Oasis Goodtime Emporium v. CAMBRIDGE CAPITAL
| Citation | 507 S.E.2d 823,234 Ga. App. 641 |
| Decision Date | 06 October 1998 |
| Docket Number | No. A98A0778.,A98A0778. |
| Parties | OASIS GOODTIME EMPORIUM I, INC. et al. v. CAMBRIDGE CAPITAL GROUP, INC. |
| Court | United States Court of Appeals (Georgia) |
OPINION TEXT STARTS HERE
Begner & Begner, Alan I. Begner, Atlanta, for appellants.
Tammi M. Berden, Atlanta, for appellee.
Oasis Goodtime Emporium, Guy Holcomb and Harold Oden (Oasis) appeal from the judgment entered after a bench trial in which the court awarded Cambridge Capital Group (Cambridge) liquidated damages and attorney fees on its breach of contract claim. Oasis argues on appeal that the trial court erred in awarding the liquidated damages under the contract and also argues there was insufficient service of process and improper venue. We find no error and affirm.
The contract at issue is a Loan Commitment for Collateralized Financing agreement (loan commitment) for a loan of 1.3 million dollars from Cambridge to Oasis. The loan commitment was signed by Guy Holcomb as president of Oasis and by Guy Holcomb and Harold Oden individually.
Under the contract, Oasis was to pay Cambridge a travel stipend of $3,500 for an on-site inspection of the collateral, and a loan commitment fee of $50,000. The first installment of the loan commitment fee was $30,000, payable when the parties signed the contract. The second installment of $20,000 was due 30 days after signing the contract. Oasis paid the $30,000 at signing, but did not pay the second installment of $20,000. Holcomb, president of Oasis, testified at trial that Oasis initially wanted to borrow the money from Cambridge because it had a balloon payment due under a loan from another creditor; but, Oasis was able to restructure the loan with the other creditor and therefore no longer needed the loan from Cambridge.
At the close of the bench trial, the court found in favor of Cambridge on its breach of contract claim and ordered Oasis to pay the remaining $20,000 of the loan commitment fee, $50,000 liquidated damages, and $7,025 in attorney fees. This appeal followed.
1. We first address Oasis's claim that the trial court erred in denying its motion to dismiss for lack of service. The record shows that the specially appointed process server left a copy of the Complaint with Allen Holcomb, the day manager at Oasis Goodtime Emporium. Oasis, in its Answer, stated as its second and third defenses that the court lacked jurisdiction over it because of "insufficient process" and "insufficient service of process."
Oasis never raised the issue again until after Cambridge finished presenting its case at trial. At that point, counsel for Oasis made an oral motion to dismiss for insufficient service. In looking at the transcript of the hearing on the motion, we find that counsel never presented any argument to the trial court as to why Allen Holcomb was not authorized to accept service of the Complaint. Oasis does make an argument in its brief on appeal; however, since the evidence referred to is unsupported by the record below, we cannot consider it on appeal. Trevino v. Flanders, 231 Ga.App. 782, 501 S.E.2d 13 (1998). This is a court for the correction of errors of law committed by the trial court. One may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court. Darby v. State, 230 Ga.App. 32, 33, 495 S.E.2d 146 (1997).
2. Because we hold the court did have personal jurisdiction over Oasis, we need not address the claim that venue was improper as to defendant Guy Holcomb.
3. Counsel for Oasis also appeared to be raising the issue of service on defendant Oden at the motion to dismiss. According to counsel for Cambridge, Oden was never served and the record shows that Oden raised insufficient service of process in his Answer.
After a party has properly raised such a defense, it may be found waived only if the party later engages in conduct so manifestly indicative of an intention to relinquish a known right or benefit that no other reasonable explanation of his conduct is possible. Heis v. Young, 226 Ga.App. 739, 740, 487 S.E.2d 403 (1997); Ga. Power Co. v. O'Bryant, 169 Ga.App. 491, 495, 313 S.E.2d 709 (1983). Moreover, contrary to Cambridge's assertion, pleading to the merits while at the same time raising the defense of insufficient service of process does not constitute a waiver of the defense. Roberts v. Bienert, 183 Ga.App. 751, 755, 360 S.E.2d 25 (1987).
But, a defendant has the obligation to bring this affirmative defense to the attention of the court at the proper time if he wishes to make an issue of it. Wheeler's, Inc. v. Wilson, 196 Ga.App. 622, 625, 396 S.E.2d 790 (1990) (physical precedent only). In Wheeler's, the defendant pleaded insufficient service of process in its Answer, but did not move for a hearing on the issue until after this Court had ruled on its appeal from the trial court's denial of its motion for summary judgment.
Here, defendant Oden participated in discovery and waited until midway through the bench trial of the case before raising the issue again. That was not the proper time as "neither the court nor the opponent was put on notice that this waivable preliminary jurisdictional defense would be insisted on." Wheeler's, supra at 623, 396 S.E.2d 790. As this Court pointed out in Wheeler's, the orderly disposition of cases demands this conclusion. Id. at 624, 396 S.E.2d 790.
Therefore, we hold that defendant Oden, by his actions, waived any defense of insufficiency of service of process and thus consented to the jurisdiction of the trial court. The trial court did not err in refusing to grant Oden's motion to dismiss.
4. In its final enumeration of error, Oasis argues the trial court erred in enforcing the liquidated damages provision in the contract. (Citations and punctuation omitted.) Lyon v. State of Ga., 230 Ga.App. 264, 495 S.E.2d 899 (1998).
On appeal, Oasis enumerates as error only the trial court's finding that the liquidated damages provision was enforceable.1 This provision reads as follows: "In the event that Lender and/or its affiliate is ready, willing and able and is prepared to fund this Loan in accordance with the agreed terms and conditions, and Borrower uses an alternative source (or sources) of financing and/or funding, debt or equity, to otherwise meet the requirements of the herein-described financial transaction, or Borrower is unable to provide Lender with insurable title to the real estate Collateral from a title insurance provider reasonably acceptable to Lender, or Borrower fails to settle this transaction for any other reason, Borrower shall be obligated to pay Lender, simultaneous with such failure to settle, the sum of $50,000.00, exclusive of the Commitment fee and travel and inspection stipend, as liquidated damages, plus any legal fees incurred by Lender in connection with collection of such liquidated damages."
With regard to contract provisions for liquidated damages, OCGA §...
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