*1 appellant’s was admis- paraphernalia home in the search of found recognized having despite disposition not been to show lustful sible by appellant with her.” used the minor as device unsettled, we take been unclear and the case law has Because cogent prosecution put opportunity In a clear rule: to forth а paraphernalia in offense, found evidence sexual for defendant’s sexual possession defendant’s it shows is inadmissible unless activity disposition he with which is the sexual lustful toward activity. engage charged in Under this mind to that or his bent of merely sexually explicit to show rule, material cannot be introduced activity. if it It can be admitted interest in sexual a dеfendant’s can be charged. linked to the crime predicated posed question in we this case which girlfriend assumption Simpson were letters wrote to his However, an of the record shows evidence. examination admitted Simp- fact, sustained not case. In the trial court that that was son’s specifically objection ruled to the admission letters prosecutor they point, At were not admissible. question Simpson letters, and he he about the announced that would proceeded Simpson Simpson read the letters. read then asked testimony appears objection. the letters without the tion to the letters was sustained It Simpson’s objec- record; not. Because the letters thеmselves do object when he and he did not letters, the letters we do not decide whether asked read (5) Spear State, Ga. their contents were admissible. (1999). Judgment All the Justices concur. affirmed. 1, 1999
Decided November 17, 1999. Reconsideration denied December Mary appellant. Harris, Free, S. for Carl C. Akeley-Alderman, Attorney, Lynn Stanley Gunter,
N District Attorney, appellee. District Assistant al. COMPANYet S99G0437. TRANSPORTATION INSURANCE RESTAURANTS, v. EL INC. CHICO Hunstein, Justice. Appeals’ opinion granted in El the Court of We certiorari from Transp. Co., 235 Chico Restaurants v. Ins. 681) (1998) foreign corporation’s action is to consider whether subject corporation void, amendment, and thus even if the is not authorized to maintain an obtained a certificate of action this State because it has not pursuant to transact business here (2). supra to OCGA 14-2-1502 See El Chico Restaurants, at Based on the of OCGA 14-2-1502 and its history, foreign corporation’s we conclude that a action is not void for *2 authority failure to a obtain and thus the Court of Appeals correctly held that El Chico’saction could be amended. (a) provides “[а] foreign corporation
OCGA 14-2-1502 transacting may authority business in this state without a certificate of proceeding any
not maintain a in court in this state until it .authority.” Transportation argues obtains a certificate of the phrase proceeding” “maintain a in the statute includes the com- foreign corporation action, mencement of that to so that the failure of a authority prior obtain certificate of to the commencement of the Contrary Transportation’s action argument, render would it void ab initio. primary however, the definitions of “maintain” do not include “commencement” of the item to be Rather, maintained. commonly pre-existing “maintain” most means the continuation of a commonly condition1 and to “maintain an action” most means the already begun.2 continuation of lawsuit
Although, points out, the dissent there are some obscure defi- nitions of “maintain” which include the commencement of the item to rejection Transportation’s maintained, be our of definition of the verb solely atypicаl meaning is not based on the it would ascribe to the statutory language. legislative history Instead, we look to the clear of maintaining proceeding OCGA 14-2-1502 to hold that there- proceeding under does not include the commencement of the to be Legislature maintained. That reveals that in 1969 the provide in rewrote the law this area so as tо required No that under this Code is authority permitted obtain a certificate of shall be to main- proceeding action, tain suit or court of this State unless commencement the action it shall have of obtained such a certificate. example, Dictionary For the most recent edition of Black’s Law defines “maintain” as etc.)...Id. (7th (something). possession “1. To continue (property, 2. To continue in of ed. 1999), p. dictionaries, Heritage Dictionary, 965. Standard such as The American define keep on; up carry state; “maintain” keep existing pre as'“l. To or continue .... 2. To in an (3rd -1992), p. serve or retain ...” Id. ed. 1084. See also Webster’s Third New International (“maintain” Dictionary 1967), (Unabridged, p. keep repair, defined as “1: to in a state of ....”). efficiency, validity: preserve from failure or decline (3rd Dictionary 1969), p. Ballentine’s Law ed. defines “maintain an action” as “to foot, uphold, keep collapse already begun. continue on [Cit.]” a suit emphasized pp. lan-
(Emphasis supplied.) 152,196. The L.Ga. pro- Legislature did not believe a guagе in 1969 maintaining that the establishes corporations against foreign actions without hibition action, the included the commencement certificates requirement Legislature expressly included the since the action” notwith- commencement of “before certificate be obtained language. standing Id. “maintain” the earlier legis- language in the 1969 “commencement” The inclusion of the subsequent light important of the Geor- enactment of the lation p. Corporation That gia L. Code 1988. Ga. Business preamble, intended to “revise and enactment, in the as set forth part relating corporations.” replace Id. As the laws business Legislature replacement, chose to remove rеvision language foreign corporations required previously which had commencement of the action.” “before a certificate of obtain Id. at statutory interpre- p. The rules 1225; OCGA significance Legislature’s action attach to the demand that we tation in limiting language. removing emphasized, See Humthlett 25) (1954) (a (2) (85 body should Reeves, 211 act). sоmething passage always presumed of an to mean be *3 pre-1969 language Legislature include the the the did While Legisla- by permitting expressly dissent, the cure, as stressed disallowing expressly language a cure when the the ture did delete prior to of the action. We was not obtained commencement certificate must limiting Legislature’s presume include the failure to language Jove, See Hollowell v. a matter of considered choice. 