Giordano v. Stubbs

• Decision Date: 29 May 1973
• Docket Number: 2,Nos. 1,No. 47699,3,47699,s. 1
• Citation: 129 Ga.App. 283,199 S.E.2d 322
• Parties: Joseph GIORDANO et al. v. H. F. STUBBS et al
• Court: Georgia Court of Appeals

Page 322

199 S.E.2d 322

129 Ga.App. 283

Joseph GIORDANO et al. v. H. F. STUBBS et al.

No. 47699.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

May 29, 1973.

Rehearing Denied June 26, 1973.

Haas, Holland, Levison & Gibert, Hugh W. Gibert, Atlanta, for appellants.

Manning & Read, Curtis R. Richardson, Decatur, for appellees.

Syllabus Opinion by the Court

EVANS, Judge.

Plaintiffs originally sued defendants for equitable relief and for general and punitive damages, alleging that defendants conspired to defraud plaintiffs. Defendants filed a motion for summary judgment, which the lower court denied, and on appeal to the Supreme Court of Georgia a reversal was entered, said court holding that there was no evidence of a conspiracy between the defendants, and therefore, there was no issue presented as to the existence or nonexistence of a conspiracy. Summer-Minter & Assoc. v. Giordano, 228 Ga. 86, 90, 184 S.E.2d 152. Before judgment was entered on the remittitur in the trial court, plaintiffs amended their complaint by striking the original complaint and all amendments and substituting a new complaint, in which conspiracy was not alleged or even mentioned and eliminating Pope and Stubbs as defendants; and claiming a right of action against remaining defendants for damages for interference with a rescue as to property and damages for injurious falsehood. Defendants filed a motion for judgment on the pleadings, contending that the earlier judgment by the Supreme Court of Georgia, which reversed the Superior Court of DeKalb County, had adjudicated that defendants were entitled to summary judgment, and that said judgment was res judicata and constituted an estoppel by judgment.

The superior court entered an order sustaining the motion for judgment on pleadings 'on all grounds therein' (which grounds were res judicata and estoppel by judgment); and the plaintiffs appeal to this court. The question now presented to this court is whether the judgment of the Supreme Court, ruling that there was no conspiracy proven or presented in the original case at the time of motion for summary judgment by defendants, works an estoppel against plaintiffs to amend their complaint prior to entry of judgment on the remittitur, and estops them from substituting a case on a cause of action without reference to conspiracy. Held:

1. If a demurrer is sustained by the trial court, and later the appellate court affirms that judgment, no amendment to petition is allowable, as the case terminated by the judgment in the lower court. City of Rome v. Sudduth, 121 Ga. 420(1), 49 S.E. 300; Central Ry. & Banking Co. v. Patterson, 87 Ga. 646, 13 S.E. 525.

2. But the rule is quite different where a demurrer is overruled by the trial court, and such judgment is later reversed by the appellate court, because the case remains pending in the lower court and an amendment may be allowed and filed in the lower court before remittitur is made the judgment of the trial court. Even though no cause of action was originally set forth, the amendment may cure this defect. Setzers Super Stores v. Higgins, 104 Ga.App. 116, 122, 121 S.E.2d 305; Jackson v. Security Ins. Co., 177 Ga. 631, 170 S.E. 787; Ritzert v. Bulloch County, 100 Ga.App. 686(1), 112 S.E.2d 235; Ware v. Martin, 208 Ga. 330(3), 66 S.E.2d 737; Welsch v. Wilson, 218 Ga. 843, 131 S.E.2d 194; Cotton States Mut. Ins. Co. v. Tiller, 116 Ga.App. 275, 157 S.E.2d 57.

3. Nor does the Appellate Practice Act change the above rule. See Smith v. Smith, 119 Ga.App. 619, 168 S.E.2d 609 (decided in 1969). The case of City Stores Co. v. Henderson, 116 Ga.App. 114, 117, 156 S.E.2d 818, 821, states: 'Since the Appellate Practice Act became effective this rule has been recognized in Davis House, Inc. v. Mink, 115 Ga.App. 264, 154 S.E.2d 661.' In Waldrop v. Bettis, 223 Ga. 715, 717, 157 S.E.2d 870, 872, the question arose as to whether, after notice of appeal and costs of court paid, an amendment could be filed, and the court held: 'The petitioners had a right to amend the petition at any time.' (Emphasis supplied) The foregoing authorities clearly demonstrate that both before and after the Appellate Practice Act, and after a case has been appealed, and even after adverse judgment rendered in appellate court, a party may amend his petition in the trial court and set up a cause of action although he had not alleged a good cause of action in the first instance.

