ADEWUNMI O. SOBOWALE, JR., AS ADMINISTRATOR OF THE ESTATE OF ADEWUNMI O. SOBOWALE v. REBECCA EDWARDS SMITH

• Court: Court of Appeals of Georgia
• Decided: August 28, 2024
• Docket: A24A0694
• Status: Published

Opinion

SECOND DIVISION MILLER, P. J., MARKLE and LAND, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

August 28, 2024

In the Court of Appeals of Georgia A24A0694. SOBOWALE v. SMITH et al.

MARKLE, Judge.

Adewunmi Sobowale, Jr. , as the administrator of his deceased father’s estate,

appeals from the jury verdict in favor of Rebecca Edwards Smith in this wrongful

death suit against a nursing facility and its physicians.1 On appeal, Sobowale argues

that the trial court erred by (1) denying his motion to transfer venue because, once

Smith settled with the nursing home, venue was no longer proper in Liberty County,

and (2) sealing the settlement agreement between Smith and the nursing center. For

the reasons that follow, we affirm.

1 For clarity, we refer to Sobowale, Jr. as Sobowale, and his father, Dr. Adewunmi Sobowale, Sr., as Dr. Sobowale. The facts relevant to the issues on appeal are largely undisputed. In 2016,

Patricia Edwards was admitted to Liberty Regional Medical Center’s nursing facility,

Coastal Manor in Liberty County. Dr. Adewunmi Sobowale, Sr., was Coastal Manor’s

medical director, and he treated Patricia while she was a resident there. When Dr.

Sobowale was unavailable, Dr. Calin Badea provided medical care in his absence. Both

Drs. Sobowale and Badea were residents of Bryan County.

During her stay at Coastal Manor, Patricia developed pressure sores that

became infected. In early 2019, while Dr. Sobowale was away and Dr. Badea was

treating the facility’s residents, Patricia developed sepsis and was admitted to the

hospital. She died shortly thereafter from the infection.

Patricia’s daughter, Rebecca Edwards Smith, filed suit against Coastal Manor,

its administrator, and Drs. Sobowale and Badea in the state court of Liberty County,

alleging negligence, breach of the patient’s bill of rights, and breach of contract. Smith

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. Per the terms of the confidential settlement, there would be a

consent judgment allowing the suit to continue against the two physician defendants;

2 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 OCGA § 9-10-31 (d), but instead as a legal resolution of alleged liability

under Nally v. Baldwin, 261 Ga. App. 713 (2003).”

Thereafter, Dr. Sobowale moved to transfer venue and to have Smith produce

a copy of the settlement agreement. Dr. Sobowale 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 could not be enforced.

After performing an in camera review of the settlement agreement, the trial

court found no evidence of collusion as 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.2

2 The trial court reserved its ruling whether Smith had to produce a copy of the settlement. Dr. Sobowale requested a certificate of immediate review regarding the 3 At the conclusion of the trial, the jury found in Smith’s favor and awarded

$4.25 million in damages, apportioning thirty-five percent fault to Dr. Sobowale; five

percent to Dr. Badea; and sixty percent to Coastal Manor. Dr. Sobowale filed his

notice of appeal. Dr. Sobowale also 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.3

Dr. Sobowale moved for reconsideration of that order, but the trial court denied the

motion.

Thereafter, Dr. Sobowale died, and we remanded the case for appointment of

a representative. After Sobowale was appointed the administrator of his father’s estate

and substituted as a party, the appeal was redocketed in this Court.

1. Sobowale argues that the trial court erred by denying the motion for change

of venue because venue was no longer proper in Liberty County once Smith settled

trial court’s order sealing the record, which the trial court denied. 3 The parties apparently stipulated that the trial court complied with the requirements of Uniform Superior Court Rule 21 by considering Dr. Sobowale’s request to access to the records during another hearing. Sobowale does not argue on appeal that the trial court failed to hold a hearing; rather, he challenges only the merits of the decision to seal the record. 4 the claims against Coastal Manor, as none of the remaining tortfeasors resided in that

county. He contends that the consent judgment was collusive, as its sole purpose was

to retain venue in Liberty County. He urges this Court to overturn Hankook Tire Co.

v. White, 335 Ga. App. 453 (781 SE2d 399) (2016), in which this Court declined to

hold that consent judgments entered into for the purpose of maintaining venue were

collusive. We conclude that venue remained proper in Liberty County.

“We review a trial court’s denial of a motion to transfer for abuse of

discretion[.]” (Citations omitted.) Rader v. Levenson, 290 Ga. App. 227, 230 (1) (c)

(659 SE2d 655) (2008).

The Georgia Constitution of 1983 Art. VI, Sec. II, Para. IV provides that the

proper venue for an action that involves joint tortfeasors is in any of the counties in

which a tortfeasor resides. See also OCGA § 9-10-31 (a). However,

[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.

5 (Emphasis supplied.) OCGA § 9-10-31 (d). This statute is otherwise known as the

“vanishing venue” statute. See Hankook Tire Co., 335 Ga. App. at 453-454.

