text:
    A99A0736.
    A & D ASPHALT COMPANY et al. v. CARROLL & CARROLL OF MACON, INC.
    (520 SE2d 499)
   Smith, Judge.

This appeal arises out of the purchase by Carroll & Carroll of Macon, Inc. of the business and assets of A & D Asphalt Company. The parties entered into several agreements in connection with the sale, including an asset purchase agreement, a lease agreement (under which A & D leased to Carroll for a term of five years real property on which were located the asphalt plant, shop, and offices purchased), and non-compete agreements executed by each of A & D’s shareholders. A & D and Ronnie H. Dykes, one of its shareholders (collectively “A & D”), filed this appeal in the Supreme Court of Georgia from an order entered after a hearing rendering final judgment on one count of a multi-count complaint filed by Carroll and enjoining Dykes from engaging in activities prohibited under the non-compete agreement. The Supreme Court transferred the appeal to this court, finding that as in Saxton v. Coastal Dialysis &c., 267 Ga. 177, 179 (476 SE2d 587) (1996), “the grant of injunctive relief . . . was merely ancillary to the underlying legal issue of whether the trial court properly construed [the non-competition agreement].” We find no error and affirm.

1. A & D first contends the trial court erred in entering final judgment against it on Count 9 of Carroll’s complaint, because it did not receive proper notice that the hearing would result in a final determination of Carroll’s claim for injunctive relief against Dykes. We find no merit in this contention.

Carroll’s complaint, as amended, stated several claims against A & D and sought specific performance, declaratory and injunctive relief, and damages. A hearing was scheduled after Carroll filed a motion requesting the trial court to enter an order granting equitable relief. The motion sought relief under Count 1 of the first amended complaint, asking for specific performance of A & D’s contractual obligation under the lease agreement to convey the leased premises under a purchase option. It also sought relief under Count 9 of the first amended complaint, in the form of an order enjoining Dykes from engaging in activities prohibited under the non-compete agreement executed by him. The trial court issued a rule nisi and order, scheduling a hearing for July 1, 1998, on the motion.

The order was served on A & D on May 7, 1998, and A & D filed its response on June 8, 1998, urging denial of the motion and clearly acknowledging that the hearing scheduled would be an evidentiary hearing. At this hearing, A & D presented evidence and argued the case on the merits. When the parties rested, the court indicated it was prepared to enter a final ruling on the merits of the claim for injunctive relief on Count 9 of the complaint, and A & D did not object.

OCGA § 9-11-65 (a) (2) provides that “[b]efore or after the commencement of the hearing of an application for an interlocutory injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application.” The trial court’s order recites specifically that the court used the authority granted by this Code section and “advanced and consolidated the trial on the merits of the Count Nine claim for injunctive relief with the hearing of Plaintiff’s motion.” It is well established that a court may do so “if the parties have not objected or have acquiesced. [Cit.]” Williams v. Tritt, 262 Ga. 173, 175 (2) (415 SE2d 285) (1992). Although A & D states repeatedly in its briefs on appeal that it objected, the transcript of the hearing shows clearly that A & D’s objections were addressed specifically to the trial court rendering a final judgment on the other issue raised by Carroll’s motion, specific performance of the purchase option in the lease agreement under Count 1 of the complaint. The trial court’s order expressly notes that the issue of specific performance “is still under consideration by the Court and will be addressed in a separate order.”

Moreover, the trial judge announced from the bench that it would not render a final judgment at the hearing on the specific performance issue because fact issues remained, but that he intended to “rule . . . today” on the injunction involving the covenant not to compete. The trial court ended this announcement with the question: “All right?” And even after this invitation, no objection was voiced.

A & D acknowledges that it received notice of a hearing on the motion for an injunction and was aware of the issues to be covered at the hearing. Notwithstanding its protestations on appeal, it also understood that the hearing was to be an evidentiary hearing. Compare Herring v. Standard Guaranty Ins. Co., 238 Ga. 261 (232 SE2d 544) (1977) (where rule nisi ordered hearing only on whether equitable accounting should be had, words “other equitable relief” in rule nisi inadequate notice that accounting would be conducted at hearing). A & D presented evidence at the hearing. Because the record thus demonstrates that the parties acquiesced in the court’s plan of action, the trial court was authorized under OCGA § 9-11-65 (a) (2) to make a final determination of the merits of the issues. Williams, supra. See also Sapp v. Owens, 270 Ga. 36 (504 SE2d 665) (1998); Regency Club v. Stuckey, 253 Ga. 583, 586 (3) (324 SE2d 166) (1984).

2. In two enumerations, A & D contends the trial court improperly rewrote and “blue pencilled” the non-compete agreement. A & D argues that the court engaged in interpreting a contract that was unambiguous and in disregarding a provision that provided for the agreement’s termination. We do not agree.

Paragraph (2) of the agreement in issue provided, among other things, that Dykes could not engage in

any of the businesses or services engaged in or rendered by A & D within three years prior to the date of closing (including without limitation the operation of an asphalt manufacturing plant, soil remediation plant, asphalt, paving, grading, road base, curb and gutter, sidewalk and storm drainage structure construction) or have any equity or profit interest in any corporation, person, or other entity engaged in any such business.

Paragraph (3) of the agreement provided:

This covenant not to compete shall be in effect until the earlier of: (i) Five (5) years from the date of the execution hereof, or (ii) the date [Carroll, or] its successors [in] interest, ceases operating the business, in whole ór in part, on the real property described in Exhibit “A” or passes out of existence.

The record shows that Dykes engaged in activities prohibited under the agreement. A & D did not dispute this allegation; instead, it argued at the hearing and continues to argue on appeal that Dykes’s activities were no longer prohibited. A & D contends the non-compete agreement terminated when Carroll sold the soil remediation plant because Carroll “ceased operating the business ... in part.”

We cannot agree with A & D’s argument that because Carroll no longer engages in some of the activities enumerated in paragraph (2) (a) of the agreement, it has “cease[d] operating the business, in . . . part” within the meaning of paragraph (3) of the agreement. The activities listed in paragraph (2) (a) are those Dykes is prohibited from conducting during the term of the agreement; they do not define the term “business” in paragraph (3). And the testimony at the hearing showed clearly that Carroll had not ceased operating its business, either in whole or in part. Dykes acknowledged, in fact, that Carroll was still very much actively engaged in the asphalt business. It merely sold the equipment used for soil remediation because that equipment was in poor repair and was causing dust control problems that interfered with the asphalt plant. At all times since purchasing A & D’s assets, Carroll has continued to operate a business on the leased property. Nothing in the record indicates that the trial court rewrote or “blue pencilled” the agreement. The record does show that the trial court correctly declined to adopt A & D’s strained and unreasonable construction of it.

3. A & D also maintains the trial court erred in proceeding with a full trial in violation of its right to a trial by jury, arguing that the court decided questions of fact, without indicating what those fact issues might be.

It was clear at the hearing, once evidence had been presented, that the issue of whether Dykes had engaged in activities prohibited under the non-compete agreement was not in dispute. Both sides agreed that he had. See Division 2, supra. The only question for resolution was whether the agreement had been terminated and was therefore unenforceable, as urged by A & D.

The construction of a contract is a question of law for the court. Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (1986). “It is not the province of the jury to construe unambiguous contracts. [Cit.]” Allstate Ins. Co. v. Brannon, 214 Ga. App. 300, 301 (447 SE2d 666) (1994). When the language of a contract is plain and unambiguous, the court must afford it its literal meaning, despite a party’s contention that he had a different understanding of its meaning. Cotton States Mut. Ins. Co. v. Smelcer, 212 Ga. App. 376 (441 SE2d 788) (1994). The trial court found that the provisions in issue in this contract were unambiguous and that the agreement had not terminated, as contended by A & D. Consequently, no issues remained for jury resolution, and it follows that the trial court did not err in making a final ruling on the merits.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

Decided July 6, 1999 — Cert. applied for.

Linwood R. Lovett, Paul R. Ayerbe, for appellants.

Vaughn, Wright & Sterns, James A. Vaughn, Frederick L. Wright II, for appellee.

       The agreement also prohibited Dykes from soliciting any business from A & D’s clients and from soliciting for employment any person who had been employed by A & D within one year prior to the closing.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A99A0859.
    In the Interest of M. J. B., a child.
    (520 SE2d 497)
   Johnson, Chief Judge.

In this appeal, the mother of M. J. B. challenges the termination of her parental rights on the ground that the juvenile court should not have allowed her to be served with process by publication. We find that the court did not err in allowing service by publication and affirm.

The record shows that M. J. B. and his mother tested positive for cocaine at M. J. B.’s birth. Six days later, the child was released from the hospital into the temporary custody of the Fulton County Department of Family & Children Services (“the department”). The mother had no contact with the department while the child was in its custody, and the department did not know the mother’s whereabouts.

Ten months after the child was taken into the department’s custody, the department petitioned to terminate the parental rights of M. J. B.’s mother. As to the mother, the department alleged parental inability or misconduct based on: the mother and child testing positive for cocaine at the child’s birth; the mother’s failure to visit the child or contact the department while the child was in the department’s custody; the mother’s failure to provide any support for the child; the mother’s unrehabilitated drug use; the mother’s failure to inform the department of her whereabouts; and her failure to show any interest in the child. See OCGA § 15-11-81 (b).

When the department could not locate the mother in order to personally serve her with the summons and process, it requested the court’s permission to serve her by publication. In support of its request, the department submitted an affidavit in which the caseworker handling M. J. B.’s case stated that, in her efforts to locate the mother, she searched local telephone directories, called directory assistance, searched state Aid to Families with Dependent Children and food stamp computer records, called “any contact telephone numbers for the mother” in the department’s records, and contacted area jails. Despite her efforts, the caseworker was unable to locate the mother. The juvenile court found that the mother’s whereabouts were unknown and ordered service by publication. The mother was not present during the termination hearing, though she apparently appeared at the end of the hearing. After the hearing, the juvenile court terminated her parental rights.

1. The mother contends that the juvenile court erred in ordering service by publication when the department failed to show that it made reasonable efforts to serve her personally. Specifically, she complains that the department failed to show that it contacted the maternal grandmother, even though the department knew where the grandmother lived; the mother argues that her mother may have known her whereabouts. We find no grounds for reversal.

