George C. Carroll Const. Co., Inc. v. Langford Const. Co., 73017

• Decision Date: 19 March 1987
• Docket Number: No. 73017,73017
• Citation: 182 Ga.App. 258,355 S.E.2d 756
• Parties: GEORGE C. CARROLL CONSTRUCTION COMPANY, INC. v. LANGFORD CONSTRUCTION COMPANY.
• Court: Georgia Court of Appeals

Page 756

355 S.E.2d 756

182 Ga.App. 258

GEORGE C. CARROLL CONSTRUCTION COMPANY, INC. v. LANGFORD CONSTRUCTION COMPANY.

No. 73017.

Court of Appeals of Georgia.

March 19, 1987.

J. Philip Day, Columbus, for appellant.

Timothy S. Minors, La Grange, for appellee.

Michael J. Bowers, Atty. Gen., H. Perry Michael, First Asst. Atty. Gen., Verley J. Spivey, David A. Runnion, Sr. Asst. Attys. Gen., amicus curiae.

BEASLEY, Judge.

Carroll appeals from the grant of Langford's motion for summary judgment as to counts one and two of Carroll's four-count complaint. Carroll is an Alabama contractor who subcontracted with Langford on two construction projects in Troup County. Count one alleged performance under one contract and sought recovery of labor and materials expended. Count two alleged readiness to perform on the other contract but non-utilization by Langford; damages for lost profits were demanded.

Both by answer and motion, Langford asserted that Carroll had no right of access to Georgia courts because it was a nonresident contractor which had failed to comply with the bond requirements of OCGA § 48-13-32. An affidavit established that the construction contracts involved sums in excess of $10,000.

In opposition, Carroll's affidavit stated that it had complied with the tax and license laws of Georgia and had been audited several times by the state. It was also shown that Carroll had received a certificate of authority from the Secretary of State to transact business in Georgia pursuant to OCGA § 14-2-310 et seq. Further, Carroll had a registered agent and a registered office in this state.

The trial court concluded that, since both agreements involved consideration exceeding $10,000 and Carroll did not file a bond with the state Revenue Commissioner as required by OCGA § 48-13-32, Carroll had no access rights to the Georgia courts. OCGA § 48-13-37. Partial summary judgment was granted and counts one and two were dismissed.

Under OCGA § 48-13-30 et seq. a nonresident contractor as defined (OCGA § 48-13-30), who desires to engage in the contracting business in Georgia, must register with the Revenue Commissioner when the total contract price or compensation to be received amounts to more than $10,000 (OCGA § 48-13-31), and before contracting must execute a bond (OCGA § 48-13-32). One who fails to register or comply with any provision of the article forfeits the right to maintain an action to recover on the contract. OCGA § 48-13-37.

Carroll contends it should not be considered a nonresident contractor because of its activities in this state and because it obtained a certificate of authority. OCGA § 14-2-311 provides that a foreign corporation with a certificate of authority shall enjoy the same rights and privileges and be subject to the same duties, restrictions, etc., as a domestic corporation. Carroll urges that compliance with OCGA § 14-2-310 et seq. took it out of OCGA § 48-13-30 et seq., and in effect that the former controls the latter. Carroll contends further that its activities and conduct in the state were such that at least a jury question was presented as to its status.

OCGA § 14-2-311 does not serve to domesticate a foreign corporation. It merely gives the foreign corporation an equal status generally, but a foreign corporation with a certificate of authority is not entirely equivalent to a domestic corporation. For one thing, the legislative grant of "rights and privileges" to a foreign corporation does not include immunity from taxation or regulation as enjoyed by domestic corporations. Roberts v. Lipson, 231 Ga. 142, 200 S.E.2d 722 (1973). Statutory construction was undertaken in Image Mills v. Vora, 146 Ga. App. 196, 197(1), 245 S.E.2d 882 (1978): "[a] foreign corporation cannot lawfully transact business in Georgia without registering in accordance with Code Ann. § 22-1401; and, if mere registering meant that a corporation thereby became a Georgia resident for Code § 8-108 purposes, then that Code section would be rendered virtually meaningless, as no foreign corporation transacting business within Georgia could be a 'nonresident' thereunder. Therefore, contrary to appellant's assertion, construction of the two statutes shows that a foreign corporation does not necessarily shed its Code § 8-108 nonresidence by transacting business within Georgia."

