Taeger Enterprises, Inc. v. Herdlein Technologies, Inc.
Taeger Enterprises, Inc. v. Herdlein Technologies, Inc.
Opinion of the Court
After it was left unpaid for labor and services provided, plaintiff Taeger Enterprises, Inc. (“Taeger”), a Florida corporation, brought an action in the Superior Court of Columbia County, Georgia, alleging a variety of contract and tort claims against defendants Wallace Herdlein & Associates, Inc. (“Herdlein”), Herdlein’s trade name, Herdlein, Inc., Herdlein’s president, Cole Oehler, Jr., MetoKote Corporation (“MetoKote”), and John Deere Commercial Products, Inc. (“John Deere”). By amendment, Taeger alleged that defendant Herdlein Technologies, Inc. (“HTI”) was “a corporation closely affiliated with” Herdlein and for “all purposes in Counts Three and Four of this Complaint, [HTI] is incorporated within the meaning of [Herdlein].”
In support of their motions to dismiss, Oehler and HTI adduced the following, mostly undisputed, facts: Herdlein, doing business as Herdlein, Inc., submitted to MetoKote a proposal to design, build, and install a wet paint finishing system on MetoKote’s premises in Columbia County, Georgia, which was leased from John Deere. Herdlein’s proposal was revised on June 27, 1991, and on August 6, 1991, MetoKote gave written notice of acceptance addressed to “Wallace Herdlein.” The paint system was designed and prefabricated outside of Georgia. Herdlein is an Illinois corporation, which is a wholly-owned subsidiary of a Swiss company. HTI is a separate Illinois corporation, formed on April 8, 1991, and wholly-owned by George Karahalios, an Illinois resident. In his affidavit, Karahalios deposed that he is the sole shareholder and director of HTI and that he and his wife are the only officers. Karahalios formerly had been an employee and vice president of Herdlein until his resignation on April 1, 1991, and neither he nor his wife has ever been a director, or shareholder of Herdlein. HTI offers engineering and design consulting services, primarily to Herdlein but also to anyone else engaged in a similar business or requiring such services. HTI rents space and secretarial services from Herdlein at the latter’s corporate headquarters in Illinois but maintains its own books of account, separate from any maintained by Herdlein. Karahalios denied that HTI had ever entered into any contract with Taeger. According to him, HTI contracted with Herdlein in Illinois to provide engineering consulting services to Herdlein as a subcontract to Herdlein’s MetoKote project. All
In support of his motion, Oehler deposed by affidavit that he is an Illinois resident and the former president of Herdlein. He has never been a director of or shareholder in Herdlein. As the authorized and disclosed agent of Herdlein, he negotiated with Taeger for the installation subcontract. Negotiations between Taeger and Herdlein took place in the Herdlein office in Illinois and subsequent communications with Taeger were conducted between the Illinois office of Herdlein and the Florida office of Taeger. Oehler deposed that inquiries made by Taeger to Herdlein regarding sums owed Taeger under its subcontract originated from Taeger’s Florida office. He stated that he visited the Georgia site once and spoke briefly with Herdlein’s project manager but that “no financial dealings were discussed with Taeger representatives or anyone else during that trip.” All financial decisions of Herdlein were made in Illinois and “all payment checks to Taeger were drafted in Illinois and sent to Taeger’s Florida office.” Oehler further deposed that he had “never personally conducted any business on my own behalf in the State of Georgia,” in that he “never solicited business, engaged in any persistent course of conduct or derived revenue from Georgia.” He identified as true and correct a copy of the revised proposal accepted by MetoKote. This proposal was submitted by Wallace Herdlein & Associates doing business as Herdlein, Inc. and contains no reference to HTI, either as a named party nor as an entity offering a limited warranty.
In opposition to the motions to dismiss, Taeger submitted the affidavit of its president, Jerry Taeger, whom we quote at length: After he had complained to Oehler that Taeger was not getting paid, Oehler “repeatedly promised deponent that there was money coming into Wallace Herdlein & Associates, Inc. and that deponent would certainly be paid if deponent kept on working on the job.” As to HTI, Taeger deposed that Karahalios twice came to the Georgia job site “for the purpose of consulting with MetoKote Corporation and then checking Plaintiff’s work. On each occasion Mr. Karahalios did spend time with MetoKote Corporation and then toured the job site, checked out Plaintiff’s work, and complimented the deponent on the Plaintiff’s work. During each of those trips Mr. Karahalios dealt with deponent regarding the construction project and the deponent’s work on it at the job site in Columbia County, Georgia.” Taeger further
1. In related enumerations of error, Taeger contends that the dismissal of his complaint was erroneous as to each non-resident defendant because the evidence is conflicting and because that evidence shows the commission of a tort with consequences in Georgia by defendants transacting business in Georgia. OCGA § 9-10-91 (3) provides that 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 . . . [c]ommits a tortious injury in this state caused by an act or omission outside this state if the tortfeasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state.” Contending that its evidence shows that Oehler and HTI are subject to the jurisdiction of the Superior Court of Columbia County, Georgia, pursuant to • OCGA § 9-10-91 (3), Taeger enumerates the grant of defendants’ motions to dismiss due to the absence of personal jurisdiction.
