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2018 Georgia Code 48-13-37 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 48-13-37 Case Law from Google Scholar Amendments to OCGA 48-13-37

TITLE 48 REVENUE AND TAXATION

Section 13. Specific, Business, and Occupation Taxes, 48-13-1 through 48-13-133.

ARTICLE 2 NONRESIDENT CONTRACTORS

48-13-37. Preclusion of right to bring action for payment on contract by contractor in violation of article.

No contractor who fails to register with the commissioner as required by this article or who fails to comply with any provision of this article shall be entitled to maintain an action to recover payment for performance on the contract in the courts of this state.

(Ga. L. 1961, p. 480, § 6; Code 1933, § 91A-6107, enacted by Ga. L. 1978, p. 309, § 2.)

JUDICIAL DECISIONS

Compliance with O.C.G.A. Art. 2, Ch. 13, T. 48 is a condition precedent to filing suit on the contract in Georgia; however, the bar imposed by O.C.G.A. § 48-13-37 is a matter that is properly raised as a plea in abatement and not a proper subject for summary judgment. Rehco Corp. v. California Pizza Kitchen, Inc., 192 Ga. App. 92, 383 S.E.2d 643 (1989).

Failure to register contract.

- Payment of accrued state and local taxes was not "substantial compliance" with Nonresident Contractors Act, O.C.G.A. § 48-13-30 et seq., absent registration of construction contract with commissioner. Fuller Enters. v. Hardin Constr. Group, Inc., 206 Ga. App. 8, 424 S.E.2d 311 (1992).

Defense that contractor has not complied with section need not be specially pled.

- When the contractor has not complied with the provisions of O.C.G.A. § 48-13-37, the defense of the contractor's lack of capacity to maintain the suit may be asserted at trial without being specially pled under O.C.G.A. § 9-11-9. Gorrell v. Fowler, 248 Ga. 801, 286 S.E.2d 13, appeal dismissed, 457 U.S. 1113, 102 S. Ct. 2918, 73 L. Ed. 2d 1324 (1982).

O.C.G.A. § 48-13-37 is a forum-closing sanction that closes the courts of Georgia to the offender until such time, if ever, when the offender can substantially comply with the provisions of O.C.G.A. Art. 2, Ch. 13, T. 48. Adams v. PPT, Inc., 191 Ga. App. 729, 382 S.E.2d 732 (1989).

Dismissal, rather than summary judgment, is appropriate sanction.

- Once the trial court determined that the plaintiff was required to comply with O.C.G.A. Art. 2, Ch. 13, T. 48 and had not done so, the court lacked subject matter jurisdiction, and the appropriate action was to enter an involuntary dismissal, rather than a summary judgment. Adams v. PPT, Inc., 191 Ga. App. 729, 382 S.E.2d 732 (1989).

Dismissal without prejudice not adjudication on merits.

- Dismissal under O.C.G.A. § 48-13-37 is one of the few involuntary dismissals which does not act as an adjudication on the merits. Taco Bell Corp. v. Calson Corp., 190 Ga. App. 481, 379 S.E.2d 6 (1989); Clover Cable of Ohio, Inc. v. Heywood, 260 Ga. 341, 392 S.E.2d 855 (1990); Fuller Enters. v. Hardin Constr. Group, Inc., 206 Ga. App. 8, 424 S.E.2d 311 (1992).

Dismissal is for lack of subject matter jurisdiction.

- Despite the involuntary nature of a dismissal based on O.C.G.A. § 48-13-37, such a dismissal is in the nature of a dismissal for lack of subject matter jurisdiction and not on the merits. Rehco Corp. v. California Pizza Kitchen, Inc., 192 Ga. App. 92, 383 S.E.2d 643 (1989).

Dismissal of action not required.

- Failure of business to comply with Georgia Nonresident Contractors Act, O.C.G.A. § 48-13-30 et seq., did not require dismissal of action against a corporation; the fraud claims at issue arose out of a proposed merger agreement and did not depend upon a contract to perform work in Georgia or upon the recovery of payment for performance under the contract. Infrasource, Inc. v. Hahn Yalena Corp., 272 Ga. App. 703, 613 S.E.2d 144 (2005).

Recovery of payment for performance on subcontract.

- By its action against the city under former O.C.G.A. § 36-82-102, the appellee sought to recover payment due it for work it had performed under its subcontract; therefore, the action sought to recover payment for performance on the contract within the meaning of O.C.G.A. § 48-13-37 and the action was therefore precluded. Mayor of City of Savannah v. Norman J. Bass Constr. Co., 264 Ga. 16, 441 S.E.2d 63 (1994).

