We granted plaintiffs’ application for interlocutory review to consider whether the trial court erred in granting Ready Trucking, Inc.’s (“Ready”) motion to transfer for improper venue and denying plaintiffs’ motions for summary judgment as to venue.
The case arises from a traffic accident in Lowndes County on March 19, 1993, which occurred when a tractor-trailer owned by Ready collided with a van in which plaintiffs were riding. Plaintiffs filed this action in the State Court of Fulton County on May 17, 1994. They served the summons and complaint on Henry Read, Sr., Ready’s designated registered agent for service of process under the Federal Motor Carrier Act, 49 USC § 10330 (b), at his Fulton County residence. At all times relevant to this action, Don Dougherty, Ready’s president, was designated as Ready’s registered agent, and 2717 Campbell Boulevard, Ellenwood, Clayton County, Georgia, was listed as its registered office in documents filed with the Georgia Secretary of State.
Sometime in 1993, however, Dougherty moved to Nevada. He also relocated Ready’s executive office and headquarters and incorporated Ready in Nevada. Dougherty was designated Ready’s registered agent in Nevada in September 1993. Ready proffered a certificate from the Georgia Secretary of State showing it remains in good standing.
After Ready asserted improper venue in its first responsive pleading, plaintiffs moved for summary judgment, arguing venue was proper in Fulton County, the location of Ready’s agent for service of process under the Georgia Motor Carrier Act and regulations promulgated by the Interstate Commerce Commission and the Georgia Public Service Commission. Ready moved to transfer, contending that the case should be tried in Clayton County, the location of its registered office. The trial court granted Ready’s motion to transfer and denied the plaintiffs’ motion for summary judgment.
Venue is determined on the date the suit is filed. McLain Building Materials v. Hicks,
Because the law treats foreign and domestic corporations identically for venue purposes so long as the corporation is authorized to transact business in this state, and Ready is authorized to transact business in this state, we need not reach the issue of whether Ready is a Georgia or Nevada corporation. OCGA § 14-2-510 (b) (1); Southern Drayage v. Williams,
Plaintiffs’ unsupported argument that OCGA § 46-7-17 (b) authorizes venue in any county where a corporation designates an agent for service lacks merit. They confuse the requisites of service with venue. OCGA § 46-7-17 (b) clearly provides for venue in the county where some portion of the cause of action arose. This venue provision remains unchanged by the statute’s inclusion of an alternative method of service where the motor carrier or its agent is unavailable in the county where the cause of action arose.
Plaintiffs further contend that Ready waived its venue defense by designating a Fulton County resident as its registered agent under the Federal Motor Carrier Act.
This argument fails because the concept of waiver presupposes the intentional or voluntary relinquishment of a known right. See Williams v. Willis,
Finally, plaintiffs contend that OCGA § 9-10-33 provides for venue in Fulton County as the location of its agent for service and the place it transacts business, because Ready is a foreign corporation which failed to maintain its registered office. They argue that venue does not lie in Clayton County because Ready’s registered office in Georgia could not be maintained in the absence of its registered agent, who moved to Nevada. They also maintain that effecting service would have been impossible at the registered office in the registered agent’s absence.
OCGA § 9-10-33 provides that “[a] person who is not a citizen of this state, passing through or sojourning temporarily in the state, may be subject to an action in any county thereof in which he may be found at the time when the action is brought.” Assuming without deciding that Ready is no longer a Georgia corporation due to its incorporation in Nevada, the fact that it has been operating continuously from its Georgia office for over 16 years belies the argument that Ready is merely passing through or sojourning temporarily in this state. Cf. McPherson v. McPherson,
In light of our findings on the motion to transfer, we need not reach the issue of the propriety of the trial court’s denial of plaintiffs’ motion for summary judgment on the venue issue.
Judgments affirmed.
Notes
For example, venue may be waived by failing to raise it in an answer, expressly relinquishing the defense after properly raising it, or by failing to elicit a ruling on the issue prior to commencement of trial or entry of judgment. Id.