Colony Bank Worth v. CATERPILLAR FIN. SERV.

636 S.E.2d 119 (2006)

COLONY BANK WORTH
v.
CATERPILLAR FINANCIAL SERVICES CORPORATION.

No. A06A1274.

Court of Appeals of Georgia.

August 31, 2006.

Mills & Larkey, Ben B. Mills, Jr., Fitzgerald, for appellant.

Thompson, O'Brien, Kemp & Nasuti, Paul J. Morochnik, Norcross, Kevin S. Kovalchik, Cumming, for appellee.

PHIPPS, Judge.

Colony Bank Worth appeals an order granting summary judgment against it in favor of Caterpillar Financial Services Corporation (CAT Financial), contending, among other things, that the trial court lacked personal jurisdiction over it because of improper venue. We agree and vacate the order. Colony Bank's remaining contentions are therefore moot, and we remand the case for proceedings not inconsistent with this opinion.

McMillan Golf Construction, Inc. filed a claim with its insurer that its excavator had been stolen. In connection with the excavator, the construction company was indebted to CAT Financial, which held a security interest in the excavator and was the loss payee on the insurance contract between the construction company and the insurer. In settlement of the claim, the insurer sent a check to Don McMillan in the amount of $59,000, made jointly payable to "Don McMillan, McMillan Golf Const. Co. and Caterpillar Financial." The check was subsequently presented to Colony Bank, with signatures appearing on the back purportedly for "McMillan Golf Group, Inc." and "Caterpillar Financing Service." Colony Bank accepted the check and deposited the funds into the account of McMillan Golf Group, Inc.

Upon learning that the check had been deposited into McMillan Golf Group, Inc.'s account, CAT Financial filed suit in the State Court of Fulton County against Colony Bank and the insurance company, alleging that the signature purportedly on its behalf had been forged and that it had received no payment as the loss payee even though the construction company's indebtedness to it relative to the excavator exceeded $59,000 at the time the check was issued. CAT Financial's theory of recovery against Colony Bank sounded in tort, including claims of conversion and negligence; its theory of recovery against the insurance company sounded in contract. With respect to jurisdiction, CAT Financial alleged that the insurance company had a registered agent and maintained an office in Fulton County and that Colony Bank was "subject to the jurisdiction and venue of this Court."

Colony Bank denied the jurisdiction and venue allegation pertaining to it in its answer. Contemporaneously with its answer, Colony Bank filed a motion to dismiss or to transfer the action to Worth County, asserting that it maintained its principal office and place of business there and that it maintained no office or place of business in Fulton County. Thereafter, CAT Financial amended its complaint to add a negligence claim against the insurance company and an allegation that the defendants were joint tort-feasors. It then argued in its brief opposing Colony Bank's motion that the bank was subject to the court's jurisdiction as a joint tort-feasor of the insurance company, a resident defendant. Meanwhile, the insurance company filed a motion to be dismissed with prejudice.

After discovery, CAT Financial filed in August 2004 motions for summary judgment against both defendants. The court held a hearing on the motions on January 11, 2005, and, on January 25, filed an order granting the insurance company's motion to dismiss with prejudice and an order denying CAT Financial's motion for summary judgment against the insurance company.^[1] On February 15, 2005, the trial court filed an order signed on February 14, granting CAT Financial's motion for summary judgment against Colony Bank,^[2] giving rise to this appeal.

We agree with Colony Bank's contention that the trial court lacked jurisdiction to grant CAT Financial's motion for summary judgment against it because venue was improper. Suits against joint tortfeasors "residing in different counties may be tried in either county."^[3] Generally, however, "the trial court loses venue as to the nonresident defendant if no judgment is taken against the resident defendant, whether the resident is found not liable or dismissed with prejudice."^[4] In the instant case, there is no dispute that the insurance company was the sole resident defendant, that it was dismissed with prejudice, that Colony Bank was then the only defendant remaining in the case, and that Colony Bank was a nonresident defendant.

Attempting to preserve its favorable ruling nonetheless, CAT Financial argues that the trial court granted it summary judgment against Colony Bank prior to dismissing with prejudice the insurance company. It points out that the trial court expressly ordered the ruling nunc pro tunc to January 24, 2005,^[5] the date immediately preceding entry of the dismissal order. But such use of nunc pro tunc in this case was improper.

The purpose of entering an order nunc pro tunc is to record some previously unrecorded action actually taken or judgment actually rendered. It may not be used to supply an order not yet made by the court. A nunc pro tunc entry is an entry made now of something actually previously done to have effect of former date; not to supply omitted action, but to supply omission in the record of action really had but omitted through inadvertence or mistake.^[6]

Notably, the trial court concluded the January 11 summary judgment hearing by remarking, "All right. Well, thank you gentlemen. I will let you know." CAT Financial cites nothing in the record and we find nothing therein that provides support for its assertion that the trial court "did, in fact, make its determination of Colony Banks' liability for the conversion prior to the entry of the January 25, 2005 order."^[7] Because the summary judgment order was not merely recording that which had already been decreed, but either not recorded or misrecorded, the nunc pro tunc notation had no legal effect on the ruling whatsoever.^[8] Accordingly, contrary to CAT Financial's argument, the trial court's grant of summary judgment against Colony Bank did not precede the dismissal of the sole resident defendant.

