983, Art. VI, Sec. II, Par. IV; Watkins v. M & M Clays, Inc., 199 Ga. App. 54, 56 (1) (404 SE2d 141) (1991); Crawford v. Randle, 191 Ga. App. 112, . 114-115 (381 SE2d 77) (1989).

Decided February 18, 1998 Reconsideration denied March 9, 1998 Smolar, Roseman, Brantley & Seifter, Yehuda Smolar, G. Grant Brantley, James I. Seifter, Antoinette D. Johnson, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., for appellants. Love & Willingham, Daryll Love, Allen S. Willingham, Robert P. Monyak, for appellees.

I am authorized to state that Presiding Judge McMurray joins in this dissent.