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Hodge v. Howes3/7/2003
On June 10, 1997, Shawn Howes sued Kings Bay Chrysler Plymouth Dodge, a Georgia corporation, for wrongful foreclosure, conversion, trespass, and personal injury. Gilbert Hodge was the sole shareholder and chief executive officer of Kings Bay. By January 1998, Kings Bay had sold its assets and distributed the proceeds to Hodge. On June 26, 1999, a default judgment was entered in favor of Howes in his suit against Kings Bay in the amount of $36,212. The judgment was uncollectible because Kings Bay was insolvent. Howes then sued Hodge, claiming that Hodge was liable for the judgment entered against Kings Bay to the extent of the distributions made to Hodge by Kings Bay. In his answer, Hodge denied liability and further asserted that, as a Texas resident, he was not subject to personal jurisdiction and moved to dismiss on that ground. Howes and Hodge subsequently filed cross-motions for summary judgment, and the trial court entered summary judgment on the merits for Howes and awarded damages of $36,212. Hodge appeals. Finding no error, we affirm.
1. Hodge claims that the trial court should not have entered summary judgment against him because it did not rule on his motion to dismiss for lack of personal jurisdiction. We disagree because, by his actions, Hodge waived his jurisdictional defense.
In order for a defendant's acts to serve as a waiver of his previously asserted objection to jurisdiction, his acts or omissions to act, relied on, should be so manifestly consistent with and indicative of an intention to voluntarily relinquish a then known particular right or benefit, that no other reasonable explanation of his conduct is possible.
Hodge moved for summary judgment on the merits without reasserting or reserving the jurisdictional objections made in his answer. In Hoffman v. Fletcher, we found that the defendant, who moved for summary judgment without reasserting the affirmative defense of lack of venue, had waived that defense. We can discern no reason why moving for summary judgment while failing to reserve or reassert an affirmative defense of lack of personal jurisdiction should be treated differently.
The result in Hoffman can be contrasted to cases such as Hight v. Blankenship, in which the movant for summary judgment expressly reserved the defense of improper service of process in the motion and so was found not to have waived the defense. Baiye v. Gober may also be distinguished. In Baiye, the defendant raised its jurisdictional defense, but then did not respond to the plaintiff's motion for summary judgment. We found that the trial court acted prematurely by ruling on the plaintiff's motion for summary judgment without addressing the defendant's lack of personal jurisdiction defense. But in contrast to Hodge's action here, the defendant in Baiye never actively and without reservation participated in the merits of the litigation.
We have also found that a party may waive the defense of improper venue by failing to elicit a ruling on the defense before entry of a ruling on the merits or commencement of trial. As recognized in Taylor v. Career Concepts,
party against whom summary judgment has been granted is in the same position as if he suffered a verdict against him. Accordingly, appellant's failure to object to improper venue prior to the entry of the trial court's order was, in effect, a failure to raise the defense prior to suffering a verdict against him. By doing so, appellant waived any venue defense he possessed.
We conclude that Hodge's actions in (i) moving for summary judgment without reserving or reasserting his jurisdictional defense, and (ii) actively participating in the litigation and all
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