Dunlap v. First Rock Credit Corp., A89A1677

Citation194 Ga.App. 563,390 S.E.2d 919
Decision Date20 February 1990
Docket NumberNo. A89A1677,A89A1677
CourtUnited States Court of Appeals (Georgia)

Nancy H. Murphy, Atlanta, for appellant.

Hurt, Richardson, Garner, Todd & Cadenhead, Henry D. Fellows, Jr., Martha M. Glisson, Atlanta, for appellee.


Defendant Dunlap appeals the grant of summary judgment to First Rock Credit, which sued on two promissory notes signed by Dunlap, one for $45,352 and one for $61,060, both dated December 31, 1985. First Rock Credit Corporation is a wholly owned subsidiary of First Rock Financial Corporation. First Rock Financial Corporation and First Rock Associates I Limited Partnership offered for sale in Georgia a tax shelter security known as "FR Equipment Leasing Trust 85-4," which had a closing date of December 31, 1985.

Dunlap met Doug Bowers in 1985. Bowers was an independent insurance agent who participated in providing insurance for Dunlap's company employees. Dunlap consulted Bowers about other investments and paid $2,000 for this advice in May 1985. In December, Dunlap expressed interest in a private placement investment and Bowers introduced him to Ronald Verlander, a licensed registered representative of Investacorp., a securities broker-dealer. Bowers and Verlander met with Dunlap more than once in December. Verlander gave him a copy of the private placement memorandum for the Trust.

Verlander presented to Dunlap the First Rock Credit Corporation Promissory Notes, Credit Agreement and other documents necessary for the purchase of four units in the Trust, which Dunlap signed and returned with his check of December 17, payable to the "Trust." On the memo line of the check is written "Subscription for LTD. Partnership." Dunlap made only one payment on the notes.

Dunlap's answer and counterclaim both alleged fraud in the inducement, claiming that Bowers was acting as an agent of First Rock Credit Corporation and that he misrepresented to Dunlap the nature of the investment and also falsely represented that he was licensed to sell securities in Georgia. Dunlap alleged that he was presented with a set of documents representing the investment as a limited partnership instead of a trust, although no copies of this alleged first set of documents are included in the record.

1. The second enumeration claims reversible error because the court granted summary judgment without considering the depositions of Condo, Dunlap, and Hammond. Although Dunlap contends that the depositions remained sealed until after the order was entered, there is no evidence of this. Allegations made in briefs but unsupported by the record will not be considered. Blue v. R.L. Glosson Contracting, 173 Ga.App. 622, 623(1), 327 S.E.2d 582 (1985).

Even if they had remained sealed, "[i]f a trial court indicates in his order granting a motion for summary judgment that the motion is being granted after a review of the record, this court will not hold that he failed to review the relevant portions of a deposition simply because the original of the deposition on file in the case remained sealed and was not opened until after the order granting the motion was entered." General Motors v. Walker, 244 Ga. 191, 193, 259 S.E.2d 449 (1979); Bailey v. Johnson, 245 Ga. 823, 829(6), 268 S.E.2d 147 (1980); Light v. Equitable Mtg., etc., 191 Ga.App. 816, 817(1), 383 S.E.2d 142 (1989); compare Maddox v. Brown, 188 Ga.App. 728, 374 S.E.2d 222 (1988). The order recites that it was issued "[a]fter carefully considering the arguments presented by counsel ... and after reviewing all matters of record...."

2. The court granted summary judgment on two bases, either of which suffices. Dunlap contends that Bowers presented him initially with a limited partnership private placement memorandum instead of one relating to a trust. Verlander was present. Assuming that there was a difference in the initial presentation to Dunlap and the documents he signed, First Rock Credit was still entitled to summary judgment.

First Rock Credit Corporation was not a party to the underlying private placement memorandum which Dunlap claims was misrepresented or switched on him. It only provided the financing for Dunlap to participate in the investment. The promissory notes sued upon make no reference to the purpose for which the money was loaned.

In addition, the signed documents were clearly marked and defined by their terms as a trust, not a limited partnership. Dunlap's accountant said there were no differences in the tax benefits offered by the partnership and the trust; the accounting records and proof were only treated differently in the event of an audit.

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6 cases
  • Mauldin v. Weinstock, A91A1691
    • United States
    • United States Court of Appeals (Georgia)
    • 15 Octubre 1991
    ...determination below." Bishop v. Mangal Bhai Enterprises, 194 Ga.App. 874(1), 392 S.E.2d 535; compare Dunlap v. First Rock Credit Corp., 194 Ga.App. 563, 564(1), 390 S.E.2d 2. Appellant's assertion that the trial court failed to make the factual distinction between the contractual grievance ......
  • McDaniel v. Peterborough Cablevision, Ltd., A92A1625
    • United States
    • United States Court of Appeals (Georgia)
    • 23 Noviembre 1992
    ...at 266, 395 S.E.2d 894; Withrow Timber Co. v. Blackburn, 244 Ga. 549, 551-553, 261 S.E.2d 361 (1979); Dunlap v. First Rock Credit Corp., 194 Ga.App. 563, 565, 390 S.E.2d 919 (1990); Hill-Everett v. Jones, 197 Ga.App. 872, 873, 399 S.E.2d 739 (1990). The evidence presented by PC pierced appe......
  • Conerly v. First Nat. Bank of Baldwin County, A93A0591
    • United States
    • United States Court of Appeals (Georgia)
    • 16 Julio 1993
    ...on fraud." ' Life Ins. Co. of Va. v. Conley, 181 Ga.App. 152, 153 (351 SE2d 498) (1986); [Cits.]" Dunlap v. First Rock Credit Corp., 194 Ga.App. 563, 565(2), 390 S.E.2d 919 3. Conerly's second enumeration alleges error in the trial court's dismissal of his amended counterclaim based on the ......
  • Argentum Intern., LLC v. Woods, A06A0698.
    • United States
    • United States Court of Appeals (Georgia)
    • 12 Julio 2006
    ...Paul Fire & Marine Ins. Co. v. Clark, 255 Ga.App. 14, 17(1), 566 S.E.2d 2 (2002). 16. See id. 17. See Dunlap v. First Rock Credit Corp., 194 Ga.App. 563, 565(2), 390 S.E.2d 919 (1990). 18. Lester v. Bird, 200 Ga.App. 335, 338(1), 408 S.E.2d 147 (1991). 19. See Clark v. Byrd, 254 Ga.App. 826......
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