"The cardinal rule in the construction of legislative enactments is to ascertain the true intention of the General Assembly in the passage of the law. Gazan v. Heery, 183 Ga. 30, 187 S.E. 371, 106 ALR 498. All statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it, and are therefore to be construed in connection and in harmony with the existing law." Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1, 9(3), 178 S.E.2d 868 (1970). When construing two statutes involving possibly conflicting provisions pre-eminence is granted to the latter in time as providing the latest expression of legislative intent. Tomblin v. S.S. Kresge, 132 Ga.App. 212, 216(6), 207 S.E.2d 693 (1974); Foster v. Brown, 199 Ga. 444, 451, 34 S.E.2d 530 (1945). "For purposes of interpretation, and to the extent of any repugnancy between them, the specific statute will prevail over the general statute, absent any indication of a contrary legislative intent." First Nat. Bank v. Sinkler, 170 Ga.App. 668, 670 (1), 317 S.E.2d 897 (1984). We apply these principles to the two statutes in their historical perspective.

When the nonresident contractor statute was enacted in 1961, it specifically excluded corporations authorized to do business in Georgia from its registration requirements. Ga.L. 1961, p. 480. During that time the predecessor to OCGA § 14-2-310, Code § 22-1401 (Ga.Corp. Code of 1933) provided for domestication of foreign corporations which would then have the same powers and privileges as Georgia corporations. In 1968 the corporate code was completely revised by enactment of the Ga. Business Corp. Code. This was the genesis of the present language of OCGA § 14-2-310 (a): "No foreign corporation shall have the right to transact business in this state until it shall have procured a certificate of authority to do so from the Secretary of State, except that when another statute of this state requires foreign corporations of a particular class to qualify thereunder to transact business in this state the requirements of such other statute shall govern."

In 1972 the nonresident contractor act was amended to delete the provision that "a foreign corporation authorized to do business in the state shall not be required to register" under the act's provisions.

Thompson v. Ga. Power Co., 73 Ga.App. 587, 596, 37 S.E.2d 622 (1946) enunciated the principle that a "revising statute is in effect a legislative declaration that whatever is embraced in the new statute shall prevail, and whatever is excluded therefrom shall be discarded." Clearly since 1972, a nonresident contractor is required to register in order to maintain an action to recover payment for performance of a contract in the courts of this state. No other interpretation is viable. The language is clear as is the express intent of the legislature, resulting in a harmonious application of the two code sections.

Had there been any conflict in the laws, the 1972 act would control as the last expression of the legislative will and because it is specifically oriented and directed to the exact issue. Since OCGA §§ 48-13-30 et seq. is applicable as a matter of law, the trial court properly granted defendant's motion for summary judgment as to counts one and two.

Judgment affirmed.

BIRDSONG, C.J., McMURRAY, P.J., and CARLEY and SOGNIER, JJ., concur.

BANKE, P.J., concurs in the judgment only.

DEEN, P.J., and POPE and BENHAM, JJ., dissent.

BENHAM, Judge, dissenting.

I am unable to agree with the harsh results obtained from the ruling of the majority that, as a matter of law, every contractor which is a foreign corporation that fails to file a bond with the State Revenue Commissioner as required by OCGA § 48-13-32 is thereby denied access rights to the Georgia courts under OCGA § 48-13-37. In my view, the statutory scheme, as well as the cases interpreting these laws, contemplates that when such a foreign corporation obtains the status of a resident...