*1 48190. HOWELL HARDEN. Presiding case, in
Eberhardt, Judge. judgment this appearing Harden, Howell v. 890), been affirmed in part part Supreme reversed Court Harden, Howell v. 206), our judgment reversed, is vacated insofar as the same was judgment Supreme adopted Court is its stead. appeal stands dismissed. Stolz, JJ.,
Appeal dismissed. Pannell and concur. February
Decided Levin,
Kenneth G. appellant. Bolton, General, Arthur K. Attorney Timothy J. Sweeney, Dorothy Y. Kirkley, General, Assistant Attorneys for appellee.
48493. MATHEWS et al. v. GREINER et al. Clark, Judge. "Abracadabra Alakazam” are words wonder
workers in necromancy Likewise, use. legal lexicons lure lawyers and judges to seek magic phrases to serve as simplistic solutions. Thus, we find our answers to the questions three presented by in such judicial incantations "Lex Loci Contractus,” "Alternative Pleading,” and "Stare Decisis.” (1) The trio of questions are: Can a nonresident real estate broker sue in Georgia for breach of a contract made in the state where he is licensed when the contract provides for sale of land in (2) Georgia? Does the Civil Practice permit Act a complaint which counts based upon breach of contract and quantum meruit as to three co-defendants are joined with another count framed in tort contending conspiracy between the three co-defendants and a fourth defendant making avoid payment of the amounts (3) claimed for breach of contract? Does the conspiracy count state a claim for relief on a tort when allegations relate to the breach of a contractual duty?
Appellants were plaintiffs below and will be referred to as such.
They filed suit against three Georgia residents and a Delaware corporation, Donald J. Scholz & Co. The Georgians will be
referred to as landowners and the Delaware defendant as Scholz. Averring "duly themselves to be licensed real estate brokers Virginia” plaintiffs plead they the State of contracted with the "whereby agreed attempt, landowners Plaintiffs in the State Virginia, procure purchaser willing ready, who was buy, buy, upon specified able terms” Georgians or act concert with others to *2 (R. 7) by a tract of land DeKalb owned the three agreed jointly plaintiffs
who to be liable to for their procure purchaser. They allege services if they were able to such buyer secured such in Scholz who is named as co-defendant only plead conspiracy but in Count 3 which is framed to a tort deprive plaintiffs between the landowners and Scholz to of the of the amount claimed as due them their alleged Virginia only contract. The first two counts in which three landowners are named as defendants are for breach of quantum involving contract and in Company meruit. 3 Count Scholz upon conspiracy is based between four whereby tortiously joint defendants the four have "entered into a develop property venture to so as to avoid the consummation property Company, purpose of the sale of the to Scholz with the (other three) attempting joint obligation to avoid the of the pay plaintiffs $74,000 defendants to the sum of to which (R. 9). are entitled as commission.” involves the third count which was stricken the trial court to state a claim a defense motion to dismiss for failure may granted. which relief The judge’s trial certificate for immediate review of this order has provided. been question validity
l.We deal first with the of the contract conspiracy because no cause of action could exist for tortious illegal breach an contract. The which law was in force at the time of the transaction under consideration is contained Chapter Georgia.1 84-14 of the Annotated Code of Therein it prior passage All references to sections are to the Code statute Assembly complete General of a revision of our law legislation on "Real Estate Brokers and Salesmen.” This contained through page in 1973 Ga. Laws from Ch. 84-14 and substituted a in the 126 struck all of Code Chapter complete change new numbering of Code sections. person, corporation expressly firm, or that "No shall stated any any right commissions, claim for to enforce
have profits, option profits or fees for done as real estate business having previously salesman, without obtained the broker or Chapter.” required § 84-1413 under the terms of this Code license (Ga. pp. 316, L. (171 560) Rollins, 120 in Dixon v. court has heretofore Padgett, 123 Ga. and Beets v. SE2d expressly doing business without ruled that broker standing Furthermore, sue. had no the taint of license quantum illegality apply meruit. D. L. would also McCoy,212 Ga. 78 Stokes Co. defendants contend these cases bar four arguments in their from use of our courts. One of the contained by deposition that certain evidence obtained show briefs asserts making to be the situs both of the Similarly appellants deposition the contract. refer to the same proof performed Virginia. made and deposition part appeal, not we As this of this cannot consider these factual assertions as we are limited to the record. Hunt v. (4)(197 Denby, Tingle Arnold, *3 Allen, Cate & and citations therein. upon solely
The this decided record which must be consists complaint, answer, dismiss, motions to and dismissal order accompanied by requisite limited to the third count the review Paragraph certificate. four of the avers that "the duly brokers in the are both licensed real estate State Virginia.” pertinent portion paragraph of The of five of the agreement complaint specifically states the to have been made Virginia.” "in the State of We must therefore deal with this case being Virginia as contract in in which licensed have made one brokers
Virginia
for
in that state.
