Guest v. Mitchell

• Decision Date: 16 December 1980
• Docket Number: No. 60055,60055
• Citation: 275 S.E.2d 799,156 Ga.App. 815
• Parties: GUEST et al. v. MITCHELL et al.
• Court: Georgia Court of Appeals

Page 799

275 S.E.2d 799

156 Ga.App. 815

GUEST et al. v. MITCHELL et al.

No. 60055.

Court of Appeals of Georgia.

Argued June 5, 1980.

Decided Dec. 16, 1980.

Fredrick J. Kraus, Atlanta, for appellants.

Robert Nardone, Decatur, for appellees.

SMITH, Judge.

Appellants brought an action to enjoin appellees from transferring property in defraud of judgment creditors. The trial court granted appellees' motion for summary judgment, holding that the judgment against appellee had been satisfied by the "release" of an alleged joint tortfeasor. See Zimmerman's, Inc. v. McDonough Const. Co., 240 Ga. 317, 240 S.E.2d 864 (1977); Powell v. Davis, 60 Ga. 70 (1878). We reverse.

In May, 1975, appellants brought an action against Bobby D. Mitchell, C & M, Inc. and Marcelle R. Mitchell. According to appellants' affidavit, "(i)t was alleged ... (that) all three (were) guilty of fraud and negligence in the construction and sale of Plaintiff's residence." On March 16, 1976, judgments were obtained against Bobby Mitchell and B & M, Inc. A judgment was not obtained against Marcelle R. Mitchell. On October 7, 1977, Marcelle R. Mitchell, in exchange for a valuable consideration, obtained a "release of all claims."

In September, 1979, appellants brought this action alleging that appellees "have engaged in an ongoing and continuing conspiracy to conceal, convey and transfer property, both real and personal, with intent to defraud creditors, and, more specifically, to hinder, delay, and defraud Plaintiffs in the collection of their judgment." Appellants prayed for "an order ... decreeing that the various conveyances of property ... between said Defendants have been fraudulent in manner and intent, and that the same should be set aside for the benefit of creditors, and more specifically, for the benefit of Plaintiffs." At the hearing on appellees' motion for summary judgment, the record of the prior action was presented to and considered by the trial court, but was never formally made a part of the record.

"Georgia follows the common law rule that a release of one joint tortfeasor has the effect of discharging all other(s) ..." Weems v. Freeman, 234 Ga. 575, 576, 216 S.E.2d 774 (1975). ¹ Appellees contend that, in determining whether an individual is a "joint tortfeasor," the allegations of the complaint are controlling. See Zimmerman's, Inc. v. McDonough Const. Co., supra; Garrett v. Garrett, 128 Ga.App. 594, 197 S.E.2d 739 (1973); Edmondson v. Hancock, 40 Ga.App. 587, 151 S.E.2d 114 (1929); Griffin Hosiery Mills v. United Hosiery Mills, 31 Ga.App. 450, 120 S.E. 789 (1923); see also Artoe v. Navejo Freight Lines, 65, Ill.App.3d 119, 22 Ill.Dec. 172, 382 N.E.2d 492 (1978). In response, appellants argue that the release of one alleged joint tortfeasor will not release the others where it is shown that the party released was not in fact a joint tortfeasor.

Assuming arguendo that appellees are correct in their contention that the allegations of the prior action are controlling, the record before this court does not establish their entitlement to judgment as a matter of law. Where a trial court, on motion for summary judgment, considers pleadings, court orders, or other documents contained in the record of another case, it is proper to have these items formally introduced into the record of the case currently before the court. This can be accomplished by an order directing that the documents be incorporated into the record. The absence of such an incorporation "handicaps the appellate court in deciding the correctness of the trial court's decision" (Doyal & Assoc. v. Blair, 138 Ga.App. 314, 316, 226 S.E.2d 109 (1976)) and, in the instant case, works against appellees. While appellants' admissions of record provide some indication that the sole...