A juvenile court may order service of process by publication in a termination proceeding if, after reasonable effort, a party cannot be found and her address cannot be ascertained. OCGA § 15-11-27 (b). See generally In the Interest of J. B., 140 Ga. App. 668, 674 (231 SE2d 821) (1976). In support of its request to serve the mother by publication, the department filed with the court an affidavit showing the efforts undertaken by the department to locate the mother. In addition, the caseworker testified at the hearing that the mother’s whereabouts were unknown and that the mother failed to contact the department about the child for the entire period M. J. B. was in the department’s custody; by the time of the hearing, M. J. B. had been in the department’s custody for more than a year.

We agree with the juvenile court that the department made a reasonable effort to locate the mother. The mother cannot complain that the department failed to make extraordinary efforts to locate her, particularly when she made no effort to contact the department while the child was in its custody. See In the Interest of T. B. R., 224 Ga. App. 470, 478 (3) (480 SE2d 901) (1997).

Contrary to the mother’s contention, we cannot presume that because the affidavit does not specifically state that the caseworker contacted the maternal grandmother, the caseworker did not do so. In her affidavit, the caseworker stated that she called “any contact telephone numbers” she had for the mother. Nothing in the record indicates that the grandmother was not one of the persons contacted. On appeal, the burden is on the appellant to show error affirmatively by the record. In the Interest of J. E. E., 228 Ga. App. 831, 833 (1) (493 SE2d 34) (1997); see In the Interest of R. M. M., 232 Ga. App. 553, 555 (2) (502 SE2d 480) (1998). This she has failed to do.

2. In light of the foregoing, the mother’s remaining enumeration of error claiming the termination was invalid because service was defective is also without merit.

Decided July 6, 1999 — Cert. applied for.

Christopher J. McFadden, for appellant.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Shalen A. Sgrosso, Assistant Attorney General, P. Brian Campbell, James W. Blount, for appellee.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       The department also petitioned to terminate the father’s rights. That petition is not at issue in this appeal and will not he considered.


author: McMurray, Presiding Judge.

text:
    A99A0648.
    WESTCORP SOFTWARE SYSTEMS, INC. v. ODELL et al.
    (519 SE2d 755)
   McMurray, Presiding Judge.

Charles B. West, Jr., Westcorp Software Systems, Inc.’s (“Westcorp”) majority shareholder and chairman of the board of directors, executed symmetrical employment contracts on Westcorp’s behalf with three of the company’s top executives — Michael Allen Odell, Westcorp’s president; Harry Robert Howard, Jr., Westcorp’s executive vice president and member of the board of directors, and Hugh Leon Rhodes III, Westcorp’s vice president and member of the board of directors. In addition to generous salaries, benefits and bonuses, these agreements provided each executive with, among other things, an absolute right to twelve months severance pay, a continuation of certain benefits for two years after discharge, plus the right to collect attorney fees and expenses for any required enforcement of the employment agreement.

After Charles B. West, Jr. fired Odell, Rhodes and Howard (“the executives”), Westcorp filed an action to declare the employment contracts void. The executives counterclaimed to recover severance benefits under their employment contracts. The trial court granted the executives’ motion for summary judgment and denied Westcorp’s motion for summary judgment, rejecting (among other things) Westcorp’s unconscionability, ultra vires and conflict of interest claims and fraudulent inducement and intentional interference with contractual relations defenses. The trial court declared that the executives’ employment contracts are enforceable as a matter of law and that the executives are entitled to recover from Westcorp severance benefits under their respective employment contracts — including attorney fees. Westcorp filed this appeal upon entry of the trial court’s summary judgment order. Held:

1. To prevail on summary judgment (OCGA § 9-11-56), the movant is required to make a prima facie showing that the movant is entitled to judgment as a matter of law. Hyde v. Gill, 236 Ga. App. 729, 731 (1) (513 SE2d 278). It is undisputed in the case sub judice that the executives’ claims against Westcorp for severance pay are based on employment agreements which were executed during a conflicting interest transaction (as defined by OCGA § 14-2-860), by the corporation’s majority shareholder and chairman of the board of directors, Charles B. West, Jr. But neither the executives nor Westcorp has cited authority or evidence indicating that West had the power to bind Westcorp to the employment agreements. While a corporation’s chief executive officer may have authority to execute contracts on the corporation’s behalf, such power cannot be assumed for purposes of summary adjudication in a transaction involving high-level conflicting interests absent a showing of express or implied authorization by the shareholders or articles of incorporation. See OCGA § 14-2-841. Accordingly, since there is no proof that West had authority to bind Westcorp to the employment agreements, the executives failed to establish a prima facie right to recover against Westcorp for breach of contract. The trial court, therefore, erred in granting the executives’ motion for summary judgment. See Bresnahan v. Lighthouse Mission, 230 Ga. App. 389 (496 SE2d 351), holding that the signature of a corporate president, acting alone, is insufficient to bind the corporation. See also Dunaway v. Parker, 215 Ga. App. 841, 847 (2) (453 SE2d 43).

Decided June 24, 1999

Reconsideration denied July 7, 1999 — Cert. applied for.

Culbreth & Sharony, Jackson L. Culbreth, Abraham A. Sharony, for appellant.

2. The executives’ argument that Westcorp ratified the employment agreements by providing executive Odell with severance benefits (about five months worth) after his termination does not authorize the trial court’s summary judgment order because there is no conclusive proof that any corporate officer or director acted with authority in paying Odell benefits under his disputed employment contract. Whether a ratification occurred is ordinarily a question for the jury. Hunter v. Roberts, 199 Ga. App. 318-319 (2) (404 SE2d 645). See Dunaway v. Parker, 215 Ga. App. at 848 (3), supra.

3. We do not address Westcorp’s enumerations of error regarding the validity of specific provisions of the disputed employment agreements as the threshold question of West’s authority to bind Westcorp contractually may render any opinion as to these issues unnecessary.

Judgment reversed.

Ruffin, J., concurs. Andrews, J., concurs in the judgment only.

Kilpatrick Stockton, Roderick C. Dennehy, Jr., Christopher B. Lyman, for appellees.


author: Eldridge, Judge.

text:
    A98A1005.
    LEMON v. MARTIN.
    (520 SE2d 516)
    Decided July 7, 1999.

      A. Russell Blank, for appellant.

      Gray, Hedrick & Edenfield, L. Bruce Hedrick, for appellee.
   Eldridge, Judge.

In Martin v. Johnson-Lemon, 271 Ga. 120 (516 SE2d 66) (1999), the Supreme Court reversed the judgment of this Court’s opinion in Lemon v. Martin, 232 Ga. App. 579 (502 SE2d 273) (1998). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment affirmed.

McMurray, P. J., and Blackburn, P. J., concur.


author: Smith, Judge.

text:
    A99A0158.
    VERSICO, INC. v. ENGINEERED FABRICS CORPORATION.
    (520 SE2d 505)
   Smith, Judge.

We granted the application of Versico, Inc. for interlocutory appeal in this action brought by Engineered Fabrics Corporation (“EFC”) for breach of the warranty, issued by Versico’s predecessors in interest to EFC’s predecessors in interest, covering a roofing system installed on buildings in Rockmart now occupied by EFC. We find no error in the trial court’s detailed and well-reasoned order denying Versico’s motion for summary judgment and granting partial summary judgment to EFC on the issue of liability, and we affirm the judgment.

The roofing system was installed on the buildings in 1986 by a roofing contractor, using materials manufactured by the Goodyear Tire & Rubber Company. At that time, Goodyear also owned the buildings in issue, which were occupied by its wholly owned subsidiary, Goodyear Aerospace Corporation. Goodyear issued a ten-year warranty on its materials. Goodyear later sold its Engineered Fabrics Division, including the facility in Rockmart, to Loral Corporation, which sold it to Opus Acquisition Company in 1989. Opus assigned its assets and contract rights to EFC. Similarly, Goodyear sold its roofing systems business to Carlisle Companies in March 1993. Versico, Inc., a new corporation, was formed to handle this business.

The record shows that the roofing installed in 1986 never performed properly. It began leaking almost immediately, and Goodyear honored the warranty by inspecting the premises and carrying out repairs when called upon to do so first by Goodyear Aerospace, then Loral, and finally EFC. After Versico became responsible for the business, it, too, responded to warranty claims and continued to perform repairs. This continued until October 27, 1995, when Versico informed EFC that it would no longer honor the warranty. Further requests were ignored or refused, and EFC filed this action against Versico in April 1996 for breach of the warranty.

Versico answered, admitting jurisdiction and venue but denying liability. Versico moved for summary judgment on several grounds: that Versico was not a party to the express warranty and therefore owed EFC no contractual obligation; that similarly, EFC was not a party to the warranty contract and lacked standing to enforce it; and that EFC’s claim under the warranty was barred by the applicable statute of limitation. The trial court denied Versico’s motion for summary judgment on these grounds, finding an ambiguity in the provisions of the purchase and sale agreement between Goodyear and Versico and applying the rules of contract construction to find that it was the intention of the parties that Versico carry out Goodyear’s obligations under the warranties it had issued.

The court also denied Versico’s motion on the statute of limitation ground, finding that the applicable statute of limitation was four years, under OCGA § 11-2-725 (1), and that the limitation period did not begin running until October 12, 1995, when notice was given by EFC of damage and Versico refused to make repairs under the warranty. The trial court’s order also found that the evidence had established Versico’s contractual obligation to honor the warranty issued by Goodyear, as well as its breach by Versico when it refused to repair or replace the roofing system in October 1995, and that the only issue remaining for jury resolution was that of damages.

1. Versico first contends the trial court erred in ruling sua sponte on the issue of liability. It is well established that a trial court may do so, and it may also grant summary judgment to the nonmoving party. The only restriction on such a grant of summary judgment is that it must be proper “in all other respects.” See, e.g., Generali U. S. Branch v. Southeastern Security Ins. Co., 229 Ga. App. 277, 278 (1) (493 SE2d 731) (1997). “This means that in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment.” (Citations and punctuation omitted.) Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995). Versico maintains that entry of judgment against it was improper in this case because it had no opportunity to respond and present evidence on this issue.

This contention is belied by the record. Versico itself made assertions in the trial court that served as solemn admissions in judicio on this issue. See generally Jabaley v. Jabaley, 208 Ga. App. 179 (1) (430 SE2d 119) (1993). In its brief in support of its motion for summary judgment, it admitted that the roofing system has leaked continuously since the date of installation and that EFC and its predecessors in interest have “never had a roof that was leak-free or maintenance free.” In the “Statement of Material Facts as to Which it Contends There is No Genuine Issue,” filed in conjunction with the motion for summary judgment, Versico alleged that the fact that the leaking began “[immediately after the roofing systems were installed” and that the leaking had continued were undisputed. In that document, Versico also admitted as undisputed that it had made several attempts to repair the roofs after March 15, 1993, and that it wrote the letter to EFC on October 27, 1995, indicating it would make no further repairs. Although Versico now claims these were not “admissions” but merely statements to the court of EFC’s contentions for purposes of the motion for summary judgment, the record shows that while Versico at times listed some of EFC’s contentions, the statements referred to here, as well as others, were admitted by Versico in its pleadings without qualification of any sort. See Walker v. Jack Eckerd Corp., 209 Ga. App. 517-518 (1) (434 SE2d 63) (1993).

