Phears v. Doyne

• Decision Date: 25 January 1996
• Docket Number: No. A95A2015,A95A2015
• Citation: 220 Ga.App. 550,470 S.E.2d 236
• Parties: PHEARS v. DOYNE.
• Court: Georgia Court of Appeals

Page 236

470 S.E.2d 236

220 Ga.App. 550

PHEARS v. DOYNE.

No. A95A2015.

Court of Appeals of Georgia.

Jan. 25, 1996.

Reconsideration Denied March 11, 1996.

Certiorari Denied May 17, 1996.

Phears & Moldovan, Jenny E. Jenson, Wendy A. Jacobs, Norcross, for appellant.

Kicklighter & Mayer, Claude M. Kicklighter, Jr., Raymond C. Mayer, Marietta, for appellee.

POPE, Presiding Judge.

Plaintiff H. Wayne Phears, a Georgia resident, entered into a contract for the sale and restoration of a classic car with defendant Mark Doyne, a Florida resident. Defendant had advertised the car in a worldwide classic car journal published in Vermont. After seeing defendant's ad in Georgia, plaintiff contacted defendant at his office in Florida. Plaintiff then visited Florida and inspected the car. Negotiations over the phone (and fax) began, with plaintiff in Georgia talking long distance to defendant in Florida, and the parties eventually reached an agreement. Plaintiff drafted a contract in Georgia and mailed it to defendant in Florida, who signed the document in Florida and mailed it back. Plaintiff also wired funds to defendant in Florida, where the restoration work was to be done. Problems arose, however, and plaintiff sued defendant in Georgia, alleging breach of contract, conversion, fraudulent misrepresentation, and intentional infliction of emotional distress. The trial court dismissed for lack of personal jurisdiction over defendant, and we affirm that dismissal.

1. This case is controlled by Flint v. Gust, 180 Ga.App. 904, 351 S.E.2d 95 (1986), which was reversed in part and affirmed in part by Gust v. Flint, 257 Ga. 129, 356 S.E.2d 513 (1987). Like plaintiff here, the plaintiff in Gust saw an advertisement for a vehicle in a trade paper published in another state but mailed to the plaintiff in Georgia. He then contacted the defendants, the owners of the advertised vehicle, at their home in Wisconsin. As in this case, the parties in Gust negotiated an agreement through long distance phone calls, and the plaintiff sent the defendants a deposit. A dispute arose, however, and plaintiff sued defendants in Georgia, asserting claims based on breach of contract as well as tort.

Presented with these facts, this Court held in Gust that Georgia courts could not exercise jurisdiction over the defendants under OCGA § 9-10-91(1) because the advertisement in a national publication and subsequent negotiation and contract with a Georgia resident did not constitute the transaction of business in this state. Flint v. Gust, 180 Ga.App. at 905-906(1), 351 S.E.2d 95. "It is well settled that an out-of-state defendant will not be deemed to have engaged in purposeful business activity in this state merely because he has advertised products for sale in national trade magazines circulating in this state and has accepted orders for such products which have been transmitted to him from this state by mail, telephone, or other instrumentality of interstate commerce in response to such advertisements. [Cits.]" Id. This is the portion of Flint v. Gust which was not reversed by the Supreme Court, and it is dispositive of plaintiff's contract-based claims in this case. See also Smith v. Air Ambulance Network, 207 Ga.App. 75, 427 S.E.2d 305 (1993); A.A.A., Inc. v. Lindberg, 172 Ga.App. 753, 755, 324 S.E.2d 480 (1984). Contrary to plaintiff's suggestion, the fact that he drafted the agreement in Georgia does not affect this result, as defendant executed the agreement in Florida. If anything, plaintiff's position is even weaker here than in Gust, because: (1) unlike the plaintiff in Gust, plaintiff here actually traveled to defendant's home state for the only meeting of the parties, and (2) unlike the agreement in Gust, the agreement in this case contemplated further work on the vehicle, all of which was to occur in defendant's home state.

2. Our second holding in Flint--the one which was reversed by the Supreme Court--allowed the plaintiff to proceed with his tort -based claims. See Flint v. Gust, 180 Ga.App. at 908, 351 S.E.2d 95. In reversing, the Supreme Court held that where the defendant's unrebutted affidavit established that he did not do any of the acts which OCGA § 9-10-91 requires as a basis for personal jurisdiction, there could be no jurisdiction. As defendant's unrebutted affidavit similarly established that he did not do any of those acts in this case, the trial court's dismissal of plaintiff's tort-based claims was also proper. See also Behar v. Aero Med Intl., 185 Ga.App. 845(2), 366 S.E.2d 223 (1988).

3. In light of our affirmance of the dismissal for lack of personal jurisdiction, plaintiff's argument that the trial court should have entered a default judgment against defendant is moot.

Judgment affirmed.

RUFFIN, J., concurs.

BEASLEY,...