944, Inc. v. Georgia State Bank, A90A1781

Decision Date08 March 1991
Docket NumberNo. A90A1781,A90A1781
Citation198 Ga.App. 893,403 S.E.2d 466
Parties944, INC. v. GEORGIA STATE BANK.
CourtGeorgia Court of Appeals

Tobin & Hoffspiegel, Thomas W. Tobin, Leonard L. Franco, Atlanta, for appellant.

Richard A. Gordon, Marietta, Johnson & Montgomery, Nisbet S. Kendrick III, Chamblee, for appellee.

BIRDSONG, Presiding Judge.

Appellant, 944, Inc., asserts that the trial court erred by granting summary judgment to the Georgia State Bank ("the bank"). This appeal concerns the authority of 944, Inc. to bring the action against the bank.

The record shows that 944, Inc., and Lawson Johnson and his corporation, Estate Liquidation Services, Inc. ("Estate Liquidation"), entered into a joint venture to rehabilitate real property. Pursuant to the joint venture, they bought property, obtained a construction loan for the property from the bank, and opened a checking account at the bank to receive the funds. The account, however, was opened only in the name of Estate Liquidation.

The record shows that the signature card for the account required two signatures on each check to authorize payment: one by Johnson and the other by a designated representative of 944, Inc. Nevertheless, the bank honored checks signed by Johnson without the signature of the representative of 944, Inc.

According to 944, Inc., payment of these checks depleted the funds available to complete the joint venture's project, and ultimately, the bank began foreclosure on the construction loan. After two lawsuits to recover directly from the bank in its own name were unsuccessful, 944, Inc. filed the present action styled 944, Inc. a/k/a Estate Liquidation Services, Inc. and as successor in interest thereto.

The bank moved for and was granted summary judgment. The motion contended that 944, Inc. lacked standing to sue the bank because it lacked privity of contract with the bank because the Estate Liquidation, as owner of the checking account, was the proper party to assert any claims for the honoring of the check, and because Estate Liquidation had released its claims against the bank. Held:

1. "In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cits.]" Moore v. Goldome Credit Corp., 187 Ga.App. 594, 596, 370 S.E.2d 843. As a defendant moving for summary judgment, the bank had the burden of showing that there are no genuine issues of material fact and that it was entitled to judgment as a matter of law (OCGA § 9-11-56(c)), of piercing the pleadings of 944, Inc. by affirmatively negating at least one of the essential elements of the complaint (Corbitt v. Harris 182 Ga.App. 81, 354 S.E.2d 637), and establishing, as a matter of law, that 944, Inc. cannot recover under any theory fairly drawn from the pleadings and evidence. Reed v. Adventist Health Systems,...

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6 cases
  • First Union Nat. Bank of Georgia v. Davies-Elliott, Inc.
    • United States
    • Georgia Court of Appeals
    • 22 Noviembre 1994
    ...894(1), 403 S.E.2d 466 (1991). Therefore, there was evidence from which the jury could conclude that there was in effect a written contract. Id. Even absent such a contract, however, there was at least evidence sufficient to raise the issue of an implied trust. 944, Inc., supra at 895(1), 4......
  • Wooten v. Central Georgia Elec. Membership Corp.
    • United States
    • Georgia Court of Appeals
    • 15 Julio 1994
    ...Ga.App. 761, 762 (403 SE2d 65). Where the movant fails in that burden, the grant of summary judgment is error. 944, Inc. v. Ga. State Bank, 198 Ga.App. 893, 894 (403 SE2d 466). But where the movant carries this burden, the respondent may not rest on [his] pleadings but must put forth eviden......
  • Moore v. Food Associates, Inc.
    • United States
    • Georgia Court of Appeals
    • 4 Noviembre 1993
    ...Ga.App. 761, 762, 403 S.E.2d 65. Where the movant fails in that burden, the grant of summary judgment is error. 944, Inc. v. Ga. State Bank, 198 Ga.App. 893, 894, 403 S.E.2d 466. But where the movant carries this burden, the respondent may not rest on her pleadings but must put forth eviden......
  • Dolly Griffin & Associates, Inc. v. International Indem. Co.
    • United States
    • Georgia Court of Appeals
    • 28 Febrero 1996
    ...Ga.App. 761, 762, 403 S.E.2d 65. Where the movant fails in that burden, the grant of summary judgment is error. 944, Inc. v. Ga. State Bank, 198 Ga.App. 893, 894, 403 S.E.2d 466. A genuine issue of material fact remains as to whether the negligent use of the insured tractor to park the trai......
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