“[W]here 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.” (Emphasis supplied. ) Ross v. Battle, 117 Ga. 877,

880 (45 SE 252) (1903); see also Hankook Tire Co., 335 Ga. App. at 454.4 As we have

explained, “[t]he 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[.]” Motor Convoy v. Brannen, 194

Ga. App. 795, 796 (391 SE2d 671) (1990); see also Nalley v. Baldwin, 261 Ga. App. 713,

714 (583 SE2d 544) (2003). Moreover, “the entry of a consent judgment does not

equate with a discharge from liability under OCGA § 9-10-31 (b), regardless of the

wording of the settlement and release.” Nalley, 261 Ga. App. at 714; see also Collipp

4 Although Sobowale urges this Court to distinguish or disapprove Hankook Tire Co., we see no basis for doing so. First, we cannot say that Hankook Tire Co. is distinguishable in any meaningful way, nor do we agree that it “limited itself to its facts,” as Sobowale suggests. Second, our Supreme Court has held that jurisdiction remains over the nonresident tortfeasor in the absence of any collusion. See Motor Convoy v. Brannen, 260 Ga. 340 (393 SE2d 262) (1990). We lack the authority to disapprove the Supreme Court of Georgia’s decision. See Etkind v. Suarez, 234 Ga. App. 108 (505 SE2d 831) (1998). 6 v. Newman, 217 Ga. App. 674, 675 (458 SE2d 701) (1995) (“because a final judgment

had been entered against the resident joint tortfeasor, regardless of whether the

judgment was by consent, venue did not vanish.”). That is because “a consent

judgment recognizes that a verdict against the resident defendant was authorized.”

Motor Convoy, 194 Ga. App. at 796.

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

did not 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.” Hankook Tire Co., 335 Ga. App. at 454; see also Motor

Convoy v. Brannen, 260 Ga. 340 (393 SE2d 262) (1990) (consent judgment does not

divest court of jurisdiction over nonresident tortfeasor unless there has been

collusion); Carpenter v. McMann, 341 Ga. App. 791, 794, n. 10 (802 SE2d 74) (2017).

We have never defined “collusion” in this context. See Hankook Tire Co., 335 Ga.

App. at 454, n. 3 (“As we do not find collusion present here, it is not necessary for us

to define collusion under these terms. It is enough for us to say that we can recognize

7 collusion when we see it, and it is not present here.”). In general, collusion is defined

as “[a]n agreement to defraud another or to do or obtain something forbidden by

law.” Black’s Law Dictionary (12th ed. 2024).

In this case, we agree with the trial court that there was no collusion here. The

trial court had the settlement agreement before it and could review its terms, as can

we. Having done so, we now conclude that the trial court did not abuse its discretion.

Although the consent judgment did not specify an amount of damages because the

settlement was intended to be confidential, our review confirms that there was a

substantial payment, and thus the consent judgment “is a legitimate judgment that

impose[d] real liability” on Coastal Manor. Hankook Tire Co., 335 Ga. App. at 454.

The fact that the parties used the consent judgment to keep the amount of settlement

confidential and maintain jurisdiction in Liberty County does not require that we find

collusion. Coastal Manor was an integral defendant in the case rather than being

named a defendant simply to establish venue. See, e. g., Carpenter v. McMann, 304 Ga.

209, 212 (I) (817 Se2d 686) (2018) (finding no evidence of collusion where defendant

was “an integral player in the accident at issue” and there was no evidence defendant

was included in suit to evade venue). Additionally, as the trial court properly found,

8 there was adequate consideration for the agreement. There is simply no evidence of

any conduct that amounts to collusion. As such, the trial court did not abuse its

discretion by so finding and thus denying the motion for change of venue.

2. Sobowale next argues that the trial court erred by sealing the settlement

agreement and denying him the ability to review it, preventing him from showing the

consent judgment was collusive, and impairing his constitutional right to be tried in

the proper venue. We conclude this question is not properly before us.

In April 2022, Dr. Sobowale filed a request to produce, seeking access to the

settlement agreement, to which Smith objected. The trial court reviewed the

agreement in camera, denied the pending motions to transfer venue, and reserved

ruling on the request to produce. After the jury returned its verdict and the trial court

entered judgment, Dr. Sobowale filed a timely notice of appeal, and the case was

docketed here in November 2022. While that case was pending appeal, Dr. Sobowale

filed a motion to supplement the record on appeal with the settlement agreement. The

trial court supplemented the record with the sealed agreement.

In February 2023, Dr. Sobowale filed a motion for reconsideration and for “full

compliance with Uniform Superior Court Rule 21” regarding his motion to produce

9 the settlement and the trial court’s decision to seal the record. The trial court then

addressed the confidentiality of the record at a hearing, and issued an order denying

the motion for reconsideration in November 2023. Sobowale filed a renewed notice

of appeal that same month.

Given this procedural posture, the trial court’s failure to order Smith to

produce the settlement is not properly before us. First, we lack jurisdiction to review

the denial of the motion for reconsideration. Savage v. Newsome, 173 Ga. App. 271 (326

SE2d 5) (1985). A motion for reconsideration is not subject to direct appeal, and it

does not extend the time in which to file a notice of appeal. See Ferguson v. Freeman,

282 Ga. 180, 181 (1) (646 SE2d 65) (2007). Thus, the renewed notice of appeal, filed

more than a year after the jury’s verdict and entry of judgment, was insufficient to

confer jurisdiction on this Court for those orders that post-dated the original notice

of appeal, and it did not authorize us to exercise jurisdiction over the motion for

reconsideration. Id.; see also Savage, 173 Ga. App. at 271.

Moreover, at the time of the original appeal, the trial court had not ruled on the

motion to produce the settlement agreement, leaving no ruling for this Court to review

in that pending appeal. Stanley v. Govt. Employees Ins. Co., 344 Ga. App. 342, 346 (2)

10 (810 SE2d 179) (2018). At most, the trial court implicitly denied the motion in its

order supplementing the record with the settlement agreement under seal. But even

if we construe that as an order denying the motion to produce or to unseal, an appeal

from the denial of that motion must be brought by interlocutory application. See In re

Atlanta Journal-Constitution, 269 Ga. 589 (502 SE2d 720) (1998); see also Uniform

Superior Court Rule 21.4. As a result, we do not reach this enumeration of error.

Judgment affirmed. Land, J., concurs. Miller, P. J., concurs in Division 1 and

concurs in judgment only in Division 2.