Gregory v. Vance Pub. Corp.

• Court: Georgia Court of Appeals
• Writing for the Court: CLARK; BELL; EVANS
• Citation: Gregory v. Vance Pub. Corp., 202 S.E.2d 515, 130 Ga.App. 118 (Ga. App. 1973)
• Decision Date: 29 October 1973
• Docket Number: 2,Nos. 1,3,No. 48267,48267,s. 1
• Parties: R. M. GREGORY v. VANCE PUBLISHING CORPORATION

Page 515

202 S.E.2d 515

130 Ga.App. 118

R. M. GREGORY v. VANCE PUBLISHING CORPORATION.

No. 48267.

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

Oct. 29, 1973.

Paul T. O'Connor, W. Kenneth London, Atlanta, for appellant.

Lipshutz, Macey, Zusmann & Sikes, H. William Cohen, Charles E. Lamkin, Atlanta, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal in a suit on an open account is from a summary judgment rendered for Vance Publishing Corp. as plaintiff against R. M. Gregory, individually, who was a co-defendant with a corporation known as Gregory Advertising, Inc. Both defendants, the individual and his corporation, using 'Gregory Advertising' as their trade name. That trade name is stated on the itemized account attached as exhibit A to the complaint. Separate answers were filed by each defendant. In both answers there was a denial of the debt.

Plaintiff moved twice for summary judgment. On its first effort it relied solely upon the affidavit of its credit manager, William C. Vance, and its business records. The order denying the first summary judgment motion recited that 'After consideration of the pleadings, the affidavit of Mr. William C. Vance, and argument of counsel, it is my opinion there remains a question of material fact as to whether the alleged account was made by an individual or a corporation.' (R. 19).

Thereafter, obviously to determine this single fact, plaintiff filed requests for admission of facts under Code Ann. § 81A-136(a). A response was made to each of these requests by Gregory 'Individually and as President of Gregory Advertising, Inc.' He admitted the corporation was created on December 2, 1970, and that payments on the account had been made to plaintiff in varied amounts on different dates. The other responses did not specifically deny the obligation but stated that the defendant '(I)s unable to admit owing plaintiff any sum whatsoever for want of sufficient information.' (R. 30).

The trial judge then rendered judgment for plaintiff against the defendant individually. His order recited that 'After considering the requests for admission, response to requests for admission, affidavits on file, and pleadings, it is hereby determined that the plaintiff has pierced the answers of R. M. Gregory, Ind., and f/d/b/a ¹ Gregory Advertising.' This appeal followed. Held:

1. The trial court and counsel for both parties recognized that it is permissible for a party to make more than one motion for summary judgment. Suggs v. Brotherhood &c., 106 Ga.App. 563, 564, 127 S.E.2d 827; Venable v. Grage, 116 Ga.App. 340, 347, 157 S.E.2d 519; Sams v. McDonald, 119 Ga.App. 547, 167 S.E.2d 668. In fact, the course of action adopted here by Hon. Thomas L. Camp, the trial judge, in specifying the sole material fact that he regarded as issuable and which caused his denial of the first summary judgment motion is to be commended. The litigants were thus informed. Thereby the parties could undertake further discovery procedures to develop the truth as to the single material fact that the court regarded to be in issue, namely, the party defendant owing the debt.

2. We are not unmindful of the various principles that must be considered in passing upon summary judgment motions. Among these are that the burden is on the movant to demonstrate the absence of any substantial factual issue (Brown v. Sheffield, 121 Ga.App. 383(3b), 173 S.E.2d 891), that the allegations of both the complaint and answer must be taken as true unless the movant successfully pierces the allegations so as to show that no material issue of fact remains (Alexander v. Boston Old Colony Ins. Co.,127 Ga.App. 783(2), 195 S.E.2d 277), and that the papers of the movant are carefully scrutinized while those of the opposing party are treated with considerable indulgence. Colonial Stores, Inc. v. Turner, 117 Ga.App. 331, 333, 160 S.E.2d 672. Additionally, we recognize the opposing party is given the benefit of all favorable inferences that may be disclosed from the evidence. Candler General Hospital v. Purvis, 123 Ga.App. 334(1), 181 S.E.2d 77. There is also the rule that the evidence must be construed most favorably to the party opposing the motion for summary judgment even though the testimony may be vague and contradictory. Burnette Ford, Inc. v. Hayes, 227 Ga. 551, 181 S.E.2d 866.

