Jahncke Service Inc. v. Department of Transp.
| Citation | 213 S.E.2d 150,134 Ga.App. 106 |
| Decision Date | 06 February 1975 |
| Docket Number | No. 49827,No. 2,49827,2 |
| Parties | JAHNCKE SERVICE, INC., et al. v. DEPARTMENT OF TRANSPORTATION et al |
| Court | Georgia Court of Appeals |
Smith, Currie & Hancock, Luther P. House, Jr., Aubrey L. Coleman, Jr., Altanta, Stone, Pigman, Walther, Wittman & Hutchinson, Ewell P. Walther, Jr., Anthony M. DiLeo, New Orleans, La., for appellants.
Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Executive Asst. Atty. Gen., Richard L. Chambers, Marion O. Gordon, G. Thomas Davis, Asst. Attys. Gen., Harold N. Hill, Jr., Deputy Asst. Atty. Gen., Atlanta, for appellees.
Syllabus Opinion by the Court
The appeal involves the questions of whether or not a declaratory judgment action was proper under the Declaratory Judgment Act (Ga.L.1945, p. 137; 1959, pp. 236, 237; Code Ann. § 110-1101 et seq.) and what is the proper venue in this suit brought by the Department of Transportation. Jahncke performed highway construction work in Camden County, Georgia, under contract with the Department of Transportation. Upon completion of the work, Jahncke made a written claim against the department for additional expenses incurred as a result of unforeseen circumstances in certain aspects of the highway construction. Unable to reach a decision as to the validity of the claim, the department brought this action for declaratory judgment against Jahncke in the Fulton County Superior Court, five months after the claim was made.
The department's complaint states that the plaintiffs (the department and Thomas D. Moreland, State Highway Engineer) are fearful and uncertain as to whether or not it should pay the claim or any part thereof; that if it denies the claim it will subject itself to a possible future lawsuit concerning the claim; that the unresolved claim causes delay in the awarding of other construction projects; that if the department pays the claim it is fearful that it will thereby make an unlawful gift of state tax funds; that if the claim arises under the contract, it is barred by a provision thereof and that it believes that Jahncke is not legally entitled to the extra compensation claimed. Jahncke moved to dismiss the action because (1) the action was not a proper one for declaratory judgment; (2) there was improper venue, and (3) Thomas D. Moreland was not a proper party plaintiff. The trial court denied the motion and certified the case for immediate review. Held:
1. The department's motion to strike Jahncke's brief is denied. Nevertheless, attachments 'C' through 'G' to Jahncke's brief are not considered by the court as they do not appear as part of the record. 'The brief cannot serve in the place of the record or the transcript for the purpose of demonstrating error or for supporting a claim of error.' Finley v. Franklin Aluminum Co., 132 Ga.App. 70, 71, 207 S.E.2d 543, 545.
2. The threshold determination is whether or not this suit is a proper subject for declaratory judgment under Code Ann. § 110-1101. 'The object of the declaratory judgment is to permit determination of a controversy before obligations are repudiated or rights are violated.' Rowan v. Herring, 214 Ga. 370, 374, 105 S.E.2d 29, 32; Pinkard v. Mendel, 216 Ga. 487, 117 S.E.2d 336; Poole v. City of Atlanta, 117 Ga.App. 432, 160 S.E.2d 874. Savannah Theatres Co. v. First Fed. Sav. & Loan Ass'n, 93 Ga.App. 487, 489, 92 S.E.2d 217, 218.
Here, Jahncke has completed work under a contract and has made a claim against the department for additional expenses. The department takes the position, and it is supported by the record, that it has not denied the claim nor taken any firm position relative to the Jahncke claim. It appears from correspondence in the record that the department and Jahncke have negotiated on several occasions and that Jahncke has not been satisfied as to proposals for settlement, but there is no evidence that the department has denied Jahncke's claim altogether.
We disagree with Jahncke's contention that the department cannot have three alternatives open to it; to deny the claim, to pay it, or to be undecided about it. It was a purpose of the Declaratory Judgment Act to create an avenue whereupon this third alternative could be exercised. It permits a person to seek direction from the courts without having to make a decision which 'without such direction might reasonably jeopardize his interest.' If the department denies the claim, it will subject itself to being sued at some indefinite time in the future. If it pays the claim, it will be making a gift of state tax funds. It is not grounds for denial of relief that the declaratory judgment action anticipate another proceeding. 1 Anderson, Actions for Declaratory Judgment, § 229 (1959).
Nor do we agree with Jahncke that all rights have accrued, in which case declaratory relief is improper. Womble v. Georgia State Bd. of Examiners in Optometry, 221 Ga. 457, 145 S.E.2d 485; Salomon v. Central of Georgia Ry. Co., 220 Ga. 671, 141 S.E.2d 424; Allen Publications, Inc. v. Georgia Ass'n of Petroleum Retailers, Inc., 219 Ga. 665, 135 S.E.2d 330; Poole v. City of Atlanta, 117 Ga.App. 432, 160 S.E.2d 874, supra; Lumbermens Mut. Cas. Co. v. Moody, 116 Ga.App. 2, 156 S.E.2d 117; Reliance Ins. Co. v. Brooks Lumber Co., 101 Ga.App. 620, 115 S.E.2d 271. In all these cases and in others where the courts have found that rights have accrued, the plaintiffs seeking the declaration of their rights had already denied the claim or had otherwise taken a firm position as to their rights or liabilities. Those plaintiffs were not 'walking in the dark' (Venable v. Dallas, 212 Ga. 595, 94 S.E.2d 416), but had affirmatively acted. We think that because the department has not acted, the rights of the parties have not accrued, uncertainty still exists and the right to declaratory judgment is still alive. See State Farm Mut. Auto. Ins. Co. v. Allstate Ins. Co. et al., 132 Ga.App. 332, 208 S.E.2d 170.
3. The department brought its complaint for declaratory judgment in Fulton County where Jahncke, a nonresident corporation, has its registered office for service of process. The department contends venue was proper in Fulton County under Art. VI, Sec. XIV, Par. VI of the Constitution of Georgia (Code Ann. § 2-4906), which provides, 'All other civil cases shall be tried in the county where the defendant resides . . .' and under Ga.L.1968, pp. 565, 584 (Code Ann. § 22-404(b)), which provides, ...
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