Opposition — Swafford v. Avakian

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} FEB 28 1979 |

MKC VHABL _RODAK, JR., CLERK

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-1019

NORA SWAFFORD,

Petitioner,

versus

DICK AVAKIAN,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR CERTIORARI

JAMES D. MADDOX

Attorney at Law

SMITH, SHAW, MADDOX,

DAVIDSON & GRAHAM

Post Office Box 29

Rome, Georgia 30161

Telephone (404) 291-6223

ATTORNEY FOR RESPONDENT

OF COUNSEL:

J. DOUGLAS MacARTHUR

CROSSLAND, CROSSLAND,

CASWELL & BELL

Guarantee Savings Building

1171 Fulton Mall

Fresno, California 93721

SCOFIELDS' QUALITY PRINTERS, P. 0. BOX 53096, N. O., LA. 70153 - 504/822-1611

— ee

TABLE OF CONTENTS

ARGUMENT AND CITATION

OF AUTHORITIES .....ccccccsccccvcees

CONCLUBION cccccccccscscscsecessccecs

CERTIFICATE OF SERVICE ..........+6..

TABLE OF AUTHORITIES

CASES CITED:

Berry v. Jeff Hunt Machinery Co. (1978) 148 Ga.

App. 35, SE2d

Carey v. Linares (1970), 121 Ga. App. 150 (173

EA ERNE tc anaes met ee ane

Flynt v. Stone Tracy Company (1910), 220 U.S. 107

Fulghum Industries, Inc. v. Walterboro Forest Products,

Inc. (Sth Cir. 1973), 477 F2d 910 .........

Harris v. Tisom (1978), 63 Ga. 629 ......005.

Interstate Paper Corporation v. Air-O-Flex Equipment

Company (S.D. Ga. 1977), 426 F.Supp. 1323 ....

Kulko v. Superior Court of California In and For the

City and County of San Francisco, 436 U.S. 84,98

S. Ct. 1690, 56 L.Ed.2d 132 (1978) .......

O'Neal Steel, Inc. v. Smith (1969), 120 Ga. App.

TOG 1500 GEA BF) onc bib cic antecwvsonser«

Pacolet Manufacturing Company v. Crescent Textiles,

Inc. (1963), 219 Ga. 268 (133 SE2d 96) ....

c | Gea ier

TABLE OF AUTHORITIES (Continued)

Page

Pennington v. Toyomenka, Inc. (Sth Cir. 1975), 512

F2d 2208 . ccdncn canon ees eb eke 645 00. 10

S & S Builders Inc. v. Equitable Investment Corp.

(1964), 219 Ga. 557 (134 SE2d 777) ........... 4d

Shellenburger v. Tanner (1976), 138 Ga. App. 399,

(227 SEDO BOR iccwcaa cee ee cen ad saad eee 2,3,7

Snow v. Johnston (1943), 197 Ga. 146 (28 SE2d

270) . 00s 00k6deeeenEeEaNI SGA ES 0400660 Q

Thorington v. Cash (Sth Cir. 1974), 494 F2d 582 ..... 9

Vanzant, Jones & Co. v. Arnold, Hamilton & Johnson

(1860), 32 Gee, Bee wna seers enhanc eecscee So scee 7

STATUTES:

California Civil Code 4 43.4 and 943.5 .......... 5

Ga. Code Ann. §24-113.1 ...ccsccccceccsees 3,9,11

OTHER AUTHORITIES:

Witken, Summary of California Law (8th Ed.), pp.

27227274 cee veses bese resesuccccesnre »e seneer 5

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No. 78-1019

NORA SWAFFORD,

Petitioner,

versus

DICK AVAKIAN,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR CERTIORARI

PETITIONER HAS STATED NO REASON FOR

GRANTING WRIT OF CERTIORARI.

Petitioner's alleged reason for granting the writ of

certiorari is that the Fifth Circuit Court of Appeals ren-

dered a decision in conflict with previous decisions of

that Court and of this Court and in so doing, decided an

important state question in a way that conflicted with

applicable state law.

