Taco Bell Corp. v. Calson Corp., s. 77665

• Decision Date: 09 February 1989
• Docket Number: 77666,Nos. 77665,s. 77665
• Parties: TACO BELL CORPORATION v. CALSON CORPORATION; CALSON CORPORATION v. TACO BELL CORP.
• Court: Georgia Court of Appeals

Page 6

379 S.E.2d 6

190 Ga.App. 481

TACO BELL CORPORATION v. CALSON CORPORATION;

CALSON CORPORATION v. TACO BELL CORP.

Nos. 77665, 77666.

Court of Appeals of Georgia.

Feb. 9, 1989.

Rehearing Denied Feb. 27, 1989.

Rogers & Hardin, John J. Almond, Atlanta, for appellant.

Stokes, Shapiro, Fussell & Wedge, J. Ben Shapiro, Jr., Michael P. Davis, Atlanta, for appellee.

BIRDSONG, Judge.

This is an appeal and cross-appeal from the order and final judgment of the superior court dismissing appellee's complaint without prejudice.

Appellee Calson Corporation initiated a lawsuit against appellant Taco Bell Corporation seeking recovery of monies allegedly owed under a contract for construction of a restaurant facility by appellee for appellant. Appellant, in its answer, denied liability and asserted a counterclaim for damages, alleging that appellee had breached the construction contract. A jury trial was held, and at the conclusion of appellee's case-in-chief, the appellant moved for a directed verdict. The motion alleged inter alia that appellee, a nonresident contractor, failed to prove its compliance with the registration and bonding provisions of the Nonresident Contractors Act, OCGA § 48-13-30 et seq. before entering upon performance of the construction contract, and that, accordingly, appellee's action was barred thereby. The trial judge ruled upon the appellant's motion, which apparently was still couched as a motion for a directed verdict, and entered a judgment granting the motion and directing dismissal without prejudice. Held:

Case No. 77665

Appellant's enumerations of error are that the trial court erred in dismissing the case without prejudice and in not entering judgment on the merits with prejudice, respectively. Certain of the issues raised by these enumerations are of first impression for our court.

Subsequent to the trial judge's ruling and judgment, a hearing on a motion to amend judgment was held. The trial judge denied the motion to modify, holding that the language of OCGA § 48-13-37 was controlling on its face; that it provided a forum-closing sanction only and did not render the underlying contract void and unenforceable. The trial judge concluded that dismissal of the actions should be without prejudice. We agree.

At the outset, we find that the purpose of the General Assembly in enacting Ga.Code Ann. § 91A-6107, the predecessor statute to OCGA § 48-13-37, was "[t]o the end that the State of Georgia ... may receive all taxes due in every instance, including contributions due under the employment security law, contractors, who are nonresidents of this state shall register...." (Emphasis supplied.) Ga.L.1961, p. 480. The Supreme Court has recognized that "the Act is not designed to discriminate against non-resident contractors, but to bring them into a parity with resident contractors relative to the compliance with ... the Georgia Employment Security Law." Gorrell v. Fowler, 248 Ga. 801, 803, 286 S.E.2d 13. Thus, the primary purpose for promulgating the Nonresident Contractors Act was that of revenue collection enhancement, and not for the specific protection of the public at large from allegedly unqualified out-of-state contractors. See Code Ann. § 91A-6102 (now OCGA § 48-13-31); 1960-1961 Op.Atty.Gen., p. 545. In fact, resident contractors are not subject to any similar registration and bonding requirements.

The cases cited by appellant, including Weston Funding Corp. v. LaFayette Towers, 550 F.2d 710 (2d Cir.1977), are distinguishable. Not only do these precedents differ factually from the case sub judice, but most either involve statutes enacted primarily for the protection of the public or involve statutes which impose no significantly different licensing requirements between nonresident and resident business or professional persons as a precondition to doing business in this state, or both.

" 'The cardinal rule in the construction of legislative enactments is to ascertain the true intention of the General Assembly in the passage of the law,' " George C. Carroll, etc., Co. v. Langford Constr. Co., 182 Ga.App. 258, 260, 355 S.E.2d 756, and then give the statute that construction which will effectuate the legislative intent and purpose. Lively v. Trust, 184 Ga.App. 361, 362, 361 S.E.2d 516. In ascertaining legislative intent, "it is also fundamental that all of the words of the statute are to be given due weight and meaning ... and that the court is not authorized to disregard any of the words of the statute ... unless the failure to do so would lead to an absurdity manifestly not intended by the legislature." Boyles v. Steine, 224 Ga. 392, 395, 162 S.E.2d 324. We thus will look first to the entire wording of the statute, but " ' "where the language [of the statute] is plain and unequivocal, judicial [interpretation] is not only unnecessary [it] is forbidden." ' " Dixie Constr. Prods. v. Southeastern Council, etc., 183 Ga.App. 101, 102, 357 S.E.2d 831.

Applying these general principles of statutory construction to the statute in question, we find that statutory noncompliance in registering and bond posting does not render the underlying contract null and void per se. Rather, the penalty for noncompliance imposed by OCGA § 48-13-37 is a forum-closing sanction that closes the courts of Georgia to the offender until such time, if ever, when the offender can substantially comply, within the meaning of OCGA § 1-3-1(c), with the provisions of the Nonresident Contractors Act. OCGA § 48-13-37; compare with National Heritage Corp. v. Mount Olive, etc., Gardens, 244 Ga. 240, 260 S.E.2d 1; Metric Steel Co. v. BLI Constr. Co., 147 Ga.App. 380, 249 S.E.2d 121 both of which were cited by the Supreme Court in Gorrell, supra, 248 Ga. at 802, 286 S.E.2d 13, as examples of cases involving "similar disabilities relative to non-residents falling in different categories [than resident corporations]."

The effect of a forum-closing statute is to deny subject matter jurisdiction to the courts until such time, if ever, when the statutory impediment is removed. See, e.g., Tucker v. Mitchell, 252 Ga. 545, 314 S.E.2d 896; Little v. Walker, 250 Ga. 854, 301 S.E.2d 639. The defense of lack of subject- matter jurisdiction does "not go to the merits of the case but go instead to a reason for the abatement of the case." Ga.Prac. & Proc. (5th ed.), Motion Practice § 9-3. See also OCGA § 9-11-12(b)(1); Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614, 208 S.E.2d 459; International Indem. Co. v. Blakey, 161 Ga.App. 99(1), 289 S.E.2d 303. Accordingly, a dismissal entered pursuant to OCGA § 48-13-37 is one of the few involuntary dismissals which does not act as an adjudication on the merits. OCGA § 9-11-41(b); Little, supra, 250 Ga. at 855, 301 S.E.2d 639; see generally Ga.Prac. & Proc., supra at § 9-3. The motion for directed verdict in the case sub judice, as it pertained to the issue of forum-closing under OCGA § 48-13-37, fell appropriately into that category of motions or pleas labelled as motions in abatement or dilatory pleas. See, e.g., National Heritage Corp., supra, 244 Ga. at 244, 260 S.E.2d 1; Metric Steel Co., supra 147 Ga.App. at 383, 249 S.E.2d 121; Ga.Prac. & Proc., supra at § 9-3. It is...