Goldsmith v. American Food Services, Inc.

• Decision Date: 19 February 1971
• Docket Number: No. 1,No. 45654,45654,1
• Citation: 181 S.E.2d 95,123 Ga.App. 353
• Parties: , Blue Sky L. Rep. P 70,899 Steven B. GOLDSMITH v. AMERICAN FOOD SERVICES, INC
• Court: Georgia Court of Appeals

Page 95

181 S.E.2d 95

123 Ga.App. 353, Blue Sky L. Rep. P 70,899

Steven B. GOLDSMITH v. AMERICAN FOOD SERVICES, INC.

No. 45654.

Court of Appeals of Georgia, Division No. 1.

Feb. 19, 1971.

Birnbrey, Kresses, Gold & Winston, Ronald N. Winston, Atlanta, for appellant.

Poole, Pearce & Cooper, Walter G. Cooper, Atlanta, for appellee.

Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Courtney Wilder Stanton, Asst. Attys. Gen., Atlanta, amicus curiae.

Syllabus Opinion by the Court

BELL, Chief Judge.

On a prior appearance of this case, we reversed the lower court's order overruling plaintiff's motion for new trial on the general grounds. American Food Services, Inc. v. Goldsmith, 121 Ga.App. 686, 175 S.E.2d 57. After receipt of the remittitur, the trial court remanded the case to the trial calendar. Defendant then amended his answer by alleging that the franchise agreement out of which this litigation arose was a security within the meaning of the Georgia Securities Act, as amended, Ga.L.1957, pp. 134, 135; Code Ann. § 97-102(i). In addition, he filed a second counterclaim on the same grounds. The trial court granted plaintiff's motions for summary judgment on its complaint and on the defendant's second counterclaim.

1. Plaintiff's motions for summary judgment were based upon the pleadings, the evidence adduced at the prior trial and our previous decision reversing the lower court. Defendant initially argues that the plaintiff is not entitled to a summary judgment when no new evidence has been introduced into the case subsequent to the reversal by this court and that the trial court could not consider on summary judgment the evidence and testimony adduced at the first trial. The mere fact that we reversed the order overruling the motion for new trial does not in and of itself require that a new trial be had. A plaintiff may move for summary judgment 'at any time' after the expiration of 30 days from the commencement of the action. Code Ann. § 81A-156(a). The evidence adduced at a former trial and the judgment of the appellate court may be relied upon by the movant as well as the pleadings and other forms of evidence specifically mentioned in Section 56 of the Civil Practice Act. Code Ann. § 81A-156(c); Hamby v. Hamby, 107 Ga.App. 255, 129 S.E.2d 561; Bodrey v. Cape, 120 Ga.App. 859, 172 S.E.2d 643. There is no merit in this contention.

2. (a) In our prior decision, presiding Judge Jordan stated 'It is clear from the pleadings and evidence that no dispute exists in regard to the execution of the note, a balance due of $2,500 thereunder, and further that the defendant owes the plaintiff the rent due under the franchise agreement, plus the amount of the utility bills, unless the evidence authorizes a finding for the defendant based on his claim of fraud in the inducement and fraud and deceit.' The court held that the evidence was insufficient to authorize a judgment for the defendant as it did not support his defense or his counterclaim for damages on account of fraud in the inducement and fraud and deceit. Reversal rested solely on this basis. After remand, plaintiff moved for summary judgment. Once the motion is supported by evidentiary matter showing a prima facie right in the movant to have judgment rendered in its favor, the duty is placed upon the opposing party to show the existence of a genuine issue of fact. Scales v. Peevy, 103 Ga.App. 42, 47, 118 S.E.2d 193. Plaintiff here in support of his motion relied upon the pleadings, the evidence at the prior trial and our holding on the earlier appeal. Insofar as the defendant's defense based on fraud which we held to be insufficient as a matter of law, the defendant did nothing. Thus on this issue of fraud summary judgment for plaintiff would be demanded. See Hamby v. Hamby, 107 Ga.App. 255, 129 S.E.2d 561, supra.

(b) However, defendant did interject a new defense and counterclaim when he amended his answer by alleging that the franchise agreement was a security within the meaning of the Georgia Securities Act in that the franchise agreement was an 'investment contract' and/or a 'beneficial interest in title to property, profits or earnings;' that the franchise agreement was not registered by plaintiff as required by the Securities Act, which failure permits the defendant to avoid the agreement, which he elected to do. Ga.L.1957, pp. 134, 135, 138, 161, Code Ann. §§ 97-102(i), 97-104, 97-114. This raises the question as to whether the instant franchise agreement is such a security. The only matters appearing in the record containing anything relevant on the question is the franchise agreement which is appended to plaintiff's complaint and some of the testimony adduced at the prior trial. The defendant did not respond to this issue by affidavit, deposition, interrogatories or otherwise. See Section 56(e) of the Civil Practice Act. Code Ann. § 81A-156(e). While defendant, after filing...