Abalene Pest Control Service, Inc. v. Orkin Exterminating Co., Inc.

• Decision Date: 25 June 1990
• Docket Number: A90A0204,Nos. A90A0203,s. A90A0203
• Parties: ABALENE PEST CONTROL SERVICE, INC. et al. v. ORKIN EXTERMINATING COMPANY, INC.
• Court: Georgia Court of Appeals

Page 867

395 S.E.2d 867

196 Ga.App. 463

ABALENE PEST CONTROL SERVICE, INC. et al. v. ORKIN EXTERMINATING COMPANY, INC.

Nos. A90A0203, A90A0204.

Court of Appeals of Georgia.

June 25, 1990.

Rehearing Denied July 18, 1990.

Long, Aldridge & Norman, J. Allen Maines, John L. Watkins, Atlanta, for appellants.

Decker & Hallman, Richard P. Decker, W. Winston Briggs, Atlanta, for appellee.

SOGNIER, Judge.

Orkin Exterminating Company, Inc. brought suit against Abalene Pest Control Service, Inc. of New York (Abalene), three other corporations, and Walter T. Blank, the individual who is president of all the corporate defendants, alleging breach of two warranties in the purchase agreement executed by the parties, breach of that agreement, and tort claims based on negligence fraud, and negligent misrepresentation. The suit stemmed from Orkin's purchase of the assets of the above corporate defendants through their president, Blank (who is also a party to the purchase agreement in his individual capacity), specifically, the purchase of three properties in New York on which the presence of pesticides in the soil (on the Clinton and LaGrangeville properties) and barrels of buried pesticides (on the Fort Edward property) were allegedly discovered. The trial court granted partial summary judgment in favor of Orkin as to the Fort Edward property under one warranty claim and denied the motion for summary judgment on the entire complaint made by the defendants. The defendants' interlocutory appeal from the denial of their motion for summary judgment is consolidated in this opinion with their direct appeal from the grant of partial summary judgment in favor of Orkin.

1. We note initially that the purchase agreement executed by the parties provides that it "shall be construed in accordance with the laws of the State of New York." "The lex loci governs as to all substantive matters, and the lex fori as to all matters affecting the remedy or procedure. Rules of evidence, the methods of shifting the burden of proof, and the presumptions arising from a given statement of facts, are matters affecting the remedy or procedure. [Cit.]" Hamilton v. Metropolitan Life Ins. Co., 71 Ga.App. 784, 790(3), 32 S.E.2d 540 (1944). See also General Elec., etc., Corp. v. Home Indem. Co., 168 Ga.App. 344, 349(2), 309 S.E.2d 152 (1983). We thus apply the procedural law of Georgia where appropriate.

2. Appellants contend the trial court erred by denying their motion for summary judgment as to appellee's claims involving the Clinton and LaGrangeville properties. We find no merit in appellants' first argument that appellee's failure to introduce properly into the record the four Law Environmental, Inc. reports (which constituted the sole scientific evidence that pesticide residues were present in the soil of these properties) entitled appellants to summary judgment, because our review of the deposition taken by appellants of John Raymond, appellee's director of acquisitions, reveals that the Law Environmental reports were produced therein by appellants, marked for identification, and thereafter authenticated by Raymond. Accordingly, the Law Environmental reports were to be used as if annexed to and returned with the original deposition on file. OCGA § 9-11-30(f)(1)(B). Although the Law Environmental reports were not filed with the deposition, in the interest of judicial economy we have utilized the copies of those same reports present in the record as attachments to an untimely affidavit submitted by appellee. These reports clearly establish the existence of pesticide residues in the soil of the Clinton and LaGrangeville properties, and therefore summary judgment was properly denied.

Appellants argue alternately that even if the pesticide residues exist, no evidence was presented that the presence of the pesticides violated any applicable law so as to constitute a breach of paragraph 3.09(a) of the purchase agreement, which provides that "[appellants are] in compliance with all applicable laws, orders, rules and regulations of governmental bodies and agencies applicable to it."