Cited in American Hosp. Supply Corp. v. Starline Mfg. Corp., 171 Ga. App. 790, 320 S.E.2d 857 (1984); B.J.'s Flooring, Inc. v. T.C. Interiors, Inc., 204 Ga. App. 441, 419 S.E.2d 528 (1992).

Cases Citing O.C.G.A. § 48-13-37

Total Results: 5  |  Sort by: Relevance  |  Newest First

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Transp. Ins. v. El Chico Restaurants, Inc., 524 S.E.2d 486 (Ga. 1999).

Cited 36 times | Published | Supreme Court of Georgia | Dec 2, 1999 | 271 Ga. 774, 99 Fulton County D. Rep. 4298

...[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....
...There would be no need for this provision if the foreign corporation were able to comply with the certificate of authority *490 requirement anytime after commencing its action. Finally, the appellate courts' interpretation of a similar statute, OCGA § 48-13-37, supports this result....
...e 1969 version of the statute has no impact on our interpretation of the meaning of OCGA § 14-2-1502(a). Because of the clear legislative history behind OCGA § 14-2-1502(a), our interpretation cannot be controlled by the construction given to OCGA § 48-13-37, which reflects no comparable change in statutory language....
...] right to sue. " (Emphasis supplied.) Id. Furthermore, nonresident contractors are expressly required to register "before beginning the performance of any contract" to avoid being denied the right to perform the contract, OCGA § 48-13-34, and OCGA § 48-13-37 merely provides that the failure to so register precludes the nonresident contractor from maintaining an action only where such action is initiated "to recover payment for performance on [such] contract." Accord Clover Cable v. Heywood, 260 Ga. 341(3), 392 S.E.2d 855 (1990). The situation addressed in OCGA § 48-13-37 is thus distinguishable from OCGA § 14-2-1502....
...201, 203, 219 S.E.2d 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."). [12] OCGA § 48-13-37....
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Mayor of Savannah v. Norman J. Bass Constr. Co., 264 Ga. 16 (Ga. 1994).

Cited 29 times | Published | Supreme Court of Georgia | Mar 14, 1994 | 441 S.E.2d 63, 94 Fulton County D. Rep. 886

...executed and filed with the Revenue Commissioner the bond required by § 48-13-32; and that therefore Bass Construction was not “entitled to maintain an action to recover payment for performance on the contract in the courts of this state.” OCGA § 48-13-37.2 In response to the motion, Bass Construction contended that § 48-13-37 only prohibited actions to recover on a contract and was thus inapplicable to this action under § 36-82-102 to recover for the City’s failure to obtain a proper bond, and that it was not a nonresident contractor. The trial court denied the City’s motion to dismiss, ruling that Bass Construction’s action was not an action to recover on a contract and was not barred by § 48-13-37....
...823, 824 (420 SE2d 762) (1992); Clos v. Pugia, 204 Ga. App. 843 (420 SE2d 774) (1992). Any dicta to the contrary in Brooks v. Carson, 194 Ga. App. 365, 366 (1) (390 SE2d 859) (1990), is overruled.3 2. Next, we address whether Bass Construction’s action was subject to dismissal under § 48-13-37. Contrary to Bass Construction’s contention, § 48-13-37 does not preclude only a contract action by the nonresident contractor to recover payment for performance under the contract. Instead, § 48-13-37 precludes any action in which the relief sought is the recovery of payment for performance under the contract....
...Heywood, 260 Ga. 341 (392 SE2d 855) (1990). In Clover Cable, the subcontractor brought not only a contract claim to recover for performance under its contract but also a tort claim. Id. at 342. We held that the subcontractor’s tort claims were barred by § 48-13-37 because “in asserting [these] claims, [the subcontractor] seeks ‘to recover payment for performance on the contract,’ within the meaning of OCGA § 48-13-37.” Clover Cable at 345 *18(8)....
...By its action against the City under § 36-82-102, Bass Construction seeks to recover payment due it for work it has performed under its subcontract. The action thus “seeks to ‘recover payment for performance on the contract’ within the meaning of OCGA § 48-13-37.” Clover Cable at 345. That Bass Construction bases the City’s liability for the payment upon the City’s alleged failure to obtain a proper bond is irrelevant for purposes of § 48-13-37. Decided March 14, 1994. Wiseman, Blackburn & Futrell, James B. Blackburn, for appellant. McCorkle, Pedigo & Johnson, David H. Johnson, for appellee. For these reasons, we reverse the trial court’s ruling that § 48-13-37 did not apply to Bass Construction’s action against the City....
...for any loss resulting to them from such failure.” Whether the payment bond in this case was “in the manner and form” required by § 36-82-102 is not at issue in this appeal. See DeKalb County v. J & A Pipeline Co., 263 Ga. 645 (437 SE2d 327) (1993). Section 48-13-37 provides that [n]o [nonresident] contractor who fails to register with the [State Revenue] [C]ommissioner as required by this article or who fails to comply with any provision of this article shall be entitled to maintain an action...
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Hardin Constr. Grp., Inc. v. Fuller Enter., Inc., 462 S.E.2d 130 (Ga. 1995).

