T. E. McCutcheon Enterprises, Inc. v. Snelling & Snelling, Inc.

Gunter, Justice,

concurring specially with respect to Division 1.

In this case the appellant-franchisee made a motion to dismiss the appellee-franchisor’s action brought by the latter against the former in the trial court. The basis for the motion was that the appellee-franchisor, a foreign corporation, was "transacting business” in Georgia as that phrase is defined in Code Ann. § 22-1401 (b) without having obtained a certificate of authority from the Secretary of State; and therefore appellee-franchisor could not maintain its action in the Georgia courts against the appellant-franchisee because of the prohibition contained in Code Ann. § 22-1421 (b), (Ga. L. 1969, pp. 152, 196, 197).

This 1969 statute (Code Ann. § 22-1421 (b)) provides *610cthat a foreign corporation "that under this Code is required to obtain a certificate of authority” shall not be permitted to maintain an action in the Georgia courts unless it obtained such a certificate prior to the commencement of the action.

As I read this record and Code Ann. § 22-1401 (b), it is quite plain to me that the appellee-franchisor was not required "under this Code” to obtain a certificate of authority in order to maintain an action in the Georgia court system.

Code Ann. § 22-1401 (b) provides that "a foreign corporation shall not be considered to be transacting business in this state, for purposes of qualification under this Code, solely by reason of carrying on in this state any one or more of the following activities: ... (5) effecting sales through independent contractors ... (9) effecting transactions in interstate or foreign commerce . . . (10) owning and controlling a subsidiary corporation incorporated in or transacting business within this state.”

Pursuant to this definition of "transacting business” the appellee-franchisor was not required "under this Code” to be certificated, and it could commence and maintain an action in the courts of this state without obtaining such a certificate.

It is clear to me that the franchise agreement in this case and the activities of the appellee-franchisor within the State of Georgia did not create the relationship of principal and agent between the franchisor and the franchisee. The franchisee was an independent contractor; it conducted its business in Georgia pursuant to the terms of a franchise agreement entered into with the franchisor; and what the franchisor was required to do pursuant to the terms of the franchise agreement did not make it a foreign corporation "transacting business” in Georgia pursuant to Code Ann. § 22-1401 so as to make it necessary for it, the franchisor, to obtain a certificate of authority before it could commence or maintain an action in the Georgia courts.

The trial judge was right in denying the motion to dismiss the appellee-franchisor’s complaint for lack of a certificate of authority issued by the Secretary of State.

*610dThis special concurrence with respect to Division I of the majority opinion is filed because three members of the court dissent from that division.

I am authorized to state that Justices Jordan, Ingram, and Hall join in this special concurring opinion.