What is the “Vanishing Venue” Statute in the State of Georgia?
The administrator of his deceased father’s estate appealed from the jury verdict in favor of the defendant in a wrongful death suit against a nursing facility and its physicians.
On appeal, the administrator argued that the trial court erred by denying his motion to transfer venue because, once the patient’s daughter settled with the nursing home, venue was no longer proper in Liberty County.
Background
In 2016, the patient was admitted to Coastal Manor in Liberty County, just south of Savannah. The nursing home’s medical director treated the patient while she was a resident there. When he wasn’t available, another doctor provided medical care in his absence. Both doctors were residents of the next county over, Bryan County.
During her stay at the nursing home, the patient developed pressure sores that became infected. In 2019, while the medical director was away and the other doctor was treating the facility’s residents, the patient developed sepsis and was admitted to the hospital. She died shortly thereafter from the infection.
The patient’s daughter filed suit against Coastal Manor, its administrator, and the two doctors in the state court of Liberty County, alleging negligence, breach of the patient’s bill of rights, and breach of contract. Liberty County is also in the Savannah metro area.
Settlement and Consent Judgment
The patient’s daughter reached a settlement with Coastal Manor in which she agreed to release all claims against it, its non-physician staff, and its administrator in exchange for a substantial payment of damages. According to the terms of the confidential settlement, there would be a consent judgment allowing the suit to continue against the two physician; the administrator would be dismissed from the suit; and Coastal Manor would remain as a defendant in the caption to preserve venue in Liberty County (even though all the claims against it were resolved). The trial court entered the consent judgment, which included language that it “shall not be construed as a dismissal or a discharge of liability under O.C.G.A. § 9-10-31 (d), but instead as a legal resolution of alleged liability.”
The medical director subsequently moved to transfer venue and to have the patient’s daughter produce a copy of the settlement agreement. He argued that the sole purpose of the consent judgment was to preserve jurisdiction in Liberty County, but that the reality was that the claims against the Liberty County defendants had been resolved. He noted that there was no mention of an amount of damages in the consent judgment, and thus it couldn’t be enforced.
After performing an in camera review of the settlement agreement, the trial court found no evidence of collusion which would be necessary to defeat venue in Liberty County, and that there was sufficient consideration given for the consent judgment. Accordingly, the trial court denied the motion to transfer venue.
At the end of the trial, the jury found in the patient’s daughter’s favor and awarded $4.25 million in damages, apportioning the fault as follows:
- 35% percent fault to the medical director;
- 5% to the other doctor; and
- 60% to Coastal Manor.
The medical director filed his notice of appeal and requested access to the settlement agreement. The trial court determined that the settlement would remain under seal but it supplemented the record so that the agreement would be part of the record on appeal.
When the medical director died, and the Court of Appeals remanded the case for appointment of a representative. After the medical director’s son was appointed the administrator of his father’s estate and substituted as a party, the appeal was re-docketed in the Court of Appeals.
The estate administrator argued that the trial court erred by denying the motion for change of venue because venue was no longer proper in Liberty County once the patient’s daughter settled the claims against Coastal Manor, as none of the remaining tortfeasors resided in that county. He contended that the consent judgment was collusive because its sole purpose was to retain venue in Liberty County. He urged the Court to overturn its 2016 decision in Hankook Tire Co. v. White. In that case, the Court of Appeals declined to hold that consent judgments entered into for the purpose of maintaining venue were collusive.
The Court of Appeals Affirms and explains the “Vanishing Venue” Statute
Judge Todd Markle of the Court of Appeals wrote that the Georgia Constitution of 1983 Art. VI, Sec. II, ¶ IV provides that the proper venue for an action that involves joint tortfeasors is in any of the counties in which a tortfeasor resides. However, O.C.G.A. § 9-10-31(d) provides:
[i]f all defendants who reside in the county in which an action is pending are discharged from liability before or upon the return of a verdict by the jury or the court hearing the case without a jury, a nonresident defendant may require that the case be transferred to a county and court in which venue would otherwise be proper.
This statute is otherwise known as the “vanishing venue” statute, the judge explained.
Quoting an earlier case, Judge Markle noted that “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.” As the Court previously explained, “the controlling fact which governs the retention of jurisdiction over the non-resident is the legal resolution of liability on the part of the resident. That is the sine qua non for jurisdiction over the non-resident.”
Moreover, the judge opined that the entry of a consent judgment did not equate with a discharge from liability under O.C.G.A. § 9-10-31(b), regardless of the wording of the settlement and release. That’s because a consent judgment recognizes that a verdict against the resident defendant was authorized.
Here, the settlement and release specifically provided that it was not a discharge of liability. And because the consent judgment imposed liability on Coastal Manor and didn’t dismiss that defendant from the case, venue remained in Liberty County.
The only exception to the rule that a consent judgment against a tortfeasor preserves venue as to a nonresident joint tortfeasor applies when the nonresident defendant can prove collusion. Judge Markle noted that the Court had never defined “collusion” in this context, but in general, collusion is defined by Black’s Law Dictionary as “an agreement to defraud another or to do or obtain something forbidden by law.”
In this case, the Court of Appeals agreed with the trial court that there was no collusion. The trial court had the settlement agreement before it and could review its terms.
As a result, the Court of Appeals concluded that the trial court didn’t abuse its discretion. Although the consent judgment did not specify an amount of damages because the settlement was intended to be confidential. The trial court’s review confirmed that there was a substantial payment, and thus the consent judgment was a legitimate judgment that imposed “real liability” on Coastal Manor. The fact that the parties used the consent judgment to keep the amount of settlement confidential and maintain jurisdiction in Liberty County didn’t require that the appellate court find collusion. Coastal Manor was an integral defendant in the case rather than being named a defendant simply to establish venue. Additionally, as the trial court properly found, there was adequate consideration for the agreement.
There was no evidence of any conduct that amounted to collusion, Judge Markle stated. As such, the trial court didn’t abuse its discretion by so finding and thus denying the motion for change of venue. The judgment was affirmed. Sobowale v. Smith, 2024 Ga. App. LEXIS 349, 2024 WL 3963996 (Ga. App. August 28, 2024).
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Venue can be a tricky issue in Georgia, and you should have an experienced Atlanta personal injury lawyer Atlanta residents trust every day on your side. Please contact our lawyers at Tobin Injury Law for a free no-obligation consultation. We have worked with accident victims all across Georgia (and the southeast). We offer free consultations to all prospective clients and we even offer help if you decide to send your own settlement demand. Contact an Atlanta personal injury attorney with hundreds of amazing reviews at 24 hours a day, 7 days a week by calling 404-JUSTICE (404-587-8423) or by using our online contact form.