Such an admission in judicio may be considered for purposes of summary judgment, Walker, supra at 518, and it “cannot be contradicted by other evidence unless it is withdrawn or amended on formal motion.” (Citation and punctuation omitted.) McCoy v. West Building Materials, 232 Ga. App. 620, 621 (502 SE2d 559) (1998). The effect of the admission is to relieve an opposing party from presenting any evidence as to that fact issue. It “is conclusive; it is binding upon the party and estops the party from denying the admission or introducing any evidence to controvert such an admission, even if the admission is not true.” (Citations and punctuation omitted.) Jabaley, supra. See also McCoy, supra.

McClendon v. 1152 Spring Street Assoc., 225 Ga. App. 333 (484 SE2d 40) (1997), and Aycock v. Calk, 222 Ga. App. 763 (476 SE2d 274) (1996), cited by Versico, do not require a different result. Both cases affirm the general principles discussed above. They are, however, distinguished factually from this case, in that in those cases the nonmoving parties did not bring forward the evidence supporting the sua sponte grant of summary judgment and did not have an opportunity to respond because the issue had never been raised. In addition, those parties were not estopped or otherwise foreclosed from controverting the evidence supporting the grant of summary judgment. Because Versico itself provided the trial court with evidence sufficient to support a summary judgment against it and no notice to Versico was necessary since Versico was estopped by its admissions in judicio from contesting those admissions, the trial court did not err in making a ruling on the merits as to liability.

2. Versico next contends the trial court erred in finding an ambiguity in the contract between Versico and Goodyear, in applying the rules of contract construction, and in concluding that EFC was an intended third-party beneficiary of that contract. We do not agree.

The “Agreement for Purchase and Sale of Assets” between Goodyear, Carlisle Corporation, and Versico contains two provisions that the trial court found were in apparent conflict, creating an ambiguity. Section 3.1 of the agreement provides that

As payment of the consideration due seller ... by purchaser . . ., purchaser agrees to assume and to pay and/or perform, in accordance with their respective terms from and after the closing date, each of the following (and only the following) obligations or commitments of seller to the extent (and only to the extent) that they relate to the business [:] . . . (b). . . all product liability, including but not limited to product warranty liability, relating to all roofing products . . . sold by seller prior to the closing date. Purchaser shall also perform all warranty service obligations of seller relating to roofing products . . . sold by seller prior to the closing date.

Section 8.4 provides simply that “[n]othing created in this agreement, whether express or implied, is intended to confer upon any person not a party to this agreement any rights or remedies under or by reason of this agreement.”

The trial court’s order correctly recites that it is for the court to determine the construction of a contract, at least initially. Even when an apparent ambiguity exists, the contract raises no jury question unless the ambiguity remains after applying the rules of contract construction. CareAmerica v. Southern Care Corp., 229 Ga. App. 878, 880 (1) (494 SE2d 720) (1997). The cardinal rule of contract construction is to ascertain the intent of the parties. OCGA § 13-2-3. The trial court applied this rule.

No doubt existed that the language of § 3.1 (b) shows the parties intended for Versico to take over Goodyear’s obligations with regard to roofing warranties already issued. The evidence showed that the purchase and sale agreement had been negotiated based upon the expected expenditures for work on outstanding warranties and that a reserve fund had been set up for Versico to use in meeting its obligations under the warranties. The court also noted that Versico had itself informed warranty holders to direct their repair requests under the warranties to Versico and had actually performed warranty work for EFC. The court therefore concluded that the intention of the parties was for Versico to perform all warranty work on the outstanding Goodyear warranties.

The court then reconciled § 8.4 of the agreement with this intention by concluding that it does not include any existing warranty holders in its purview. This was merely the application of another rule of contract construction providing that when specific provisions in a contract are applicable, they prevail over any conflicting general language. See, e.g., McDuffie v. Hoobler, 203 Ga. App. 325, 328 (416 SE2d 853) (1992). We conclude, therefore, that the trial court’s procedure and reasoning were in accord with the rules of contract interpretation, and we find no error in the conclusion reached.

3. In its final enumeration, Versico asserts that the trial court erred in finding that EFC’s claim for breach of warranty was not barred by the applicable statute of limitation. We find no merit in this enumeration.

The trial court found that the parties agreed this case involved a sale of goods; the relevant statute of limitation therefore was four years, under OCGA § 11-2-725 (1). Relying upon Benning Constr. Co. v. Lakeshore Plaza Enterprises, 240 Ga. 426 (241 SE2d 184) (1977), Versico argued that the limitation period had expired, because it commenced running upon the first notification to Goodyear almost immediately after installation that the roofing system was malfunctioning. EFC, on the other hand, relied upon Space Leasing Assoc. v. Atlantic Building Systems, 144 Ga. App. 320 (241 SE2d 438) (1977), in support of its position that the limitation period commenced when Versico informed it that the warranty would no longer be honored.

The trial court found that Versico breached the warranty when it refused to repair on October 27, 1995, and that this breach “related back” to October 12, 1995, the date on which EFC last notified Versico of damage before Versico’s refusal to make repairs. The court ruled that the statute therefore commenced running on October 12, 1995, and that EFC’s complaint had been filed within four years of the accrual of EFC’s cause of action, as required by OCGA § 11-2-725 (1).

Versico contends that regardless of whether Benning or Space Leasing is followed, EFC’s complaint was time barred. We need not address whether the complaint was time barred under Benning, because that case is distinguishable on its facts and is inapplicable here. In Benning and in Clonts v. Scholle, 172 Ga. App. 721, 722 (324 SE2d 496) (1984), cited by Versico, the warrantors never attempted to make repairs under the warranty. When, as here, the warranty includes a provision for replacement or repair, it is logical that a different rule applies. As stated in Ford Motor Co. v. Gunn, 123 Ga. App. 550 (181 SE2d 694) (1971), upon which the court in Space Leasing relied, such warranty

contemplates that the warrantor shall have an opportunity to remedy defects. Thus the warranty is not instantly breached if the [product] is found on delivery or at some time thereafter within the warranty period to have a defective part or operational deficiency. The language of the warranty provides that in such event the manufacturer . . . will replace or repair . . ., and do what is necessary to bring the [product] to normal at no cost to the purchaser. ... [I] t is the refusal to remedy within a reasonable time, or a lack of success in the attempts to remedy which would constitute a breach of warranty.

Id. at 551 (1). In Space Leasing, this court held, therefore, that although a breach of warranty generally occurs upon the delivery of goods under the Uniform Commercial Code, when an agreement exists to repair or to replace the goods, the warranty will not be deemed breached until and unless the warrantor refuses or fails to repair. Id. at 325 (4).

In this case, because the warranty included an agreement to replace or repair, no breach occurred until Versico refused to perform further repairs. We find no merit in Versico’s argument that the trial court ignored other language in Space Leasing to its detriment. We held in Space Leasing that it was the refusal to remedy “or a lack of success in the attempts to remedy,” that constituted breach of warranty. (Emphasis omitted.) Id. Versico argues that EFC should therefore be penalized for its patience in allowing repeated attempts at warranty repair that were, in the words of Versico, “simply unsuccessful.” We decline to adopt this view, particularly in light of Versico’s assurance, almost up to the point at which it refused to perform any more repairs, that the repairs would be successful. The trial court correctly ruled that Versico breached its warranty when it refused to conduct further warranty repairs and that EFC’s complaint was filed well within the limitation period, which did not commence running until the breach.

Decided July 7, 1999 — Cert. applied for.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert M. Brinson, Ivy S. Duggan, for appellant.

Shaw, Maddox, Graham, Monk & Boling, Virginia B. Harman, Thomas H. Manning, for appellee.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       EFC’s complaint also stated claims for strict liability and breach of an implied warranty for fitness for a particular purpose, but these were later dismissed by EFC.

       We note that Versico raises more than one issue in this enumeration, in violation of the requirement in OCGA § 5-6-40 that each error alleged be set out separately. In such cases, it is within this court’s discretion to elect to review none, or any one or more, of the asserted errors. Stubbs v. Harmon, 226 Ga. App. 631, 633 (2) (487 SE2d 91) (1997). Because we cannot, in this case, address any one of these errors without touching upon the others, we elect to review all the asserted errors together.

       Versico also argues that its repair attempts were “subsequent repair attempts” that did not “toll” the statute of limitation, relying upon cases such as Heffernan v. Johnson, 209 Ga. App. 139, 140 (433 SE2d 108) (1993), that do not involve breach of warranty and are totally inapplicable.


author: Ruffin, Judge.

text:
    A99A0162, A99A0163.
    BELL et al. v. SASSER et al.; and vice versa.
    (520 SE2d 287)
   Ruffin, Judge.

In October 1991, Robert Sasser became president of Carolina Skiff, Inc., a company that manufactures boats in Waycross. Due to management disagreements, Sasser left Carolina Skiff in August 1992. In 1993, he and his son, John Sasser, started their own boat manufacturing company called Sundance Boats, Inc. (Sundance). The Sassers were the only stockholders in Sundance.

In late 1993, Seaborn W. Bell began negotiating with the Sassers about acquiring an interest in Sundance. The parties eventually entered into an agreement for the sale of the business, under which Bell would pay the Sassers $200,000 for all of the stock of Sundance (100 shares). Following the closing, Robert Sasser resumed the presidency of Carolina Skiff. Although Sundance apparently remains in business, it was not turning a profit as of late 1995.

In August 1995, Bell and Sundance filed a six-count complaint against Robert Sasser, John Sasser, and Carolina Skiff. Count 1 of the complaint sought to recover the $200,000 purchase price, alleging that the Sassers sold Bell unregistered securities in violation of Georgia law. Count 4 alleged that Robert Sasser fraudulently misrepresented to Bell that he would personally take care of any warranty work required on Sundance boats manufactured prior to the purchase, and Count 5 alleged that Robert Sasser and Carolina Skiff conspired to drive Sundance out of business.

