concurring specially.
I concur in the'judgment only in this case, and I write separately to point out a number of problems raised but not answered by the parties and the trial court.
The record shows that, while D H Supply Company appropri*521ately raised the affirmative defense of venue in its initial pleading, Carlos Mattox, acting pro se, did not do so, opting instead to generally deny all of Wendy Condo’s allegations. As such, it would appear that Mattox waived his venue defense. See Orkin Exterminating Co. v. Morrison6 (general denial does not raise venue defense).
Decided June 5, 2003. Mabry & McClelland, James T. Budd, Brian W. Sprinkle, for appellants. Allen & Associates, Arthur L. Myers, Jr., Peter A. Law, Davis K. Loftin, for appellee.It does not appear from the record, however, that the parties considered this fact. To the contrary, the defendants argued that venue was proper in Fulton County because the settlement agreement was “negotiated in Fulton County by Defendants’ agent Crawford & Company (a Fulton County resident), prepared by Defendants’ agent in Fulton County, and finalized within Fulton County.” The mere fact that Crawford & Company was in Fulton County did not create venue there. See Barnes v. Destiny Indus.7
Absent a transcript of the hearing, we cannot determine whether or not the trial court considered Mattox’s waiver of his venue defense. The trial court’s order indicates that it had “jurisdiction over the terms of the contract,” a conclusion most likely based on the defendants’ argument regarding the situs of the contract. Moreover, the trial court’s order imposes liability solely upon D H Supply and not upon Mattox. This raises concerns whether Crawford & Company was also representing Mattox, as the underlying tort action was based on the doctrine of respondeat superior.
Although defendants have argued that, in the absence of the transcript of the motion hearing, we must affirm, a review of the transcript is not necessary under the peculiar facts of this case. The record makes it clear that the venue issues raised in this special concurrence were not placed before or ruled upon by the trial court. As such, the order of the trial court should be vacated, as it had no jurisdiction based on improper venue. Upon the transfer of the case, the appropriate trial court can consider the issues raised in this special concurrence.
Orkin Exterminating Co. v. Morrison, 187 Ga. App. 780, 781 (3) (371 SE2d 407) (1988).
Barnes v. Destiny Indus., 185 Ga. App. 630, 631 (365 SE2d 488) (1988).