Hankook Tire Co. v. White, 335 Ga. App. 453

Hankook Tire Co. v. White

335 Ga. App. 453

Ga. Ct. App.

2016

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A15A2099. HANKOOK TIRE CO. LTD. v. WHITE et al.

(781 SE2d 399)

RAY, Judge.

Decided January 4, 2016

RAY, Judge.

Hankook Tire Co. Ltd. (“Hankook Tire“) was granted an interlocutory appeal of the trial court‘s order denying its motion to transfer venue. For the following reasons, we find no error in the trial court‘s denial of the motion to transfer venue. Accordingly, we affirm.

Gilbert White and Karen Hansberry-White (collectively the “Whites“) filed a negligence suit against The Lions Group, Inc., Hankook Tire, and various other defendants (collectively, the “Defendants“) in Clayton County. The Whites alleged that Mr. White was injured when he lost control of the vehicle he was driving due to tread separation on one of the truck‘s tires.

During the course of litigation, the trial court granted summary judgment against the Whites in favor of some defendants, and the Whites voluntarily released all of the remaining Defendants, other than The Lions Group and Hankook Tire. Subsequently, the Whites and The Lions Group entered into a confidential settlement agreement, which included the entering of a consent judgment by the trial court against The Lions Group. The Lions Group is a Georgia corporation with whom venue is proper in Clayton County, while Hankook Tire is a nonresident Korean corporation.

Hankook Tire now claims that venue is not proper in Clayton County as “[the Whites] entered into a collusive consent judgment with The Lions Group, specifically designed to avoid the effect of vanishing venue.” Georgia follows the law of vanishing venue whereby “[i]f all defendants who reside in the county in which an action is pending are discharged from liability . . . a nonresident defendant may require that the case be transferred to a county and court in which venue would otherwise be proper.” OCGA § 9-10-31 (d) (emphasis supplied). Previously, we have held that “the entry of a consent judgment against a resident tortfeasor [is] analogous to a finding of liability, so that the court [is] not divested of personal jurisdiction over the remaining defendant/nonresident joint tortfeasor.” (Citation omitted.) Nalley v. Baldwin, 261 Ga. App. 713, 714 (583 SE2d 544) (2003).

Our Supreme Court has held that the only exception to this general rule applies when the nonresident defendant can prove collusion. Motor Convoy v. Brannen, 260 Ga. 340, 340 (393 SE2d 262) (1990). Hankook Tire claims that the agreement between the Whites and The Lions Group was collusive because “they entered into the [c]onsent [j]udgment with The Lions Group precisely because it was the only resident defendant so that they would preserve their venue and trial date in Clayton County.” Neither Brannen nor recent cases have provided us with an explanation of what collusion looks like. However, we can definitively state that collusion is not present here.

The consent judgment entered into between the Whites and The Lions Group is a legitimate judgment that imposes real liability on The Lions Group. The liability imposed is not nominal, but rather is a settlement over $500,000.¹ While it is true that the Whites entered into the consent judgment with the goal of retaining venue in Clayton County, if this were collusive, then arguably all consent judgments would be collusive.² In light of the lack of evidence, or even an allegation, that the Whites acted improperly with The Lions Group, we cannot say the consent judgment was entered into collusively.³

Therefore, the trial court did not err when it denied Hankook Tire‘s motion to transfer venue. The trial court‘s order is affirmed.

Judgment affirmed. Barnes, P. J., and McMillian, J., concur.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Frederick N. Sager, Jr., Robert P. Marcovitch, Brannon J. Arnold; DLA Piper, Christopher G. Campbell, for appellant.

Smith, Welch, Webb & White, John P. Webb, Andrew J. Gebhardt, Marc A. Avidano, for appellees.

Darren W. Penn, Laura M. Shamp, Lucy R. Atkinson, amici curiae.

A15A2240. PENDLETON v. THE STATE.

(781 SE2d 570)

DOYLE, Chief Judge.

Karl Pendleton appeals the denial of his motion to modify his sentence. For the reasons that follow, we reverse and remand the case.

Pendleton was charged with six counts of criminal attempt to commit armed robbery, burglary, six counts of aggravated assault with intent to rob, possession of a firearm during the commission of a felony, kidnapping with bodily injury, and five counts of false imprisonment. In February 2008,¹ he entered a nonnegotiated guilty plea and was sentenced to serve ten years.² On October 27, 2008, Pendleton filed a motion to modify his sentence, to which the State did not respond. The trial court denied the motion as untimely, holding that it lacked authority to modify Pendleton‘s sentence because the motion was filed after the expiration of the term of court in which the convictions were entered.

Pendleton appeals, arguing that the trial court erred by denying his motion as untimely, and we agree. As the State concedes, OCGA § 17-10-1 (f) provides in relevant part that “[w]ithin one year of the date upon which the sentence is imposed . . . , the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed.”³

Notwithstanding the expiration of the term of court in which the sentence was imposed, the provisions of OCGA § 17-10-1 (f)

Notes

While the consent judgment entered by the trial court itself only details compensation of $5,000, the Whites have received The Lions Group‘s permission to disclose that the entire settlement amount was actually $500,000. Pendleton entered his plea and was convicted on February 7, 2008, but his sentence was not filed until February 11, 2008.

Collusion generally requires evidence that the parties worked in concert in some fashion. Here, it does not appear that The Lions Group had any purpose to collude with the Whites. Rather, The Lions Group merely consented to the manner of settlement which the Whites negotiated. For sentencing purposes, the trial court merged the six counts of criminal attempt to commit armed robbery into the six counts of aggravated assault with intent to rob.

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 collusion when we see it, and it is not present here. OCGA § 17-10-1 (f) was enacted in 2001. See Ga. L. 2001, p. 94, § 5; .