The parties filed cross-motions for partial summary judgment as to Count 1 of the complaint. In addition, the defendants filed a motion for summary judgment on the remaining counts. The trial court granted summary judgment in favor of the defendants on all claims except Counts 4 and 5. In Case No. A99A0162, Bell and Sun-dance appeal the entry of summary judgment against them on Count 1. In Case No. A99A0163, the Sassers and Carolina Skiff appeal the trial court’s failure to grant summary judgment in their favor on Counts 4 and 5. For reasons that follow, we affirm in part and reverse in part.

Summary judgment is proper when “there is no genuine issue as to any material fact and . . . the movant is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c); see also Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). We review the grant or denial of a motion for summary judgment de novo, construing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmovant. McDuffie v. Argroves, 230 Ga. App. 723, 724 (1) (497 SE2d 5) (1998). “[A] grant of summary judgment must be affirmed if it is right for any reason.” Bob v. Hardy, 222 Ga. App. 550, 551 (1) (474 SE2d 658) (1996).

Case No. A99A0162

1. At the closing of the Sundance purchase, the Sassers endorsed and notarized the backs of their stock certificates. The portion of the certificates indicating the transferee was left blank. However, blanks were filled in indicating that the Sassers “do hereby irrevocably constitute and appoint Seaborn W. Bell Attorney to transfer the said Shares on the books of [Sundance] with full power of substitution in the premises.” The Sundance stock was not registered in accordance with the Georgia Securities Act of 1933.

After the sale, five individuals in addition to Bell invested in Sundance. The day after closing, Bell convened a meeting of the investors. New stock certificates numbered “3” through “9,” totaling 400 shares, were issued to the investors, including Bell. The original stock certificates numbered “1” and “2” that Bell received from the Sassers were not transferred and apparently were retired.

Bell argues that the Sassers’ sale of unregistered stock to him violated the Georgia Securities Act and that the Sassers are required to repurchase the shares at the price Bell paid for them. The trial court ruled in favor of the Sassers, finding that the Georgia Securities Act did not apply to the Sundance sale transaction and that even if it did, Bell himself had violated the Act, precluding recovery. We disagree.

As a threshold matter, we find that the shares of Sundance stock were “securities” within the meaning of the Act. In Cohen v. William Goldberg & Co., 262 Ga. 606, 607 (1) (423 SE2d 231) (1992), our Supreme Court ruled that the initial inquiry for determining whether stock should be treated as securities is the “stock characterization” test set forth by the United States Supreme Court in Landreth Timber Co. v. Landreth, 471 U. S. 681 (105 SC 2297, 85 LE2d 692) (1985). Under that test,

when an instrument is both called “stock” and bears stock’s usual characteristics, a purchaser justifiably may assume that the federal securities laws apply. Those characteristics usually associated with common stock are (i) the right to receive dividends contingent upon an apportionment of profits; (ii) negotiability; (iii) the ability to be pledged or hypothecated; (iv) the conferring of voting rights in proportion to the number of shares owned; and (v) the capacity to appreciate in value.

(Citations and punctuation omitted.) Cohen, supra. If, and only if, the stock does not satisfy these criteria, then the next inquiry is whether the stock otherwise qualifies as a security under ÓCGA § 10-5-2 (16). Id. at 608-609. The appropriate analysis for this determination is the “economic reality” test set forth in Securities Exchange Commission v. W. J. Howey Co., 328 U. S. 293 (66 SC 1100, 90 LE 1244) (1946). Cohen, supra at 609. Under the economic reality test, a transaction constitutes a securities transaction if there is (1) an investment; (2) a reasonable expectation of profits; and (3) reliance on the management of another party to create the profits. Id. at 607.

In this case, the instruments in question are, on their face, certificates of shares in the Sundance corporation. Accordingly, the starting point for determining whether this stock constitutes securities under Georgia law is whether it bears the characteristics usually associated with stock. Cohen, supra; Landreth, supra at 686. The trial court, however, concluded that this case is “difficult, if not impossible, to analyze under the Landreth stock characterization test” and therefore skipped directly to the Howey economic reality test. The court cited Huggins v. Chapin, 227 Ga. App. 340, 341 (1) (489 SE2d 109) (1997), in which this Court applied the economic reality test, rather than the stock characterization test, to determine whether the sale of an interest in a closely held corporation constituted a securities transaction under Georgia law. In Huggins, the investor contributed $50,000 to Huggins in exchange for a ten percent interest in Huggins’ closely held corporation. Id. at 340. Apparently, no stock certificates were ever issued or transferred to the investor, although five months later, the parties executed a document explaining that the contribution represented a ten percent ownership interest in the company. Id. at 340-341. Based on these facts, we determined that the stock characterization analysis was not workable because the investment occurred long before the parties executed the document outlining its terms. Id. at 341 (1).

The situation presented here is quite different from that in Huggins. The parties executed an agreement for the sale of all outstanding Sundance stock, and on the day of closing the sellers endorsed their stock certificates, giving Bell power of attorney to transfer the shares on the books of the corporation. As in Cohen and Landreth, the transaction clearly involved stock, and thus the stock characterization test applies. See Cohen, supra at 609-610 (2); Landreth, supra at 683-684.

Applying the stock characterization test, we conclude that the shares of Sundance stock were securities within the meaning of Georgia law. First, the Sundance stockholders were entitled to receive dividends when profits were apportioned. Under Georgia law, the articles of incorporation must authorize at least one class of shares entitled to receive the net assets of the company upon dissolution. OCGA § 14-2-601 (b) (2). As Sundance’s articles of incorporation do not create separate classes of shares, then, by law, all shares must be entitled to participate in asset distribution. Second, the Sundance stock was negotiable, as evidenced by the Sassers’ sale of their shares to Bell. Moreover, Sundance’s by-laws expressly contemplate such transfers. Third, we find no evidence indicating that the Sundance shares could not be pledged or hypothecated. Fourth, Sundance’s bylaws expressly provide that stockholders are entitled to one vote for each share of stock standing in their name. Finally, the Sundance stock apparently has the capacity to increase in value, as Bell and the Sassers negotiated a purchase price for it. We therefore find that the Sundance stock meets the stock characterization test and is subject to the Georgia Securities Act. Cohen, supra at 610.

The Georgia Securities Act makes it unlawful to sell or offer for sale an unregistered security. OCGA § 10-5-5 (a); DeBoard v. Schulhofer, 156 Ga. App. 158, 159 (1) (273 SE2d 907) (1980). A buyer of unregistered securities has a civil remedy against the seller for the purchase price of the security, “upon the tender, where practicable, of the security at any time before the entry of judgment, or for damages if he no longer owns the security.” OCGA § 10-5-14 (a). See Utzman v. Caribbean &c. Dev. Corp., 107 Ga. App. 56, 57-59 (129 SE2d 62) (1962) (decided under former law). The Sassers argue that Bell is not entitled to this remedy for four reasons, all of which we reject.

First, the Sassers contend that Bell lacks standing to sue them under the Georgia Securities Act because he was not a purchaser of the Sundance stock. Only a person who actually purchases unregistered securities may sue under OCGA § 10-5-14 (a). Mack v. Smith, 178 Ga. App. 652, 653 (4) (344 SE2d 474) (1986) (offeree who did not purchase securities lacked standing). A purchaser

refers to the one to whom the sale or disposition is made. . . . The word purchaser may be used in a broad sense to include those who acquire title for a monetary consideration [;] however, as commonly employed and as ordinarily used ... a purchaser is understood to be one who obtains through negotiation or the like, for a consideration. . . . Certainly, since a sale includes a disposition . . ., it would seem to be a logical interpretation to include one to whom the disposition is made within the class of persons on whom the right of voiding illegal sales or dispositions is conferred.

(Punctuation omitted.) Utzman, supra at 58. The Sassers assert that Bell was merely designated as attorney for the transfer, but was not actually a purchaser. The Sassers are correct that these are two distinct roles:

The assignment and the power of attorney are two separate things. The former operates to vest in the assignee the rights of the assignor as against everybody but the corporation. The power of attorney is an authorization to the corporation to recognize the assignment of said rights.

(Punctuation omitted.) Peoples Bank v. Jones, 193 Ga. 720, 725 (20 SE2d 74) (1942). What the Sassers overlook, however, is that Bell was both attorney for the transfer and transferee of the stock. The agreement for the sale of the business expressly contemplated that Bell would buy the Sundance stock from the Sassers. The Sassers do not dispute the fact that they endorsed their stock certificates and gave them to Bell at the closing. That the blank space on the stock certificates for “transferee” was never filled in does not alter the reality of the transaction — that the Sassers sold and Bell purchased all of the outstanding stock. Bell was a purchaser, and he has standing to sue the Sassers under OCGA § 10-5-14 (a).

Second, the Sassers contend that the Sundance stock was exempt from the registration requirements of OCGA § 10-5-5. The Sassers rely on the following exemption set forth in OCGA § 10-5-9 (12):

Any transaction involving the issuance or transfer of securities of the issuer by the issuer ... to a corporation or its shareholders ... in connection with a merger, . . . consolidation, reclassification of securities, or sale or transfer of corporate, trust, or partnership assets in consideration of the issuance or transfer of such securities, where the transaction must be approved by the [vote of the shareholders of the corporation].

By its plain terms, that exemption has no applicability here, where the stock in question was sold to an individual and not a corporation. That Bell later transferred some of the Sundance stock to new investors is of no import because the relevant time period for determining whether the stock had to be registered is the time it was offered for sale, not after the sale. See OCGA § 10-5-5 (a).

Third, the Sassers maintain that Bell cannot recover because his role as attorney for the transfer of the Sundance stock certificates renders him equally guilty of violating the Georgia securities laws. The Sassers cite Nash v. Jones, 224 Ga. 372, 373-374 (162 SE2d 392) (1968), in which the Supreme Court ruled that a purchaser of securities could not void the sale on the ground that the securities were unregistered where the purchaser also served as an officer and director of the corporation when it sold the stock. Along with sellers of unregistered securities, the Georgia Securities Act imposes joint and several liability on the general partners, executive officers, and directors of such sellers. OCGA § 10-5-14 (c). Construing an earlier version of this Code section, the Court concluded in Nash that, as officer and director of the selling corporation, the purchaser was equally guilty of violating the Georgia Securities Act and therefore was not entitled to recovery. Nash, supra at 375. Thus, “where the plaintiff seeking to avoid a sale of securities stands in a dual capacity, as purchaser and as a member of the category of persons liable to the purchaser,” the equitable defense of in pari delicto precludes recovery. Fierer v. Ashe, 142 Ga. App. 290, 292 (3) (235 SE2d 598) (1977).

