Taco Bell Corp. v. Calson Corp.

379 S.E.2d 6, 190 Ga. App. 481
CourtCourt of Appeals of Georgia
DecidedFebruary 9, 1989
Docket77665, 77666
StatusPublished
Cited by13 cases

This text of 379 S.E.2d 6 (Taco Bell Corp. v. Calson Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Taco Bell Corp. v. Calson Corp., 379 S.E.2d 6, 190 Ga. App. 481 (Ga. Ct. App. 1989).

Opinions

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 [482]*482without 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 SE2d 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 F2d 710 (2nd 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 &c. Co. v. Langford Constr. Co., 182 Ga. App. 258, 260 (355 SE2d 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 SE2d 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 SE2d 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 &c., 183 Ga. App. 101, 102 (357 SE2d 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 [483]*483and 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 &c. Gardens, 244 Ga. 240 (260 SE2d 1); Metric Steel Co. v. BLI Constr. Co., 147 Ga. App. 380 (249 SE2d 121) both of which were cited by the Supreme Court in Gorrell, supra at 802, 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 SE2d 896); Little v. Walker, 250 Ga. 854 (301 SE2d 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 SE2d 459); International Indem. Co. v. Blakey, 161 Ga. App. 99 (1) (289 SE2d 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,

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Taco Bell Corp. v. Calson Corp.
379 S.E.2d 6 (Court of Appeals of Georgia, 1989)

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379 S.E.2d 6, 190 Ga. App. 481, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taco-bell-corp-v-calson-corp-gactapp-1989.