2

This case involves the application of the Georgia

Long Arm Statute in a suit by plaintiff, allegedly a

Georgia citizen, against a resident of California for

breach of a contract of marriage.

This case does not fall within the provisions of this

Courts Rule 19(b). The decision of the Fifth Circuit

does not modify, or restrict use of, or application of the

Georgia Long Arm Statute. It only concerns application

of the particular facts in this case. It does not decide an

important state or territorial question in a way in con-

flict with applicable state or territorial law. The deci-

sion below is not in conflict with any decisions of this

Court.

The petition for certiorari rather than setting out

reasons for granting the petition merely reargues the

merits of the case which was decided below.

ARGUMENT AND CITATION

OF AUTHORITIES

Petitioner states “on November 9, 1977, Mrs. Swaf-

ford filed a two count complaint for damages against

Avakian in the United States District Court for the

Northern District of Georgia, Rome Division. Count

One sounded in contract for a breach of a marriage

promise under Georgia law; Count Two sounded in

tort for fraudulent misrepresentation.”

Mrs. Swafford, cites Shellenburgerv. Tanner (1976), 138

Ga. App. 399, (227 SE2d 266). This oninion confines its

3

discussion to Ga. Code Ann. §24-113.1(b) and its

application. The three-prong test referred to in her

petition concerns application of subsection (b) to a per-

son who “commits a tortious act or omission within

this State”. This section has no application to a suit for

breach of a contract. The Court of Appeals of Georgia

made clear at page 411 that the provisions of section (b)

were not as extensive as were the requirements of sub-

section (a) applicable to a contract action.

The test in Shellenburger requires that there be a legal

cause of action against the defendant in addition to a

finding of an injury in Georgia resulting from a tor-

tious act in Georgia. The Court of Appeals of Georgia

in that case held there was not sufficient contact with

the State by the individual defendants to satisfy even

the lesser requirements of subsection (b). Regarding

the corporate defendant, the Court held the allegations

of the complaint were not sufficient to support

allegations of negligence in failing to transfer records

and/or fraudulent deceit in concealing a material fact.

Count Two of the complaint is also based upon

Avakian’s proposal of marriage alleging he had no in-

tention to comply with such promise. Mrs. Swafford

cannot convert a breach of contract into a tort merely

by alleging the defendant did not intend to comply with

the contract.

The Courts of Georgia have consistently held that

fraud cannot be predicated upon statements which are

4

promissory in their nature as to future acts. False

representations which authorize an action for fraud

and deceit must be made with reference to existing or

past facts and not to future acts. See S$ & S Builders, Inc. v.

Equitable Investment Corporation (1964), 219 Ga. 557, (134

SE2d 777), where the Court held at page 564:

“4. The petition attempts to allege that

defendant fraudulently induced plaintiff to

sign the written instruments by promising

plaintiff that defendant in the future would

reduce the oral construction loan agreement

to writing and recognize its existence and

validity. ‘Fraud can not be predicated upon

statements which are promissory in their

nature as to future acts.’ Jackson v. Brown, 209

Ga. 78 (70 SE2d 756). ‘Representations which

authorize an action for fraud and deceit must

be made with reference to existing or past

facts and not to future acts.’ Monroe v. Goldbert,

80 Ga. App. 770, 775 (57 SE2d 448), ‘Ordinari-

ly, promises to perform some act in the future

will not amount to fraud in legal acceptation,

although subsequently broken without ex-

cuse,’ Rogers v. Sinclair Refining Co., 49 Ga. App.

72, 74 (174 SE 207). It follows the allegations

in the petition are not such as to authorize an

action for fraud to be based upon them...

Beach v. Fleming, 214 Ga. 303, 306 (104 SE2d

427).”

5

The complaint and the affidavit of Mrs. Swafford

establish that any contract to marry entered into by the

parties was one to be performed in California at some

indefinite time in the future. Plaintiff alleges she left

Georgia and traveled to California, arriving June 8,

1977, that on June 19, 1977, defendant gave a dinner

party announcing his “approaching marriage to plain-

tiff”. About two weeks passed and plaintiff was uneasy

because “no wedding date had been set”. She finally

alleges that on June 30, 1977, the defendant told her the

“engagement was off” and that she immediately left

California for Georgia.

