Cox v. Long

• Decision Date: 06 September 1977
• Docket Number: No. 54171,No. 2,54171,2
• Citation: 143 Ga.App. 182,237 S.E.2d 672
• Parties: Perry COX et al. v. Jack LONG et al
• Court: Georgia Court of Appeals

Page 672

237 S.E.2d 672

143 Ga.App. 182

Perry COX et al. v. Jack LONG et al.

No. 54171.

Court of Appeals of Georgia, Division No. 2.

Sept. 6, 1977.

Dupree & Staples, Barry Staples, Hylton B. Dupree, Jr., Marietta, for appellants.

Heyman & Sizemore, Robert E. Tritt, Patrick L. Swindall, Atlanta, Cochran, Camp & Snipes, J. A. Cochran, Smyrna, Awtrey, Parker, Risse, Mangerie & Brantley, G. Grant Brantley, Marietta, for appellees.

SHULMAN, Judge.

This appeal follows an order dismissing plaintiffs' complaint for lack of jurisdiction over the defendant. The sole issue presented is whether the Long Arm Statute, Ga.Code Ann. § 24-113.1, confers jurisdiction under the facts here. We hold that it does and, accordingly, reverse the judgment.

The facts are not in dispute. Defendants were Georgia residents and owned certain real estate in Cobb County. They subsequently moved to California and have not returned to Georgia since. Some time after becoming California residents, defendants listed their house for sale with a Georgia realtor through a Georgia real estate salesman. Plaintiffs, Georgia residents, offered to purchase the realty. Defendants were advised of the offer and accepted. The offer, preliminary negotiations relating to the realty, preparation of documents, closing, recording of deeds and payment of fees took place in Georgia. Defendants executed the contract and the deeds relating to the realty in California and did not participate in the closing. Defendants received a check subsequent to the disbursements having been made at the closing. Plaintiffs' complaint, based on breach of contract and fraud, alleges that defendants falsely represented that monthly payments on the realty purchased included insurance and further falsely represented that an escrow account existed and that said account would be transferred to plaintiffs in lieu of tax and insurance prorations.

1. Code Ann. § 24-113.1 provides in pertinent part that "A court of this State may exercise personal jurisdiction over any nonresident . . . as to a cause of action arising from any of the acts, omissions, ownership, use or possession, . . . if in person or through an agent, he: (a) Transacts any business within this State; or (b) Commits a tortious act or omission within this State . . . (d) Owns, uses or possesses any real property situated within this State."

Appellant contends that the facts of this case as applied to Code Ann. § 24-113.1(a), (b) and (d) form the basis for personal jurisdiction over the nonresident defendants herein.

2. "(T)he Long Arm Statute contemplates that jurisdiction shall be exercised over non-resident parties to the maximum extent permitted by procedural due process. (Cit)" Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 60, 195 S.E.2d 399, 401.

3. This case is controlled by Porter v. Mid-State Homes, Inc., 133 Ga.App. 706, 213 S.E.2d 10. Personal jurisdiction exists over defendant as the claim arose out of defendant's ownership of realty in Georgia. Code Ann. § 24-113.1(d). See McIntosh v. Mid-State Homes, Inc., 232 Ga. 871, 209 S.E.2d 203 (Florida corporation, without agents in Georgia, as record title holder is subject to Code Ann. § 24-113.1(d)). Cf. Co-op Mortgage Investments v. Pendley, 134 Ga.App. 236, 242, 214 S.E.2d 572 (Code Ann. § 24-113.1(d) includes entering into transactions in connection with real property in this state).

Since we find that Code Ann. § 24-113.1(d) confers jurisdiction, it is unnecessary to determine whether Code Ann. § 24-113.1(a) and (b) are also applicable to this situation. But see Porter v. Mid-State Homes, Inc., supra (advertising realty in Georgia newspaper and acceptance of the sale proceeds by nonresident's Georgia lawyer constituted transaction of business); ...