In Sammons v. Tingle, 216 Ga. 814, 120 S.E.2d 124, the trial court overruled a general demurrer to the complaint, and this ruling was reversed by the Supreme Court on appeal. See Sammons v. Tingle, 216 Ga. 509, 117 S.E.2d 531. But plaintiff amended his complaint before the filing of the remittitur, and alleged a different case. In Sammons v. Tingle, 216 Ga. 814, 120 S.E.2d 124, supra at bottom of page 815, 120 S.E.2d at page 125 the Supreme Court holds: 'The facts in the two records make, therefore, different cases, and a decision by this court, upon one state of facts is not binding upon another. Therefore, the court did not err in disallowing the plea of res judicata. Bass Dry Goods Co. v. Granite City Mfg. Co., 116 Ga. 176(3), 42 S.E. 415.' (Emphasis supplied.)

4. A judgment on motion for summary judgment does not establish the law of the case as to whether a cause of action is set forth in the petition. Sanders v. Alpha Gamma Alumni Chapter, 107 Ga.App. 403, 130 S.E.2d 255. The above authority also holds, (p. 405, 130 S.E.2d 255), that a case does not 'go to trial' when a party moves for a summary judgment, and a hearing is conducted and decision rendered thereon. In Grizzard v. Grizzard, 224 Ga. 42, 43, 159 S.E.2d 400, 402, it is held: 'A ruling on motion for summary judgment of the defendant is a determination only of the right of defendant to a judgment in his favor on the grounds of his motion, and does not determine the sufficiency of the petition to state a cause of action.' (Emphasis supplied)

5. An appeal as to the denial of a motion for summary judgment cannot be taken unless the trial judge certifies it to be an appealable case. Code Ann. § 81A-156(h) (§ 56 CPA; Ga.L.1966, pp. 609, 660; 1967, pp. 226, 238). The statute recognizes that the denial of a motion for summary judgment is not a final judgment and that the case remains pending in the trial court pending appeal.

6. A judgment on a motion for summary judgment is not conclusive except as to the questions made and decided in that particular motion. A second motion for summary judgment may be filed, raising new questions which were not filed in the first one. And in Suggs v. Brotherhood, 106 Ga.App. 563, 564, 127 S.E.2d 827, 829, it is held: 'The overruling of defendants' first motions for summary judgment was not a bar to their second motions for the reason that the first motions did not require a decision as to the applicability of article 30 of the employment agreement since that defense was not properly pleaded, whereas, the second motions did raise this issue. 'Where the second motion for summary judgment is based on matters not involved in the decision on the first motion the 'law of the case' is not involved'.' Again, in Stein Steel etc. Co. v. Briggs Mfg. Co., 110 Ga.App. 489(3), 138 S.E.2d 910, it is held: 'It is within the discretion of the trial judge as to whether he will entertain a second motion for summary judgment, the first having been denied, particularly where there has been a material change in the status of the pleadings after denial of the first motion.' (Emphasis supplied.) In Sams v. McDonald, 119 Ga.App. 547, 167 S.E.2d 668, this court said that ordinarily a party is required to present his strongest case for summary judgment in the first instance, but he will not be prohibited from filing a second motion for summary judgment.

7. The rule as to what a complaint may contain has been considerably relaxed by the new Civil Practice Act. Now a complaint may contain as many separate claims against the defendants as one may have, regardless of inconsistency. They may be based on legal grounds, and equitable grounds, and may arise out of tort, and also out of contract. Misjoinder finds no favor here. See Code Ann. § 81A-108(e)(2) (Ga.L.1966, pp. 609, 619; 1967, pp. 226, 230).

8. The trial court erred in sustaining the defendant's motion for judgment on the pleadings. Said motion was based on estoppel by judgment and res judicata. But the Supreme Court had reversed the lower court for the sole reason that the plaintiff had not proven or presented an issue of conspiracy. Before this judgment could be given efficacy-before the remititur reached the lower court-plaintiffs amended their complaint, eliminating conspiracy, and presented a new case. No contention was made by defendants that the amended complaint failed to set forth a good cause of action. The sole attack made is estoppel by judgment and res judicata. The trial court should have overruled defendants' motions and its judgment in granting same is hereby reversed.

Judgment reversed.

BELL, C.J., and PANNELL, DEEN, QUILLIAN and CLARK, JJ., concur.

PANNELL, J., concurs specially.

HALL and EBERHARDT, P. JJ., and STOLZ, J., dissent.

PANNELL, Judge (concurring specially).

I concur in the judgment of reversal.

1. On the right to amend. The dissent of Judge Hall to the judgment of reversal is based on what is referred to as an 'axiomatic' rule of law, that an amendment to pleadings cannot be made in the lower court, where on appeal the appellate court holds that the trial court erred in refusing to grant a summary judgment to the defendant, and where the amendment offered to the plaintiff's pleadings is offered prior to the time the remittitur of the appellate court becomes the judgment of the lower court. I find no authority for this statement in the Georgia cases and he has cited none. The decisions I find are to the contrary.

Whether the pleadings were amendable at the time the amendment here was...