Cochran v. McCollum

• Decision Date: 25 October 1974
• Docket Number: No. 29062,29062
• Citation: 210 S.E.2d 13,233 Ga. 104
• Parties: Melba McCollum COCHRAN v. Richard McCOLLUM et al.
• Court: Georgia Supreme Court

Page 13

210 S.E.2d 13

233 Ga. 104

Melba McCollum COCHRAN v. Richard McCOLLUM et al.

No. 29062.

Supreme Court of Georgia.

Oct. 25, 1974.

Clayton H. Hollingsworth, Jr., Rome, for appellant.

Virginia A. Bips, Atlanta, Lane & Sanders, Thomas C. Sanders, Dallas, for appellees.

Syllabus Opinion by the Court

HALL, Justice.

Caveator appeals from a judgment of the Superior Court dismissing the caveat on the motion of the propounders urging that the grounds stated in the caveat were merely conclusions and failed to state any facts relied upon to prove undue influence, fraud, duress or mistake. The case originated in the court of ordinary where a judgment adverse to the caveators was entered by the ordinary.

The CPA applies to 'all courts of record of the State of Georgia in all suits of a civil nature whether cognizable as cases at law or in equity, with the exceptions stated in § 81A-181.' Code Ann. § 81A-101; Gresham v. Symmers, 227 Ga. 616, 182 S.E.2d 764. The court of ordinary is a court of record. Wofford v. Vandiver, 72 Ga.App. 623, 34 S.E.2d 579.

Under the CPA, a pleading should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. We hold this principle applicable to all pleadings including special matters (fraud, mistake and conditions precedent) under Code Ann. § 81A-109. Management Search, Inc. v. Kinard, 231 Ga. 26, 199 S.E.2d 899. The proper remedy for seeking more particularity is by motion for a more definite statement (Code Ann. § 81A-112(e)) at the pleading stage or by the rules of discovery thereafter. DeWes Enterprises v. Town & Country Carpets, 130 Ga.App. 610, 203 S.E.2d 867; see Hayes v. Hallmark Apartments, 232 Ga. 307, 207 S.E.2d 197. Any language to the contrary contained in Martin v. Approved Bancredit Corp., 224 Ga. 550, 163 S.E.2d 885 and cases following it is hereby disapproved and will not hereafter be followed.

The trial court erred in dismissing the caveat.

Judgment reversed.

All the Justice concur, except GRICE, C.J., and NICHOLS, P.J., who dissent.

NICHOLS, Presiding Justice (dissenting).

Section 9(b) of the Civil Practice Act (Code Ann. § 81A-109(b)) provides 'In all averments of fraud, or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.' Subsection (c) of this section then provides 'In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.'

The majority opinion fails to take into account the obvious legislative intent to require a different standard of pleading from that generally required by the Civil Practice Act in cases dealing with fraud or mistake. This distinction was recognized by this court in Martin v. Approved Bancredit Corp., 224 Ga. 550, 163 S.E.2d 885.

In Continental Investment Corp. v. Cherry, 124 Ga.App. 863, 865, 186 S.E.2d 301, 302, it was said: 'Code Ann. § 81A-109(b) which is in the language of Rule 9(b) of the Federal Rules of Civil Procedure requires that in all averments of fraud, the circumstances constituting the fraud must be stated with particularity. It is generally recognized that this exception to the general liberality of pleading permitted under these rules, although to be construed in pari materia with the remainder of the Act, in effect retains a long-standing rule obtaining at common law and in many states, including Georgia, and requires that facts must be alleged which if proved would lead clearly to the conclusion that fraud had been committed. Chicago Title & Trust Co. v. Fox Theatres Corp., D.C., 182 F.Supp. 18; Kohler v. Jacobs, 5 Cir., 138 F.2d 440; Duane v. Altenburg, 7 Cir., 297 F.2d 515, 518(5). In the Duane case allegations that materials were available at prices far below the prices paid for materials and services, that stock was purchased at excessive prices, and general allegations of value with no showing of market value were held insufficient in an action based on fraudulent mismanagement by corporate directors. There, as here, no finger was pointed at any identifiable transaction. 'The circumstances...