COA Clarifies the Proper Standard for Substituting John Doe Defendants and the Correct Standard for Determining Personal Jurisdiction on a Motion to Dismiss

In Monroe v. Mayfield Self Me-064 Storage, the Court of Appeals recently tackled two key procedural issues: (1) the proper method for substituting a “John Doe” defendant, and (2) the correct standard for determining personal jurisdiction over a defendant. Ultimately, the Court of Appeals decided that “John Doe” defendants are meant for entities that exist but are unidentified at the time of filing. MAB Monroe, LLC v. Mayfield Self Storage, LLC, 2025 Ga. App. LEXIS 12, at 21-22 (Jan. 16, 2025). For entities created later, you need to follow the correct process for adding a new party. Id. at 22. Moreover, the Court of Appeals clarified that personal jurisdiction must be proven by evidence and allegations are not evidence. Id. at *26. To survive a motion to dismiss for lack of personal jurisdiction, actual evidence of the defendant’s minimum contacts with Georgia must be presented to the court. Id. 

Mayfield Self Storage brought a nuisance claim and request for injunctive relief against MAB Monroe, LLC, MAB Monroe2, LLC, MAB American Development Partners, LLC, and MAB American Management, LLC (collectively “MAB”) for the increased volume of water flowing from MAB’s uphill property onto Mayfield’s downhill property. Id. at *1. After the trial court granted summary judgment in favor of Mayfield, the MAB entities appealed, challenging multiple aspects of the case, including the trial court's decision to add certain defendants. These arguments are addressed in Sections 4 and 5 of the Court’s opinion.

Opinion Section 4: Proper Avenue to Add/Sub Named Defendants in place of John Doe

The court addressed whether Mayfield could substitute MAB2, one of the defendants, for a “John Doe” defendant by amending the complaint. Mayfield filed a nuisance suit in November 2021 against MAB and “John Doe” defendants, but MAB2 wasn't incorporated until weeks later. In 2023, Mayfield amended the complaint to name MAB2 as a replacement for one of the “John Doe” defendants. MAB2 argued it couldn’t be substituted, as it didn’t exist when the original suit was filed, and Mayfield needed to follow the proper procedure to add a new party under OCGA § 9-11-21.

The court agreed with MAB2. It noted “it is generally true that, “when a plaintiff seeks to substitute a named defendant for a ‘John Doe[,]’” a plaintiff need not obtain leave of court to add a party under OCGA § 9-11-21.” Id. at 20 quoting Bishop v. Farhat, 227 Ga. App. 201, 202 (1) (489 SE2d 323) (1997). But, “a ‘John Doe’ defendant is to leave a placeholder for an existing entity whose identity is unknown at the time that a complaint is filed.” Id. at 21. Given the facts, the court found that “MAB2 simply does not fall into any of the categories that would make it a true “John Doe” defendant.” Id. MAB2 was indeed not a substitute party, but rather a new party. Thus, amending the complaint to add MAB2 was the improper method.

Opinion Section 5: Proper Standard for Personal Jurisdiction

The question before the court here was whether the trial court properly determined personal jurisdiction of the defendants “MAB Managers.” Here, MAB Managers filed a motion to dismiss arguing lack of personal jurisdiction.

“[I]n personam jurisdiction must be proven by a preponderance of the evidence” and “a motion to dismiss for lack of personal jurisdiction must be adjudicated based on evidence placed before the court.” Id. at 25-26 quoting Carter v. Heritage Corner, 320 Ga. App. 828, 830 (2) (b) (741 SE2d 182) (2013). The trial court "indicated in its order that it had personal jurisdiction over the MAB Managers because they ‘manage the real estate and are alleged to have committed tortious acts in this State.’” Id. at 27. And therein laid the problem–the trial court improperly factored allegations into its ruling. Allegations are not evidence. Thus, the trial court applied the wrong standard to determine whether the MAB Managers satisfied the minimum contacts required by Georgia’s long arm statute. Id. at *27-28.

Court of Appeals Offers "Collusion" Definition for Vanishing Venue Disputes

The Court of Appeals of Georgia has stated – for the first time – a definition of collusion in the context of vanishing venue. Proof of collusion allows a non-resident defendant to defeat a court from retaining venue after a consent judgment with a resident defendant is entered into with the intent to keep venue that would otherwise be subject to the vanishing venue rule. However, the Court of Appeals and Supreme Court had never actually defined collusion. In fact, in the past, the Supreme Court of Georgia previously stated, “[i]t is enough for us to say that we can recognize collusion when we see it.” Hankook Tire Co. v. White, 335 Ga. App. at 454, n. 3 (2016). The Court of Appeals incorporated into a recent opinion the 12th Edition of Black’s Law Dictionary’s definition of collusion: “[a]n agreement to defraud another or to do or obtain something forbidden by law.” Sobowale v. Smith, 2024 Ga. App. Lexis 349 at 6 (Aug. 28, 2024) quoting Black's Law Dictionary (12th ed. 2024). Ultimately, this broad definition was analyzed in Sobowale by looking at whether: (a) the resident defendant in the action was integral; (b) liability was retained; and (c) there was consideration under the settlement. With this analytical framework, the Court of Appeals affirmed the trial court’s finding that there was no collusion. Sobowale, 2024 Ga. App. Lexis 349 at 7-8.

