Transportation Insurance v. El Chico Restaurants, Inc.

Fletcher, Presiding Justice,

dissenting.

I dissent because the majority’s interpretation conflicts with the statutory language and with this Court’s interpretation of an identically-worded statute and is not justified by the policy of saving suits from the bar of the statute of limitations.

The statutory language and legislative history of OCGA § 14-2-1502 (a) are not crystal clear. OCGA § 14-2-1502 (a) provides that “[a] foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.” On its face, this language may be read to provide that a certificate of authority is required before filing an action because the word “until” signifies a condition precedent5 and “maintains” signifies at least ■ the commencement of an action, if not the prosecution to final judgment.6

Additionally, the legislative history shows that the intention of the legislature was to carry forward the prior law, which held that suits by foreign corporations without a certificate of authority were void and subject to dismissal without prejudice. Prior to 1969, a corporation was permitted to obtain a certificate of authority after initi*778ating an action.7 However, the legislature changed the law in 1969 and expressly stated that a corporation could not “maintain any action, suit or proceeding in any court of this State unless before commencement of the action it shall have obtained such a certificate.”8 This provision was interpreted to mean that a foreign corporation could not sue a Georgia defendant if it had not obtained a certificate of authority.9 The majority relies upon a slight modification of this section in 1988. However, the comment to the 1988 revision notes the legislature’s intention that the previous bar to suits by unqualified corporations was being carried forward.10 Significantly, the 1988 revision continued to omit the pre-1969 language that unambiguously permitted a cure after filing of an action.

Any ambiguity in the language and history of subsection (a), however, is resolved by reviewing the remainder of OCGA § 14-2-1502 and a similar statute, OCGA § 48-13-37, which contains identical language. The majority’s interpretation of OCGA § 14-2-1502 (a) renders a portion of subsection (b) meaningless. OCGA § 14-2-1502 (b) imposes a civil penalty on a foreign corporation that transacts business without a certificate of authority. This civil penalty “shall be in addition to other consequences set out in this Code section . . . .” Thus, the legislature clearly intended that there be an additional consequence for a failure to comply with the laws of this state. The inability to begin an action in the courts of this state is the only other consequence set forth in OCGA § 14-2-1502. The majority’s reading of the statute, however, excises this legislatively-created consequence from the statute.11

Additionally, subsection (c) specifically prevents a foreign corporation that has not obtained a certificate of authority from avoiding the consequences of this section by providing that a successor corporation or assignee of a cause of action must obtain a certificate of authority before commencing a suit on that cause of action. There would be no need for this provision if the foreign corporation were able to comply with the certificate of authority requirement anytime after commencing its action.

Finally, the appellate courts’ interpretation of a similar statute, *779OCGA § 48-13-37, supports this result. That statute provides that non-resident contractors who fail to register with the revenue commissioner and post bond before commencing work under a contract are not entitled “to maintain an action to recover payment for performance on the contract in the courts of this state.”12 When this defense is pled and proved, the trial court must dismiss the case without prejudice.13 The majority’s interpretation is in conflict with our prior reading of the non-resident contractors act and ignores the maxim that identical language should be given the same interpretation.14

Decided December 2, 1999 Reconsideration denied December 17, 1999. Dye, Tucker, Everitt, Wheale & Long, Thomas W. Tucker, Rogers & Hardin, C. B. Rogers, Glover & Blount, Percy J. Blount, Arnall, Golden & Gregory, Karen B. Bragman, Robins, Kaplan, Miller & Ciresi, Thomas J. Gallo, Morris, Manning & Martin, Lewis E. Has-sett, Hull, Towill, Norman, Barrett & Salley, Patrick J. Rice, for appellants.

The majority’s policy reason for its result is that otherwise out-of-state companies who ignore Georgia laws will face the bar of the statute of limitations. The legislature, however, has placed compliance with Georgia laws ahead of protecting causes of actions for foreign corporations. Furthermore, this Court has never interpreted OCGA § 14-2-1502 to bar a foreign corporation’s suit when it lacked a certificate of authority at the time the cause of action arose. Rather, to comply with Georgia’s laws, a foreign corporation need only obtain a certificate of authority before filing suit. The application process contained in OCGA § 14-2-1503 is not complicated and careful lawyers could easily monitor their client’s compliance with this law as well as meet the statute of limitations.

I am authorized to state that Justice Sears and Justice Hines join in this dissent.

*780Bell & James, John C. Bell, Jr., James L. Bentley III, for appellee.

Black’s Law Dictionary 1380 (5th ed. 1979) (“word of limitation, used ordinarily to restrict that which precedes to what immediately follows it”).

Bell Aircraft Corp. a Anderson, 73 Ga. App. 633, 635 (38 SE2d 66) (1946); see also Black’s Law Dictionary 859 (5th ed. 1979) (to maintain an action is to commence or to institute, or if in existence, to continue or preserve).

1968 Ga. Laws 565, 790.

1969 Ga. Laws 152, 196.

A.B.R. Metals & Servs., Inc. v. Roach-Russell, Inc., 135 Ga. App. 193 (217 SE2d 447) (1975).

OCGA § 14-2-1502, comment.

State v. C.S.B., 250 Ga. 261, 263 (297 SE2d 260) (1982) (courts must construe statutory language so as not to render it meaningless or mere surplusage). See also Houston v. Lowes of Savannah, Inc., 235 Ga. 201, 203 (219 SE2d 115) (1975) (basic rule of construction that a statute should be construed “to make all its parts harmonize and to give a sensible and intelligent effect to each part [, as i]t is not presumed that the legislature intended that any part would be without meaning.”).

OCGA § 48-13-37.

Clover Cable a Heywood, 260 Ga. 341 (392 SE2d 855) (1990); Rehco Corp. v. California Pizza Kitchen, Inc., 192 Ga. App. 92, 94 (383 SE2d 643) (1989). Compare DOT v. Moseman, 260 Ga. 369 (393 SE2d 258) (1990) (compliance with registration and bonding requirements before completion of construction project is sufficient to permit access to courts).

Bibb County v. Hancock, 211 Ga. 429, 432 (86 SE2d 511) (1955); Thompson v. Talmadge, 201 Ga. 867, 885 (41 SE2d 883) (1947) (courts should accord virtually identical language in successor provisions the same construction given the original language).