Cited 25 times | Published | Supreme Court of Georgia | Sep 11, 1995 | 265 Ga. 770, 95 Fulton County D. Rep. 2810

...Judgment reversed. All the Justices concur. NOTES [1] Because of the procedural stance of this case, we are not called upon to determine whether an arbitration award confirmation proceeding is an action for purposes of the Nonresident Contractors Act. See OCGA § 48-13-37....
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Clover Cable of Ohio, Inc. v. Heywood, 392 S.E.2d 855 (Ga. 1990).

Cited 15 times | Published | Supreme Court of Georgia | Jul 5, 1990 | 260 Ga. 341

...tiff acted as a sub-subcontractor on a construction project. The trial court ruled that plaintiff's complaint is subject to dismissal under a forum-barring clause in the Nonresident Contractors Act, Ga. L. 1978, p. 309, § 2 at 738 (codified at OCGA § 48-13-37), in that plaintiff did not comply with the registration and bonding requirements of the Act and granted summary judgment to defendants. OCGA § 48-13-37 provides: No contractor who fails to register with the [State Revenue] [C]ommissioner as required by this article or who fails to comply with any provision of this article shall be entitled to maintain an action to recover payment for performance on the contract in the courts of this state. The primary question for decision is whether a dismissal under OCGA § 48-13-37 is with or without prejudice....
...ensation to be received, OCGA § 48-13-32 (c) (1); when this is impracticable, a blanket or master bond is to be executed. OCGA § 48-13-32 (c) (2). The Act thus contemplates that a unit-price subcontract will be registered and bonded. 3. Under OCGA § 48-13-37, a party's failure to register a general contract, a subcontract, or a sub-subcontract prohibits the maintenance of an action to recover payment for performance on such contract in the courts of this State. Cf. Sherman Stubbs &c., Inc. v. American Institute of Marketing Systems, 117 Ga. App. 829 (1) (162 SE2d 240) (1968). We hold, however, that a dismissal of a complaint under OCGA § 48-13-37 should be without prejudice....
...In order to effectuate the purpose of the Act, however, OCGA § 48-13-32 (b) does provide that, "[t]he execution and filing of the bond . . . shall be a condition precedent to commencing work on any contract *344 in this state." For this reason, although the Court of Appeals has held that a dismissal under OCGA § 48-13-37 should be without prejudice, the Court of Appeals has nonetheless questioned whether a substantial compliance with the Act can be accomplished by "late registration, late bond posting and payment of all taxes and revenues due and owing the State." Taco Bell, 190 Ga....
...v. Southern States Naval Stores Co., 145 Ga. 798 (3) (89 SE 838) (1916). By giving Burnup notice of its putative claim against Heywood, Clover did not thereby establish title to, or a proprietary interest in, any res in the hands of Burnup. 7. OCGA § 48-13-37 bars Clover's quantum meruit claims. Gorrell v. Fowler, 248 Ga. 801, 802 (2) (286 SE2d 13) (1982). 8. OCGA § 48-13-37 likewise bars Clover's tort claims against John Heywood and Heywood Associates. Clover's attempt to differentiate these claims from its contractual claims is unavailing. In asserting all such claims, Clover seeks "to recover payment for performance on the contract," within the meaning of OCGA § 48-13-37....
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Dep't of Transp. v. Moseman Constr. Co., 393 S.E.2d 258 (Ga. 1990).

Cited 7 times | Published | Supreme Court of Georgia | Jul 12, 1990 | 260 Ga. 369

...Clover Cable of Ohio, Inc. v. Heywood, 260 Ga. 341, 343 (392 SE2d 855) (1990). Moseman did not comply with the NCA prior to beginning work on the interchange, and for that reason the DOT claims its action must be dismissed under the NCA's forum-closing provision, OCGA § 48-13-37, which provides: No contractor who fails to register with the commissioner as required by this article or who fails to comply with any provision of this article shall be entitled to maintain an action to recover payment for performance on the contract in the courts of this state....