There is no cause of action in California for

fraudulent promises to marry or for breach of contract

to marry. California Civil Code §43.4 provides: “A

fraudulent promise to marry or to cohabit after

marriage does not give rise to a cause of action for dam-

ages.” California Civil Code §43.5 provides: “No cause

of action arises for: (a) alienation of affection; (b) crim-

inal conversation; (c) seduction of a person over the age

of legal consent; (d) breach of promise of marriage.” In

this regard, see also Witken, Summary of California Law,

8th Edition, pages 2722-2724, discussing repre-

sentations involving promise of marriage.

Mrs. Swafford, is strenuously trying to avoid Cali-

fornia law by bringing this action in Georgia, She con-

tends in the complaint that a contract of marriage oc-

curred May 9, 1977, when the defendant in California

telephoned her at her home in Catoosa County,

6

Georgia. Her affidavit reveals she lived in California

from August 16, 1962, until the early part of April

1977.

The complaint in paragraph 4 alleges “Their friend-

ship blossomed into a romance and defendant proposed

marriage, plaintiff agreed, but defendant delayed for

reasons asserted by him. In early April of 1977 plaintiff,

disillusioned by defendant’s attitude, returned to her

native state of Georgia, arriving there on April 9,

1977.” It appears there was a contract to marry entered

into in California. She does not allege when this agree-

ment was made but was obviously after January, 1976,

when she says he first called her. She does state that

she was the one who became disillusioned and left the

defendant in California.

Even after reaffirmation of the contract alleged to

have been made May 9, 1977, there was never a

marriage date agreed to by the parties. If there was any

breach of the marriage contract, it occurred in Califor-

nia after her arrival on June 8, 1977. Paragraph II

alleges “Plaintiff was uneasy because no wedding date

had been set.” She says in paragraph 12 of the com-

plaint the defendant on June 30, 1977, told her the

“engagement was off”. Paragraph 13 alleges she then

left California for Georgia.

The Court was correct in dismissing the complaint as

to Count One upon two grounds: (a) Plaintiff does not

have any cause of action against the defendant for

7

The only basis for applying the Georgia Long Arm

Statute to the defendant in a suit for breach of contract

would be subsection (a) of the statute. Subsection (a)

requires the finding of an activity amounting to a

“transaction of business” within the State of Georgia.

As pointed out by the Court of Appeals in Shellenburger v.

Tanner (1976), 138 Ga. App. 399, (277 SE2d 266) at 411,

this activity must be more extensive than an activity

which will support a finding of a “contact” with

breach of promise to marry; (b) The defendant did not

transact any business in Georgia.

The Georgia Courts have long held that a contract

made in one state to be performed in another state will

be governed by the laws of the state of performance.

Supreme Court of Georgia in Vanzant, Jones & Company v.

Arnold, Hamilton & Johnson (1860), 31 Ga. 210, at page

213, ruled: “In such cases, that is, when the contract is

made in one place, and to be performed in another, it is

a well settled rule, that the contract, in conformity to

the presumed intention of the parties, as to its validity,

nature, obligation and interpretation, is to be governed

by the law of the place of performance.” More recently,

that Court in Pacolet Manufacturing Company v. Crescent Tex-

tiles, Inc. (1963), 219 Ga. 268 (133 SE2d 96), held: “It is

likewise the settled rule in this state that when a con-

tract is made in one place to be performed in another,

the contract, in conformity with the presumed inten-

tion of the parties, is to be governed by the law of the

place of performance.”

8

Georgia for the purpose of exercising jurisdiction in a

tort action under subsection (b).