Georgia
explanatory
leading
the
The
case
of
law of lex loci
We that in case at bar the did not seeking not obtain license but to enforce a statutory contract. Thus non do not come within our qua doing any county State,” sine Code business "within in this
§Ann. 84-1401. Having pleadings present reached the conclusion that Virginia performed
contract made in to be that state and Georgia’s public policy enforcement thereof is not in violation regard we do not it discuss from numerous cases foreign jurisdictions by capable cited counsel for sides both (5th excepting Young Young, Inc., for Folsom 216 F2d 352 opinion dealing Cir. There Fifth Circuit wrote a Florida for a broker’s suit share of commissions received broker for sale of land in under a referral opinion Gibson, contract. The was based Tillman v. agreed by "[S]ince and concludes no act performed Georgia, it of engaged done was then the settled law Georgia, appellee follow, which is bound to was not Georgia,
in the business of a real estate broker in
notwithstanding
location of
the land.” See also Annotation
question generally.
*4
in
under their pleading whereby one count proceeded upon a breach of contract and the third count was based upon a tort alleging a conspiracy involving party other than the contracting parties. It then depends upon the facts produced at the trial for a determination as to proof whether presented is sufficient prove case under of the theories contained in the complaint. adjudicated cases which constitute stare dispose decisis It remaining matters. is well established that a cause of
action may be based on a tort in showing a conspiracy deprive a real estate broker of commissions him due under a contract. (124 DuPree, Luke v. 13); DuPree, Kerr v. (132 393); Newman, Rood v. SE2d 183); Eubanks, Barnett v. McEachern,
Woodall v.
erroneously relied by appellees as controlling upon the case at bar. A of that study opinion shows that it is not applicable because it was based upon the individual defendants having acted as corporate officers so that there was no tort conspiracy since the contract was between plaintiff as an employee and corporation Furthermore, as employer. opinion differentiates DuPree, its facts from Luke v. supra, which we cited, have pointing out at 74 that in the real estate broker case the third party is an intermeddler. Also at page 72 opinion recognizes the existence of certain classes of contracts which create a relationship whereby interference might result in a tort. Among these is stated that contractual relationship between principal and agent. Count three of the in the case judice sub shows Scholz was not a party to the original contract in any capacity and for pleading purposes must be considered an intermeddler.
4. The instant appeal is from judgment motion for
dismissal of a complaint for failure to state a claim upon which *5 822 may granted.
relief It is now well established under the CPA (a) complaint is not to set forth a cause of action (b) only but relief; need set forth a claim for that a longer strongly against pleader; no to be construed most (c) that a motion to for dismiss failure to state a claim for relief granted appears certainty should not be plaintiff unless it to a that the any would be entitled to no relief under set of facts proved support which could be Irvin, this claim. Oliver v. (1) (196 429); Dickey, 248, (1)(173 Ga. SE2d Mitchell v. 226 Ga. 695);Harper App. 218, 220 DeFreitas, SE2d 117 Ga. (1) (160 260); (1) (165 Edge, Ghitter Aultman-Beasley, SE2d 744 Herndon v. Inc., 121 When measured these standards we find it to rule that the trial court erred in motion to dismiss Count 3.