3. But we must also observe the statutory requirement that where the allegations of the pleadings are pierced and there is no issue of material fact so that a party is entitled to judgment that it is then incumbent upon the court to grant a motion for summary judgment. Code Ann. §§ 81A-156(c), 110-1203; Dillard v. Brannan, 217 Ga. 179, 180(1), 121 S.E.2d 768. As was said in Scales v. Peevy, 103 Ga.App. 42(3), 118 S.E.2d 193: 'A primary purpose of the summary judgment procedure is to allow a party to pierce the allegations of the pleadings and show the truth to the court and receive judgment where there is no genuine issue of material fact, although an issue may be raised by the pleadings.'

4. Furthermore, 'The presence of a genuine issue of material fact must, on motion for summary judgment, be apparent in some manner other than mere allegations in the pleading. General Gas Corp. v. Carn, 103 Ga.App. 542, 120 S.E.2d 156.' Jerry Lipss v. Lewallen, 118 Ga.App. 479, 164 S.E.2d 232. Pleadings, unsupported by evidence at the hearing on a motion for summary judgment, do not raise factual issues that prevent granting of the judgment. Crutcher v. Crawford Land Co., 220 Ga. 298, 303, 138 S.E.2d 580.

5. The next principle for consideration is the manner in which our statute embodied in Code Ann. § 81A-136 provides for treatment of evasive answers to requests for admission. It is there provided in subparagraph (a) that 'an answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he stated that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny.' This directive means it is not sufficient to limit an answer to 'for want of sufficient information.' As is stated in Volume 8 Federal Practice and Procedure by Wright and Miller, § 2261: 'A general statement that he can neither admit nor deny, unaccompanied by reasons will be held an insufficient response, and the court may either take the matter as admitted or order a further answer.'

6. We next apply these rules to the case at bar. The record shows that the account was incurred during the months from March through August 1969 and that payment sof $1,000 and $500 were made respectively on August 30, 1969, and May 4, 1970. As the corporation did not come into existence until December 2, 1970, it is obvious it was not involved in this obligation, as a corporation cannot exist until its charter has been granted. Powers v. Brunswick-Balke-Collender, 19 Ga.App. 706, 91 S.E. 1062. See also Michael Brothers Co. v. Davidson & Coleman, 3 Ga.App. 752, 60 S.E. 362. Accordingly, the obligations were incurred and the payments made by the individual defendant unless his evidence supports the unequivocal denial made in his unverified answer to the complaint. Such was not the nature of the response to the Requests for Admission. When called upon to reply to requests for admission that involved the plaintiff as an individual he answered that 'for want of sufficient information' he was unable to respond. Such answer failed to meet our statutory demand and therefore should be given the effect of an admission as was done by the court below. Furthermore, such straddling from an individual who should have been able to answer directly yes or no must be construed against the party.

As we said in Maxey-Bosshardt Lumber Co., Inc. v. Maxwell, 127 Ga.App. 429(2), 193 S.E.2d 885, 'Where, as here, a party is the sole witness in his own behalf and so has naturally presented his case in its most favorable light and such showing discloses his defense has no legal validity, it is incumbent upon the courts to rule adversely to him without further ado.'

7. In short, we have the factual details of the indebtedness set forth in the credit manager's affidavit with a weaseling answer from the party who possesses the knowledge to make a direct denial if he were not indebted....