Ellis v. Curtis-Toledo, Inc., CURTIS-TOLED

• Decision Date: 04 June 1992
• Docket Number: INC,No. A92A0541,CURTIS-TOLED,A92A0541
• Citation: 204 Ga.App. 704,420 S.E.2d 756
• Parties: ELLIS et al. v.
• Court: Georgia Court of Appeals

Page 756

420 S.E.2d 756

204 Ga.App. 704

ELLIS et al. v. CURTIS-TOLEDO, INC.

No. A92A0541.

Court of Appeals of Georgia.

June 4, 1992.

Reconsideration Denied June 29, 1992.

William G. Maston, Birney O. Bull, Savannah, for appellants.

Ackerman, Woodard & Butler, Jeffrey M. Butler, Walterboro, S.C., Greer, Klosik & Daugherty, Robert J. McCune, Atlanta, for appellee.

SOGNIER, Chief Judge.

Gerald and Elaine Ellis bring this appeal from the trial court's grant of summary judgment to Curtis-Toledo, Inc. in its action against them based upon a personal guaranty.

In its complaint against appellants, appellee alleged that it was owed a debt on account and that appellants had guaranteed that debt. Attached to the complaint were copies of the purported guaranty agreement executed by appellants and the account statement showing an amount owed for purchases made by Action Compressor and Pump Services ("Action") from appellee. Appellants answered denying liability and asserted the defense of res judicata based on appellee's failure to join appellants in a prior suit in which it had obtained judgment against Action. In response to appellee's requests for admission, appellants admitted they had signed a guaranty agreement, that summary judgment had been entered in the prior action against Action, and that they were officers of Action and had knowledge of its business and legal activities, but denied liability on the guaranty. The trial court's order granting summary judgment in favor of appellee specifically recited that appellants' defense of res judicata was not applicable to this action and that, as appellants had admitted signing the guaranty agreement, appellee was entitled to judgment as a matter of law.

1. We find no merit in appellants' contention that the trial court erred by finding that their affirmative defense of res judicata was inapplicable here. Three prerequisites are necessary for the successful assertion of a res judicata defense based on a prior suit. There must be (1) identity of parties; (2) identity of the cause of action in both suits; and (3) the prior adjudication must have been by a court of competent jurisdiction. Firestone Tire, etc., Co. v. Pinyan, 155 Ga.App. 343, 345, 270 S.E.2d 883 (1980). Since the prior suit against Action was based upon an account and the instant action was brought upon a written guaranty, no identity of the cause of action existed, and the trial court did not err by finding that res judicata did not bar this action. See generally Crowe v. Congress Fin. Corp., 196 Ga.App. 36, 39-40(3), 395 S.E.2d 321 (1990).

2. Nevertheless, we find the trial court erred by granting summary judgment to appellee. Summary judgment is granted only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." OCGA § 9-11-56(c). The movant has the original burden of making this showing. Lawson Prods. v. Rousey, 132 Ga.App. 726, 727(1), 209 S.E.2d 125 (1974). Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence. Weldon v. Del Taco Corp., 194 Ga.App. 174-175, 390 S.E.2d 87 (1990). In this case, it was...