Paragon Foods, Inc., and its principal owners, Robert L. Newsome, III, and W. Clay Chester, sued Huddle House, Inc. in the Superior Court of Dougherty County for trespass, breach of contract, and tortious interference with contractual relations. Following our grant of its application for interlocutory appeal, Huddle House appeals the trial court’s order denying in part its motion to transfer venue to DeKalb County. We reverse for the reasons set forth below. Paragon entered into a franchise agreement with Huddle House for the operation of seven Huddle House restaurants in Georgia, including two restaurants in Dougherty County. In their August 3, 2001, complaint, Paragon, Newsome, and Chester collectively, “Paragon” alleged that on August 1 and August 2, 2001, Huddle House sent its representatives to Paragon’s franchise locations for the purpose of taking physical control of the premises. Paragon claimed that Huddle House padlocked doors, changed locks on doors, informed the employees that they no longer worked for Paragon, turned off grills, deep fryers, and other equipment, and required customers to leave the stores. On August 3, 2001, the trial court issued a temporary restraining order preventing Huddle House from taking control of the franchise locations.
Huddle House filed a motion to dismiss for improper venue, or in the alternative, to transfer the case to the Superior Court of DeKalb County. Huddle House also raised improper venue as an affirmative defense in its answer. After a hearing, the trial court ruled that the claims for breach of contract asserted in counts two and three of the complaint must be made in DeKalb County Superior Court or the United States District Court for the Northern District of Georgia, as provided by the forum selection provisions of the franchise agreement. The trial court also ruled that the tort claims asserted in count one of the complaint were not controlled by the forum selection provision of the franchise agreement and those claims were properly before the court. A preliminary hearing over defenses of lack of jurisdiction over the person or subject matter and improper venue whether made in a pleading or by motion may be heard and determined before trial . . . and when the trial judge conducts a hearing on a motion to dismiss or transfer for improper venue, his findings, as a trier of fact, are tested by the any evidence rule.1 1. Huddle House claims that the trial court erred in denying in part its motion to transfer venue because all of Paragon’s claims were covered by the forum selection provisions in the franchise agreement. We disagree.