"The burden of proof on motion for summary judgment is always on the movant, even with respect to issues on which the opposing party would have the burden of proof during the trial of the case. [Cits.]" Best v. Dublin Eye Assoc., 188 Ga.App. 225, 226, 372 S.E.2d 495 (1988). " '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.)' [Cit.]" Echols v. Hudson, 189 Ga.App. 780, 781, 377 S.E.2d 542 (1989). " 'A motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and evidence that the party so moving is entitled to prevail.' [Cits.]" McGivern v. First Capital Income Properties, Ltd., 188 Ga.App. 716, 717(1), 373 S.E.2d 817 (1988). Applying these rules, our review of the depositions of Raymond and Ted Barrow, appellee's employee and expert witness, discloses evidence from which it could reasonably be inferred that the presence of the pesticide residues at the Clinton and LaGrangeville properties was due to acts by appellants which violated various state and federal laws and regulations. Accordingly, the trial court did not err by denying appellants' motion for summary judgment.

3. Appellants contend the trial court erred by considering the transcript of a criminal trial involving Louis Yager, formerly employed by appellants as the district manager at the Fort Edward property. The criminal trial transcript reflects that Yager and Abalene were both named in an indictment, which, as to Yager, contained six counts including a count of unlawfully disposing of hazardous wastes, a felony to which Yager pled guilty. The criminal trial transcript consists of the hearing held on Yager's plea at which counsel for both Yager and Abalene were present. Yager testified under oath that while serving as Abalene's district manager, he had personally authorized an employee under his supervision to excavate a hole and bury the hazardous wastes. He further testified he had talked with others at Abalene about the matter, and had informed appellant Blank about the burial of the pesticides the day after it occurred. The transcript reflects that the New York court accepted Yager's plea of guilty as to the one count of unlawfully disposing of hazardous wastes and accepted the State of New York's recommendation that Yager be sentenced to one year in prison for the felony. Upon the filing of the criminal trial transcript in the case sub judice, appellants objected to the inclusion in the record of the transcript, but obtained no ruling on their objection.

We find no merit in appellants' argument that testimony by a witness given under oath in the form of a transcript to an earlier legal proceeding is inadmissible on motion for summary judgment. A certified copy of a court transcript is one of the items a trial court is authorized to examine on motion for summary judgment to determine whether there is a genuine issue of material fact to be tried. Bodrey v. Cape, 120 Ga.App. 859, 860-861(1), 172 S.E.2d 643 (1969). As unanimously noted in that whole court case, " 'a certified transcript of a court record is better evidence of its contents than an affidavit with regard thereto.' [Cits.]" Id. at 861, 172 S.E.2d 643. Accordingly, the testimony contained in the certified transcript of the hearing on Yager's guilty plea, insofar as such testimony may be relevant and material to the present proceeding, was subject to consideration by the court in carrying out its duty on summary judgment.

The cases cited by appellants in support of their contention, Neal v. Neal, 160 Ga.App. 771, 287 S.E.2d 109 (1982) and Pierce v. Pierce, 241 Ga. 96, 99-100(3), 243 S.E.2d 46 (1978), are distinguishable from the case sub judice. First, the criminal trial transcript reflects that only Yager pled guilty to a charge in the indictment; thus, in the absence of any adjudication on the charges as to appellants the transcript could not have been offered to prove the truth of appellants' guilt or innocence, as in Pierce, supra. And, unlike Neal, supra, proof of Yager's guilt would not serve to bar any suit pending between appellee and appellants.

Research has uncovered the decision in Moses v. Revco Discount Drug Centers, 164 Ga.App. 73, 75, 296 S.E.2d 384 (1982), in which this court, reviewing the grant of summary judgment to the defendants in a malicious prosecution suit, upheld the exclusion of an entire transcript from a prior criminal proceeding. In Moses, supra, this court intimated that sworn testimony from a trial transcript was not admissible on motion for summary judgment. The bases for this holding were that "[e]vidence on motion for summary judgment is generally presented by affidavit [OCGA § 9-11-56, and t]he testimony of witnesses in former legal proceedings is limited to occasions where inaccessibility of the witness is shown, or where it may be useful for impeachment. Code § 38-314 [OCGA § 24-3-10]." Id. at 75, 296 S.E.2d 384. While evidence on motion for summary judgment may typically be by affidavit, that is not the exclusive method for presenting sworn testimony. Bodrey, supra. Nor is the accessibility of a witness to testify at trial a concern on motion for summary judgment where by statute none of the evidence needs to be established by live testimony. See OCGA § 9-11-56(c), (e), (f). Since the transcript of the hearing to the criminal proceeding at issue here reflects that Yager was competent to testify, that his testimony was made under oath, and that it was based on his personal knowledge of what he did, what he ordered others to do, and what he told certain people, it was evidence admissible on motion for summary judgment pursuant to OCGA §...