Guthrie v. Monumental Properties, Inc.

• Decision Date: 12 January 1977
• Docket Number: No. 53106,No. 3,53106,3
• Citation: 232 S.E.2d 369,141 Ga.App. 21
• Court: Georgia Court of Appeals
• Parties: E. M. GUTHRIE, Administrator, et al. v. MONUMENTAL PROPERTIES, INC., et al

Page 369

232 S.E.2d 369

141 Ga.App. 21

E. M. GUTHRIE, Administrator, et al. v. MONUMENTAL PROPERTIES, INC., et al.

No. 53106.

Court of Appeals of Georgia, Division No. 3.

Jan. 12, 1977.

Jessee, Ritchie & Duncan, C. James Jessee, Jr., George E. Duncan, Jr., Atlanta, for appellants.

N. Forrest Montet, Gambrell, Russell, Killorin & Forbes, David A. Handley, Jack O. Morse, Swift, Currie, McGhee & Hiers, W. Wray Eckl, Drake E. Chandler, Skinner, Wilson, Beals & Strickland, John V. Skinner, Jr., Hopkins, Gresham & Whitley, Thomas P. Gresham, Atlanta, for appellees.

WEBB, Judge.

1. This is a companion case to Ga.App. 232 S.E.2d 372, which we dismiss for lack of an appealable judgment. The instant appeal is from an order granting the motion for summary judgment of defendant Monumental Properties, Inc., and is appealable by virtue of Code Ann. § 81A-156(h). Accordingly the motion to dismiss this appeal must be denied.

2. The complaint alleges that on October 23, 1973, Vickie Davis was the guest of Suzanne Arrowood, a tenant at an apartment complex known as Woodlack Apartments; that on that date the two went wading in a pool at the complex which contained electric lights and other electrical equipment; that while wading Vickie received an electrical shock which caused her death; that '(a)t all times herein material defendants Monumental Properties, Inc. and Monumental Properties of Georgia, Inc. owned and operated' the apartment complex; and that the death of Vickie was caused by their failure to maintain the pool and equipment in a safe condition.

In answers to interrogatories defendants stated that Monumental of Georgia owned the premises on October 23; and being thus armed, Monumental Properties, Inc., the other corporation, contends that it is entitled to summary judgment because it did not own the premises at the time in question. It has made no showing, however, that it did not, as alleged in the complaint, operate the complex, and that it was not for this reason responsible for the defective condition. Hence while defendant-movant has made a prima facie showing as to ownership of the premises, it has failed to negative liability based upon operation and control. Code Ann. § 105-401 and annots.

Since pleadings which have not been pierced create issues for jury resolution (Alexander v. Boston Old Colony Ins. Co., 127 Ga.App. 783, 784(2), 195 S.E.2d 277 (1972); Vitiaz v. Chrysler Credit Corp., 135 Ga.App. 606(3b), 218 S.E.2d 313 (1975)), it was incumbent upon defendant to negate liability based upon operation and control 'even to the extent of affirmatively proving a negative.' Home Mart Bldg. Centers v. Jones, 133 Ga.App. 822, 212 S.E.2d 476 (1975). Accord: Duval & Co. v. Malcom, 233 Ga. 784, 787, 214 S.E.2d 356 (1975); Henderson v. Atlanta Transit System, 133 Ga.App. 354, 356(1), 210 S.E.2d 845 (1974). Until it did so no burden was cast upon plaintiffs, as respondents, to support their pleadings. Code Ann. 81A-156(e); Shadix v. Dowdney, 117 Ga.App. 720, 162 S.E.2d 245 (1968). 'Until the moving party produces evidence or materials which prima facie pierce the pleadings of the opposing party, no duty rests upon the opposing party to produce any counter evidence or materials in affirmative support of its side of the issue as made by the pleadings.' Southern Bell Tel. & Teleg. Co. v. Beaver, 120 Ga.App. 420, 420(2), 170 S.E.2d 737, 739 (1969). 'Respondent may resist by doing nothing, relying on the failure of the movant to remove all issues of fact from the case . . ..' Benefield v. Malone, 110 Ga.App. 607, 610, 139 S.E.2d 500, 503 (1964); Alexander v. Boston Old Colony Ins. Co.,127 Ga.App. 783, 784-85, 195 S.E.2d 277, supra. Accord: Southern Protective Products Co. v. Leasing International, 134 Ga.App. 945, 946(1), 216 S.E.2d 725 (1975). 'The burden of proof always lies with the movant for summary judgment and this burden must be carried by movant before the opposing party is required to refute the evidence submitted by the movant.' Watkins Products, Inc. v. England, 123 Ga.App. 179, 180(3), 180 S.E.2d 265, 266 (1971).

In order to circumvent these well-established rules and excuse its failure to show lack of control, defendant contends that it was improper for plaintiffs to plead these matters in general and conclusory form. This contention is without merit. While conclusions may not generally be used in affidavits to support or oppose summary judgment motions (Resolute Ins. Co. v. Norbo Trading Corp., 118 Ga.App. 737, 165 S.E.2d 441 (1968), conclusions may generally be pleaded under the Civil Practice Act. 'Under this 'notice' theory of pleading it is immaterial whether a pleading states 'conclusions' or 'facts' as long as fair notice is given, and the statement of claim is short and plain.' 2A Moore's Federal Practice 1698 (2d ed. 1975). '(T)he true test is whether the pleading gives fair notice and states the elements of the claim plainly and succinctly, and not whether as an abstract matter it states 'conclusions' or 'facts'.' 2A Moore, supra at 1700. '(T)here are no...