This principle does not apply here. At the time of the sale, Bell did not serve as an officer or director of Sundance, or in any other capacity that could render him jointly and severally liable for Sun-dance’s sale of unregistered securities. Bell merely was given power of attorney to record the transfer of stock on the books of the corporation. Whether Bell became an officer or director of Sundance after the sale does not matter, because the relevant time period is when the securities were sold to him. Nash, supra at 374. Thus, the trial court erred in granting summary judgment in favor of the Sassers on this ground.

Finally, the Sassers assert that Bell has not made a legally sufficient tender of the stock certificates. To qualify for the repurchase remedy, a purchaser must “tender . . . the security at any time before the entry of judgment.” OCGA § 10-5-14 (a). The amount of recovery allowed to a purchaser who has tendered the security is “the consideration paid in cash ... for the security with interest thereon . . . (less the amount of any income received thereon). . . .” Id. If the purchaser no longer owns the security, then he may recover damages in an amount “which equals the difference between the fair value of the consideration which the buyer gave for the security and the fair value of the security at the time the buyer disposed of it.” Id.

We find that Bell has satisfied the tender requirement. Bell tendered to the trial court two certificates issued in his name for, respectively, seventy-five shares and twenty-five shares of Sundance stock. The Sassers contend that this tender was invalid because Bell did not submit the original certificates numbered “1” and “2” and endorsed by the Sassers, but instead submitted certificates numbered “3” and “9” which were issued to him after the sale. While Bell has not tendered the very securities that he purchased from the Sassers, he has nevertheless tendered 100 shares of Sundance stock, which is what he bought from them. Bell was not required to tender the original stock certificates. See Rushing v. Williams, 125 Ga. App. 601, 602 (1) (188 SE2d 437) (1972) (contemplating that plaintiff who had lost securities could satisfy tender requirement by obtaining a re-issue of them).

The Sassers also assert that Bell is not entitled to a repurchase because Sundance’s issuance of additional shares of stock to new investors following the sale diluted the value of the 100 shares tendered by Bell. Nothing in OCGA § 10-5-14 restricts this recovery to purchasers who have not resold any of their stock. Nevertheless, we agree with the Sassers that the post-sale investments in Sundance may have altered the value of the company’s stock, resulting in “income” to Bell and complicating the calculation of the recovery to which he is entitled. See generally Randall v. Loftsgaarden, 478 U. S. 647 (106 SC 3143, 92 LE2d 525) (1986) (discussing appropriate recovery for defrauded investors under analogous federal law). As the record and the briefs are poorly developed on this point, however, we decline to decide this issue on appeal. See Grove v. Sugar Hill Investment Assoc., 219 Ga. App. 781, 787 (4) (466 SE2d 901) (1995) (summary judgment inappropriate on poorly developed record).

In sum, the undisputed facts show that the Sassers are liable to Bell under OCGA § 10-5-14 (a) for the sale of unregistered securities, but the amount of recovery to which Bell is entitled remains in dispute. Thus, summary judgment on this claim was not appropriate. Accordingly, we affirm the trial court’s denial of Bell’s motion for summary judgment on Count 1 of the complaint and reverse the trial court’s grant of the Sassers’ motion for summary judgment on that count.

Case No. A99A0163

2. Robert Sasser claims that the trial court erred in denying his motion for summary judgment on the claim of Bell and Sundance that Sasser fraudulently misrepresented that he would pay any warranty claims arising from sales of Sundance boats before the sale of the business. Prior to the sale, Sundance provided a two-year warranty guaranteeing repair or replacement of a defective hull. Bell testified that the issue of who would be responsible for paying warranty claims arose during his final negotiations with Sasser over the sale. According to Bell, Sasser said:

Well, there shouldn’t be any [warranty problem], but if there’s more than two or something, I’ll handle it. . . . You know, if it’s just a little minor thing, then that’s just a part of the business expense, but if it’s a major thing, I’ll handle it. . . . I’ll handle it with you. We’ll work it out. ... If two boats come back, [Sundance] handles it. If it gets to be a major problem, then we need to talk about it.

Sasser denied that warranties were ever discussed during the sale negotiations. Although the written purchase agreement does not mention warranties specifically, it does provide as follows:

Buyer has taken possession of the business as of April 25, 1994, and at closing adjustments shall be made as to what existing invoices were outstanding and as to what bank accounts were available. All expenses up to April 25, 1994, will be paid from the existing Sundance Boats, Inc. bank account and any excess in that bank account shall be paid to Seller and any shortage shall be made up by the seller.

(Emphasis supplied.) After the sale, Bell billed Sasser for pre-sale warranty claims, but Sasser refused to pay.

Sasser argues first that Bell’s own testimony shows that Sasser made no definite promise to pay warranty claims, but only a promise to discuss the issue further if any such claims were made. As discussed below, Bell’s testimony is relevant only insofar as it sheds light on the parties’ written agreement of sale — the source of Sasser’s alleged obligation to pay. That testimony can be construed as evidence of an agreement between the parties that Sundance would pay the first two warranty claims and Sasser would be responsible for any additional claims. Moreover, the sales agreement provides that expenses incurred prior to the date that Bell took over the company would be paid out of Sundance’s bank account, with the Sassers making up any shortfall. Contrary to Sasser’s assertions, we find that this agreement is not so vague or indefinite as to be unenforceable. See Tattersall Club v. White, 232 Ga. App. 307, 309-311 (1) (b) (501 SE2d 851) (1998). As for Sasser’s testimony that there was no such agreement, “it is the function of the jury, not the appellate court, to resolve conflicts in the testimony and determine the credibility of the witnesses.” (Punctuation omitted.) Williams v. State, 221 Ga. App. 296, 298 (4) (471 SE2d 258) (1996).

Sasser also contends that his alleged promise to pay warranty claims is unenforceable because it is not in writing as required by the Statute of Frauds. As Bell points out, however, the source of the alleged promise is not Sasser’s oral statements, but the provision in the written sales agreement described above. Although that provision does not specifically enumerate warranty claims as one of the expenses for which the Sassers will be responsible, Bell’s above-quoted testimony constitutes evidence that the parties intended the inclusion of warranty claims. Sasser argues that Bell’s testimony is inadmissible parol evidence because the parties’ obligations were reduced to a written contract. However, it is well settled that parol evidence is admissible to explain ambiguities in contractual language. OCGA § 24-6-3 (b); Alpha Beta Dickerson Southeastern v. White Co., 235 Ga. App. 273, 275 (1) (509 SE2d 351) (1998). “Ambiguity in a contract may be defined as duplicity, indistinctness, an uncertainty of meaning or expression.” (Punctuation omitted.) Id. at 274. Here, the term “all expenses up to April 25, 1994” is ambiguous in that it is not clear whether this includes expenses incurred but not yet billed as of April 25, and whether it encompasses warranty claims. See Gram Corp. v. Wilkinson, 210 Ga. App. 680, 681 (1) (437 SE2d 341) (1993) (term “office manager” in employment contract was ambiguous because it did not specify the duties associated with the position). Parol evidence is thus admissible to explain this ambiguity. There is a conflict in the parol evidence as to whether Sasser agreed to pay warranty claims, and it is the jury’s function to resolve that conflict. Alpha Beta, supra at 276. Accordingly, the trial court properly denied Sasser’s motion for summary judgment on this claim.

3. Robert Sasser and Carolina Skiff also contend that they were entitled to summary judgment on the claim that they conspired to put Sundance out of business. They maintain that there was no evidence of conspiracy. We agree.

“A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means.” (Punctuation omitted.) U. S. Anchor Mfg. v. Rule Indus., 264 Ga. 295, 297 (1) (443 SE2d 833) (1994). The cause of action for civil conspiracy lies not in the conspiracy itself, but in the underlying tort committed against the plaintiff and the resulting damage. Savannah College of Art &c. v. School of Visual Arts &c., 219 Ga. App. 296, 297 (464 SE2d 895) (1995). In this case, the conspiracy count of the complaint did not allege any specific tortious behavior on the part of Sasser and Carolina Skiff, but the trial court ruled that the evidence was sufficient to create a jury question as to whether the defendants “have tortiously interfered with Sundance’s business relationships and operations.” A claim of tortious interference with business relations requires proof that Sasser and Carolina Skiff — acting improperly, without privilege, and with intent to injure — induced a third party or parties not to enter into or continue a business relationship with Sundance. La Petite Academy v. Prescott, 234 Ga. App. 32, 33 (1) (506 SE2d 183) (1998).

Bell testified that the conspiracy claim was based on (1) Sasser’s resumption of the presidency of Carolina Skiff after the sale of Sun-dance; (2) Carolina Skiff’s threats to file an allegedly baseless patent infringement lawsuit against Sundance; and (3) letters sent by Carolina Skiff to two or three Sundance customers accusing Sundance of patent infringement. Bell further testified that, as a result of the “threatening letter,” “[s]ome of the dealers just quit doing business with us” because they “didn’t want to be involved.” We find this evidence insufficient to raise an issue of fact as to whether the defendants wrongfully induced customers not to do business with Sun-dance.

Decided July 7, 1999 — Cert. applied for.

Gibson & Spivey, Douglas L. Gibson, for appellants.

Dillard, Bower & East, Terry A. Dillard, Scott C. Crowley, J. B. McGee, Jr., for appellees.

First, the letters from Carolina Skiff to Sundance and Sun-dance’s customers were sent before Sasser resumed the presidency of Carolina Skiff. Sasser testified that he was not involved in sending the letters. Bell presented no direct evidence of any involvement by Sasser and no circumstantial evidence from which a jury could infer such involvement. Thus, the letters are not evidence of any conspiracy. Second, Bell presented no evidence that the patent infringement lawsuit that Carolina Skiff allegedly threatened to file was not pursued in good faith. In fact, Bell testified that he did not even know what was covered by Carolina Skiff’s patent. Because the undertaking of a legally privileged act — such as filing a lawsuit to vindicate one’s rights — cannot support a tortious interference claim, Bell was required to present evidence that the threatened litigation was, at the very least, unfounded. See Ray v. Atkins, 205 Ga. App. 85, 90 (3) (421 SE2d 317) (1992). This he failed to do. Third, the mere fact that Sasser became the president of Carolina Skiff does not suggest any wrongful conduct toward Bell on the part of Sasser, Carolina Skiff, or both acting jointly.

Because Bell failed to carry his summary judgment burden of coming forward with evidence to support his conspiracy claim, the trial court improperly denied summary judgment to Sasser and Carolina Skiff on that claim.

Judgment affirmed in part and reversed in part.

