Baker v. Brannen/Goddard Co.

• Decision Date: 04 February 2002
• Docket Number: No. S01G0920.,S01G0920.
• Citation: 559 S.E.2d 450,274 Ga. 745
• Parties: BAKER v. BRANNEN/GODDARD COMPANY et al.
• Court: Georgia Supreme Court

559 S.E.2d 450

274 Ga. 745

BAKER v. BRANNEN/GODDARD COMPANY et al.

No. S01G0920.

Supreme Court of Georgia.

February 4, 2002.

Chamberlain, Hrdlicka, White & Williams, James L. Paul, Matthew J. McCoyd, Atlanta, for appellant.

Morris, Manning & Martin, Lewis E. Hassett, Jessica F. Pardi, Jennifer L. McKernan, Atlanta, Perry A. Phillips, Marietta, for appellees.

Weissman, Nowack, Curry & Wilco, Seth G. Weissman, Steven D. Caley, Atlanta, amici curiae.

CARLEY, Justice.

We granted certiorari to review Divisions 5 and 7 of Brannen/Goddard Co. v. Baker, 248 Ga.App. 248, 251-253, 544 S.E.2d 750 (2001). The case concerns the interplay between two successive Fulton County lawsuits, each of which seeks recovery of the same real estate commission. It also raises issues as to the relationship between the two separate appeals filed in connection therewith.

The original action was brought by Brannen/Goddard Company (B/G) and King Industrial Realty, Inc. (King) against PNC Realty Holding Corporation of Georgia (PNC) and Nolan Road West, Ltd. (Nolan), a limited partnership headquartered in Clayton County. In 1987, Nolan, in its capacity as the then-owner of certain leased property, entered into an agreement to pay a commission to B/G and King as consideration for their procurement of a tenant. The commission was payable in monthly installments over the term of the lease and any extension or renewal thereof. Nolan claimed that PNC assumed the obligation to pay the commission when it purchased the property in 1992 and became the lessor. PNC denied that it assumed Nolan's obligation for the commission, and moved for summary judgment. The trial court granted PNC's motion, and the Court of Appeals affirmed. Brannen/Goddard Co. v. PNC Realty Holding Corp., 238 Ga.App. 387, 519 S.E.2d 35 (1999). Accordingly, the original action proceeded against Nolan. For purposes of this appeal, that proceeding will be referred to as the "Nolan Action."

During the pendency of the Nolan Action, the other lawsuit was filed, in which B/G and Jack Rich, an agent of King, sought to recover the same commission from Baker, who was a former general partner in Nolan. For purposes of this appeal, that case will be referred to as the "Baker Action." The lawsuits were assigned to different trial judges, and the parties objected to the consolidation of the two proceedings. However, the judge who was handling the Baker Action eventually transferred that case to the judge to whom the Nolan Action was assigned. Thereafter, the two cases, though technically remaining separate, were both pending before the same trial judge. In November of 1999, the trial court held a consolidated hearing and issued orders in both cases. Nolan filed a notice of appeal in the Nolan Action, and B/G and Rich filed a notice of appeal in the Baker Action. In each notice of appeal, Appellant requested that the record include a copy of the transcript of the November 1999 hearing. Due to an apparent clerical error below, however, two transcripts were filed in the Nolan Action and none was filed in the Baker Action. B/G and King moved to supplement the record in the Baker Action with a transcript. By order, the Court of Appeals noted that the record in the pending Nolan Action contained duplicate transcripts and, for that reason, denied as unnecessary the motion to supplement the record in the Baker Action.

The Court of Appeals addressed the merits of both appeals in a single consolidated opinion. Nolan Road West v. PNC Realty Holding Corp., 248 Ga.App. 248, 544 S.E.2d 750 (2001). In the Nolan appeal, Nolan enumerated as error the denial of its motion to transfer the case to Clayton County, contending that basing venue in Fulton County as the residence of its limited partner was improper. However, the Court of Appeals affirmed that ruling. Nolan Road West v. PNC Realty Holding Corp., supra at 250(2), 544 S.E.2d 750. Nolan applied for and we granted certiorari in order to review the venue issue. Today, the holding of the Court of Appeals in that regard has been reversed in a separate opinion. Nolan Road West v. PNC Realty Holding Corp., 274 Ga. 742, 559 S.E.2d 447 (2002).

