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ALR Oglethorpe, LLC v. Fidelity National Title Insurance Co.

Court of Appeals of Georgia, First Division

October 17, 2019


          BARNES, P. J., MERCIER and BROWN, JJ.

          MERCIER, JUDGE.

         ALR Oglethorpe, LLC, Jules Paderewski, Barnard Portman, Charles Idleson, Cora Bett Thomas and Allison Stanley, all as assignees of Coleman Talley, LLP (collectively "Assignees"), filed a complaint in the State Court of Chatham County against Fidelity National Title Insurance Company and others (collectively "Fidelity") seeking contribution and indemnity for Fidelity's alleged negligence in performing a property title search.[1] Fidelity filed a motion to transfer venue to the Superior Court of Cobb County, arguing that a forum selection clause in the settlement agreement between Coleman Talley and Fidelity in a related third-party action required the lawsuit to be filed in the Superior Court of Cobb County. Fidelity also filed a motion for summary judgment on the Assignees' claims. The Chatham County court granted Fidelity's motion to transfer venue and transferred the case to the Superior Court of Cobb County. The Cobb County court subsequently granted Fidelity's motion for summary judgment. The Assignees appeal, challenging the grant of both motions.[2]For the reasons that follow, we reverse the order granting the motion to transfer venue, vacate the order granting summary judgment, and direct that the case be transferred to Chatham County.

         1. The Assignees contend that the trial court erred by granting Fidelity's motion to transfer the case to Cobb County, when the settlement agreement authorized the filing of the lawsuit in Cobb County but did not require it.[3] We agree.

         This Court reviews de novo issues of law decided by the trial court. Bearoff v. Craton, 350 Ga.App. 826, 827 (830 S.E.2d 362) (2019). "The construction of a contract is a matter of law for the court under OCGA § 13-2-1, particularly where . . . the terms are unambiguous." Castellana v. Conyers Toyota, 200 Ga.App. 161, 165 (2) (407 S.E.2d 64) (1991). Further, "the trial court's application of the law to the undisputed facts is subject to de novo review." Burchfield v. West Metro Glass Co., 340 Ga.App. 324 (797 S.E.2d 225) (2017) (citation and punctuation omitted); see also Tetra Tech Tesoro, Inc. v. JAAAT Tech. Svcs., 338 Ga.App. 77 (789 S.E.2d 310) (2016) (a ruling on a motion to dismiss based on a forum selection clause is reviewed de novo) (physical precedent only).

         At issue is the following provision from the settlement agreement Coleman Talley (the alleged assignor in this case) and Fidelity executed in connection with a third-party complaint Coleman Talley had filed against Fidelity:

In the event either [Coleman Talley] or Fidelity does not desire to arbitrate the contribution and/or indemnity issues, a lawsuit can be filed by [Coleman Talley] against Fidelity in the Superior Court of Cobb County.

(Emphasis supplied.)

         The Assignees argue that this provision is unambiguous - that the word "can" authorizes a filing in Cobb County but does not prohibit filing elsewhere. We agree.

There is no language in the jurisdiction clause . . . that mandates or requires that suit be brought in a particular forum. Although the [parties] clearly consented to jurisdiction and venue in [Cobb County] . . . in the event suit is instituted there, there is nothing in the jurisdiction clause to indicate that is the exclusive forum for such proceedings. The clause simply permits suit to be brought in a place where jurisdiction and venue might not otherwise be proper, but it does not dictate the forum.

Carbo v. Colonial Pacific Leasing Corp., 264 Ga.App. 785, 786 (592 S.E.2d 445) (2003); see Murray v. The Ed. Resources Institute, 272 Ga.App. 171 (612 S.E.2d 23) (2005) (where contract clause provided: "I consent to the jurisdiction of Massachusetts courts and to the placement of venue in Boston, Massachusetts," such constituted consent to said jurisdiction and did not mandate that suit be brought there). We point out that

[w]hen the parties clearly express their intent to designate a particular jurisdiction where all disputes must be brought, this Court has given effect to that intent, and nothing in this opinion should be read as leading to a contrary result. But it is also clear from our case law that Georgia courts have always recognized a distinction between forum selection clauses that dictate where suit must be brought, and those that provide only the parties' consent to jurisdiction in the event that proceedings are instituted in a particular forum.

Carbo, supra at 786-787. Here, "the language of the contract is plain, unambiguous, and capable of only one reasonable interpretation[.]" City of Decatur v. DeKalb County, 289 Ga. 612, 614 (713 S.E.2d 846) (2011) (citation omitted). The clause provides that suit can be filed in Cobb County, not that it must be filed there. It does not designate an exclusive forum for bringing suit. See Carbo, supra. The Chatham County court thus erred in concluding that venue in Chatham was improper based on that provision. Id. Accordingly, the grant of the motion to transfer venue is reversed.

         "A trial court without venue lacks authority to issue an order or judgment, and any such order or judgment is void." Chung v. Hair Trend USA, 322 Ga.App. 429, 432 (745 S.E.2d 681) (2013) (citation omitted); see Coastal Transport v. Tillery, 270 Ga.App. 135, 140 (3) (605 S.E.2d 865) (2004). Inasmuch as the case should not have been transferred, the transferee court - the Superior Court of Cobb County - was without authority to rule on Fidelity's motion for summary judgment. See generally Georgia Dept. of Human Svcs. v. Dougherty County,330 Ga.App. 581, 583 ...

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