Gorrell v. Fowler

• Decision Date: 06 January 1982
• Docket Number: No. 37757,37757
• Citation: 248 Ga. 801,286 S.E.2d 13
• Parties: Raymond B. GORRELL, d/b/a Gorrell Construction Company v. Donald P. FOWLER, et al.
• Court: Georgia Supreme Court

Page 13

286 S.E.2d 13

248 Ga. 801

Raymond B. GORRELL, d/b/a Gorrell Construction Company v. Donald P. FOWLER, et al.

No. 37757.

Supreme Court of Georgia.

Jan. 6, 1982.

Rehearing Denied Jan. 27, 1982.

J. Michael Lamberth, Cotton, Katz, White & Palmer, P.A., Atlanta, for Raymond B. Gorrell, d/b/a Gorrell Const. Co.

Frank M. Gleason, Rossville, for Donald P. Fowler et al. WELTNER, Justice.

Application for interlocutory review was granted on the motion of Gorrell, a contractor, protesting the dismissal of his complaint against the Fowlers by the Superior Court of Catoosa County.

In 1974, Gorrell entered into a contract with the Fowlers whereby Gorrell agreed to do certain construction work. A dispute ensued, and Gorrell filed a complaint which ultimately went to jury trial. During the course of the trial, the Fowlers moved that his complaint be dismissed under the provisions of Ga.L., 1961, p. 480 et seq., presently codified as Chapter 91A-61, providing as follows: "No contractor who fails to register with the commissioner as required by this Chapter or to comply with any of the provisions of this Chapter shall be entitled to maintain an action to recover payment for performance on the contract in the courts of this State." Ga.Code § 91A-6107--the statute as presently codified being identical to that in force on the date of the original contract and the institution of the present action.

The trial court heard testimony from Gorrell to the effect that he resided in the State of Tennessee; that his contracting business was located in the State of Tennessee; that he was licensed by the authorities of the State of Tennessee; that he had not registered with the Georgia authorities as required by the aforesaid Act. The trial judge thereafter granted the Fowlers' motion to dismiss based upon Gorrell's failure to comply with Chapter 92-4 et seq., (now repealed) and issued a certificate of immediate review.

Gorrell raises several substantive points in his enumeration of errors, which we will treat seriatim.

1. Gorrell contends that the trial court erred in permitting the Fowlers to assert a defense under Chapter 91A-61, when that defense was not specially pleaded, and was first raised during the trial of the case. The Civil Practice Act (Code Ann. Title 81A) sets forth a limited number of defenses which must be pleaded specially, including capacity. Code Ann. § 81A-109(a). We will not extend, by implication, the requirements of the Civil Practice Act, thereby beginning the long trek backward into the labyrinth of common law pleading, from which we have so recently escaped. See Code Ann. § 81A-101. The defense was properly raised.

2. Gorrell contends that Chapter 91A-61 is inapplicable to an action in quantum meruit. A simple reference to the language of the statute is sufficient to dispose of this enumeration. In no way could we interpret the language "no contractor ... shall be entitled to maintain an action to recover payment for performance on the contract...." in so restrictive a manner. This enumeration is without merit.

3. Gorrell contends that the trial court erred in refusing to submit to the jury the question whether he was a non-resident within the meaning of the applicable code section. Gorrell stated under oath that he maintained his home and office in the State of Tennessee and that all of his business records and reporting requirements were conducted under the laws of the State of Tennessee. Under this evidence, the trial court correctly made the factual determination as to non-residency, and no jury issue was raised by the evidence. Code Ann. § 81A-150(a); Top Quality Homes, Inc. v. Jackson, 231 Ga. 844, 204 S.E.2d 600 (1974).

4. Appellant contends that the trial court denied him the opportunity to introduce further evidence relative to his non-residency, in an effort to mitigate testimony, outlined above, given on the prior day, on the ground that to do so would be to impeach his own testimony. Obviously, a party may not offer evidence to impeach his own witness absence surprise or entrapment. Code Ann. § 38-1801. The trial court has discretion in this matter, and his determination that such testimony would be impeaching is no abuse of that discretion. This enumeration is without merit.

5. Gorrell contends that the Georgia statute is unconstitutional as violative of the United States and the Georgia Constitutions in five particulars. However, the constitutional objections raised in the trial were, with one exception, mere conclusions, without in any way setting forth the particularities of any alleged fatality. "One who calls in question the constitutionality of a law must in his pleadings distinctly and clearly point out in what respect the law is violative of the Constitution. Laffitte v. Burke, 113 Ga. 1000, 39 S.E. 433; Scott v. State, 187 Ga. 702(4), 2 S.E.2d 65." Haber v. Fulton County, 124 Ga.App. 789, 791, 186 S.E.2d 152 (1971). Notwithstanding, we have reviewed the statute and find that it is not unconstitutional under any of Gorrell's theories. The appellate courts of our state have upheld similar disabilities relative to non-residents falling in different categories, such as foreign corporations [Code Ann. § 22-1421(b); Metric Steel Co. v. BLI Construction Co., 147 Ga.App. 380, 249 S.E.2d 121 (1978); National Heritage Corp. v. Mount Olive Memorial Gardens, Inc., 244 Ga. 240, 260 S.E.2d 1 (1979) ], and real estate brokers [Code Ann. § 84-1404(a); Northside Realty Associates Inc. v. MPI Corp....