Gentile v. Bower

• Decision Date: 12 September 1996
• Docket Number: No. A96A1125,A96A1125
• Citation: 477 S.E.2d 130,222 Ga.App. 736
• Parties: GENTILE v. BOWER.
• Court: Georgia Court of Appeals

Page 130

477 S.E.2d 130

222 Ga.App. 736

GENTILE v. BOWER.

No. A96A1125.

Court of Appeals of Georgia.

Sept. 12, 1996.

Leon Pomerance, Tony Center, Arnall, Golden & Gregory, James R. Evans, Karen B. Bragman, Atlanta, for appellant.

McKee & Barge, James R. Marshall, Atlanta, for appellee.

RUFFIN, Judge.

Anthony Gentile appeals the trial court's order granting summary judgment to Paul Bower for the balance due on a $36,000 promissory note that Gentile executed in connection with a real estate sales contract. We reverse.

On appeal from a trial court's grant of summary judgment, this Court conducts a de novo review of the evidence. Moore v. Food Assoc., 210 Ga.App. 780, 437 S.E.2d 832 (1993). In order to prevail at summary judgment under OCGA § 9-11-56, "the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. [Cit.]" Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991). "The movant has the original burden of making this showing. 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." (Citation and punctuation omitted.) Kelly v. Pierce Roofing Co., 220 Ga.App. 391, 392-393(2), 469 S.E.2d 469 (1996). However, if the respondent successfully produces such rebuttal evidence in the form of an affirmative defense, the burden shifts back to the movant to establish the non-existence of a genuine issue of fact as to each affirmative defense. Abdalla v. DDCB, Inc., 216 Ga.App. 667, 668, 455 S.E.2d 598 (1995). Furthermore, the movant's "papers are carefully scrutinized and all doubts are resolved against [him], while [the respondent's] papers are treated with considerable indulgence. [Cits.]" (Punctuation omitted.) Id. at 669, 455 S.E.2d 598.

The record in this case shows that in December 1991, Bower agreed to sell property to Gentile, subject to an existing first security deed. The parties signed a sales contract which provided that Bower would convey marketable title by general warranty deed to Gentile at the time of closing. The contract further required Gentile to reconvey to Bower a "wrap around" security deed and a promissory note covering the balance Bower owed on the existing first security deed, as well as a second security deed and a separate promissory note in the amount of $36,000 covering Bower's equity in the property. In January 1992, approximately three weeks after the parties signed the sales contract, they closed the sale. At the closing, Gentile executed and delivered the security deeds and promissory note described in the sales contract, but Bower apparently never delivered the general warranty deed to Gentile.

Following the closing, Gentile brought this action for fraud, alleging that Bower made false representations regarding the property. Bower then counterclaimed against Gentile, demanding payment on the $36,000 promissory note. The trial court granted Bower summary judgment both on Gentile's fraud claim and on his own counterclaim for the balance due on the $36,000 promissory note. Gentile appeals only the trial court's grant of summary judgment on Bower's counterclaim.

Before addressing the merits of this appeal, we note that Gentile's counsel has violated the rules of this Court in preparing his brief. In particular, the brief fails to conform to Court of Appeals Rule 27(c)(1), which requires that the sequence of arguments presented in the briefs "shall follow the order of the enumeration of errors, and shall be numbered accordingly." The brief also fails to comply with Court of Appeals Rule 27(c)(3), mandating that a party support its arguments with specific reference to the record or transcript. "It is not the function of appellate judges to engage in the insipid search for support of alleged error without citation to relevant parts of the record." Kinsey v. State, 219 Ga.App. 204, 205, 464 S.E.2d 648 (1995). Gentile's brief contained no reference to the record supporting his contention that Bower failed to deliver the warranty deed to him at the time of the closing.

Furthermore, Gentile's counsel raises two different errors within a single enumeration, citing the Code sections for both summary judgment and the parol evidence rule. When an appellant asserts more than one error within a single enumeration, this Court may exercise the discretion to review none, one or both of the errors asserted. Toledo v. State, 216 Ga.App. 480, 482, 455 S.E.2d 595 (1995). Thus, in addition to making it difficult for us to address the merits of Gentile's claim, counsel's failure to follow the rules of this Court is potentially prejudicial to his client. Needless to say, we expect all counsel practicing in this Court to know and to follow its rules. We are, accordingly, requiring by separate order that Gentile's counsel show cause why he should not be cited for contempt for failure to comply with this Court's rules.

1. Gentile first contends that the trial court erred in granting Bower's motion for summary judgment because there are genuine issues of material fact as to his liability under the $36,000 promissory note. We agree.

In an action on a promissory note, a claimant may establish a prima facie right to judgment as a matter of law by producing the promissory note and showing that it was executed. Jay Gleason Advertising Svc. v. Gleason, 193 Ga.App. 445(1), 388 S.E.2d 43 (1989). In this case, Bower established such a prima facie right to judgment by producing the executed $36,000 promissory note. Accordingly, on Bower's motion for summary judgment, the burden shifted to Gentile to establish an affirmative defense to Bower's claim. See Kelly, supra.

Contrary to Bower's contentions, Gentile did meet this burden. In his response to Bower's summary judgment motion, Gentile claimed that he was relieved of his liability under the promissory note because Bower failed to deliver the warranty deed referred to in the real estate sales contract, thus implicitly raising the affirmative defense of "failure of consideration." Furthermore, Gentile does not merely rely on his pleadings to establish this affirmative defense. As evidence in support of this contention, Gentile attached the real estate sales contract, which provides that Bower was to deliver the...