Charles Rossignol, Inc. v. Prophecy Corp.

• Decision Date: 20 November 1985
• Docket Number: No. 70551,70551
• Citation: 177 Ga.App. 245,339 S.E.2d 288
• Parties: CHARLES ROSSIGNOL, INC. et al. v. PROPHECY CORPORATION.
• Court: Georgia Court of Appeals

Page 288

339 S.E.2d 288

177 Ga.App. 245

CHARLES ROSSIGNOL, INC. et al. v. PROPHECY CORPORATION.

No. 70551.

Court of Appeals of Georgia.

Nov. 20, 1985.

Rehearing Denied Dec. 17, 1985.

Certiorari Granted Feb. 13, 1986.

Gene A. Major, Suzanne Wynn, Atlanta, for appellants.

Edwin L. Hoffman, for appellee.

CARLEY, Judge.

Charles Rossignol and Charles Rossignol, Inc. brought suit against Prophecy Corporation seeking to recover money allegedly due as compensation under a contract executed between the two corporations. Prophecy answered, raising accord and satisfaction as a defense. The trial court granted Prophecy's motion for summary judgment. Rossignol and Charles Rossignol, Inc. appeal.

Appellee, a manufacturer of women's clothing, employed appellants to represent its line of merchandise in the southeast. After the termination of appellants' employment with appellee, they received a check representing the final payment for all commissions earned during the previous quarter. The check was accompanied by documentation of deductions. Appellants disagreed with some of the deductions taken and contacted appellee's president to voice that disagreement. Compare Sunbelt Life Ins. Co. v. Bank of Alapaha, 176 Ga.App. 628, 337 S.E.2d 410 (1985). At some point during the course of their discussions, Rossignol endorsed and deposited the check, sending appellee written notice that it was accepting the check as partial payment of the amount due.

Appellants contend that the trial court erred by granting summary judgment to appellee because questions of fact exist as to whether there was a meeting of the minds between the parties resulting in an accord and satisfaction. OCGA §§ 13-4-101; 13-4-103(b). Appellants contend that telephone conversations between appellants and appellee indicate that there existed an understanding by all parties that the check did not represent full and final payment of the debt, which was to be further discussed, and that, therefore, appellants' depositing of the check did not constitute an accord and satisfaction of the debt. Rossignol originally testified in a deposition that he did not know what the time sequence of the communications between the parties was, but he also implied that the negotiation of the check preceded the agreement of the parties to discuss the matter further. Later, in response to appellee's motion for summary judgment, he submitted an affidavit stating that "[s]ince my deposition I have reviewed my notes and records and otherwise refreshed my recollection and I now know" that the crucial conversation occurred prior to the check deposit.

