Cruce v. Randall

• Decision Date: 22 April 1980
• Docket Number: No. 35824,35824
• Citation: 266 S.E.2d 486,245 Ga. 669
• Parties: CRUCE et al. v. RANDALL et al.
• Court: Georgia Supreme Court

Page 486

266 S.E.2d 486

245 Ga. 669

CRUCE et al. v. RANDALL et al.

No. 35824.

Supreme Court of Georgia.

Argued March 10, 1980.

Decided April 22, 1980.

J. C. Rary, Robert P. Hoyt, Atlanta, for appellants.

Tom Benham, Louis F. McDonald, Atlanta, George O'Hanlon, East Point, for appellees.

MARSHALL, Justice.

We granted certiorari in this case to determine the narrow issue of whether it was proper to enter summary judgment in favor of the nonmoving party plaintiff as well as for the movant party plaintiff, absent written notice or waiver thereof, on the ground that the issues were the same as those involved in the movant's motion, of which the opposite parties had notice.

We will not set forth all of the facts in the case, which may be found in the Court of Appeals' opinion. Cruce v. Randall, 152 Ga.App. 183, 262 S.E.2d 488 (1979). Suffice it to say that the two plaintiffs were joint obligees on a promissory note on which the defendants were the obligors, and that the issues concerning the defendants' liability are identical as to both plaintiffs, as was held by the Court of Appeals.

The Court of Appeals dealt with the issue of whether the trial court may grant summary judgment to a nonmoving party as one of first impression in Georgia. However, that court, in Massey v. Consolidated Equities Corp., 120 Ga.App. 165(1), 169 S.E.2d 672 (1969), upheld the grant of summary judgment to a nonmoving party. It is true that the moving party in that case was an opposite party, which was also the situation in our recent case of Golston v. Garigan, 245 Ga. 450, 265 S.E.2d 590 (1980). The Court of Appeals in the case sub judice relied on the interpretation of Rule 56 of the Federal Rules of Civil Procedure, which is almost identical to Code Ann. § 81A-156, to permit such a procedure where, as here, such filing would be a pure formality. Their opinion quoted with approval this caveat: "Care should, of course, be taken by the (trial) court to determine that the party against whom summary judgment is rendered has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact to be tried, and that the party for whom summary judgment is rendered is entitled thereto as a matter of law." 6 Moore's Federal Practice 56-331, 56-334, P 56.12.

The appellants argue that P 56.12 of Moore's supra, deals with situations, unlike the present one, involving the grant of summary judgments in favor of nonmoving parties who are responding to the opposite party's own summary judgment motion. They contend that the applicable standard is set forth at 6 Moore's Federal Practice 56-341, 56-349, P 56.13, i. e., "that appellant's motion for summary judgment apprised his adversary, who also had moved for summary judgment, that he should be prepared to meet the appellant's position that on the undisputed facts appellant was entitled to judgment as a matter of law."

It is true that the exact situation existent in the case sub judice is not covered specifically in these chapters of Moore's. We do note the citation...