CAT Financial also argues that Colony Bank waived any jurisdictional defense based on improper venue. Such a defense is waived if not timely asserted.^[9] Failure to raise this defense either in the answer or by motion filed before or simultaneously with the answer constitutes waiver.^[10] Even after a timely objection of improper venue has been asserted, a party may waive the defense by his subsequent conduct during the course of litigation.^[11]

CAT Financial asserts waiver resulted because Colony Bank's motion to dismiss or transfer the case became moot when the complaint was amended to allege that the bank was a joint tortfeasor of the resident defendant insurance company; because after the trial court dismissed the insurance company, Colony Bank did not reassert its motion; and because Colony Bank failed to raise the venue issue in its enumeration of errors. We find no merit in these assertions of waiver.

While a party may waive the defense of improper venue "by failing to elicit a ruling on the venue issue before entry of judgment,"^[12] the record confirms that Colony Bank timely asserted an improper venue defense in its answer and elicited a ruling on its venue challenge by its contemporaneously filed motion. Pretermitting whether the trial court might have correctly denied Colony Bank's motion upon CAT Financial's amendment to the complaint, the trial court did not then issue any ruling on the motion. Thus, Colony Bank's motion remained pending. "[A] properly raised defense of improper venue is not waived implicitly by allowing the litigation to proceed over a lengthy period of time."^[13] Therefore, the bank was entitled to a ruling on the question of venue before the trial court ruled on the merits of the summary judgment motion against it.^[14] Finally, Colony Bank's appellate brief adequately sets forth an argument challenging venue in support of its first enumerated claim of error that "[t]he trial court erred in issuing its order dated February 14, 2005, and entered of record on February 15, 2005."^[15] Accordingly, CAT Financial has failed to cite any conduct by Colony Bank constituting waiver of its properly asserted defense that venue was improper.

Judgment vacated and case remanded.

RUFFIN, C.J., and SMITH, P.J., concur.

NOTES

[1] The date stamps are illegible on these orders contained in the appellate record; however, the parties agree that the orders were filed on this date.

[2] The date stamp is illegible on this order contained in the appellate record; however, the parties agree that the order was filed on this date.

[3] Ga. Const. 1983, Art. VI, Sec. II, Par. IV; see Fletcher v. Hatcher, 278 Ga.App. 91, 92(1), 628 S.E.2d 169 (2006); Robinson v. Star Gas of Hawkinsville, 243 Ga.App. 112, 113, 533 S.E.2d 97 (2000).

[4] Fletcher, supra, quoting Robinson, supra; see Ross v. Battle, 117 Ga. 877, 880, 45 S.E. 252 (1903) ("where suit is brought against two defendants, one of whom resides in the county, the court has no jurisdiction of the non-resident defendant unless the resident codefendant is liable in the action").

[5] The order shows that it was prepared by counsel for CAT Financial. While a court's adoption of an order prepared by counsel is not reversible error, the practice is "greatly disfavored." Richardson v. Barber, 241 Ga.App. 254, 255(1), 527 S.E.2d 8 (1999).

[6] Andrew L. Parks, Inc. v. SunTrust Bank, 248 Ga.App. 846, 848, 545 S.E.2d 31 (2001) (citation and punctuation omitted); see In the Interest of S.J., 270 Ga.App. 598, 611(1)(d), 607 S.E.2d 225 (2004).

[7] Appellee's brief "shall point out any material inaccuracy or incompleteness of appellant's statement of facts and any additional statement of facts deemed necessary, plus such additional parts of the record or transcript deemed material." Court of Appeals Rule 25(b)(1).

[8] In the Interest of S.J., supra; see Andrew L. Parks, Inc., supra; In the Interest of H.L.W., 244 Ga.App. 498, 535 S.E.2d 834 (2000).

[9] First Select v. Dotson, 265 Ga.App. 639, 640, 595 S.E.2d 331 (2004); Orkin Exterminating Co. v. Morrison, 187 Ga.App. 780, 782(3), 371 S.E.2d 407 (1988).

[10] First Select, supra; Orkin Exterminating Co., supra.

[11] Williams v. Willis, 204 Ga.App. 328, 329, 419 S.E.2d 139 (1992); Empire Forest Products v. Gillis, 184 Ga.App. 542, 543(1), 362 S.E.2d 77 (1987).

[12] AKA Mgmt. v. Branch Banking & Trust Co., 275 Ga.App. 615, 618(1)(b), 621 S.E.2d 576 (2005) (citation and punctuation omitted).

[13] Coastal Transport v. Tillery, 270 Ga.App. 135, 136(1), 605 S.E.2d 865 (2004), quoting Williams, supra.

[14] See Williams, supra (where sole, nonresident defendant properly raised venue defense in his answer and, after lengthy discovery, made oral motion to transfer the case to his resident county at the hearing on plaintiff's motion for summary judgment, defendant was entitled to have the merits of the venue question decided prior to court's decision on the merits of the summary judgment motion, and trial court erred by granting summary judgment prematurely and declaring motion to transfer moot); Hight v. Blankenship, 199 Ga.App. 744, 745, 406 S.E.2d 241 (1991) (trial court's ruling on the merits of the case against the defendant was premature, where properly preserved and asserted venue and jurisdictional issues had been neither waived by the defendant nor addressed by the trial court); see generally Mattox v. Condo, 261 Ga.App. 519, 583 S.E.2d 193 (2003) (physical precedent only); compare AKA Mgmt., supra at 616, 621 S.E.2d 576 (trial court did not lack jurisdiction to grant summary judgment against nonresident defendants, where their failure to elicit a ruling on the venue issue before entry of the judgment constituted waiver of the venue defense).

[15] See generally Felix v. State, 271 Ga. 534, 523 S.E.2d 1 (1999).