Unistrut Georgia, Inc. v. Faulkner Plastics, Inc.
| Decision Date | 17 June 1975 |
| Docket Number | No. 1,No. 50435,50435,1 |
| Citation | 217 S.E.2d 611,135 Ga.App. 305 |
| Parties | UNISTRUT GEORGIA, INC., et al. v. FAULKNER PLASTICS, INC., et al |
| Court | Georgia Court of Appeals |
Troutman, Sanders, Lockerman & Ashmore, Allen E. Lockerman, Robert H. Forry, Atlanta, for appellants.
Arnall, Golden & Gregory, Allen I. Hirsh, A. Felton Jenkins, Jr., Atlanta, for appellees.
The sole issue in this appeal is whether or not appellee, Faulkner, is subject to personal jurisdiction in the Superior Court of Fulton County under the Long Arm Statute, Ga.L.1966, p. 343; 1970, pp. 443, 444 (Code Ann. § 24-113.1).
Holder entered into a contract with Unistrut (the third-party plaintiff below) to install a sky-light system in the Colony Square commercial realty development in Atlanta. Unistrut subcontracted with Faulkner (the third-party defendant below), a Florida corporation, to have plexiglass sheets shaped into domes for the skylights. The domes proved unacceptable to Holder who brought action against Unistrut for breach of contract. Unistrut filed this third-party complaint against Faulkner alleging that Faulkner was a Florida corporation, 'which transacts business within this State and which has committed a tortious injury in this State caused by an act or omission outside this State, and is subject to the jurisdiction of this Court.' Service was made by sending a second original of the complaint to Faulkner's agent in Tampa, Florida. Held:
1. Unistrut's assertion of jurisdiction based on Faulkner's commission of a tortious injury in this state (Code Ann. § 24-113.1(c)) must fail. The duty imposed on Faulkner, which it is alleged to have breached, was that the plexiglass domes be 'formed free of optical distortion.' The duty was imposed by a specification in the primary contract which was made applicable to Faulkner by the agreement between Unistrut and Faulkner. Even though the third-party complaint alleges that the optical distortions were the result of 'negligent fabrication' by Faulkner, the duty breached is, nevertheless, one arising from the contract alone, and is not one imposed by law outside of or beyond the terms of the contract. ' (I)n order to maintain an action ex delicto because of a breach of duty growing out of a contractual relation the breach must be shown to have been a breach of a duty imposed by law and not merely the breach of a duty imposed by the contract itself.' Mauldin v. Sheffer, 113 Ga.App. 874, 879-880, 150 S.E.2d 150, 154. See also, Long v. Jim Letts Oldsmobile, 135 Ga.App. 293(2), 217 S.E.2d 602; Orkin Exterminating Co. v. Stevens, 130 Ga.App. 363, 366, 203 S.E.2d 587; Howard v. Central R. Co., 9 Ga.App. 617, 619, 71 S.E. 1017. Jurisdiction cannot be based on there having been a 'tortious injury' committed in this state.
2. Nor can jurisdiction be based on Faulkner's having 'transact(ed) any business within this State' (Code Ann. § 24-113.1(a)). The record shows that Faulkner was never a resident of this state and never had a place of business nor an agent within this state. Faulkner did not come into Georgia to solicit this business or this contract. Instead, Unistrut contacted Faulkner at its office in Tampa, Florida. The purchase order for these domes was made up in Atlanta by Unistrut and sent to Faulkner in Tampa and a copy of same, showing acceptance of the order was...
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Covington Industries, Inc. v. Resintex A. G.
...contract specifications, the communications containing these specifications were fraudulent. Cf. Unistrut Georgia, Inc. v. Faulkner Plastics, Inc., 135 Ga.App. 305, 217 S.E.2d 611, 612 (1975) (where plexiglass dome did not meet contract specification, duty breached arose "from the contract ......
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Perrigo Co. v. Merial Ltd., CIVIL ACTION FILE NO. 1:15-CV-3674-SCJ
...1390, 1401 (S.D. Ga. 1998) (applying § 9–10–91(1) to contract claims and § 91(3) to tort claims); Unistrut Ga., Inc. v. Faulkner Plastics, Inc. , 135 Ga.App. 305, 306, 217 S.E.2d 611 (1975) (when a complaint pleads only contract claims, personal jurisdiction cannot be based on "tortious inj......
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Interstate Paper Corp. v. Air-O-Flex Equipment Co., CV474-171.
...therefore respond for breach of its agreement . . .." Counsel for Air-O-Flex places heavy reliance on Unistrut Georgia, Inc. v. Faulkner Plastics, 135 Ga.App. 305, 217 S.E.2d 611. In that case Holder (who was the original plaintiff) contracted with Unistrut to install a skylight system in C......
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