Hart v. DeLowe Partners, Ltd.

• Citation: 250 S.E.2d 169,147 Ga.App. 715
• Decision Date: 25 October 1978
• Docket Number: No. 56252,56252
• Parties: , 4 A.L.R.4th 949 HART et al. v. DeLOWE PARTNERS, LTD.
• Court: United States Court of Appeals (Georgia)

Page 169

250 S.E.2d 169

147 Ga.App. 715, 4 A.L.R.4th 949

HART et al. v. DeLOWE PARTNERS, LTD.

No. 56252.

Court of Appeals of Georgia.

Argued Sept. 18, 1978.

Decided Oct. 25, 1978.

Alembik & Alembik, Judith M. Alembik, Atlanta, Hirsch, Beil & Partin, Jacob Beil, Columbus, for appellants.

Redfern, Butler & Morgan, E. Lee Redfern, Rex M. Lamb, III, Atlanta, for appellee.

SHULMAN, Judge.

Nonresident appellants, the Quistgaards, executed a promissory note in favor of appellee-DeLowe Partners, Ltd., to purchase apartment property. The indebtedness was secured by a deed on the property. This property was subsequently sold to Areawide Enterprises, Inc. As a part of the sales agreement, Areawide assumed and agreed to pay appellants' outstanding indebtedness against the property, evidenced by the above-mentioned note and deed to secure debt. Upon Areawide's default, appellee brought suit against the appellants as original makers to enforce the original obligation, and against Areawide, and DeLowe Gardens, Ltd., a subsequent grantee. The Quistgaards appeal from an order finding them subject to personal jurisdiction and entering summary judgment in favor of appellee-holder of the note.

1. Appellants, citing Hemphill v. Con-Chem, Inc., 128 Ga.App. 590, 197 S.E.2d 457 and Ogden Equipment Co. v. Talmadge Farms, 232 Ga. 614, 208 S.E.2d 459, urge that the trial court erred procedurally by disposing of their motion to dismiss "in the same summary and peremptory manner in which it ruled on the motion for summary judgment." This argument must fail.

We are in agreement with appellants' basic premise. Because jurisdictional questions are matters in abatement, such questions are not properly resolved on motion for summary judgment. Wyco, Inc. v. Bosce Die Casting Co., 141 Ga.App. 628, 234 S.E.2d 172; Larwin Mtg. Investors v. Delta Equities, 129 Ga.App. 769, 201 S.E.2d 187. We do not agree, however, that the trial court determined the question of personal jurisdiction on motion for summary judgment. The jurisdictional question was decided on appellants' own motion to dismiss, which motion was "sufficient in its substance to have brought into the hearing on it the clear-cut issue raised by the plea to the jurisdiction . . ." Lamex, Inc. v. Sterling Extruder Corp., 109 Ga.App. 92, 93(1), 135 S.E.2d 445, 447. The order denying the motion to dismiss expressly referred to the motion and stated that the ruling was made after oral argument on the issue and after consideration of the pleadings, affidavits and depositions. This comports with the procedural requirements that a motion to dismiss be determined in accordance with Code Ann. §§ 81A-112(d) and 81A-143(b). See Rainwater v. Vazquez, 135 Ga.App. 463, 218 S.E.2d 108. Accordingly, appellants' conclusion that the trial court committed reversible error by deciding the jurisdictional issue on summary judgment does not follow.

2. Appellants' counsel argues that the Quistgaards had virtually no contact with this state: the Quistgaards are nonresidents who never came to Georgia; they executed the note and security deed in Washington State and mailed the note and security deed to Georgia; all other contact with this state was accomplished by telephone or mail, and all of the closing transactions and recordations were effected by the co-owner's attorney. It is submitted that the trial court was not authorized to find that jurisdiction existed under the facts of this case. We disagree.

A. We reject appellants' argument that in personam jurisdiction may not be predicated on appellants' "ownership, use or possession of property" (see Code Ann. § 24-113.1(d)) because nonresident appellants no longer own the property. The fact that appellants divested themselves of their interest in the property prior to the filing of appellee's complaint will not defeat the exercise of jurisdiction if such an exercise is otherwise constitutionally permissible. Cox v. Long, 143 Ga.App. 182, 237 S.E.2d 672. The Long Arm Statute does not require that ownership, use or possession exist at the time an action is commenced. Rather, the statute merely requires that cause of action arise from the ownership, use or possession of real property situated within this state.

B. In Cox v. Long, supra, this court held that in personam jurisdiction could be exercised pursuant to our Long Arm Statute when the cause of action arose from the defendant's sale of defendant's Georgia realty. There, by owning land in Georgia, the defendant had invoked the benefits and protection of Georgia's law of real property, including as an incident of ownership the right to sell the property. Attaching to ownership rights was the concomitant obligation to defend a suit in Georgia concerning an alleged breach of the sales contract. Accord, Peterson v. Ely, 279 Or. 581, 569 P.2d 1059. Thus, under the provision of our Long Arm Statute referring to the ownership, use or possession of Georgia realty, jurisdictional requirements are satisfied when a substantial connection or nexus exists between the basis of the controversy and the property within this state.

C. The mere fact of title ownership of realty in Georgia will not support the exercise of personal jurisdiction. Jurisdiction must be predicated on the existence of ties among the defendants, this state, and the litigation, so that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683.

The instant case involves a suit on a note executed by nonresident purchasers for the purpose of becoming record title owners in improved Georgia realty. Since the note was executed by the nonresident purchasers with full knowledge that the note would be used in conjunction with, and an integral part of, a Georgia real estate transaction, a substantial enough connection with this state existed so as to make the exercise of jurisdiction over the nonresident defendants reasonable. Because we find that Code Ann. § 24-113.1(d) confers jurisdictional basis consistent with constitutional requirements, it is unnecessary to determine whether jurisdiction could also be predicated on Code Ann. § 24-113.1(a).

3. In support of its motion for summary judgment, plaintiff-movant submitted the affidavit of the current president of the general partner of appellee-limited partnership. The affidavit recited that "the Plaintiff (appellee) has never agreed with any person, firm or corporation, including the Defendants, that any payment due or to become due to the Plaintiff pursuant to the terms of the...