Chattahoochee Bancorp, Inc. v. Roberts, A91A2073

• Decision Date: 17 March 1992
• Docket Number: No. A91A2073,A91A2073
• Parties: CHATTAHOOCHEE BANCORP, INC. v. ROBERTS.
• Court: Georgia Court of Appeals

Page 875

416 S.E.2d 875

203 Ga.App. 405

CHATTAHOOCHEE BANCORP, INC. v. ROBERTS.

No. A91A2073.

Court of Appeals of Georgia.

March 17, 1992.

Alston & Bird, W. Terence Walsh, T. Michael Tennant, Forrest W. Hunter, W. Glenn Viers, Atlanta, for appellant.

Beltran & Coffey, Frank J. Beltran, Ralph Perales, Atlanta, Davis, Gregory & Christy, Hardy W. Gregory, Jr., Vienna, for appellee.

COOPER, Judge.

Appellant appeals from an order of the trial court granting appellee's motion to dismiss appellant's petition for declaratory judgment.

Appellee was terminated from employment by appellant on October 16, 1989. On October 26, 1990, appellee wrote appellant requesting payment pursuant to an alleged employment contract between appellant and appellee. Appellee enclosed a copy of the contract which was allegedly signed by an officer of appellant and which provided for salary payments, salary increases, bonus payments and payments upon termination of employment. On November 8, 1990, appellant responded to appellee's letter, stating that appellant considered the agreement to be a fraud; that appellant considered the entire matter to be frivolous and fraudulent; that appellant intended to fully defend any legal action that may be brought by appellee; and that appellant intended to seek any appropriate sanctions against appellee. In March 1991, appellant filed a petition for declaratory judgment in Gwinnett County, seeking a judicial determination that the agreement is invalid and unenforceable and the liquidated damages provision in the agreement is void. After appellant's petition was filed, appellee filed a civil action in Fulton County for breach of contract and emotional distress against appellant and the officer who allegedly signed the agreement. Thereafter, appellee answered appellant's petition and filed a motion to dismiss the declaratory judgment action. Appellant then filed an application for stay of the Fulton County proceedings. After a hearing, the trial court issued an order granting appellee's motion to dismiss the declaratory judgment petition, concluding that appellant was seeking an advisory opinion because, having denied appellee's claim, appellant was not undecided about the claim and all rights and obligations under the agreement had already accrued. Based on this conclusion, the trial court ruled that appellant's application for stay of proceedings was moot. Appellant contends that the trial court erred in ruling that it was seeking an advisory opinion and in not granting the application for stay of the Fulton County proceedings.

" 'OCGA § 9-4-2(c) provides that a "(r)elief by declaratory judgment shall be available, notwithstanding the fact that the complaining party has any other adequate legal or equitable remedy or remedies." However, it has been held that this provision "does not mean that a declaratory judgment (action) will lie to have just any justiciable controversy decided." [Cit.] "(T)he plaintiff must show facts or circumstances whereby it is in a position of uncertainty or insecurity because of a dispute and of having to take some future action which is properly incident to its alleged right, and which future action without direction from the court might reasonably jeopardize its interest." [Cit.] "A declaratory judgment may not be granted in the absence of a justiciable controversy. (Cits.) 'The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated....' " [Cit.]' [Cit.]" Chastain v. U.S. Fidelity, etc., Co., 190 Ga.App. 215, 216 (1), 378 S.E.2d 397 (1989) (Emphasis deleted.). "[A] declaratory judgment is not available to a party merely to test the viability of its defenses. [Cits.]" Allstate Ins. Co. v. Shuman, 163 Ga.App. 313, 316 (4), 293 S.E.2d 868 (1982). In the instant case, appellant...