McCabe v. Lundell

405 S.E.2d 693, 199 Ga. App. 639, 1991 Ga. App. LEXIS 611

• Court: Court of Appeals of Georgia
• Decided: January 10, 1991
• Docket: A90A1908
• Status: Published

Opinions

Carley, Judge.

Appellee-plaintiff brought suit against appellant-defendant, alleging a tort claim for assault and battery. Appellant answered and filed a counterclaim against appellee. Subsequently, appellant moved to disqualify appellee’s attorney and to add him as a party-defendant to the counterclaim. The trial court denied appellant’s motion, but certified its order for immediate review. Appellant applied for an interlocutory appeal and the instant appeal results from the grant of his [application.

1. OCGA § 9-11-13 (h) provides as follows: “When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim L . ., the court shall order them to be brought in as defendants as provided in this chapter, if jurisdiction of them can be obtained.” [(Emphasis supplied.) The first issue for resolution is a determination if what is meant by obtaining “jurisdiction” over a potential defend-mt-in-counterclaim.

The phrase “as provided in this chapter” that is employed in )CGA § 9-11-13 (h) refers to OCGA § 9-11-19. Co-op Mtg. Investments Assoc. v. Pendley, 134 Ga. App. 236, 238 (1) (214 SE2d 572) 1975). OCGA § 9-11-19 (a) relates to the joinder of “[a] person who is subject to service of process” and further provides, in relevant part, that “[iff the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.” (Emphasis supplied.)

Reading this statutory language in pari materia, it is clear that venue is not a relevant inquiry in the initial determination of whether to add a defendant-in-counterclaim. Instead, the reference in OCGA 9-11-13 (h) to the existence of “jurisdiction of [potential defendants-in-counterclaim]” obviously contemplates only a determination as to whether jurisdiction over the person of potential defendants-in-counterclaim can be obtained. Thus, “[w]hen the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim . . ., the court shall order them to be brought in as defendants ... if jurisdiction of them can be obtained [through service of process].” If the motion to join is granted and the defendant-in-counterclaim is thereafter served, then the actually “joined [rather than potentially joinable] party” may contest venue by filing a motion to dismiss which is to be treated by the trial court as a motion to transfer pursuant to Uniform Superior Court Rule 19. If venue is shown to be proper elsewhere, it would then be incumbent upon the trial court to enter an appropriate order. Such an appropriate order might sever the counterclaim for separate trial pursuant to OCGA § 9-11-42 (b) and transfer only the severed counterclaim while retaining jurisdiction and venue over the main action. See McCormick v. Rissanen, 177 Ga. App. 623 (340 SE2d 268) (1986).

Since the instant case concerns the denial of an initial motion fori joinder pursuant to OCGA § 9-11-13 (h), resolution is not dependent upon a venue analysis. As noted, venue would be a relevant inquiry only in a case wherein a motion for joinder pursuant to OCGA § 9-11-13 (h) has been granted and the defendant-in-counterclaim has been served and has elected to contest venue. To hold otherwise would be to misconstrue the provisions of OCGA § 9-11-13 (h) and to under mine the concept of judicial economy implicit in Uniform Superioi Court Rule 19. If jurisdiction over the person of a proper potentia defendant-in-counterclaim can be obtained, any issue of imprope: venue as to him should be raised and resolved in the context of subsequent motion to transfer. Judicial resolution of the merits of th< claim as against him should not be delayed by urging improper venui as the basis for an order denying his joinder as the defendant-in counterclaim in an existing action.

2. There is no contention that appellee’s counsel is not subject t service of process and that jurisdiction over his person cannot, there fore, be obtained. Accordingly, the propriety of the trial court’s orde denying the motion to add appellee’s counsel as a defendant-in-cour terclaim is dependent solely upon whether his presence “is required for the granting of complete relief in the determination of [appellant’s] counterclaim. . . .” (Emphasis supplied.) OCGA § 9-11-13 (h). The addition of appellee’s counsel is sought only on the basis that he is a joint tortfeasor with appellee. It is clear, however, that the absence of an additional alleged joint tortfeasor is no impediment to “complete relief” otherwise being granted to appellant. “[I]t is well settled that it is not required that all joint tortfeasors be joined together in an action against one, their liability being joint and several. [Cit.]” Sheet Metal Workers Intl. Assn. v. Carter, 144 Ga. App. 48, 51 (4) (240 SE2d 569) (1977), rev’d on other grounds 241 Ga. 220 (244 SE2d 860) (1978). Compare Stein v. Burgamy, 150 Ga. App. 860 (3) (258 SE2d 684) (1979) (direct liability of employee and vicarious liability of employer); Co-op Mtg. Investments Assoc. v. Pendley, supra (partnership liability). It may be “desirable” that appellee’s counsel be added as a defendant-in-counterclaim. However, OCGA § 9-11-13 (h) does not authorize the addition of a defendant-in-counterclaim merely because it may be “desirable.” The statute mandates the addition of a defendant-in-counterclaim whose presence “is required for the granting of complete relief. . . .” (Emphasis supplied.) This court has no authority to ignore statutory language and, in effect, rewrite statutes based upon subjective judicial determinations of “desirability.” It follows, therefore, that the trial court did not err in denying appellant’s motion to add appellee’s counsel as a defendant-in-counterclaim because his presence is not required to afford appellant complete relief.

3. Insofar as the motion to disqualify is concerned, appellant has stated that he will call appellee’s counsel as a witness and, under the record before us, it appears that appellee’s counsel should be considered a material witness. Accordingly, the trial court erred in denying appellant’s motion for disqualification of appellee’s counsel. Cherry v. Coast House, Ltd., 257 Ga. 403, 405 (3) (359 SE2d 904) (1987).

Judgment affirmed in part and reversed in part.

Banke, P. J., [Pope, Cooper and Andrews, JJ., concur. Sognier, C. J., McMurray, IP. J., and Birdsong, P. J., concur specially. Beasley, J., concurs in ¡parí and dissents in part.