Fierer v. Ashe
| Decision Date | 19 April 1977 |
| Docket Number | No. 1,No. 53169,53169,1 |
| Citation | 235 S.E.2d 598,142 Ga.App. 290 |
| Parties | , Blue Sky L. Rep. P 71,342 R. G. FIERER et al. v. R. L. ASHE, Jr., et al |
| Court | Georgia Court of Appeals |
King & Spalding, Jack H. Watson, Jr., Michael C. Russ, H. Lamar Mixson, Jr., Atlanta, for appellants.
David F. Kell, Greene, Buckley, DeRieux & Jones, Thomas B. Branch, III, Eileen M. Crowley, Atlanta, for appellees.
Plaintiffs Ashe and Fitzsimmonds each brought separate actions in the Civil Court of Fulton County to void their purchase of limited partnership interest from defendants Cambridge Capitol Corporation and Lawson. The respective purchase dates were October 9, 1973, and October 2, 1973, therefore the applicable "blue sky" law is the Georgia Securities Act of 1957 () (hereafter the Act). The Georgia Securities Act of 1973 did not become effective until April 1, 1974 (Ga.L.1973, pp. 1202, 1260). The limited partnership interest had not been registered with the Secretary of State nor were they exempt from registration as provided by Sections 5 and 6 of the Act (see former Code Ann. § 97-107; Ga.L.1957, pp. 134, 150; 1960, pp. 957, 960; 1961, p. 457; 1963, pp. 557, 560). The plaintiffs seek return of purchase price plus court costs and attorney fees.
The defendants filed a third-party claim against third-party defendants Fierer, Devine and Cardon, attorneys at law, alleging that their negligence while serving as attorneys for defendants was responsible for the failure to apply for and obtain a certificate of exemption from registration pursuant to Section 6(j) of the securities law. Fierer and Devine filed counterclaims against the defendants (third-party plaintiffs). Discovery was completed, and the facts and issues of law being similar in each case, they were combined below for consideration of various motions. The court denied all motions except plaintiffs' motions for summary judgment which were granted. The third-party defendants appeal, contending that the granting of plaintiffs' motions for summary judgment and the denial of their motions for summary judgment and for dismissal for lack of subject matter jurisdiction was error. Held :
1. Third-party defendants' first, third and fourth enumerations of error seek review of the denial of their motions for summary judgment and motions to dismiss. Under the recent ruling in Marietta Yamaha, Inc. v. Thomas, 237 Ga. 840, 842(2), 229 S.E.2d 753, we may not consider these enumerations due to the absence of a certificate of the trial judge.
2. Appellants next contend that the limited partnership interest is not a security within the meaning of the Act. However, an examination of the limited partnership agreements in the light of the several tests and formulas for determination if a "security" exists in a particular factual situation provided by Jaciewicki v. Gordarl Assoc., Inc., 132 Ga.App. 888, 891-893, 209 S.E.2d 693, reveal that the limited partnership agreements provided for capital contribution by the partners, allocation of profit and loss to the partners in proportion to their interest in the partnership and management of the partnership by the general partners. See Kleiner v. Silver, 137 Ga.App. 560(1), 224 S.E.2d 508 3. Plaintiffs have presented prima facie cases showing sales of securities in violation of the provisions of the Georgia Securities Act of 1957, which sales are voidable at the election of the purchaser pursuant to Section 13 of the Act (formerly Code Ann. § 97-114; Ga.L.1957, pp. 134, 159). The third-party defendants raise several affirmative defenses on behalf of defendants which they contend create issues of material fact which should have precluded the court's granting plaintiffs' motions for summary judgment.
The third-party defendants contend that plaintiffs knowingly received secret guarantees by defendants to repurchase the limited partnership interest at a specified price on a later date. The secret repurchase agreements are suggested to constitute violations of state and federal security laws so as to place plaintiffs in pari delicto with defendants. Plaintiffs acknowledge having received from defendants a repurchase guarantee and being aware of each other's guarantee, but disavow any further knowledge on the subject of repurchase guarantees. This being the only evidence regarding these repurchase guarantees there is no evidence to support the contentions raised by the third-party defendants on behalf of the defendants that plaintiffs knowingly received secret repurchase guarantees. The equitable defense of in pari delicto has been applied in actions to void the sale of securities under Section 13 of the Act (formerly Code Ann. § 97-114, supra) where the plaintiff seeking to void the sale of securities stands in a dual capacity, as purchaser and as a member of the category of persons liable to the purchaser. See Nash v. Jones, 224 Ga. 372, 162 S.E.2d 392, where the plaintiff purchaser...
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Bell v. Sasser
...the category of persons liable to the purchaser," the equitable defense of in pari delicto precludes recovery. Fierer v. Ashe, 142 Ga. App. 290, 292(3), 235 S.E.2d 598 (1977). This principle does not apply here. At the time of the sale, Bell did not serve as an officer or director of Sundan......
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Fierer v. Ashe
...court refused to review it when the appellants filed an appeal without following proper interlocutory procedures. Fierer v. Ashe, 142 Ga.App. 290, 235 S.E.2d 598 (1977). Following the state court's denial of the summary judgment motion, a similar motion pending in the district court was gra......