HARDIN CONST. GROUP v. Fuller Enterprises

• Decision Date: 15 July 1998
• Docket Number: No. A98A0438.,A98A0438.
• Citation: 233 Ga. App. 717,505 S.E.2d 755
• Parties: HARDIN CONSTRUCTION GROUP, INC. v. FULLER ENTERPRISES, INC.
• Court: Georgia Court of Appeals

505 S.E.2d 755

233 Ga. App. 717

HARDIN CONSTRUCTION GROUP, INC. v. FULLER ENTERPRISES, INC.

No. A98A0438.

Court of Appeals of Georgia.

July 15, 1998.

Reconsideration Denied July 31, 1998.

Certiorari Denied December 4, 1998.

Smith & Fleming, Robert O. Fleming, Jr., Atlanta, for appellant.

McKinney & Salo, Sonja L. Salo, Atlanta, for appellee. RUFFIN, Judge.

After obtaining an arbitration award in its favor, Fuller Enterprises, Inc. ("Fuller") initiated arbitration award confirmation proceedings against Hardin Construction Group, Inc. ("Hardin") pursuant to the Georgia Arbitration Code, OCGA § 9-9-12. Hardin appeals the grant of summary judgment to Fuller and asserts that the trial court erred in failing to dismiss Fuller's application to confirm the award based upon: (1) the expiration of the statute of limitation; (2) insufficient service of process on Hardin; and (3) Fuller's noncompliance with the Nonresident Contractors Act, OCGA § 48-13-30 et seq. For reasons which follow, we find that the trial court should have dismissed the application, and we vacate its order granting summary judgment.

The record shows that on August 28, 1990, an arbitration panel awarded Fuller $29,115 pursuant to an arbitration clause in a construction contract between Hardin and Fuller. The parties received this award on August 29, 1990. On October 15, 1990, Fuller petitioned the United States District Court for the Northern District of Georgia to confirm the arbitration award. The Northern District dismissed the petition on January 29, 1991 based upon the lack of diversity jurisdiction as the amount in controversy was less than $50,000. The Eleventh Circuit affirmed the dismissal on September 12, 1991.

On September 26, 1991, Fuller applied for entry of judgment on the arbitration award in Fulton Superior Court. The trial court dismissed this application on March 11, 1992 because Fuller failed to substantially comply with the requirements of the Nonresident Contractors Act. Fuller appealed and this Court affirmed the trial court's order dismissing the application on October 26, 1992. Fuller Enterprises v. Hardin Constr. Group, 206 Ga.App. 8, 10(1), 424 S.E.2d 311 (1992). However, we also found that "assuming compliance with any applicable statutes of limitation and any other procedural and substantive hurdles, the dismissal of the case sub judice in the trial court does not preclude plaintiff from refiling its petition against defendant after `substantial compliance' with the Nonresident Contractors Act." Id. at 10, 424 S.E.2d 311.

On April 9, 1993, Fuller again applied for confirmation of its arbitration award against Hardin in Fulton Superior Court. Hardin responded to the application on May 5, 1993, and asserted defenses based upon insufficient service of process, expiration of the statute of limitation and Fuller's failure to comply with the Nonresident Contractors Act.

On May 13, 1993, Fuller moved the trial court to enter summary judgment on the arbitration award. On June 2, 1993, the trial court entered an order extending Hardin's time to respond to the summary judgment motion until after the trial court ruled on a motion for protective order filed by Fuller. This order required Hardin to file its response to the summary judgment motion 15 days after receiving Fuller's discovery responses in the event the trial court subsequently denied the motion for protective order. The trial court denied Fuller's motion for protective order on July 14, 1993 and certified its ruling for immediate appellate review.

This Court granted Fuller's application for interlocutory review and reversed the trial court's ruling based on our holding that discovery is not permitted in actions to confirm arbitration awards. Fuller Enterprises v. Hardin Constr. Group, 215 Ga.App. 549, 551(1), 451 S.E.2d 483 ( 1994). The Supreme Court of Georgia reversed, however, based upon its conclusion that limited discovery relating to affirmative defenses is permitted. Hardin Constr. Group v. Fuller Enterprises, 265 Ga. 770, 772, 462 S.E.2d 130 (1995).

Hardin filed its response to Fuller's motion for summary judgment after we remanded this case to the trial court. In its response, Hardin asserted that the trial court should not only deny Fuller's motion, but also dismiss the entire action against Hardin based upon insufficient service of process, expiration of the statute of limitation and Fuller's failure to comply with the Nonresident Contractors Act.