430) (1981). Further, under the rules of 678, statutory cannot be deemed a construction, the omitted meaningless surplusage. redundancy Richardson, See Gilbert v. (3) (452 476) B., Ga. v. C. S. 744, State 264 Ga. 260) (1982).3 261, 250 Ga. (a) interpretation § with 14-2-1502 is consistent Our of OCGA recognize to the notes to OCGA 14-2-1502 reflect failure § The fact that the revision limiting language of the statute has no significance the in the 1969 version in the deletion of meaning Because of the clear impact interpretation § the of OCGA 14-2-1502 on our (a), by interpretation cannot be controlled our § behind OCGA 48-13-37, comparable change given in statu to OCGA which reflects no § the construction 309, 738, statutе, 480, 6; p. pp. 2. The latter tory language. § L. Ga. L. § See Ga. right (Emphasis fact, register precludes [the] to specifically provides “[flailure to sue.” required register Furthermore, expressly supplied.) contractors are to Id. nonresident right being per beginning performance denied the to contract” avoid “before 48-13-34, merely provides contrаct, that the failure and OCGA 48-13-37 § § form maintaining register precludes sin action where the nonresident contractor to so performance payment [such] contract.” Accord Clo initiated “to recover such action is (3) (392 Heywood, addressed in situation ver Cable v. 260 Ga. distinguishable from OCGA 14-2-1502. § 48-13-37 is thus the statutory Further, and the legislative history. this interpretation, recоgnizes that an uncertified foreign corpora- tion initiate the action may but not continue it without obtaining authority, allows an aggrieved party opportunity preserve its cause of action but not to reduce it to judgment until the followed, certification process is thereby avoiding the statute of limi- problems tation from the arising constructiоn proposed by Transpor- tation and the dissent which would deprive aggrieved parties of access to the courts of this State for administrative reasons unrelated to the validity of the asserted causes of action.4
Therefore, we affirm the Court of Appeals’ holding suit by filed El Chico was not void at inception its subject thus was amendment. Judgment concur, All the Fletcher, J., Justices except P. affirmed. Hines, JJ.,
Sears and who dissent. Justice, Presiding dissenting.
Fletcher, I dissent because the majority’s interpretation conflicts statutory language and with this Court’s interpretation of an identi- cally-worded statute and is not justified by the policy of saving suits from the bar statute of limitations. statutory language and legislative history of OCGA 14-2- (a) are not crystal clear. OCGA 14-2-1502 provides “[a] transacting business this state without a cer-
tificate of authority may not maintain a proceeding court in this state until it obtains a certificate of authority.” face, On its language may be read to provide that a certificate of authority is required an action because the word “until” signifies a n condition precedent5 and “mаintains” signifies at least the com- mencement of an action, if not the prosecution to final judgment.6
Additionally, the legislative history shows that the intention of the legislature was carry law, forward the prior which held that suits foreign corporations without a certificate of authority were void and subject to dismissal without prejudice. Prior to a cor- poration was permitted to obtain a certificate of after initi- *4 4 interpretation We note that our position by is also consistent with the taken majority of 744, states which have Application addressed the issue. See 23 ALR5th of Stat Denying ute Invalidating Access to Corporation Courts or Comply Contracts Where Fails to Regulatory by Compliance Statute as Affected after Commencement of Action. 5 Dictionary (5th 1979) (“word limitation, Black’s Law ordinarily 1380 ed. of used it”). precedes restrict immediately that which to what follows 6 (38 66) Corp. Anderson, 633, Bell a 73 Ga. 635 see also Aircraft (5th 1979) (to Dictionary 859 ed. maintain an action is to commence or to insti Black’s Law tute, existence, preserve). or if in to continue or changed legislature in 1969
ating the law However, the action.7 an corporation expressly “maintain could not that a stated and proceeding this State unless before court of action, suit or such a certifi- it shall have obtained the action of commencement cate.”8 foreign corpora- interpreted provision a to mean that This Georgia a certifi- if it had not obtained defendant not sue a tion could slight majority upon authority.9 modification of relies a of cate However, to the 1988 revision the comment in 1988. section by previous legislature’s bar to suits intention that notes unqualified Significantly, being corporations carried forward.10 pre-1969 to omit the revision continued the 1988 permitted unambiguously after of an action. a cure (a), Any ambiguity of subsection in the reviewing § 14-2- of OCGA the remainder however, is resolved § contains identi statute, 48-13-37, which and a similar 1502 interpretation majority’s § language. of OCGA cal (b) meaningless. portion OCGA 14-2-1502 a of subsection renders (b) penalty imposes that transacts a civil authority. penalty civil “shall be This without a certificate business consequences . . . .” set out in this Code section to other in addition clearly legislature there be an additional intended that Thus, the comply consequence state. The with the laws of this for a failure inability begin state is the other an action in the courts of this majority’s reading consequence 14-2-1502.Thе set forth OCGA legislatively-created consequence statute, however, excises this the statute.11 from (c) foreign specifically prevents corpo- Additionally, subsection avoiding that has not obtained certificate ration the corpo- by providing consequences that a successor of this section assignee a certificаte of of a cause of action must obtain ration or commencing action. There a suit on that cause of corporation provision foreign if the were no need for this would be authority requirement anytime comply with the certificate of able commencing its action. after interpretation
Finally, appellate stаtute, of a similar courts’ 7 565, Ga. Laws 790. Ga. Laws Roach-Russell, Inc., Servs., App. 193 Metals & Inc. v. 135 Ga. A.B.R. (1975). 14-2-1502, comment. (courts (1982) C.S.B., must construe statu State v. 250 Ga. meaningless surplusage). tory language or mere See also Houston v. so as not to render it 115) (1975) (basic Savannah, Inc., rule of construction 235 Ga. Lowes of give parts and to a sensible “to make all its harmonize a statutе should be construed [, legislature presumed intended that intelligent part i]t is not effect to each meaning.”). any part would be without
779 supports provides § 48-13-37, this result. That statute register revenue com- non-resident contractors who fail to with the post commencing bond work under a contract missioner and before payment perfor- entitled “to mаintain an action to recover for are not this mance on the contract the courts of state.”12When this defense pled proved, trial must without is court dismiss the case majority’s interpretation prior prejudice.13The is in with our conflict reading ignores the non-resident contractors act and the maxim given interpretation.14 that identical should the same be majority’s policy reason for its result is that otherwise out- ignore companies Georgia of-state statute of who laws will face the bar legislature, placed compli- limitations. however, has Georgia protecting ance with laws ahead of for causes of actions for- eign corporations. interpreted Furthermore, this Court has never foreign corporation’s 14-2-1502 bar suit when it lacked a Rather, at the time the cause of action arose. comply Georgia’s laws, with need obtain application process a certificate of contained in OCGA suit. The complicated and careful law- yers easily compliance could monitor their client’s with law meet the well as statute of limitations.
I am authorized to state that Justice Sears and Justice Hines join in this dissent. 2, 1999
Decided December
17, 1999.
Reconsideration
denied December
Dye,
Long,
Rogers
Tucker, Everitt,
Tucker,
Wheale &
Thomas W.
Rogers,
Percy
Hardin,
Blount,
Blount, Arnall,
&
Golden
C. B.
&
Glover
J.
Gregory,
Bragman,
Kaplan,
Robins,
&
Karen B.
Miller &
Manning
Ciresi,
Gallo, Morris,
Martin,
Thomas J.
&
Lewis E. Has-
Salley,
sett, Hull, Towill, Norman,
Rice,
&
Barrett
Patrick J.
for
appellants.
12
OCGA 48-13-37.
13
(392
855)
Heywood,
Corp.
Clover Cablе a
nia Pizza
man,
Ga.
SE2d
DOT v. Mose
(393
258) (1990)
(compliance
registration
bonding require
Bell & John C. lee. THE ARNOLD v. STATE.
S99G0777. Justice. Hunstein, *6 Jimmy guilty Arnold was found of one count of child molestation. Appeals State, affirmed. Arnold v. The Court granted We the writ of certiorari to consider charge jury impermissibly expanded the trial court’s to the whether crime, indictment, in which the as set forth in the the manner Finding charge palpable slip committed. that the erroneous was a tongue jury which could not have confused or misled the because explicit properly the trial court’s instructions of subject stated on the same statement, before the inaccurate we affirm. charged placing penis The two-count indictment Arnold with his
(Count I) (Count II) four-year- and his hands “into the rectum” of the transcript old victim. The trial reveals that the entire indictment was jury array by prosecutor prosecu- read to the tor, dire. The before voir opening statement, in her reiterated the indictment penetration jury. jury and discussed the issue of with the then grandmoth- Moss, evidence heard from Olivette a woman who had a erly rеlationship with the victim. Moss testified the victim seemed unwell and drained when she collected the child and the vic- pain claiming tim bathed, screamed and cried in when that the area legs “burning.” eventually between her The victim revealed to displayed genitals, Moss that Arnold had his made the victim lick his his penis, penis placed her, anus, fondled inserted Vaseline her watching
in her anus while an adult video. The child’s mother put [her] testified that the victim tom” her that told Arnold “lotion on bot- penis [her] private.” “his The medical doctor who examined the victim several weeks after the event testified that the placed victim had used anatomical dolls to indicate Arnold had his penis legs;1 although physical between her examination revealed sign vaginal penetration, no or anal the doctor testified that her findings report were not inconsistent with the child’s of molestation. panties The child testified that Arnold touched her under her by “playing his hands and that had hurt her, Arnold her with” [ing] places she described as “touch me in that no one should.” The tq anatomically The female doll was not correct in that it failed differentiate between vagina and the anus.