It is apparent subsection (a) uses the term “busi-

ness” in the commercial and mercantile sense and is not

intended to include a purely personal transaction. In a

decision some four years after adoption of a Georgia

Long Arm Statute containing language in subsection

(a) identical to the language in the statute today, the

Court of Appeals of Georgia in Carey v. Linares (1970),

121 Ga. App. 150 (173 SE2d 101), held a judgment ob-

tained in Missouri against a Georgia resident was void

because of lack of jurisdiction. In that case, a Georgia

resident wrote to a Missouri resident asking for the

loan of $1,500.00. The plaintiff sent the money to the

Georgia resident. When it was not repaid, plaintiff filed

suit in the local magistrate’s court in Missouri and ob-

tained service under the Missouri long arm statute.

The Court of Appeals held:

“We believe the Missouri court would hold

that their statute was not intended to apply to

a purely private, relatively modest transac-

tion between individuals where the defendant

was never physically present within the state

and where the only ‘contact’ was established

by an artificial, ‘place of contract’ rule design-

ed for conflict of law purposes. See O'Neal Steel,

Inc. v. Smith, 120 Ga. App. 106 (169 SE2d 827).

“To hold otherwise would be to deny such

defendants, for all practical purposes, the op-

9

portunity to be heard. With no insurance com-

pany or corporation to bear the costs of out-

of-state litigation as a routine business ex-

pense, default judgments would be the rule.

We believe that in its application to this type of

situation, the statute would offend traditional

notions of fair play and substantial justice.”

“Business” has consistently been defined by the

courts in terms of its ordinary sense as being related to

matters concerned with earning a living. Snow v. Johnston

(1943), 197 Ga. 146 (28 SE2d 270); Flynt v. Stone Tracy

Company (1910), 220 U.S. 107.

Kulko v. Superior Court of California In and For the City and

County of San Francisco, 436 U.S. 84, 98 S.Ct. 1690, 56

L.Ed.2d 132 (1978) cited by the Fifth Circuit supports

this distinction between commercial and _ non-

commercial activities.

Petitioner relies upon Thorington v. Cash (Sth Cir.

1974), 494 F2d 582. That decision concerned applica-

tion of subsection (b) to a nonresident who allegedly

sent by mail, or telephone, or both, fraudulent mis-

representations upon which he intended that plaintiffs

rely in entering into a limited partnership; and, who

allegedly obtained such reliance thus committing a

“tortious act” in Georgia, subjecting him to jurisdiction

under the Georgia long arm statute, Code 24-113.1(b).

There were allegations of misrepresentation of exist-

ing facts unlike the instant case.

10

An action for breach of promise is an action on

breach of contract. Harris v. Tisom (1879), 63 Ga. 629.

This case is thus controlled by the decisions in Fulghum

Industries, Inc. v. Walterboro Forest Products, Inc, (Sth Cir.

1973), 477 ©2d 910, and Pennington v. Toyomenka, Inc. (Sth

Cir. 1975), 512 F2d 1291. Fulghum Industries, Inc., held

that the Georgia long arm statute was not applicable in

that action for breach of contract. This was ruled even

though as part of the negotiations for the contract

executed by parties in their respective states, officers of

defendant corporation had visited the Georgia plant of

plaintiff-and other sawmills erected by plaintiff in

Georgia and there had been numerous telephone calls

and mail communications related to the contract

between the Georgia plaintiff and the South Carolina

defendants.

In the Pennington case the Court held that a business

corporation which transmitted communications from

New York to Georgia by means of telephone and mail,

which sent goods into Georgia and was paid by checks

drawn ona Georgia bank had not “transacted business”

within Georgia long arm statute where it had never

had an agent or employee located in Georgia, had never

manufactured any product in Georgia, and had never

been domesticated or authorized to conduct business in

Georgia. The company was not subject to in personam

jurisdiction in Georgia even though the corporation

had sent agents into Georgia to meet with the Georgia

Company concerning the accounts in issue after con-

summation of the business and prior to filing the com-

plaint.

