C. Brown Trucking Co. Inc. v. Henderson, A10A1526.
| Decision Date | 09 September 2010 |
| Docket Number | No. A10A1526.,A10A1526. |
| Citation | 305 Ga.App. 873,700 S.E.2d 882 |
| Parties | C. BROWN TRUCKING COMPANY INC. v. HENDERSON. |
| Court | Georgia Court of Appeals |
305 Ga.App. 873
700 S.E.2d 882
C. BROWN TRUCKING COMPANY INC.
v.
HENDERSON.
No. A10A1526.
Court of Appeals of Georgia.
Sept. 9, 2010.
Stephen T. Maples, for appellant.
Gilder H. Howard, Sr., Sidney L. Storesund, Marietta, for appellee.
SMITH, Presiding Judge.
In this breach of contract action, C. Brown Trucking Company, Inc. (Brown) appeals from the grant of summary judgment to Charles Henderson on Henderson's claim for damages following the destruction of a car carrier trailer rented to Brown. We conclude that the trial court erred in granting summary judgment to Henderson and therefore reverse.
On appeal from the grant of summary judgment, this court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997).
The record reveals that Henderson filed a verified complaint averring that Brown rented a car carrier trailer from him that was destroyed while in Brown's possession. The parties executed a rental agreement on February 28, 2008, which provided that Henderson would deliver the trailer to Brown on that date and that the rental would begin on March 3, 2008 and end on March 8, 2009. The agreement also provided that if the trailer was lost while in Brown's possession, Brown would pay Henderson $20,000, the value of the trailer.
Brown's answer claimed that although on February 28 Charles
Brown (as owner of Brown Trucking Company) and Henderson signed the agreement, on March 2, 2008, one day before the rental period was to begin, he and Henderson “ agreed to void the contract and [Henderson] agreed to tear up his copy of the contract.” Charles Brown also claimed that he was unable to use the trailer because it had an expired tag and was “structurally unsuitable” and that on March 3, 2008, he agreed, at Henderson's direction, to have the trailer transported to a repair shop for a repair. He alleged that on March 5, 2008, Henderson “was notified and requested to pay for the repairs and pick-up the trailer.” Henderson did not pick up the trailer which was destroyed on March 15 by a tornado.
Henderson moved for summary judgment and filed an affidavit in support of the motion in which he averred (1) that on February 28, 2008, Brown took possession of the trailer, (2) that he consented to Brown taking the trailer to a repair shop for a “minor” repair, (3) that he gave Brown the money to pay for the repairs to the trailer, (4) that Brown did not retrieve the trailer after it was repaired, (5) that the trailer was destroyed by a tornado “on or about March 15, 2008,” and (6) that
he did not agree to void or terminate the rental agreement with Brown. Brown did not respond to Henderson's motion for summary judgment, and the failure to respond was specifically noted by the trial court in its order granting the motion on the ground that “there remains no genuine issue as to any material fact.”
1. On appeal, Brown argues that its verified answer creates a genuine issue of material fact as to whether the parties mutually rescinded the...
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