In support of its contention that it was improperly served, the company filed two affidavits of Angelia Olvey, the Hardin employee who accepted the summons and application from the sheriff. In her first affidavit, Olvey explained that she was employed by Hardin as an "administrative assistant" and that her duties "consisted of serving as secretary and assistant" to a Hardin vice president. Olvey stated that she "had no managerial or supervisory responsibility within the Hardin organization," was not an officer of the company and had never been authorized or designated by the company to receive service of process. According to Olvey, when she greeted the deputy sheriff serving the application and summons he asked, "Who are you?," and she told him her name and advised him that she was an administrative assistant.

In a subsequent affidavit, Olvey acknowledged that she no longer recalled the exact words between herself and the deputy sheriff who served the application and summons. However, she stated "positively and unequivocally" that she never said she was authorized to accept service on behalf of Hardin.

Fuller filed a reply brief which responded to Hardin's claim that the application should be dismissed. In support of its reply brief, Fuller presented two affidavits from Lieutenant Steve Sussia, the sheriff who purportedly served Hardin through Olvey. In these affidavits, Sussia explained that it was his standard operating procedure to ask the person to whom he handed a summons and complaint whether such person is authorized to accept service. To the best of Sussia's knowledge, he followed this procedure when he met Olvey and provided her with the application and summons. However, he had no specific recollection of following this procedure with Olvey.

In its order granting Fuller's summary judgment motion, the trial court construed Hardin's response to Fuller's summary judgment motion to include a motion to dismiss and denied this motion. The trial court specifically ruled on each of the grounds asserted in support of Hardin's claim that Fuller's application for entry of judgment on the arbitration award should be dismissed. The trial court issued this order approximately seven months after Hardin requested that the appeal be dismissed.

In its notice of appeal, Hardin designated the order granting summary judgment to Fuller. However, its enumerations of error go solely to the trial court's failure to dismiss Fuller's application on the three grounds asserted by Hardin below.¹

1. Hardin contends that the trial court should have dismissed Fuller's application based upon the expiration of the statute of limitation. OCGA § 9-9-12 provides: "The court shall confirm an award upon application of a party made within one year after its delivery to him...."² Hardin contends that Fuller's current application is time-barred because it was filed two years and seven months after the arbitration award was received. Fuller correctly argues that "[t]he running of any statute of limitation is suspended during the pendency of an appeal. [Cits.]" Yield, Inc. v. City of Atlanta, 152 Ga.App. 171, 173(1), 262 S.E.2d 481 (1979). However, the limitation period is not tolled merely because a lawsuit is filed and pending in the trial court. Rakestraw v. Berenson, 153 Ga. App. 513, 514-515, 266 S.E.2d 249 (1980); Stevens v. FAA's Florist, 169 Ga.App. 189, 190, 311 S.E.2d 856 (1983). Applying these principles, we find that Fuller filed its first application in Fulton Superior Court before the expiration of the limitation period due to its suspension during Fuller's appeal to the Eleventh Circuit. Fuller did not, however, file the instant application before the expiration of the limitation period.

Fuller asserts, nonetheless, that its second application is not time-barred because it is entitled to the benefit of the renewal statute, OCGA § 9-2-61, and we agree.

Although the applicability of the renewal statute to arbitration award confirmation proceedings is an issue of first impression, the Supreme Court of Georgia's analysis in Hardin, supra, is instructive. In Hardin, the Supreme Court of Georgia examined the language of OCGA § 9-11-81, and determined that limited discovery is permitted in special statutory proceedings, such as those to confirm arbitration awards. Hardin, supra, 265 Ga. at 771, 462 S.E.2d 130.

The renewal statute at issue here applies to "any case." OCGA § 9-2-61(a). See also Cox v. Berry, 13 Ga. 306(1) (1853); Ludi v. Van Metre, 221 Ga.App. 479, 481(2), 471 S.E.2d 913 (1996), limited on other grounds, Allen v. Kahn, 231 Ga.App. 438, 441-442, 499 S.E.2d 164 (1998). This is "a remedial statute and is to be liberally construed. [Cits.]" Ludi, supra at 481, 471 S.E.2d 913. "[F]or purposes of the renewal statute, a `case' may be interpreted as other than a `suit or action,' and ... `[w]e are not held to a narrow and technical construction of this Act, but are bound to give effect to the manifest intention of the Legislature. It gives relief in any case which may be brought in any of the Courts of [this] State. That is, in all instances where the plaintiff is, in the exercise of a proper diligence, attempting by a judicial proceeding, to assert his right and enforce his remedy.' [Cit.]" (Emphasis supplied.) Id.

We find that an arbitration award confirmation proceeding is a "case" to which the renewal statute applies. See Cox, supra; Fowler v. Aetna Cas. &c. Co., 159 Ga.App....