McMurray, R J., and Andrews, P. J., concur.

       Counts 2, 3, and 6 are not at issue on appeal.

       Applying the economic reality test, the court found that the sale of Sundance was not a securities transaction because Bell was not relying on the management efforts of others to turn a profit.

       We note that the Sassers do not argue that, under the stock characterization analysis, the Sundance shares were not securities. Rather, the Sassers claim that the trial court correctly utilized the economic reality test.

       We note that even if Bell had not properly tendered the stock, he still would be entitled to the alternative damages remedy prescribed in OCGA § 10-5-14 (a).

       Although pleaded as a fraud claim, this claim appears in actuality to be one for breach of contract, and the parties treat it as a contract claim in their arguments on appeal. Accordingly, we will analyze it as such. See Manning v. Robertson, 223 Ga. App. 139, 142 (2) (476 SE2d 889) (1996) (courts look to substance and not nomenclature of pleadings).


text:
    A99A0934.
    DEPARTMENT OF HUMAN RESOURCES v. DEASON.
    (520 SE2d 712)
   Eldridge, Judge.

On August 5, 1966, Sheryn C. Deason and James E. Deason, residents of Florida, were married in Miami, Florida. On June 20, 1973, the parties were divorced in the Circuit Court of Broward County, Florida. Immediately prior to the divorce action being filed, each party had been bona fide residents of Broward County, Florida. There were two minor children born of this marriage: Jennie Deason, born April 7, 1972, and James E. Deason, Jr., born December 19, 1966.

On May 7, 1973, James E. Deason was personally served with valid process but did not answer the divorce, custody, and child support action. On May 29, 1973, the parties entered into a written custody, child support, and property settlement agreement that was incorporated into the final judgment. The agreement provided that James Deason would pay to Sheryn Deason $70 per week in child support, which would decrease by $35 per week when each child attained the age-of 21, became self-supporting, or married.

As of April 30, 1994, James Deason was in arrearage in child support and owed Sheryn Deason back child support in the amount of $58,220. On April 30, 1994, the State of Florida, Department of Health & Rehabilitative Services in Broward County, had Sheryn Deason execute an affidavit of child support which stated that, since January 1975, James E. Deason, Sr., had defaulted on payment of any child support.

On November 20, 1997, the District Attorney for Gwinnett County filed a petition for enforcement of a foreign order by contempt under 28 USC § 1738B against James E. Deason, Sr., for the State of Georgia, Department of Human Resources, ex rel. Sheryn C. Deason. On August 4, 1997, James E. Deason accepted, waived, and acknowledged service in the Petition for Enforcement of Foreign Order by Contempt under 28 USC § 1738B and submitted to the jurisdiction and venue of the Superior Court of Gwinnett County. At the time the petition was filed, he was believed to be living at 3255 Trotter’s Walk Circle, Snellville, Gwinnett County, Georgia; however, in his answer he denied this. Rule nisi issued on November 20, 1997, for a hearing on January 20, 1998, but was not received. On January 28, 1998, a summons and rule nisi were reissued for hearing on March 31, 1998. On April 23, 1998, the hearing was continued by court order until May 5,1998. On May 5,1998, James E. Deason filed an answer alleging that the judgment was dormant since 1980; that Sheryn C. Deason was guilty of laches in delay in collecting it; and that the allegations of the complaint were denied. On May 7, 1998, by written order the hearing was continued until June 16, 1998.

The only evidence in the case consists of the verified petition and answer. There was no evidentiary hearing. The record is silent as to the following: whether there has been an effort to collect this arrearage earlier, and, if not, why not; whether there were any reasonable justifications for the delay; whether James E. Deason has hidden for the last 25 years or if his whereabouts were known; when he last lived in Florida; and whether he is a resident of Georgia, and, if so, for how long and where.

On October 9,1998, after hearing oral argument on the defenses, the trial court made the following findings of fact: the facts in the petition are correct; the petition claims an arrearage of $58,220, although the court made no finding that this was true; James E. Deason, Jr., became 21 on December 19, 1987; Jennie Deason became 21 on April 7, 1993; the petition for enforcement of foreign order by contempt to collect $58,220 in due and owing child support was filed five years, seven months, and thirteen days after the final installment was due; and no evidentiary hearing was held, but was based upon the undisputed facts urged by the parties.

In the conclusions of law, the trial court relied exclusively upon Georgia substantive and procedural law to conclude that

[ajlimony judgments, like all other judgments, are subject to and controlled by our Dormancy and Revival Statutes and any applicable statute of limitation. A lump sum alimony judgment is dormant after the expiration of seven years, and is not subject to revival after the expiration of ten years. This applies to said payments due prior to July 1, 1997. [CitJ

“There is no question that child support judgments are subject to statutes regarding dormancy even though the enforcement of these judgments is by means of contempt action.” Parker v. Eason, 265 Ga. 236 (454 SE2d 460) (1995).” On October 9, 1998, the trial court dismissed the complaint as barred by the statute of limitation. On December 9, 1998, appellate review under OCGA § 5-6-35 was granted. On December 11, 1998, notice of appeal was filed.

1. The first enumeration of error is that the trial court improperly applied Georgia law, rather than Florida law, to the petition for enforcement of a foreign child support order. We agree.

The petition in this case was brought pursuant to the Full Faith & Credit for Child Support Orders Act (“FFCCSOA”), 28 USCS § 1738B, to enforce a Florida child support judgment.

(a) Despite the urging of the Attorney General, the Uniform Interstate Family Support Act (“UIFSA”), OCGA § 19-11-160 et seq., cannot be applied in this case; it was passed by the General Assembly in 1997 to replace, in the future, the Uniform Reciprocal Enforcement of Support Act (“URESA”). OCGA § 19-11-40 et seq., Ga. L. 1997, pp. 1613, 1655, § 32. The language of the Act did not clearly and plainly express the intent of the General Assembly that the provisions of the Act apply retroactively. Ga. L. 1997, pp. 1613, 1679, § 36.

The effective date of OCGA § 9-12-60 (d) [(Ga. L. 1997, pp. 1613, 1616, § 2)] is July 1, 1997, and there is no expression of any legislative intent that it apply to judgments for child support and spousal support entered before that date. [Cits.] Giving that amendment a retroactive interpretation would have the far-reaching effect of authorizing initiation of a suit after July of 1997 to recover arrearages on any and all child or spousal support judgments that were entered in this state at any time prior to July of 1987. Our review of the 1997 enactment as a whole does not lead us to the conclusion that the General Assembly’s implicit intent was that OCGA § 9-12-60 (d) [(Ga. L. 1997, p. 1613 et seq.)] have such a broad and significant impact. [Cits.]

(Emphasis in original.) Brown v. Brown, 269 Ga. 724, 726-727 (506 SE2d 108) (1998). In fact, OCGA § 19-11-40.5 expressly provided that UIFSA and the other provisions of the Act apply to proceedings initiated on or after January 1, 1998, while URESA continued to apply to proceedings pending prior to January 1, 1998. Ga. L. 1997, pp. 1613, 1655, § 32.

“A repealing Act will not be given retroactive operation so as to divest previously acquired rights. A statute is never to be given a retroactive operation unless such construction is absolutely demanded.” (Citations and punctuation omitted.) J. Scott Rentals v. Bryant, 239 Ga. 585, 587 (238 SE2d 385) (1977).

Generally statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. On the other hand, where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention. . . . Substantive law is that law which creates rights, duties, and obligations. Procedural law is that law which prescribes the methods of enforcement of rights, duties, and obligations.

(Citations and punctuation omitted.) Polito v. Holland, 258 Ga. 54, 55 (2), (3) (365 SE2d 273) (1988); see also Pritchard v. Savannah Street &c. R. Co., 87 Ga. 294 (13 SE 493) (1891). “The general rule is that procedural laws should be applied retroactively unless the legislature has expressed a contrary intent,” which it did regarding Ga. L. 1997, p. 1613. Mug A Bug Pest Control v. Vester, 270 Ga. 407 (509 SE2d 925) (1999). Ga. L. 1997, p. 1613, creates both substantive and procedural statutory changes and affects vested rights, so that the legislature intended for it to be applied prospectively. Id.

While Ga. L. 1997, p. 1613, cannot be applied retroactively because of the language in its effective date, the Act can assist in determining the legislative intent regarding URESA and the public policy in Georgia regarding collection of foreign child support judgments. The General Assembly expressed through the Act the public policy of Georgia regarding several existing evils that it desired to correct through the Act: (1) judgments for child support, domestic or foreign, no longer are subject to a statute of limitation, Ga. L. 1997, pp. 1613, 1616, § 1 (OCGA § 9-3-20); (2) judgments or orders for child support no longer become dormant, Ga. L. 1997, pp. 1613, 1616, § 2 (OCGA § 9-12-60 (d)); (3) each child support payment or installment is a judgment which, when due, is entitled to full faith and credit, Ga. L. 1997, pp. 1613, 1618, § 6 (OCGA § 19-6-17 (e) (1), (2)); (4) foreign support orders are unmodifiable, except by FFCCSOA, Ga. L. 1997, pp. 1613, 1619-1620, § 7 (OCGA § 19-6-26); (5) the choice of law is determined, Ga. L. 1997, pp. 1613, 1674, § 33 (OCGA §§ 19-11-163; 19-11-166); and (6) many other statutory changes. “The recent amendment. . . affirms the legislative intent that a plaintiff have a broad [and liberal] right” regarding collection of a foreign child support judgment that was in arrearage; thus, it is appropriate in statutory construction to look to the recent legislative amendment that does not have retroactive application to determine the intent of the legislature regarding the statute prior to amendment. Porquez v. Washington, 268 Ga. 649, 652 (1) (492 SE2d 665) (1997).

(b) As originally enacted by Ga. L. 1958, pp. 34-35, 40, §§ 2 and 8 (OCGA §§ 19-1-42 (6); 19-11-51; 19-11-63), URESA did not specifically authorize an action to collect arrearages; Ga. L. 1979, p. 941, §§ 1, 2 (OCGA §§ 19-11-43; 19-11-51; 19-11-63); Brookins v. Brookins, 257 Ga. 205, n. 1 (357 SE2d 77) (1987). Notwithstanding the absence of a provision specifically authorizing recovery for arrearages prior to 1979, such retroactive application was allowed; otherwise, the purpose of URESA would be defeated. See id. at 206-207; see also State of Ga. v. McKenna, 253 Ga. 6, 9 (315 SE2d 885) (1984); Ray v. Ray, 247 Ga. 467, 469 (277 SE2d 495) (1981). As in this case, an URESA action may be used to collect arrearages after the minor reaches majority; “[t]he fact that the child reached majority did not divest the trial court of its power to assure compliance with its previously entered order.” Johnson v. State of Ga., 167 Ga. App. 508, 509 (306 SE2d 756) (1983). “URESA contains an additional procedure for registering and enforcing foreign judgments” other than by domesticating the foreign child support judgment. State of Ga. v. McKenna, supra at 9; OCGA § 19-11-79 et seq. Thus, this action was not a domestication of a foreign child support judgment but, instead, was a registration of such judgment under URESA. OCGA § 19-11-79 et seq.

