Intertrust Corp. v. Fischer Imaging Corp.

• Citation: 198 Ga.App. 812,403 S.E.2d 94
• Decision Date: 04 March 1991
• Docket Number: No. A90A2197,A90A2197
• Parties: INTERTRUST CORPORATION v. FISCHER IMAGING CORPORATION et al.
• Court: Georgia Court of Appeals

Page 94

403 S.E.2d 94

198 Ga.App. 812

INTERTRUST CORPORATION v. FISCHER IMAGING CORPORATION et al.

No. A90A2197.

Court of Appeals of Georgia.

March 4, 1991.

Cofer & Beauchamp, Charles V. Choyce, Jr., Teri A. Simmons, Atlanta, for appellant.

Powell, Goldstein, Frazer & Murphy, Francis A. Landgraff, III, David G. Ross, Atlanta, for appellees.

BIRDSONG, Presiding Judge.

Intertrust Corporation ("Intertrust") appeals from the judgment of the trial court in favor of Fischer Imaging Corporation ("Fischer") on the priority of a financing statement. Intertrust contends that Fischer did not properly perfect its purchase money security interest in certain equipment Fischer sold because Fischer filed its UCC-1 statement on March 23, 1989, in Fulton County, and Intertrust contends the financing statement should have been filed in DeKalb County where the purchaser's principal place of business was located on the date of filing. Held:

1. The first consideration is whether we have jurisdiction in this appeal. Court of Appeals Rule 32(d); Atlantic-Canadian Corp. v. Hammer, Siler, etc., Assoc., 167 Ga.App. 257, 306 S.E.2d 22. The record shows that after judgment was first entered, Intertrust filed a motion to set aside that judgment because its counsel did not learn that the judgment had been filed until after the time for filing a notice of appeal had expired. After the parties consented to have the earlier judgment set aside and re-entered, the trial court granted Intertrust's motion and set aside and re-entered the earlier judgment. Thereafter, Intertrust filed a timely notice of appeal.

The issue, however, is not whether Intertrust's counsel had actual knowledge that judgment was entered, but whether there was compliance with OCGA § 15-6-21(c). Robinson v. Kemp Motor Sales, 185 Ga.App. 492, 493, 364 S.E.2d 623; Atlantic-Canadian Corp. v. Hammer, etc., Assoc., supra.

Cambron v. Canal Ins. Co., 246 Ga. 147, 148-149, 269 S.E.2d 426 requires a finding that notice pursuant to OCGA § 15-6-21(c) was not provided. In this appeal, although there was no specific finding that notice to Intertrust's counsel was not made, such a finding is inherent in the trial court's action and "in the absence of a contrary showing, the trial court will be presumed to have followed the law. [Cits.]" Jones v. Cropps, 197 Ga.App. 313, 315, 398 S.E.2d 295. Accordingly, we have jurisdiction.

2. Intertrust contends the trial court erred by finding as a matter of fact that at the time Fischer filed its UCC-1 financing statement the purchaser's primary place of business was in Fulton County rather than DeKalb County and, consequently erred in concluding that Fischer properly perfected its purchase money security interest. See United States of Amer. v. Waterford No. 2 Office Center, 154 Ga.App. 9, 12, 267 S.E.2d 264. Intertrust asserts that there is no evidence supporting the trial court's determination that Fischer's financing statement was properly filed in Fulton County; such determination being predicated on a finding because purchaser "was not actively operating as a business in DeKalb County at the time of Fischer's filing."

The record shows that Intertrust had a perfected security interest in the purchaser's assets, including after-acquired property, and neither party contests the legal sufficiency of the contents of the other's financing statements. Thus the question centers on whether Fischer properly perfected its purchase money security interest in the property so that its interest had priority over that of Intertrust. Accordingly, the issue is whether Fischer properly filed its financing statement in the county where the purchaser's primary place of business was located. See OCGA § 11-9-401(1)(b); In the Matter of Carmichael Enterprises, 334 F.Supp. 94 (N.D.Ga.1971), aff'd 460 F.2d 1405 (5th Cir.1972).

Intertrust contends the...