Judgment Hall, J., specially. Evans, J., reversed. P. concurs. concurs
Argued September February 1974. Decided Murphy, Powell, Goldstein, Harvey Love, Frazer & Jr., Frank Hughes, appellants. Harkness, Hunter R. for Bryant Patrick, Sidener, Joseph Hamner, Patrick, Jr., Griffin Miller, Troutman, C. Sanders, Ashmore, Lockerman & H. Robert Forry, appellees. Cohen, Ezra H. for Judge, concurring specially. fully opinion, I concur in this Evans, except paragraph. for the first No doubt I it, too, would concur in only if I knew what it means. Rehearing. On Motion for Judge. By rehearing appellees argue motion for Clark,
original opinion public policy was error as violative of our state’s expressed Additionally, in Code Ann. 84-1413. it is contended we overlooked the Rollins, cases of Dixon v. Co., Jalonick v. Greene Oil adjournment As the of the term left insufficient time complete study original opinion of these contentions the was Now, study points withdrawn. after reconsideration and of presented rehearing original motion, we have decided the appeal correctly should be reinstated because the decided therein. ruling contrary Georgia public policy. is not The record plaintiffs any
on this shows did not do real estate business any county statutory "within this State” that requires prerequisite § 84-1401. Our statute Ann. stated in Code engage real estate business license to showing any averment does not contain the record here but of our state. the boundaries within did business require real estate statute does not licensure brokerage performs who is licensed broker requires the broker The statute licensed here. state to be another performs his services the broker in cases where to be licensed county in this State.” Our statute the contract "within under recognizes leasing the sale or that activities connection *6 property the insure that and seeks to deals with services real Georgia performing within such services individuals trustworthy of the not focus on the situs law does and reliable. Our property property. is incidental. the situs of the real In fact real exempt by from does not fact that the statute is evidenced the Georgia performed coverage brokerage where the transactions App. Georgia. realty Gibson, Tillman v. is outside of SE Rollins, 120 Ga. of Dixon v. The case cited in our regarded original opinion. the factual We was statement instant case from undisputed differentiating at 559 of Dixon v. Rollins ruling. pointed "It is It there out that that been licensed claimant not and has never that the broker, his claim on and that he bases as a real estate part by State, while within and without on his his acts both and maintained at all times he was resident this State of (Emphasis permanent within this State.” business address Virginians supplied.) case where This differs from the instant domiciliary in their state sue licensed as real estate brokers a (1) they The facts that made in their home state. (2) Georgians contracted that the land contracted with right Georgia deprive to resort them of their was in do not sell engaged real in fact have not to estate business courts when Georgia. Sloan, 41 Pratt v. Ga. supra. Gibson, 44 Ga. Tillman v. Co.,7 Oil 3. The case of Jalonick v. Greene covering applicable in that insurance contracts is not against indemnify property risks to the insured certain seek to portion property of of the so that a substantial property. place in of the must take the situs the insurance contract of 1895 the Civil Code was decided in when The Jalonick case appellants’ pointed brief, "Sections in the effective. As is out was prohibited 2055 of Civil Code of 1895 solicitation insurance owning property insurance on behalf of unlicensed company, prohibited any person thereof having from it insured other than duly Georgia. light company insurance licensed In public policy foregoing statutes, established court was obligated public policy to hold that evidenced such company insurance statutes the property the Texas insurance to have requisite Georgia prior insuring insurance certificate to its Georgia. license,
located in Not such it could not unpaid premiums.” enforce its claim for It should also be noted property way insurance is in no similar to the real estate premiums according type location, business as are determined affecting structure, and similar factors the risk.
48546. DeLOACH v. MAURER. Judge. Gwynne brought D. Maurer for libel Quillian, against complaint Larry Douglas Superior J. DeLoach in the Court. The predicated Douglas on a letter the editor County Sentinel. The first count concerned the letter as written Douglas County and sent to the Sentinel; the second count was predicated changes on the letter after certain had been made in *7 published newspaper. it and it was originally The letter set forth as it was written then followed portion changed published. which was when the letter was letter first reads as follows: "Editor: I wonder what is the Douglasville regarding city consensus of the citizens of officials owning, operating, leasing renting Package selling or Store people mayor’s duty beer and wine? Most are aware that it is the to see that our local ordinances are enforced well as as state Dept. statutes and to further ensure that the Heads within the city carry out their duties. seriously impartial
"It doubted that there bewill enforcement long any city of the beer owns, controls, ordinance as official losing protects holding party lease from same. Mayor Gwynne "Our the Honorable Maurer owns the Anchor Package formerly on Rd. Store Fairburn known as the Tee Pee appears Drive Inn. There to be a interest’ here 'conflict of duty business, also the Beer enforce