The trial court found that the affidavit contradicted the deposition, and that the contradiction was deliberate and intentional, but held that even had it not been deliberate and intentional, appellants were bound by their version of the incident that was least favorable to their case. For this proposition the trial court relied primarily on Cook v. Delite Beauty Supply, 165 Ga.App. 859, 860, 303 S.E.2d 40 (1983) and Tri-Cities Hosp. Auth. v. Sheats, 247 Ga. 713, 279 S.E.2d 210 (1981). As indicated by the trial court, this court in Cook did construe the Supreme Court's decision in Tri-Cities Hosp. Auth. as being "a modification of the previous rule, set forth in Chambers v. C & S Nat. Bank, 242 Ga. 498, 249 S.E.2d 214 (1978), to the effect that a respondent's testimony will be construed against him only where the contradiction is deliberate or intentional." Cook v. Delite Beauty Supply, supra, 165 Ga.App. 860, 303 S.E.2d 40. The Supreme Court, however, has held otherwise, squarely addressing this issue in King v. Brasington, 252 Ga. 109, 312 S.E.2d 111 (1984). "In Combs [v. Adair Mortgage Co., 245 Ga. 296, (264 S.E.2d 226) (1980) ] we were called upon to reconcile the cases of Burnette Ford, Inc. v. Hayes, 227 Ga. 551 (181 S.E.2d 866) (1971), with Chambers v. Citizens &c. Nat. Bank, 242 Ga. 498, (249 S.E.2d 214) (1978). In our holding we recognized the heavy burden placed upon a movant for summary judgment to show the absence of any issue of material fact. Burnette Ford, Inc. v. Hayes, supra. We found, however, that even though the presence of any issue of fact will defeat a motion for summary judgment, such an issue cannot be created by a respondent's intentionally contradictory evidence. The requirement that only intentionally contradictory evidence will be construed against the respondent is necessary since normally the evidence is construed most strictly against the movant on motion for summary judgment. It is otherwise at trial, and in the absence of other testimony a plaintiff whose testimony as to vital facts is contradictory has not carried his burden of establishing a prima facie case and may not prevail on the basis of such contradictory testimony." (Emphasis supplied.) King v. Brasington, supra, 252 Ga. 111, 312 S.E.2d 111. Since King is the latest expression of the Supreme Court on the issue now before us, it is absolutely binding upon us. Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839 (1975). In light of the Supreme Court's decision in King, supra, our analysis of Tri-Cities Hosp. Auth. was erroneous. Accordingly, to the extent that the language in Division 1 of Cook is inconsistent with the holding of the Supreme Court in King, Cook and such other decisions of this court as follow the rationale of Cook must be overruled.

Applying the rule of King v. Brasington to the facts of this case, it is clear that the trial court erred in finding an intentional conflict between Rossignol's deposition testimony and his later explanatory affidavit statement to the effect that he deposited the check after being told in a telephone conversation that appellee's agent agreed to consider and discuss further the deductions under consideration. In his deposition, Rossignol merely did not remember the time sequence. It was only in his affidavit, given after he had reviewed his notes and records, that he gave a definite answer as to the time sequence. Even assuming that this evinced a "conflict," it does not, in our opinion, rise to the level of an "intentional" one so as to authorize the trial court, rather than the jury, to resolve the issue in favor of appellee and against appellant. As a genuine issue of material fact remains regarding whether, at the time the check was accepted, appellee intended to make full payment, the trial court erred in granting summary judgment to appellee.

Judgment reversed.

DEEN and McMURRAY, P.JJ., and POPE, BENHAM and BEASLEY, JJ., concur.

BANKE, C.J., BIRDSONG, P.J., and SOGNIER, J., dissent.

SOGNIER, Judge, dissenting.

I respectfully dissent. Appellant Rossignol stated in his deposition that he deposited appellee's check before he made the "emotional night call" in which appellee's agent allegedly agreed to reconsider the amount due, thus admitting an accord and satisfaction of the debt. After appellee moved for summary judgment on the basis of that deposition, appellant filed his affidavit stating that after he "reviewed [his] notes and records" he remembered that the crucial telephone call took place before he deposited the check and thus no accord and satisfaction occurred. This is a direct contradiction of a material fact and under the rule announced in Tri-Cities Hosp. Auth. v. Sheats, 247 Ga. 713, 279 S.E.2d 210 (1981), where there is a direct contradiction in the testimony of the respondent as to a material issue of fact, that party's unfavorable testimony will be taken against him. Id. at 714, 279 S.E.2d 210.

The summary judgment language in King v. Brasington, 252 Ga. 109, 312 S.E.2d 111 (1984), cited by the majority, is dicta because it was not at all necessary to the King decision, which revolved around contradictory trial testimony given by the plaintiff. Thus, it is not controlling authority. See State Hwy. Dept. v. Cooper, 104 Ga.App. 130, 136, 121 S.E.2d 258 (1961); Rider v. State, 103 Ga.App. 184, 185(2), 118 S.E.2d 749 (1961). The dicta was included in King, supra 252 Ga. at 111, 312 S.E.2d 111, because "[i]t has been suggested that our holding in Combs v. Adair Mortgage Co., [245 Ga. 296 (264 SE2d 226) (1980) ], is in conflict with Western & Atlantic R. Co. v....