This appeal concerns the trial court's grant of summary judgment in favor of Baker in the Baker Action, on the ground that the statute of limitations had run on any claim for the commission against him personally. The Court of Appeals reversed that ruling. Brannen/Goddard Co. v. Baker, supra at 252(7), 544 S.E.2d 750. In connection with its holding, that Court noted that it had taken judicial notice of the transcript of the consolidated hearing of November 1999, even though that transcript had been filed only in connection with the appeal in the separate Nolan Action. The Court of Appeals concluded that the appeals in the Nolan and Baker Actions were "companion cases," which status authorized an appellate court to consider in both cases the record filed in either. Brannen/Goddard Co. v. Baker, supra at 252(5), 544 S.E.2d 750. We granted certiorari to review both the procedural judicial notice issue and the substantive statute of limitations issue.

1. According to Baker, the Court of Appeals erred in treating the Nolan and Baker Actions as "companion cases," and that erroneous treatment was harmful to his appeal because, without the transcript, the evidence would be conclusively presumed sufficient to support the trial court's ruling in his favor. "[W]here the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm. [Cits.]" Brown v. Frachiseur, 247 Ga. 463, 464, 277 S.E.2d 16 (1981). Thus, the principle upon which Baker relies to assert harmful error applies only if the Court of Appeals' consideration of the transcript was essential to the resolution of the appeal.

The transcript at issue revealed what took place at a hearing on Baker's motion for summary judgment. In connection with such a motion, the trial court does not sit as the trier of fact, but "review[s] the evidence and determine[s] whether a prima facie case has been proven by the movant." Dental One Assoc. v. JKR Realty Assoc., 269 Ga. 616, 618(1), 501 S.E.2d 497 (1998). A motion for summary judgment must be filed 30 days before the hearing and can be granted only

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law....

OCGA § 9-11-56(c). Thus, "[o]nly supporting material which is `on file' at least 30 days before the hearing shall be considered for the movant." Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631, 632, 278 S.E.2d 377 (1981). Since the purpose of the hearing is not the reception of evidence, the transcript is not usually necessary in an appeal from the grant of a motion for summary judgment. See Executrix of the Estate of Seamans v. True, 247 Ga. 721, 723(3), 279 S.E.2d 447 (1981). Legal argument presented to the trial court as to whether the material already on file authorizes the grant of summary judgment is not evidence. "It is the evidence of record, not the assertions and objections made by counsel at the hearing, which determines the validity or invalidity of the grant of summary judgment. [Cits.]" Dental One Assoc. v. JKR Realty Assoc., supra at 617-618(1), 501 S.E.2d 497.

In the order granting Baker's motion, the trial court indicated that it considered the "pleadings, affidavits, briefs, depositions and other matters on file. The court has also considered oral argument of counsel." Thus, the trial court limited itself to the evidence which had been filed in the case and did not consider any additional evidence on behalf of Baker. Executrix of the Estate of Seamans v. True, supra at 723(3), 279 S.E.2d 447. Compare Gill v. B & R International, 234 Ga.App. 528, 531(1)(c), 507 S.E.2d 477 (1998); Georgia Recovery v. Danley, 215 Ga.App. 236, 237(2), 450 S.E.2d 263 (1994). Moreover, Baker's motion was based, in relevant part, upon his statute of limitations defense. Although the attorneys obviously presented opposing legal arguments as to when the applicable statute began to run, the controlling factor in that regard was the complaint bearing the date that it was filed. Under these circumstances, the transcript of the hearing was irrelevant to an appellate consideration of the grant of Baker's motion based upon the statute of limitations. Thus, we need not determine whether the Court of Appeals erred in treating the Nolan and Baker Actions as "companion cases." Even assuming without deciding that it was erroneous to characterize them as such, Baker was not harmed by the Court of Appeals' consideration of the transcript filed in the Nolan Action which contained no relevant evidence that was not otherwise of record in the Baker Action.

2. In January of 1992, Nolan filed for bankruptcy and ceased to make any commission payments and, in September of that same year, it sold the property to PNC. There is no dispute that the six-year statute of limitations applies to B/G's and Rich's claim for the unpaid commissions. OCGA § 9-3-24. The contested issue is when that statute began to run. Citing Hunter v. Benamy Realty Co., 115 Ga.App. 829, 156 S.E.2d 160 (1967), the Court of Appeals held that the six-year period did not commence until September of 1992, when Nolan sold the property without requiring that PNC assume the obligation for the commission payments. Baker urges that the Court of Appeals erred and that he is entitled to summary judgment, because the statute started to run as to all installments in January of 1992, upon Nolan's bankruptcy and initial default on its monthly obligation to pay the commissions.

When the statute of limitations begins running on a breach of contract claim depends on...