Apparel Resources Intern., Ltd. v. Amersig Southeast, Inc.

• Decision Date: 05 December 1994
• Docket Number: No. A94A1416,A94A1416
• Citation: 451 S.E.2d 113,215 Ga.App. 483
• Parties: APPAREL RESOURCES INTERNATIONAL, LTD. et al. v. AMERSIG SOUTHEAST, INC.
• Court: Georgia Court of Appeals

Page 113

451 S.E.2d 113

215 Ga.App. 483

APPAREL RESOURCES INTERNATIONAL, LTD. et al. v. AMERSIG SOUTHEAST, INC.

No. A94A1416.

Court of Appeals of Georgia.

Dec. 5, 1994.

Roberts, Isaf & Summers, W. Dennis Summers, Robert H. Stansfield, Atlanta, for appellants.

Alembik, Fine & Callner, G. Michael Banick, Atlanta, for appellee.

RUFFIN, Judge.

Amersig Southeast, Inc. ("Amersig"), a printing company, sued Apparel Resources International, Ltd. ("Apparel Resources") a foreign corporation, and Lynn Heller, a New York resident, for breach of contract after Apparel Resources failed to pay Amersig for catalogues it printed. Although Heller was not a party to the contract, she executed a personal guarantee in the event Apparel Resources failed to pay Amersig.

The contract contained a forum selection clause providing that claims arising out of the contract "shall be litigated in courts located within the State. [Apparel Resources] by execution of this Agreement hereby consents to the jurisdiction of any local, state, or federal court located within the State, and designates the Secretary of State of the State as its agent for service of process." The "State" is defined in the contract as "the state in which [Amersig's] plant is located." The catalogues were printed at Amersig's plant located in DeKalb County, Georgia. The personal guarantee executed by Heller contained a choice of laws provision stating Heller "agrees that this guaranty shall be governed by and construed and enforced according to the laws of the State of Georgia." In their answers, both Apparel Resources and Heller denied the jurisdiction of the State Court of DeKalb County. In addition, Apparel Resources filed a motion to dismiss for lack of personal jurisdiction. The trial court, finding jurisdiction was proper, denied the motion, and after trial, at which both defendants failed to appear, entered judgment in favor of Amersig. Apparel Resources and Heller appeal the denial of the motion and judgment.

1. Apparel Resources and Heller assert the judgment is void because the trial court did not have personal jurisdiction over them.

In finding it had jurisdiction over Apparel Resources, the trial court relied on Lightsey v. Nalley Equip. Leasing, Ltd., 209 Ga.App. 73, 432 S.E.2d 673 (1993), where this court held that "contractual clauses providing advance consent to the jurisdiction of a court are valid and enforceable. [Cit.]" Id. at 74, 432 S.E.2d 673. While Apparel Resources agrees Lightsey is controlling, it argues that if under such a contractual clause a party merely "consents" to the personal jurisdiction and does not expressly "waive" that jurisdiction, the clause is invalid. In support of its argument, Apparel Resources relies on OCGA § 15-1-2 which provides "[p]arties may not give jurisdiction to a court by consent, express or implied, as to the person or subject matter of an action. However, lack of jurisdiction of the person may be waived, insofar as the rights of the parties are concerned. ..." (Emphasis supplied.)

In Dix v. Dix, 132 Ga. 630, 64 S.E. 790 (1909) our Supreme Court stated with regard to OCGA § 15-1-2 that "[i]t is rudimentary law that parties can not, by consent express or implied, give jurisdiction to a court; that as to the subject-matter the court is limited by the powers conferred upon it by law, and can not be given additional power or jurisdiction by consent of the parties or by waiver; but that as to the jurisdiction of the person, the point may generally be waived, so far as the rights of the parties are concerned.... [Cit.]" (Emphasis supplied.) Id. at 632, 64 S.E. 790. "Since the adoption of the code the distinction between a privilege or right which a person may waive as against himself, though not against third parties, and an inability to confer jurisdiction over subject-matter upon a court, by consent or waiver, has been generally recognized and applied." (Emphasis supplied.) Id. at 632-633, 64 S.E. 790.

The intent of the legislature, and that expressed by the court in Dix, was to prohibit parties from conferring jurisdiction upon a court where none exists by law. Subject-matter jurisdiction is established by our laws and there is nothing parties to a suit can do to give a court jurisdiction over a matter that has not been conferred by law. See Williams v. Goss, 211 Ga.App. 195, 198, 438 S.E.2d 670 (1993); see also Champion v. Rakes, 155 Ga.App. 134, 135, 270 S.E.2d 272 (1980). Personal jurisdiction is also governed by our laws, and parties cannot agree to allow a court to extend its reach and exercise its powers over people beyond its territorial limits that is not otherwise permitted by law. See OCGA §§ 50-2-21; 9-10-91. However, by allowing a party to consensually bring itself within those territorial limits, and within the personal jurisdiction of a court, a waiver of personal jurisdiction is appropriate without violating the laws of this state. This is the legislative intent behind OCGA § 15-1-2 and that Code section prohibits a party from consensually subjecting itself to the jurisdiction of a court.

" 'It is clear under Georgia law that personal jurisdiction, unlike subject matter jurisdiction, may be waived. The United States Supreme Court has recognized a variety of legal arrangements as representative of consent to personal jurisdiction. Advance consent to the jurisdiction of a particular court in a contract is one such arrangement.' ... [Cit.]" Regency Mall Assoc. v. G.W.'s Restaurant, 213 Ga.App. 225, 444 S.E.2d 572 (1994). "This result also enhances the freedom to contract. The freedom of individuals to contract is part of the basic liberties enjoyed by the citizens of this state and should not be interfered with in the absence of clear necessity." (Citations and punctuation omitted.) Harry S. Peterson Co. v. Nat. Union Fire Ins. Co., 209 Ga.App. 585, 591(3), 434 S.E.2d 778 (1993).

In the instant case we find the forum selection clause unambiguous and susceptible to but one interpretation. Apparel Resources, by executing the printing contract, consented to being subject to the jurisdiction of a court where the printing plant was located in the event a dispute arose concerning the contract. This court in Regency Mall recognized the...