The choice of law in URESA cases is governed by the law of the state of rendition of the child support judgment. OCGA § 19-11-49; Evans v. State of Ga., 178 Ga. App. 1, 3 (2) (341 SE2d 865) (1986); Earley v. Earley, 165 Ga. App. 483, 486 (300 SE2d 814) (1983); Bisno v. Biloon, 161 Ga. App. 351, 352-353 (291 SE2d 66) (1982), overruled on other grounds, State of Ga. v. McKenna, supra at 10. “We would, however, reiterate that URESA provides for the enforcement of duties to support. The courts of this state have no authority to modify a final decree of a foreign state awarding permanent alimony for the support of minor children. [Cit.]” (Emphasis in original.) Bisno v. Biloon, supra at 355; accord State of Ga. v. McKenna, supra at 9. OCGA § 19-11-80 (a) provides that “defenses in an action to enforce a foreign money judgment” are the only defenses to an URESA action in the responding state, Georgia. See OCGA § 9-12-130 et seq.; Dansby v. Dansby, 222 Ga. 118, 120-121 (1) (149 SE2d 252) (1966); Dept. of Human Resources v. Fenner, 235 Ga. App. 233, 234 (2) (510 SE2d 534) (1998). The Florida child support judgment and the support agreement showed on their face that personal service, notice, personal jurisdiction, and subject matter jurisdiction were not defenses. Dept. of Human Resources v. Fenner, supra at 235; see also OCGA § 9-12-134.

Dormancy or running of the statute of limitation under Georgia law is not a defense to an URESA action on a foreign judgment, because Georgia treats a foreign child support judgment as not being subject to the Georgia statute of limitation. Thus, it follows that the Georgia dormancy statute would be inapplicable for the same reasons to a foreign child support action under URESA. See Brookins v. Brookins, 190 Ga. App. 852, 853 (380 SE2d 494) (1989). When URESA is not used to register a foreign child support judgment and the foreign child support judgment is domesticated, “for reasons of comity,” “Georgia courts [will] recognize and give prospective enforcement to a foreign alimony or child support decree by establishing it as the decree of a Georgia court through domestication and treating it as though it were a local decree. [Cits.]” Blue v. Blue, 243 Ga. 22, 23 (252 SE2d 452) (1979); accord Williamson v. Williamson, 247 Ga. 260, 262 (275 SE2d 42) (1981). Any domesticated foreign judgment would be like a Georgia judgment, because it has been made a Georgia judgment by statute and court action, making it subject to any statute as to a dormancy provision. Brown v. Brown, supra at 726-727. However, any applicable statute of limitation provision would come under the laws of the rendition state as to a domesticated child support judgment or order. See generally Williamson v. Williamson, supra at 262; Conway v. Conway, 223 Ga. 349, 350 (1) (155 SE2d 17) (1967). Under Fla. Stat. Ann. § 95.11 (1) (1960), the statute of limitation on a general judgment in the circuit court, a court of general jurisdiction, is 20 years for enforcement. See Massey v. Pineapple Orange Co., 100 S. 170 (Fla. 1924); Winter v. Allstate Mtg. Corp. of Fla., 303 S2d 399 (Fla. App. 1974). Further, Fla. Stat. Ann. § 742.08 provides that “[u]pon default in payment of any moneys ordered by the court to be paid [for child support], the court may enter a judgment for the amount of default, plus interest, administrative costs, filing fees and other expenses incurred by the clerk of the circuit court,” which means that the statute of limitation would commence at different times for each installment. Florida, in enforcing URESA, does not apply its own statute of limitation for judgments to a foreign child support judgment. Frazier v. Frazier, 616 S2d 575, 579 (Fla. App. 1993); Wood v. Hunter, 504 S2d 553, 554-555 (Fla. App. 1987). “While we are not bound by the decisions of . . . other states, they are particularly persuasive because we are interpreting a reciprocal uniform law.” State of Ga. v. McKenna, supra at 9.

Domestic, but not foreign undomesticated, “alimony judgments [as well as child support judgments], like all other judgments, are subject to and controlled by our dormancy and revival statutes and any applicable statute of limitation.” Bryant v. Bryant, 232 Ga. 160, 163 (205 SE2d 223) (1974).

[W]ith respect to installment-payment [child support] judgments, installments that became due within seven years preceding the issuance and recording of the execution are collectible and enforceable, and installments that are dormant, having become due seven to ten years prior to the filing of a revival action, are subject to being revived through the applicable statutory revival procedure.

Id. at 163; accord Wannamaker v. Carr, 257 Ga. 634 (362 SE2d 53) (1987); Zerblis v. Zerblis, 239 Ga. 715, 716-717 (238 SE2d 381) (1977). “There is no question that child support judgments are subject to statutes regarding dormancy even though the enforcement of these judgments is by means of a contempt action. Wannamaker v. Carr, [supra].Parker v. Eason, supra at 237. Brown v. Brown, supra at 726-727 (2), dealt with a domestic judgment rendered under Georgia law and subject at that time to provisions for dormancy of judgments. OCGA § 9-12-60 (a). However, such provisions have no application to a foreign, undomesticated, child support judgment collected under URESA by registration. See OCGA § 19-11-79 et seq.; Brookins v. Brookins, supra, 190 Ga. App. at 853.

As to foreign judgments in general,

[w]e know of no statutory law of this State dealing with suits on domestic judgments, and none has been cited by counsel for plaintiffs in error. Therefore, when the legislature dealt with foreign judgments in [OCGA § 9-3-20], it was dealing with the named class, “foreign judgments,” which was completely unrelated to the subject matter of limitations upon enforcement of domestic judgments within prescribed periods of time as provided in [OCGA § 9-12-60]. Therefore, the plea of the limitations of [OCGA § 9-3-20] to this suit on a Florida judgment which was instituted more than five years after the date of that judgment was valid, and the court did not err in sustaining the same and dismissing the suit based upon the Florida judgment.

Watkins v. Conway, 221 Ga. 374, 375 (3), (4) (144 SE2d 721) (1965).

The statute [OCGA § 9-3-20] bars suits on foreign judgments only if the plaintiff cannot revive his judgment in the State where it was originally obtained. For the relevant date in applying [OCGA § 9-3-20] is not the date of the original judgment, but rather it is the date of the latest revival of the judgment. Fagan v. Bentley, 32 Ga. 534 (1861); Baty v. Holston, 108 Ga. App. 359 (133 SE2d 107) (1963). In the case at bar, for example, all appellant need do is return to Florida and revive [the] judgment.

Watkins v. Conway, 385 U. S. 188, 189-190 (87 SC 357, 17 LE2d 286) (1966). Thus, Georgia recognizes dormancy provisions of the rendition state. However, since this is an URESA action on a registered foreign judgment, then it has no application.

URESA is a foreign judgment that does not come within such provisions, because

URESA was enacted to “improve and extend by reciprocal legislation the enforcement of duties of support and to make uniform the law with respect thereto.” OCGA § 19-11-41. Accordingly, a[n] URESA action for child support arrearages cannot be viewed as a traditional “action on a foreign judgment.” [Cit.] A[n] URESA action for child support arrearages seeks enforcement of a duty of support and it is a proceeding wherein the foreign judgment does not constitute the gist of the action, but is merely evidence from which the extent of the child support obligor’s default in meeting his duty can be quantified. When consideration is given to the express legislative intent underlying enactment of URESA, it would be anomalous to hold that a[n] URESA action for child support arrearages is nevertheless subject to the same principles that would be applicable in a traditional “action on a foreign judgment.” “The purpose of URESA is to improve the enforcement of the duty of support, not to impair that duty.” Ray v. Ray, [supra at] 469. Rigid adherence to OCGA § 9-3-20 would not improve the enforcement of the duty of support but, in our increasingly mobile society, would make this state a haven for any child support obligor who had successfully evaded his duty to support his children for more than five years. “A mechanical application of OCGA § 9-3-20 in this situation would frustrate the purposes of the URESA. URESA was designed to facilitate collection of support from absent parents in distant states without incurring excessive transportation and litigation expenses.” Brookins v. Brookins, [supra, 257 Ga. at 206 (2)].

(Citations and punctuation omitted; emphasis in original.) Brookins v. Brookins, supra, 190 Ga. App. at 853. ‘Accordingly, we hold that OCGA § 9-3-20 does not provide [the obligor] with a statute of limitation defense to this URESA action for child support arrearages under the [Florida] judgment.” Id. at 853.

The legislative intent to exclude URESA and UIFSA from the Georgia dormancy and statute of limitation provisions was expressed by OCGA § 9-12-60 (d). While such statute is not applicable directly to URESA because of retroactivity problems, OCGA § 9-12-60 (d) reflects the intent of the legislature in this situation. Unlike URESA, which has no statute of limitation, UIFSA expressly makes the statute of limitation a defense for the first time in Georgia. OCGA § 19-11-163; Brookins v. Brookins, supra, 190 Ga. App. at 853. Thus, the trial court erred in dismissing the complaint under URESA as barred by the Georgia statute of limitation. Id.

(c) The trial court erred in ignoring and deciding to dismiss the action without consideration of FFCCSOA, 28 USCS § 1738B. Congress has mandated that full faith and credit be given to a foreign child support order or judgment. 28 USCS § 1738B (a); see also the Supremacy Clause, United States Constitution, Art. VI. The Supremacy Clause caused FFCCSOA to preempt URESA. See In re Marriage of Yuro, 968 P2d 1053, 1056 (Ariz. App. 1998); State v. Skladanuk, 683 S2d 624, 625-626 (Fla. App. 1996); In re Marriage of Comer, 14 Cal.4th 504 (59 Cal. Rptr. 2d 155, 927 P2d 265) (1996); In the Matter of Isabel M. v. Thomas M., 624 NYS2d 356, 358-359 (Fam. Ct. 1995).

