Scovill Fasteners, Inc. v. Sure-Snap Corp., SURE-SNAP

• Decision Date: 26 February 1993
• Docket Number: SURE-SNAP,No. A92A2090,A92A2090
• Citation: 207 Ga.App. 539,428 S.E.2d 435
• Parties: SCOVILL FASTENERS, INC. v.CORPORATION et al.
• Court: Georgia Court of Appeals

Page 435

428 S.E.2d 435

207 Ga.App. 539

SCOVILL FASTENERS, INC. v. SURE-SNAP CORPORATION et al.

No. A92A2090.

Court of Appeals of Georgia.

Feb. 26, 1993.

Kimzey, Kimzey & York, M. Keith York, Cornelia, for appellant.

Lefkoff, Duncan, Grimes & Miller, Joseph Lefkoff, Kimberly A. Richardson, Palmer & Berman, Jeffrey N. Berman, Atlanta, for appellees.

McMURRAY, Presiding Judge.

Plaintiff Scovill Fasteners, Inc. filed this contract action against defendants Sure-Snap Corporation and Contitrade Services Corporation, both of whom were served under the provisions of Georgia's Long Arm Statute, OCGA § 9-10-91. Each of the defendants moved for dismissal of plaintiff's complaint on the ground of lack of personal jurisdiction over the person due to the absence of actions on their part which amounted to purposefully established minimum contacts with Georgia. Plaintiff appeals from the grant of defendants' motions. Held:

"Our precedents establish that a defendant who files a motion to dismiss for lack of personal jurisdiction has the burden of proving lack of jurisdiction. Easterling v. Easterling, 231 Ga. 90 (200 SE2d 267) (1973); Smith v. Smith, 223 Ga. 551 (156 SE2d 916) (1967). A motion to dismiss for lack of personal jurisdiction must be granted if there are insufficient facts to support a reasonable inference that defendant can be subjected to the jurisdiction of the court. To demonstrate that the court lacks jurisdiction, defendant may raise matters not contained in the pleadings. However, when the outcome of the motion depends on unstipulated facts, it must be accompanied by supporting affidavits or citations to evidentiary material in the record. See Uniform Superior Court Rule 6.1. See also Behar v. Aero Med Intl., 185 Ga.App. 845, 846 (366 SE2d 223) (1988). Further, to the extent that defendant's evidence controverts the allegations of the complaint, plaintiff may not rely on mere allegations, but must also submit supporting affidavits or documentary evidence. Id. at 846.

"The trial court considering a motion to dismiss for lack of jurisdiction has discretion to hear oral testimony or to decide the motion on the basis of affidavits and documentary evidence alone pursuant to OCGA § 9-11-43(b). McPherson v. McPherson, 238 Ga. 271 (232 SE2d 552) (1977). If the motion is decided on the basis of written submissions alone, as was the motion in this case, disputes of fact found in the affidavits are resolved in favor of plaintiff. See generally, C. Wright and A. Miller, 5 Federal Practice and Procedure, § 1351 (West 1969, 1989 Supp.). Further, if a motion is decided on the basis of the written submissions, the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard. Cf. Carole Lyden Smith Enterprises, Inc. v. Mathew, 193 Ga.App. 320 (387 SE2d 577) (1989)." Beasley v. Beasley, 260 Ga. 419, 420, 396 S.E.2d 222 (1990).

The first count of plaintiff's complaint seeks a recovery from defendant Sure-Snap on an unsecured promissory note. Sure-Snap is a New York Corporation which, until June 30, 1991, maintained an office in Miami. The note in question was executed pursuant to a confirmed Chapter 11 plan approved by the bankruptcy court in Miami, was executed in Miami, and is dated January 2, 1989.

Plaintiff and Sure-Snap are parties to a nonexclusive distributor agreement dated September 13, 1989, under which Sure-Snap accepts appointment as a distributor for the sale of plaintiff's products for a term of ten years. Under a buy-back provision of this contract plaintiff agrees under certain circumstances to buy back certain attaching machines from Sure-Snap. The buy-back agreement provides for an offset by which the purchase price of the machines tendered back to plaintiff is reduced by amounts owed on the 1989 promissory note. The nonexclusive distributor agreement was negotiated in New York, provides that it is governed by New York law, and contains a New York address for plaintiff.

Count 2 of the complaint seeks a recovery for a sum owed for goods ordered by Sure-Snap pursuant to the nonexclusive distributor agreement. These orders were placed by a Sure-Snap employee in either New York or Miami who telephoned plaintiff's sales representative and the goods were shipped to Sure-Snap in either New York or Miami.

Defendant Contitrade is an assignee of certain of Sure-Snap's rights under the nonexclusive distributor agreement with plaintiff, including those arising under the buy-back provision. Plaintiff consented to the assignment agreement which was negotiated and executed in New York. Plaintiff has been notified by Contitrade of its intention to require plaintiff to buy back certain machinery under the buy-back provisions of the nonexclusive distributor agreement. No employee or agent of Contitrade has traveled to Georgia in connection with this transaction and the only contact by Contitrade with plaintiff related to Georgia has been approximately four telephone calls and five letters. In Count 3 of its complaint, plaintiff seeks a declaration of its rights in light of the assignment to Contitrade and the fourth count raised similar issues and sought reformation of the terms of the nonexclusive distributor agreement.

In its order granting defendants' motions to dismiss, the superior court relied on the following excerpt from Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga.App. 892, 380 S.E.2d 303: "Georgia's Long Arm Statute states that the courts of this State may exercise personal jurisdiction over any nonresident as if he were a resident of the State, if in person or through an agent he: '(1) Transacts any business within this State....' This has been interpreted to mean that 'purposeful acts' must have been performed by the defendant to tie it to the State, and '(m)ere telephone or mail contact with an out-of-state defendant, or even the defendant's visits to this state, is insufficient to establish the...