ALR OGLETHORPE, LLC et al.
FIDELITY NATIONAL TITLE INSURANCE CO.
BARNES, P. J., MERCIER and BROWN, JJ.
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. 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.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.
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
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
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.
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
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
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