11

See also the decision of Chief Judge Lawrence in

Interstate Paper Corporation v. Air-O-Flex Equipment Company

(S.D. Ga. 1977), 426 F.Supp. 1323. Judge Lawrence

stated that in Georgia, to maintain a suit in tort arising

out of a contract the breach of duty must be one im-

posed by law and not merely by the contract itself. He

went on to rule that a foreign corporation which

fabricated and shipped materials and components for a

wood chip dumper to Georgia F.O.B. Minneapolis

could not be served under Ga. Code Ann. § 24-

113.1(a), He held said subsection was applicable to ac-

tions on contract and the defendant corporation did not

transact business in Georgia although there had been

negotiations between plaintiff and defendant by mail.

Any question about the correctness of the rulings of

the District Court and the Fifth Circuit in this case

should have been laid to rest by the Court of Appeals of

Georgia in Berry v. Jeff Hunt Machinery Company, 148 Ga.

App. 35, SE2d = (1978). The Court held a South

Carolina judgment against Berry, a Georgia resident

was void for lack of jurisdiction. The decision was based

upon Georgia law. The Court ruled:

“3. On motion for summary judgment,

the uncontroverted facts show that Berry

traveled to South Carolina to discuss with

Hunt the lease of heavy equipment, and

thereafter other negotiations apparently

transpired over the telephone and via the

mails. Two pieces of equipment were shipped

12

to Georgia and a third piece of equipment was

picked up by Berry in South Carolina. All lease

payments were sent to Hunt’s office in South

Carolina. The facts are in conflict as to

whether the subject matter of this case (the

actual pieces of machinery ultimately leased

by the appellant) were discussed in South

Carolina; however, the leases themselves

were sent to and signed by the appellant in

Georgia. Finally, the appellant returned for

repairs one of the leased pieces of equipment

to the appellee in South Carolina.

“For purposes of ‘long-arm’ jurisdiction,

‘{mJailing or telephoning orders to another

state does not of itself constitute the transac-

tion of any business . . .’ Process Systems v. Dixie

Pkg. Co., supra, p. 456. Similarly, where there

are no negotiations or contracts entered into

in the forum state, with respect to the goods

that are the subject matter of the litigation,

there have not been sufficient ‘contacts’ with

the forum state to comply with the ‘transact-

ing business’ requirement of Georgia Long

Arm Statute. O.N. Jonas Co. v. B & P Sales Corp.,

232 Ga, 256 (206 SE2d 437). On the facts

presented on motion for summary judgment,

the activities of the appellant in the forum

state did not satisfy the ‘minimum contacts’

requirement of the Georgia Long Arm Stat-

ute, a prerequisite to the establishment of

extraterritorial jurisdiction, and a foreign

13

judgment shall not be recognized by the

courts of this state if the foreign court did not

have personal jurisdiction over the defendant.

Code Ann. §110-1304(b); Boggus v. Boggus,

supra. Accordingly the trial court erred in

entering summary judgment in favor of the

appellee.”

CONCLUSION

It is respectfully submitted the District Court was

correct in dismissing the action for lack of personal

jurisdiction over the defendant. Petitioner has shown

no reason why the petition for writ of certiorari should

be granted and the petition should be denied.

SMITH, SHAW, MADDOX,

DAVIDSON & GRAHAM

JAMES D. MADDOX

Attorneys of Record for DICK

AVAKIAN

Post Office Box 29

Rome, Georgia 30161

(404) 291-6223

OF COUNSEL:

J. DOUGLAS MacARTHUR

CROSSLAND, CROSSLAND,

CASWELL & BELL.

Guarantee Savings Building

1171 Fulton Mall

Fresno, California 93721

14

CERTIFICATE OF SERVICE

I hereby certify that I am of counsel for DICK

AVAKIAN in the above-stated case and that I have

served the above and foregoing Respondent's Brief in

Opposition To Petition For Certiorari, upon Petitioner,

Nora Swafford, by mailing three copies thereof to Mr.

Frank M. Gleason, Attorney at Law, 102 Howard

Street, Rossville, Georgia 30741, attorney for

petitioner, in a properly addressed envelope with suf-

ficient postage affixed thereon.

This BG day of February) 1979 MAD

° DOX

Attorney at Law

JAMES ERB x