Bosworth v. Cooney

• Decision Date: 03 February 1981
• Docket Number: No. 60536,60536
• Citation: 156 Ga.App. 274,274 S.E.2d 604
• Parties: BOSWORTH v. COONEY.
• Court: Georgia Court of Appeals

Page 604

274 S.E.2d 604

156 Ga.App. 274

BOSWORTH v. COONEY.

No. 60536.

Court of Appeals of Georgia.

Argued Sept. 16, 1980.

Decided Oct. 20, 1980.

Rehearing Denied Nov. 14, 1980.

Certiorari Denied Feb. 3, 1981.

Stephen H. Steinberg, Augusta, for appellant.

J. Patrick Claiborne, William J. Cooney, Augusta, for appellee.

QUILLIAN, Presiding Judge.

The defendant Bosworth, doing business as the Gulf to Bay Title Company, appeals from a default judgment entered against him by the trial court, and the denial of his motion to set aside the judgment.

Held :

1. Plaintiff Cooney, executor of the estate of Donald S. Ford, filed this action against the defendant Bosworth, a resident of Florida. The complaint alleged that Bosworth was subject to the jurisdiction of the court under our Long Arm Statute, Code Ann. § 24-113.1 (Ga.L.1966, p. 343; 1970, pp. 443, 444), as "he came to the city of Augusta, State of Georgia, on several occasions to conduct negotiations for the sale of property which was the subject of certain escrow instructions and that he signed said escrow instructions while in Augusta, Georgia, on such a business visit."

The return of service shows Bosworth was served in Clearwater, Florida, January 25, 1980. Bosworth, an attorney, failed to file an answer but on February 22, 1980 within the time to answer, filed a "Motion to Dismiss for Lack of Jurisdiction Over the Person and Subject Matter" as "Attorney Pro Se, appearing specially to contest the service of process and jurisdiction of the Court." Bosworth also filed a Memorandum of Law with 5 exhibits the first exhibit being an affidavit by himself, and the remaining 4 exhibits are correspondence between the purchaser of the land and himself, the seller and himself, the Gulf to Bay Title Co. and the purchaser, and the Gulf to Bay Title Co. and the widow of Donald S. Ford.

His affidavit shows he was "part owner" of the Gulf to Bay Title Company, and a resident of Florida. He received a letter from the prospective purchaser, Mr. James S. Drahos, of Ohio, proposing to purchase Pritchard's Island, Beaufort, South Carolina, which was then thought to be owned by R. Eugene Holley of Augusta, Georgia, and Mrs. Helen T. Ford, the widow of Donald S. Ford. Before his death Donald S. Ford had told Bosworth he had transferred his title to his wife and that she and Holley each owned a one-half interest in the island. Bosworth stated that he took the contract to Mr. Holley presumably in Augusta, and to Helen Ford who rejected it. He asked Mr. Holley to write him a letter with acceptable conditions, which he forwarded to Mr. Drahos. He made the changes in the contract and met Mr. Holley in Valdosta where Mr. Holley signed the contract. Thereafter, he went to Augusta, Georgia to obtain Mr. Cooney's signature who had replaced Mrs. Ford. While in Cooney's office in Augusta, he signed the escrow contract for Gulf to Bay Title Company as the escrow agent. Drahos put up a check and promissory note totaling $50,000, but later defaulted on both.

A hearing was held on April 28, 1980 on defendant's motion to dismiss and the court denied the jurisdictional motion and entered default judgment because the defendant had not filed an answer to the complaint or moved to open the default.

The Long Arm Statute authorizes courts of this state to exercise personal jurisdiction "over any nonresident ... as to a cause of action arising from any of the acts ... enumerated in this section, in the same manner as if he were a resident of the State, if in person or through an agent he: (a) Transacts any business within this State..." Code Ann. § 24-113.1, supra. "(J)urisdiction over a nonresident exists on the basis of transacting business in this state if the nonresident has purposefully done some act or consummated some transaction in this state, if the cause of action arises from or is connected with such act or transaction, and if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice... (T)he trend of opinions is to construe long arm 'transacting any business' statutes most liberally and to uphold the jurisdiction of the court of the plaintiff's residence in actions arising, either directly or indirectly, out of such transactions." Davis Metals v. Allen, 230 Ga. 623, 625-626, 198 S.E.2d 285; Accord: McGee v. International Life Ins. Co., 355 U.S. 220, 222, 78 S.Ct. 199, 200, 2 L.Ed.2d 223. "In order to satisfy the constitutional requirement of procedural due process, it must be shown that the nonresident defendant has some 'minimum contact' with the forum state so as to make that state's exercise of jurisdiction over the defendant reasonable." Timberland Equip. Ltd. v. Jones, 146 Ga.App. 589, 590, 246 S.E.2d 709; Accord: Kulko v. California Superior Court, 436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132. "(T)here is no violation of due process or the underlying principles of traditional fairness and substantial justice when reasonable notice and opportunity to defend are present (as in the instant case). Delta Equities v. Larwin &c. Investors, 133 Ga.App. 382, 384, 211 S.E.2d 9." North Peachtree I-285 Properties v. Hicks, 136 Ga.App. 426, 429, 221 S.E.2d 607. "It is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State." McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223, supra.