Generally, “the proper venue for an action that involves joint tortfeasors is in any of the counties in which a tortfeasor resides.” O.C.G.A. § 9-10-31(a). Vanishing venue is a procedural obstacle that occurs when “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.”  O.C.G.A. § 9-10-31 (d). Upon this occurrence, “a nonresident defendant may require that the case be transferred to a county and court in which venue would otherwise be proper.” Id.

Therefore, a court only has jurisdiction over the nonresident defendant when the resident defendant is liable in the action. Ross v. Battle, 117 Ga. 877, 880 (45 SE 252) (1903). Liability is the “sine qua non” for jurisdiction over a 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). Further, "the entry of a consent judgment does not equate with a discharge from liability under O.C.G.A. § 9-10-31 (b), regardless of the wording of the settlement and release." Nalley, 261 Ga. App. at 714. That is because "a consent judgment recognizes that a verdict against the resident defendant was authorized." Motor Convoy, 194 Ga. App. at 796.

The Court of Appeals affirmed the trial court’s decision that there was no collusion in light of the new definition of collusion. First, in Sobowale, the settlement and release specifically stated it was not a discharge of liability. Sobowale, 2024 Ga. App. Lexis 349 at 6. The additional analysis of the Court of Appeals included looking at whether there was a payment or other form of consideration in the settlement, regardless of whether that payment was stated in the consent judgment, and whether the defendant that was a resident defendant was an “integral defendant” that was not only named to establish venue. Id. at 7.

Ultimatey, the Sobowale Court has provided an actual definition to be used by litigants in any inquiry relating to the interplay of vanishing venue and consent judgments.

Georgia Court of Appeals Changes Standard from Clearly Erroneous to De Novo to Govern Self-Contradictory Testimony

The Court of Appeals has overturned decades of precedent on the question of the standard for self-contradictory testimony in Pollard v. Great Dane, LLC, A24A0545, 2024 Ga. App. Lexis 236 (June 18, 2024).  Under the rule initially stated in Prophecy Corp. v. Charles Rossignol, Inc. , 256 Ga. 27 (343 SE2d 680) (1986), “parties’ self-contradictory, vague or equivocal testimony is construed against them on summary judgment, absent a reasonable explanation. Pollard, 2024 Ga. App. Lexis at 5-6. Since the 1980s, the Courts have “fallen into the practice of incorrectly reciting” that the clearly erroneous standard, which is equivalent to the any evidence standard, was used to determine if an explanation under Prophecy was reasonable. Id. at 5-6. However, the COA has determined “that line of cases is wrong” because the “rule governing a party-witness’s self-contradictory testimony is an evidentiary rule” requiring an issue of law to be determined. Id. at *6. Therefore, this is a question of law to be reviewed de novo.

The Court continues that “[w]hen reviewing a trial court's evidentiary rulings, we apply the ‘clearly erroneous’ or any evidence standard to the trial court’s factual findings.” Id. quoting Morrell v. State, 313 Ga. 247, 251 (1) (869 SE2d 447) (2022). However, “the determination whether a party-witness has or has not offered a reasonable explanation for self-contradictory testimony is not a factual finding. Rather, our Supreme Court held in Prophecy that such a determination ‘is an issue of law for the trial judge.’” (Emphasis supplied.) Id. quoting Prophecy, 256 Ga. at 30 (2); Auto-Owners Ins. Co. v. Crawford, 240 Ga. App. 748, 750 (1) (525 SE2d 118) (1999). Therefore, the court determined the proper analysis is de novo for issues of law.

The Prophecy case noted that in the context of summary judgment proceedings, “the testimony of a party who offers himself as a witness in his own behalf at trial is to be construed most strongly against him when it is self-contradictory, vague or equivocal.” Id. at *9 quoting Prophecy, 256 Ga. at 28 (1). The Supreme Court further explained that “if a reasonable explanation is offered for the contradiction, the testimony will not be construed against the party-witness. The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge.” Id., quoting Prophecy 256 Ga. At 30.

“[T]he Prophecy rule is aimed at discouraging a party’s temptation to commit perjury during a civil trial’s summary judgment phase[.]” Id. quoting Thompson v. Ezor, 272 Ga. 849, 852 (2) (536 SE2d 749) (2000). The rule is “intended to remove any incentive for witnesses responding to a motion for summary judgment to tailor their statement to meet the needs of the occasion without regard to the truth.” Id. at *9-10 quoting Rhodes v. ABC School Supply , 223 Ga. App. 134, 136 (1) (476 SE2d 773) (1996). However, “[t]he rule is not meant to punish a party who

makes a mistake by preventing her from presenting her case to a jury if there exists a genuine issue of material fact.” Id. at *10 citing Prophecy, 256 Ga. at 30.

Ultimately, the COA reversed the trial court’s granting of summary judgment stating that the contradictory testimony had a reasonable explanation where the declarant stated the prior statement was an error of a paralegal in a pleading that had since been amended. Id. at *11. In light of proper deposition testimony this was deemed to be reasonable and an issue for the jury to determine at trial, not a judge on summary judgment. Id.