A defendant who files a motion to dismiss pursuant to OCGA
“[A]ffidavits made in support of [OCGA § 9-11-12 (b)] motions must conform to the requirements of [OCGA § 9-11-56 (e)]. Although the requirements of [OCGA § 9-11-56 (e)] are not expressly applicable to affidavits in general, those requirements stand as a codification of the common law requirements as to affidavits and hence are applicable as such. Bryan v. Ponder, 23 Ga. 480 (2) (1857); Levin v. Myers, 211 Ga. 474 (1) (86 SE2d 283) (1955); Kniepkamp v. Richards, 192 Ga. 509 (7) (16 SE2d 24) (1941); 2A CJS 481, Affidavits, § 43.” McPherson v. McPherson, 238 Ga. 271, 272 (1) (232 SE2d 552). Pursuant to OCGA § 9-11-56 (e), “[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Verified pleadings also “must comply with the [CPA §] 56 (e) requirement that both supporting and opposing affidavits shall be made on ‘personal knowledge.’ Foskey [v. Smith, 159 Ga. App. 163, 164 (283 SE2d 33)].” Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843). See also Behar v. Aero Med Intl., 185 Ga. App. 845 (1), 846-847 (366 SE2d 223). An affidavit made or an attempt “made to verify the pleadings, not upon personal knowledge, but upon ‘ “ ‘the best of (affiant’s) knowledge’ (and belief), ... is just a variation of . . . ‘information and belief.’ ” ’ Spires v. Relco, Inc., 165 Ga. App. 4
The affidavits and exhibits submitted in the case sub judice to support the OCGA § 9-11-12 (b) (2) motions made out a prima facie case that the Superior Court of Columbia County, Georgia, lacked personal jurisdiction over Oehler and HTI for the torts of fraud and conversion allegedly committed without the territorial limits of Georgia but allegedly having consequences within those territorial limits, within the purview of OCGA § 9-10-91 (3). Application of the evidentiary principles stated above to the evidence submitted in rebuttal yields the following results:
MetoKote’s answers to HTI’s interrogatories are the bare legal conclusion asserting the existence of a contractual relationship between MetoKote and HTI, for they are unsupported by any statement of facts within the personal knowledge of the corporate officer verifying MetoKote’s responses that HTI made any offer which MetoKote accepted. Moreover, certain answers appear to be mere unsworn statements made by counsel and not statements made under oath by a proper officer of the corporate party. See OCGA § 9-11-33 (a); Plant & Son v. Mut. Life Ins. Co., 92 Ga. 636, hn. 2, supra. “The plain and unambiguous terms of CPA § 33 require a party to answer personally his opponent’s interrogatories under oath. Interrogatories are not pleadings and counsel cannot answer them.” Gregory v. King Plumbing, 127 Ga. App. 512 (1a) (194 SE2d 271). It follows that counsel’s unsworn “answers to interrogatories are hearsay and inadmissible at the trial unless they fall within some recognized exception to the hearsay rule.” Carter v. Tatum, 134 Ga. App. 345, 346 (1), 347 (212 SE2d 439). Compare Woodson v. Burton, 241 Ga. 130 (1) (243 SE2d 885). In response to Taeger’s interrogatories, John Deere and MetoKote jointly submitted the properly verified statement that “John Deere and MetoKote have in their possession checks indicating
After a careful examination of the record, with all reasonable inferences drawn in favor of authorizing the exercise of Long Arm personal jurisdiction, we conclude that the material facts are undisputed or are unrefuted by competent evidence. Pursuant to those undisputed material facts, neither Oehler personally nor HTI via its agent Karahalios “[transacts any business within this state” within the meaning of OCGA § 9-10-91 (1). Behar v. Aero Med Intl., 185 Ga. App. 845, 847 (2), 848, supra. Neither Oehler personally nor HTI via its agent, as alleged tortfeasors, “regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state” as required by OCGA § 9-10-91 (3). State of South Carolina v. Reeves, 205 Ga. App. 656, 657 (1) (423 SE2d 32). The trial court correctly determined that neither Oehler nor HTI is subject to the exercise of personal jurisdiction over them by the Superior Court of Columbia County in Taeger’s suit for fraud and conversion under the authority of OCGA § 9-10-91.
2. Additionally, the trial court correctly dismissed Taeger’s complaint against each defendant due to the lack of personal jurisdiction as it appears that any tortious conduct committed outside of Georgia has had no in-state consequences so as to invoke the protective policy of this state to provide “ ‘redress in its own courts against persons who inflict injuries upon, or otherwise incur obligations to, those within the ambit of the State’s legitimate protective policy.’ ” Coe & Payne Co. v. Wood Mosaic Corp., 230 Ga. 58, 61 (195 SE2d 399). The
3. Taeger’s remaining enumeration has been considered and is found to have been rendered moot.
Judgments affirmed.
Concurring Opinion
concurring specially.
In this case, a Florida corporation is suing an Illinois corporation and an individual Illinois resident for fraud and conversion. The alleged acts of fraud and conversion occurred in Illinois and caused injury in Florida. Georgia simply has no interest in this action, and the mere fact that the alleged tortious acts occurred in the context of a dispute about a contract relating to a project in Georgia does not pro
I am authorized to state that Judge Smith joins in this special concurrence.
Reference
- Full Case Name
- Taeger Enterprises, Inc. v. Herdlein Technologies, Inc.; Taeger Enterprises, Inc. v. Oehler
- Cited By
- 10 cases
- Status
- Published