Tampa Motel Management Co. v. Stratton of Florida, Inc.

• Citation: 186 Ga.App. 135,366 S.E.2d 804
• Decision Date: 01 March 1988
• Docket Number: No. 75114,75114
• Parties: TAMPA MOTEL MANAGEMENT COMPANY et al. v. STRATTON OF FLORIDA, INC.
• Court: United States Court of Appeals (Georgia)

Page 804

366 S.E.2d 804

186 Ga.App. 135

TAMPA MOTEL MANAGEMENT COMPANY et al. v. STRATTON OF FLORIDA, INC.

No. 75114.

Court of Appeals of Georgia.

March 1, 1988.

Celeste McCollough, John L. Taylor, Jr., Atlanta, for appellant.

Bryan M. Cavan, C. Walker Ingraham, Atlanta, for appellee.

BENHAM, Judge.

This appeal follows the trial court's grant of a motion to confirm and enforce an arbitration award, made by appellee Stratton of Florida ("Stratton"), and the denial of appellant Roberts' motion to dismiss for lack of personal jurisdiction and venue.

Appellant Tampa Motel Management Company ("TMMC") owned five sites under construction in Oklahoma and Florida. Appellant Roberts served as president, chairman of the board, and a director of TMMC. Appellee Stratton was the general contractor of the five TMMC construction projects. In an effort to resolve Stratton's claims of nonpayment by TMMC, the parties entered into an agreement on November 29, 1984, in which they agreed to submit to arbitration in Atlanta, Georgia, all claims and disputes concerning the five construction projects. Disputes again arose and in June 1985, Stratton filed a demand for arbitration. After conducting a five-day hearing in Atlanta, attended by Roberts and representatives of TMMC and Stratton, the arbitrators entered an award on May 27, 1986, requiring TMMC and Roberts to pay Stratton $927,250. Four months after the award in its favor, Stratton filed its motion to confirm and enforce the arbitration award in the Superior Court of DeKalb County. TMMC and Roberts filed separate responses in which they claimed that the arbitration award was unenforceable for a number of reasons. Asserting that the trial court did not have personal jurisdiction over him and that venue in DeKalb County was improper, Roberts also filed a motion to dismiss Stratton's motion to confirm and enforce. The trial court denied Roberts' motion and granted Stratton's motion to confirm and enforce the arbitration award.

1. We initially address Roberts' assertions that he was not subject to the personal jurisdiction of the trial court, and that venue as to him was improper in DeKalb County.

In an affidavit filed in support of his motion to dismiss, appellant Roberts averred that the November 1984 agreement was signed in Fulton County, Georgia, after "minor negotiations in Fulton County." He swore that the agreement was "negotiated primarily" in Florida, and that no "negotiations, executions or other actions with regard to the Agreement" took place in DeKalb County, Georgia. Attorneys for appellee Stratton filed affidavits in which they chronicled the Atlanta negotiations of the agreement with appellant Roberts and his attorney, as well as the signing of the agreement in Atlanta. Paragraph 27 of the agreement states that the "Agreement and its performance shall be interpreted and construed in accordance with the laws of the State of Georgia." It is undisputed that Roberts attended the five-day arbitration hearing which was held in 1986 in the Colony Square complex located in Atlanta, Fulton County.

" ' "Jurisdiction of the person is the power of a court to render a personal judgment, or to subject the parties in a particular case to the decisions and rulings made by it in such a case ..." ' Basically jurisdiction means the power of a court to render a binding judgment in the case...." Williams v. Fuller, 244 Ga. 846(3), 262 S.E.2d 135 (1979). "A court of this state may exercise personal jurisdiction over any nonresident ... as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he were a resident of the state, if in person or through an agent, he: (1) [t]ransacts any business within this state...." OCGA § 9-10-91. "Under our Long Arm Statute [OCGA § 9-10-91] jurisdiction over a nonresident exists on the basis of transacting business in this state if the nonresident has purposefully done some act or consummated some transaction in this state, if the cause of action arises from or is connected with such act or transaction, and if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice." Davis Metals v. Allen, 230 Ga. 623, 625, 198 S.E.2d 285 (1973). "If ... the requirements of Rules (1) and (2) are (met, there must also exist) a 'minimum contact' between the nonresident and the forum. ... (Lastly,) the assumption of jurisdiction (by the forum) must be ... consonant with ... due process notions of "fair play" and 'substantial justice.' [Cit] ... [I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. [Cits.]" Girard v. Weiss, 160 Ga.App. 295(1), 287 S.E.2d 301 (1981).

