Robinson v. Star Gas of Hawkinsville Inc.

The nonresident defendant waived its venue defense when it authorized the trial court to enter judgment, even though the jury was unable to reach a verdict against the resident defendant.

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We granted interlocutory appeal in this case to consider an unusual application of the principle of “vanishing venue.”1 This long-standing rule arose from the construction of two provisions of the Georgia Constitution: first, that a defendant is entitled to be sued in the county of his residence, Ga. Const. 1983 Art. VI, § II, VI, and second, that joint tortfeasor residents of different Georgia counties may be sued in either county. Ga. Const. 1983 Art. VI, § II, IV. Two basic principles have been established by the case law. “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.” Citation, punctuation, and emphasis omitted. Collipp v. Newman, 217 Ga. App. 674, 675 458 SE2d 701 1995. In addition, 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. And where the resident is found not liable, the trial court has no jurisdiction to enter a judgment against non-resident defendants even if they are found liable. Id. at 675-676.

But the defense of improper venue may be waived by a nonresident defendant, and such a waiver may be express or implied. Empire Forest Products v. Gillis, 184 Ga. App. 542, 543 1 362 SE2d 77 1987. In this case, we are called upon to determine the scope and extent of an express waiver made by Star Gas of Hawkinsville, the nonresident defendant. After considering the terms of the originally proposed waiver and the amended waiver ultimately accepted by the trial court, as well as the conduct of the parties, we conclude that Star Gas expressly waived its venue defense and could not limit the effect of that waiver to an earlier appeal in this case. Accordingly, we find that the trial court abused its discretion in ordering a transfer due to “vanishing venue,” and we reverse.

Robinson v. Star Gas of Hawkinsville Inc.

The nonresident defendant waived its venue defense when it authorized the trial court to enter judgment, even though the jury was unable to reach a verdict against the resident defendant.

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