In this case, proper subject matter, personal jurisdiction, proper notice, and opportunity to be heard in the rendering state were not issues and were fully satisfied when the foreign judgment was entered. See 28 USCS § 1738B (c); Dept. of Human Resources v. Fenner, supra at 233.

Further, in regard to choice of law, the Act provides:

(1) In general. In a proceeding to establish, modify, or enforce a child support order, the forum State’s law shall apply except as provided in paragraphs (2) and (3). (2) Law of state of issuance of order. In interpreting a child support order including the duration of current payments and other obligations of support, a court shall apply the law of the State of the court that issued the order. (3) Period of limitations. In an action to enforce arrears under a child support order, a court shall apply the statute of limitations of the forum State or the State of the court that issued the order, whichever statute provides the longer period of limitations.

28 USCS § 1738B (h) (1)-(3); Dept. of Human Resources v. Fenner, supra at 234 (1), n. 1. Florida has no statute of limitation for child support orders, because Florida treats actions to enforce child support arrearages as equitable in nature. Fowhand v. Piper, 611 S2d 1308 (Fla. App. 1992); Bloom v. Bloom, 414 S2d 1153 (Fla. App. 1982); Melvin v. Melvin, 391 S2d 691 (Fla. App. 1980); Armour v. Allen, 377 S2d 798 (Fla. App. 1979). In fact, Florida has no dormancy provision regarding child support arrearages, because such arrearages are treated as an equitable proceeding. Dean v. Dean, 665 S2d 244 (Fla. App. 1995). Thus, the trial court erred in at least not considering the Florida statute of limitation as to judgments, in general, which was longer than OCGA § 9-3-20, even if it did not consider the absence of statutes of limitations and dormancy regarding Florida child support arrearages under Florida law. See Fla. Stat. Ann. § 95.11 (1); Fowhand v. Piper, supra; Dean v. Dean, supra.

Since Florida treats a proceeding to enforce child support orders as an equitable and not a legal proceeding, then Florida recognizes the equitable defense of laches to child support arrearages. See State v. Whaley, 692 S2d 1016 (Fla. App. 1997); Dean v. Dean, supra at 244; Frazier v. Frazier, supra at 579; Fowhand v. Piper, supra at 1311; Popper v. Popper, 595 S2d 100, 103-104 (Fla. App. 1992). But, unless the obligor must show “extraordinary facts or strongly compelling circumstances, the action or inaction of a parent will not give rise to a defense of laches barring enforcement of child support arrearages.” Fowhand v. Piper, supra at 1310; see also Dean v. Dean, supra at 244. The obligor must show “substantial prejudice” due to the delay for laches to attach. See State v. Whaley, supra at 1016; accord Dean v. Dean, supra at 294. Thus, the trial court must determine whether Georgia or Florida equitable defenses can apply to an URESA action on a Florida child support judgment enforced in Georgia.

(d) The effective date of 28 USCS § 1738B was upon passage, October 20,1994. Therefore, it must be determined under federal law whether the Act should have retroactive application to arrearages occurring prior to the effective date. The provisions of the Act itself do not expressly provide for retroactivity; however, the language of the Act looks to enforcement of child support orders or judgments that “have been issued” and “made” in the past and does not use present or prospective language only. The legislative history expressed the problem of interstate child support arrearages as comprising as much as 30 percent of the child support cases under Title IV-D of the Social Security Act and that this problem has been studied by the U. S. Commission on Interstate Child Support at Congress’ direction since 1988. Such problem existed in the past and continues to the present with the same failures to pay, promising future continuation of the problem of arrearages into the future unless corrected. However, the legislative history does not expressly state the intent of Congress regarding retroactivity. The language and purpose of both the Act and the legislative history are that of remedial legislation, looking toward retroactive application to assist in the collection of past arrearages. 5 U. S. Code & Congressional & Admin. News, pp. 3259-3265 (1994). Thus, the problem will continue into the future, and the purpose of the Act would be frustrated unless it is applied retroactively, which would require that congressional intent be inferred through construction to imply retroactivity.

The first question [in determining the congressional intent as to retroactivity] is not whether Congress intended the law to be remedial or substantive. The court should have first decided whether Congress had a more specific intention regarding whether the law should apply retroactively. Only if congressional intent on that point is unclear does the remedial/substantive distinction come into play. See Kaiser Aluminum [& Chem. Corp. v. Bonjorno, 494 U. S. 827 (110 SC 1570, 108 LE2d 842) (1990)] (“where the congressional intent is clear, it governs”); Mozee [v. American Commercial Marine Svc. Co., 963 F2d 929, 934-936 (7th Cir. 1992)] (when congressional intent was unclear, court applied rule that “statutory provisions impacting substantive rights and obligations will not be retroactively applied”).

Gay v. Sullivan, 966 F2d 1124, 1127 (7th Cir. 1992); see also Landgraf v. USI Film Productions, 511 U. S. 244 (114 SC 1483, 128 LE2d 229) (1994).

But where retroactivity is concerned, we believe that the Supreme Court has directed us to infer congressional intent from an accumulation of clues in the language and legislative history of statutes. See Kaiser Aluminum, [supra] (based on language of statute and future effective date, Congress intended statute to apply prospectively only); Bennett [v. New Jersey, 470 U. S. 632 (105 SC 1555, 84 LE2d 572) (1985)] (based on future effective date and future tense of language in legislative history, Congress did not intend statute to apply retroactively).

Gay v. Sullivan, supra at 1129.

It is well settled that legislation that is interpretive, procedural, or remedial must be applied retroactively, while substantive amendments are given only prospective application. [Cits.] “Substantive acts are generally defined as those which create, confer, define, or destroy rights, liabilities, causes of action, or legal duties. Procedural acts describe methods for enforcing, processing, administering, or determining rights, liabilities, or status.” [Cit.]

Harrison v. Otis Elevator Co., 935 F2d 714, 719 (5th Cir. 1991).

Under Bradley v. School Bd. of Richmond, 416 U. S. 696 (94 SC 2006, 40 LE2d 476) (1974), there are three factors to determine on review if there is manifest injustice present: “(a) the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law upon those rights.” Id. at 717; accord Baynes v. AT&T Technologies, 976 F2d 1370, 1373 (11th Cir. 1992); Lussier v. Dugger, 904 F2d 661 (11th Cir. 1990).

In this case, the statute imposes no new obligation, because the obligation of support arises at the birth of the minor child. Ga. Dept. of Human Resources v. Mitchell, 232 Ga. App. 215 (501 SE2d 508) (1998). The statute merely reinforces an existing obligation of child support. It deals with remedial matters of great congressional concern, i.e., the inability to enforce interstate child support orders, resulting in arrearages. Finally, the obligor is not deprived of a right that has matured or become unconditional, because under Florida law, as well as Georgia law, the preexisting obligation remains the same. See Baynes v. AT&T Technologies, supra at 1373-1374. Thus, under Bradley, the obligor suffers no manifest injustice when the Act is applied retroactively. See Hughes Aircraft Co. v. United States, 520 U. S. 939 (117 SC 1871, 138 LE2d 135) (1997); Landgraf v. USI File Productions, supra at 262. In fact, FFCCSOA is applied retroactively by other states. See In re Marriage of Yuro, supra at 1057; Jennings v. DeBussy, 707 A2d 44, 46-48 (Del. Fam. Ct. 1997); Matter of Isabel M. v. Thomas M., supra at 357; In re Day v. State, 272 Mont. 170 (900 P2d 296, 300) (1995); In re Marriage of Marino v. Lurie, 33 Cal. App. 4th 658, 673-676 (39 Cal. Rptr. 2d 835) (1995).

The trial court erred in failing to give the Florida child support judgment full faith and credit under FFCCSOA. This is true despite the Act requiring retroactive application as a procedural and remedial act. 28 USCS § 1738B; Gentzel v. Williams, 965 P2d 855, 860-861 (Kan. App. 1998); State of Washington v. St. John, 964 P2d 1242, 1244 (Wyo. 1998); In re Smith v. Mason, 290 Mont. 253 (964 P2d 743, 745) (1998); Welsher v. Rager, 491 SE2d 661, 665 (N. C. App. 1997); Kelly v. Otte, 474 SE2d 131, 133-135 (N. C. App. 1996); State v. Fleet, 679 S2d 326, 327-328 (Fla. App. 1996).

2. The second enumeration of error is that the trial court erred because, even under Georgia law, appellee is responsible for the last seven years of arrearage, and the three previous years are subject to revival. We agree, and although Division 1 requires reversal, this issue may arise on remand.

Division 1 held that OCGA §§ 9-3-20 and 9-12-60 (a) (1) do not apply to an URE0SA action to enforce arrearages on a foreign child support order, although such statutes apply to domestic child support orders. See Brown v. Brown, supra at 726-727 (2); Brookins v. Brookins, supra at 853. Thus, the Florida statute of limitation has run only as to a portion of the arrearage. See Watkins v. Conway, supra at 374; Wright v. Trust Co. Bank, 219 Ga. App. 551 (466 SE2d 74) (1995). “Thus, OCGA § 9-3-20 is not applicable to filings under the uniform law[, OCGA § 9-12-130 et seq., as well as URESA].” Wright v. Trust Co. Bank, supra at 552. Upon remand, the trial court must determine the mixed question of law and fact what amount of the arrearage is enforceable under the Florida statute of limitation, if it applies to a Florida child support judgment.

The doctrine of laches does not apply to an action under URESA in Georgia; however, the doctrine of laches may be applicable under Florida law. See Ga. Dept. of Human Resources v. Mitchell, supra. The trial court must determine under the applicable choice of law whether Georgia or Florida equitable principles apply in this case as to foreign child support arrearages.

Assuming that the Florida child support judgment was either a domestic child support judgment or a foreign child support judgment that had been domesticated so that Georgia law controlled, those installments “that came due within a period of ten years preceding the filing of the action” were subject to a claim for revival. Bryant v. Bryant, supra at 162; accord Wannamaker v. Carr, supra at 635-636 (2); Zerblis v. Zerblis, supra at 716-717. Bringing the URESA action to collect the arrearage was an attempt to collect on the foreign judgment, as well as a contempt action. Thus, it should be treated as a revival action, as well as an action to enforce a dormant judgment for child support under Georgia law. Parker v. Eason, supra at 237; Wannamaker v. Carr, supra at 634 (2); Right v. Behringer, 192 Ga. App. 62 (383 SE2d 624) (1989).

Judgment reversed.

Pope, P. J., concurs. Smith, J., concurs in judgment only.

Decided July 7, 1999.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Katherine S. Davis, Assistant Attorney General, for appellant.

Lewis M. Groover, Jr., for appellee.