The execution of the agreement in Georgia is a sufficient purposeful transaction of business within the forum ( Bloise v. Trust Co. Bank of Savannah, 170 Ga.App. 405(1), 317 S.E.2d 249 (1984)), and the cause of action arises from and is connected with the consummation of the agreement. See Davis Metals, supra. By negotiating and signing within the geographic boundaries of Georgia an agreement which provided the protection of the laws of Georgia to the parties, appellant Roberts established a sufficient "minimum contact" with the State of Georgia to enable the courts of this state to exercise personal jurisdiction over him.

2. "[V]enue means the place of trial." Williams v. Fuller, supra, 244 Ga. at 849, 262 S.E.2d 135. When personal jurisdiction of a nonresident is acquired under the provisions of the Long Arm Statute (OCGA § 9-10-91), venue as to the nonresident is determined by OCGA § 9-10-93, which states that "[v]enue in cases under this article shall lie in any county wherein the business was transacted...." Thus, venue as to nonresident Roberts, due to his transaction of business in Fulton County, was in Fulton County. See Gowdey v. Rem Assoc., 176 Ga.App. 83(2), 335 S.E.2d 309 (1985). Roberts' motion to dismiss due to improper venue should have been treated as a motion to transfer to the proper venue, and granted by the trial court. See 1983 Ga. Const Art. VI, Sec. I, Par. VIII; Uniform Superior Court Rule 19.1, 253 Ga. 829 (1985).

Appellee Stratton contends that venue was proper in DeKalb County under the Georgia Arbitration Code for Construction Contracts ("Georgia arbitration code") (OCGA § 9-9-80 et seq.) OCGA § 9-9-84 (b) provides that "[v]enue for applications to the court shall lie: (1) In the county where the agreement provides for the arbitration hearing to be held or (2) If the hearing has already been held, in the county where it was held or (3) In the county where any party resides or does business." Stratton points out that TMMC is incorporated under the laws of Georgia with its registered office located in DeKalb County, and argues that TMMC's residency in DeKalb County, coupled with OCGA § 9-9-84 (b) (3), makes venue as to both TMMC and Roberts proper in DeKalb County.

Stratton's argument and the facts of this case place in conflict the venue provision of the Long Arm Statute and subsection (b) (3) of the arbitration code venue provision. Stratton's position is premised on the applicability of the Georgia arbitration code to the case at bar. Appellants, on the other hand, maintain that the interstate nature of this case requires application of the Federal Arbitration Act (9 U.S.C.A. § 1 et seq.), which provides that "[a] written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid ..." 9 U.S.C.A. § 2. Commerce is statutorily defined as, among other things, "commerce among the several States." 9 U.S.C.A. § 1. The Georgia arbitration code provides that it is applicable "only to construction contracts, contracts of warranty on construction, and contracts involving the architectural or engineering design of any building or the design of alterations or additions thereto...." OCGA § 9-9-81 (b). The Georgia statute evidences a legislative intent to give effect to arbitration provisions contained in construction contracts. OCGA § 9-9-82. The involvement of a Florida resident, a Georgia corporation, and a Florida corporation in a dispute concerning sites in Oklahoma and Florida constitutes interstate commerce. See Hilton Constr. Co. v. Martin etc. Contractors, 251 Ga. 701, 308 S.E.2d 830 (1983); McCormick-Morgan, Inc. v. Whitehead Elec. Co., 179 Ga.App. 10, 12, 345 S.E.2d 53 (1986); ADC Constr. Co. v. McDaniel Grading Co., 177 Ga.App. 223(1), 338 S.E.2d 733 (1985).

While the federal and state arbitration codes are very similar and embody their respective legislature's intent to enforce commercial arbitration agreements, this court, in the only case in which there might have been presented a choice between applying state law or federal law, held that state law and policy must yield to the federal statute if interstate commerce is involved. ADC Constr. Co. v. McDaniel Grading, supra. Since the federal statute is applicable, Stratton's venue argument, premised on application of the state statute, must fail. Even if the Georgia arbitration code, complete with its venue provision, were applicable, its...