The plaintiff filed this action to domesticate a default judgment obtained in Oklahoma against the defendant, a Georgia banking corporation. The bank attacked the judgment as void for lack of personal jurisdiction and counterclaimed for damages for malicious abuse of process. Personal jurisdiction in the Oklahoma suit was asserted under that state’s Long Arm Statute and was based on the bank’s alleged business transactions there. Service was perfected by registered mail. The court below dismissed both the complaint and the counterclaim, prompting the plaintiff to appeal and the defendant to cross appeal.
The plaintiff is an Oklahoma company which manufactures electrical winches. One of its former customers was Gerard Products, Inc., a Georgia manufacturer of automobile wreckers. Following a change in management at Gerard, the plaintiff demanded *501 an "irrevocable letter of credit” from the company as a prerequisite to selling it any more merchandise on credit. Thereafter, the defendant bank, responding to Gerard’s request, sent the plaintiff a letter promising to honor Gerard’s checks. The plaintiff discovered that the letter did not state Gerard’s corporate name correctly and telephoned the bank in Georgia to request another one. The bank complied, and the plaintiff once again began to ship equipment to Gerard; however, Gerard subsequently bankrupted without delivering any checks to cover these purchases. Undaunted by the fact that it had no checks, the plaintiff filed the Oklahoma suit to collect on the bank’s letter of credit. In entering default judgment, the Oklahoma court found that the bank had agreed to guarantee payment of Gerard’s account and that this agreement "furnished the plaintiff herein and its totality of contact with the plaintiff authorized... jurisdiction and venue . . .” Held:
1. We reject the plaintiffs contention that because the Oklahoma court has already considered the jurisdictional question the judgment cannot be collaterally attacked in Georgia. A collateral attack based on lack of personal jurisdiction is precluded only if the defendant has appeared in the foreign court and has thus had an opportunity to litigate the issue. See
Drake v. Drake, 187
Ga. 423 (5) (
2. Because the Oklahoma statute was not proven in the court below, we look to the Georgia Long Arm Statute (Code Ann. § 24-113.1) to determine whether sufficient "minimum contacts” existed between Oklahoma and the nonresident bank to confer jurisdiction on the Oklahoma court.
See Berry v. Jeff Hunt Machinery Co.,
3. It is clear from the facts set forth above that the bank never took any action or consummated any business transaction with the plaintiff in Oklahoma. All of its business dealings were with its customer (Gerard) in Georgia. Under these circumstances, we hold that the
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bank’s action in answering phone calls or letters from the plaintiff after the letter of credit had already been issued did not establish the requisite "reasonable minimum contacts” with Oklahoma to render it liable to suit there. See Code Ann. § 24-113.1 (a);
O. N. Jonas Co. v. B & P Sales Corp.,
4. The plaintiff contends that the trial court erred in awarding summary judgment to the bank without allowing it 30 days to respond to the bank’s motion. Under Code Ann. § 81A-Í56 (c), the opposing party is entitled to 30 days to respond to a motion for summary judgment.
Royston v. Royston,
5. The trial court was correct in dismissing the bank’s counterclaim for failure to state a claim on which relief could be granted. The counterclaim alleged that the Oklahoma suit was groundless because the plaintiff had never presented the bank with any checks and that "by its acts of filing said groundless suit against the bank in Oklahoma and of obtaining the subject judgment by default, plaintiff wrongfully employed legal process for a
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purpose not intended or countenanced by the law; and that such acts constitute a malicious, abuse of legal process.” However, even assuming that the Oklahoma suit was groundless, that would not make the filing or the prosecution of it a malicious abuse of process. "Malicious
abuse
of civil process, as contradistinguished from malicious
use
of civil process, lies when the plaintiff in a civil proceeding wilfully misapplies process of the court in order to obtain an objective such process was not intended to achieve. [Cits.] The principle distinction between an action for malicious abuse of process and malicious use of process is that the former lies for wrongfully and unlawfully using legally and properly issued process for a purpose the law never intended it to effect, while the latter action lies for maliciously suing out civil process without probable cause. [Cits.]”
Cooper v. Public Fin. Corp.,
Judgment affirmed.