Doyal & Associates, Inc. v. Blair, s. 51763

• Decision Date: 19 March 1976
• Docket Number: No. 1,51764,Nos. 51763,s. 51763,1
• Citation: 138 Ga.App. 314,226 S.E.2d 109
• Court: Georgia Court of Appeals
• Parties: DOYAL & ASSOCIATIONS, INC. v. E. T. BLAIR. DOYAL DEVELOPMENT COMPANY, INC. v. E. T. BLAIR

Page 109

226 S.E.2d 109

138 Ga.App. 314

DOYAL & ASSOCIATIONS, INC. v. E. T. BLAIR.

DOYAL DEVELOPMENT COMPANY, INC. v. E. T. BLAIR.

Nos. 51763, 51764.

Court of Appeals of Georgia, Division No. 1.

March 19, 1976,

Rehearing Denied April 2, 1976.

D. W. Rolader, Atlanta, for appellants.

Robert L. McHaney, Jr., Atlanta, for appellee.

CLARK, Judge.

These appeals are from partial summary judgments granted to plaintiff on the ground of res judicata.

Plaintiff, a real estate salesman, brought separate suits against defendants, real estate brokers, alleging that he procured lessees for certain properties as defendants' agent on the basis of which he was entitled to a percentage of the monthly commissions paid to defendants during the term of each lease. Defendants answered, denying the material allegations of the complaints. Following discovery, plaintiff moved for partial summary judgment in each case on the issue of liability alone based upon an answer to an interrogatory which is stated hereinafter in quoting the trial court's decision.

In support of his partial summary judgment motions, plaintiff pointed out that (1) in prior suits to recover a percentage of commissions from defendants the issue of 'procuring cause' was decided in plaintiff's favor and (2) in answers to interrogatories defendants acknowledged that with regard to this procuring cause issue, the facts in the actions as bar did not differ from the facts in the prior suits. Thus, plaintiff contended he was entitled to summary judgment on the issue of liability under the principle of res judicata.

In granting the plaintiff's partial summary judgment motions, the trial court entered an order which reads: 'These two cases are actions for real estate commissions earned for the procurement of certain leases by the plaintiff while in the employ of the defendant. Former actions have been filed for the same purpose between the same parties for the commissions then due and owing. Plaintiff propounded certain interrogatories to the defendant the most material question being: 'If defendant contends that facts are different insofar as procurement or efficient cause are concerned state in detail the facts which defendant contends are different in this action than from that former action.' Defendant answered as follows: 'Further answering, defendant does not contend that the facts are different insofar as procurement or efficient cause are concerned from the facts in that former action.' Therefore, the partial summary judgment is granted to the plaintiff in view of the question propounded and the answer to the defendant. Judgment is hereby rendered in favor of the plaintiff and against the defendant(s) in some amount which shall be determined by a jury.'

From this adverse ruling, defendants appealed. Held:

Although a judicial record itself is admissible in evidence (Reed v. Reed, 202 Ga. 508, 514, 43 S.E.2d 539), a trial court cannot take judicial notice of a record in a former suit, even between the same litigants. Thornton v. State, 136 Ga.App. 655, 222 S.E.2d 158. Thus, if a prior case is to have a res judicata application, the record of the prior case must be introduced in evidence. Guam Investment Co. v. Central Building, Inc., 288 F.2d 19, 24 (9th Cir. 1961). "The reason for the rule above referred to is that the decision of a cause must depend upon the evidence introduced. If the courts should recognize judicially facts adjudicated in another case, it makes those facts, though unsupported by evidence in the case in hand, conclusive against the opposing party; while if they had been properly introduced they have been met and overcome by him. So, on a plea of res adjudicata, a court cannot judicially notice that the matters in issue are the same as those in a former suit. Such matters must be pleaded and proved." Guam Investment Co. v. Central Building, Inc., supra, quoting Paridy v. Caterpillar Tractor Co., 48 F.2d 166 (7th...