We find the defendant's trips from Florida to within this state to negotiate the contract of sale and escrow contract, and execution of the escrow contract in Augusta, which is the basis for this action, provide sufficient "minimum contact" within the meaning and intent of our Long Arm Statute. Porter v. Mid-State Homes, 133 Ga.App. 706(1), 213 S.E.2d 10; North Peachtree I-285 Properties v. Hicks, 136 Ga.App. 426, 428, 221 S.E.2d 607, supra; Greenfield v. Portman, 136 Ga.App. 541, 544, 221 S.E.2d 704; Brooks Shoe Mfg. v. Byrd, 144 Ga.App. 431, 432-433, 241 S.E.2d 299; Bailey v. London Marina, 151 Ga.App. 73, 74, 258 S.E.2d 738. The trial court did not err in denying defendant's motion to dismiss for lack of jurisdiction over the defendant and the subject matter.

2. The defendant alleges that the trial court erred adjudging him to be in default for failure to file an answer as "the document filed by the Defendant constituted an Answer, and the action was not in default at the time the Default Judgment was granted."

The action was filed January 16, 1980 in Richmond County, Georgia. The defendant was personally served on January 25, 1980, in Clearwater, Florida. On February 22, 1980, he filed a "Motion to Dismiss" for lack of jurisdiction over him and the subject matter, and a "Motion" for an order directing the plaintiff to produce a deed from Donald S. Ford to his wife. At that time he filed a "Memorandum in Support of Defendant's Motions to Dismiss," which included an affidavit by himself as to the facts of this case, and four additional letters regarding communications between the parties. The issue before this court is whether the Motions to Dismiss and Produce a deed, the Memorandum of Law in support of the Motions, and the defendant's affidavit and other letters constitute an "answer" within the meaning of the Georgia Civil Practice Act. We hold that they do not constitute an answer.

Our Code states that there shall be "a complaint and an answer," also a third-party complaint and answer, there may be a reply to counterclaim and an answer to a cross-claim, but "(n)o other pleading shall be allowed..." Code Ann. § 81A-107(a) (CPA § 7(a); Ga.L. 1966, pp. 609, 618; 1967, pp. 226, 230). In other words, these documents and these documents alone constitute the pleadings. "A motion is not a pleading, although certain of the rules relative to pleadings are made applicable to motions by Rule 7(b)(2)." 2A Moore's Fed. Practice 1541, Motions, § 7.05.

"The purpose of service of process is to give adequate notice of a claim against a defendant and to compel him to appear and answer." Sheet Metal Workers Int. Assn. v. Carter, 241 Ga. 220, 221, 244 S.E.2d 860. Under Code Ann. § 81A-108(b) (CPA § 8; Ga.L. 1966, pp. 609, 619, as amended through 1976, pp. 1047, 1048), it is required that "(a) party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies." (Emphasis supplied.) "Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading." Code Ann. § 81A-108(d), supra. (Emphasis supplied.) The CPA requires "every defense to a claim for relief in any pleading shall be asserted in the responsive pleading ... if one is required, except that certain specified defenses may be raised by motion." Hayes v. Superior Leasing Corp., 136 Ga.App. 98, 220 S.E.2d 86; see Code Ann. § 81A-108(c) for affirmative defenses required to be plead. One of those required to be in the responsive pleading or by motion is lack of jurisdiction over the person. Code Ann. § 81A-112(b) (2) (CPA § 12; Ga.L. 1966, pp. 609, 622, as amended through 1972, pp. 689, 692, 693). Thus, the choice is by the pleader as to whether he desires to present this defense by responsive pleading or by motion, and if by motion it must be within the time for responding. Hayes v. Superior Leasing Corp., 136 Ga.App. 98, 99, 220 S.E.2d 86, supra. Thus, the...