Heimanson v. Meade

• Decision Date: 27 October 1976
• Docket Number: 2,3,Nos. 52222,52260,Nos. 1,s. 52222,s. 1
• Citation: 231 S.E.2d 373,140 Ga.App. 534
• Parties: N. L. HEIMANSON v. Donald R. MEADE (two cases)
• Court: Georgia Court of Appeals

Page 373

231 S.E.2d 373

140 Ga.App. 534

N. L. HEIMANSON v. Donald R. MEADE (two cases).

Nos. 52222, 52260.

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

Oct. 27, 1976.

Rehearing Denied Nov. 24, 1976 in case No. 52222 only.

Neil L. Heimanson, pro se.

Smith, Harman, Asbill, Roach & Nellis, Richard D. Elliott, Atlanta, for appellee.

WEBB, Judge.

1. In Case No. 52222 the defendant Heimanson appeals from summary judgment against him based on a balance due on a promissory note executed by him to Meade. Following that appeal, Meade requested and obtained in the trial court an order requiring Heimanson to post a supersedeas bond, and Case No. 52260 represents the appeal from the latter judgment. After both cases were docketed in this court Meade moved for the grant of supersedeas by this court and abandoned the motion which he had filed in the trial court. This court by order dated April 28, 1976, granted supersedeas under the provisions of Code § 6-1002(b), the result of which order is to render moot the appeal in No. 52260.

2. It is contended that the plaintiff's answers to the defendant's requests for admission should have been stricken because they were not properly signed 'by the party or his attorney' under Code Ann. § 81A-111. The answers were submitted jointly by an Atlanta law firm and Rose and Woodward of Tampa, Florida, over the signature of David Woodward of the latter firm. At the same time Woodward filed a notice of appearance designating himself 'of counsel' to the Atlanta firm.

Under Rule 1-203 of the State Bar of Georgia (Code Ann. Title 9, Appen. 1-203), members of the Bar in good standing of other states may appear in the courts of this state in isolated cases in the discretion of the trial judge. While the judge may refuse to allow it (Pence v. Seaboard Coast Line R. Co., 128 Ga.App. 161, 196 S.E.2d 182), the appearance made here is one of the most usual and necessary uses which a resident law firm may make of an associated nonresident attorney; and in the absence of any objection and duling thereon in the trial court, we will not outlaw the appearance for the first time here. Allen v. Seaboard Coast Line R. Co., 128 Ga.App. 391(1), 196 S.E.2d 878; Joyner v. State, 208 Ga. 435(2), 67 S.E.2d 221.

3. The remaining question is whether a reviewing court may properly direct a summary judgment for a plaintiff by declaring ipse dixit that the defendant's pleaded defenses are 'a sham.'

To this suit on a note defendant pleaded as his fourth defense 'That there has been a total failure of consideration upon said note flowing from the plaintiff to the defendant,' as his fifth defense 'That tender of the instalment allegedly due upon said note was made and refused,' and as his sixth defense 'That the plaintiff has failed to comply with the Georgia law governing suits upon such instruments.'

In his affidavit in support of his motion for summary judgment, plaintiff stated that defendant failed to make the payment due July 1, 1975 and had refused to accede to demands for payment made since that time. Under these circumstances the plea of tender was prima facie pierced, requiring defendant to come forward with counter proof. Plaintiff thus met his summary judgment burden as to the fifth defense.

As to the fourth and sixth defenses, however, plaintiff has made no such showing. It was not necessary for the defensive pleading to be verified or accompanied by affidavit. Code Ann. § 81A-111. While conclusions may not generally be used in affidavits to support or oppose summary judgment motions, conclusions may generally be pleaded under the Civil Practice Act; and the defenses of failure of consideration (fourth defense) and wilful failure to comply with the Intangible Tax Statute (sixth defense) are not matters required to be pleaded with particularity. Code Ann. § 81A-109. Plaintiff did not move to strike these defenses, nor did he move for a more definite statement. In any event 'total failure of consideration' has a definite purport and means the property was wholly without value. Coast Scopitone, Inc. v. Self, 127 Ga.App. 124, 126, 192 S.E.2d 513; Carlton Co. v. Allen, 135 Ga.App. 658, 218 S.E.2d 666.

Since pleadings which have not been pierced, including conclusory ones, do create issues for jury resolution (Alexander v. Boston Old Colony Ins. Co., 127 Ga.App. 783, 784(2), 195 S.E.2d 277; Vitiaz v. Chrysler Credit Corp., 135 Ga.App. 606(3b), 218 S.E.2d 313), it was incumbent upon plaintiff to negate these properly pled defenses 'even to the extent of affirmatively proving a negative.' Home Mart Bldg. Centers v. Jones, 133 Ga.App. 822, 212 S.E.2d 476. (Emphasis supplied.) Plaintiff has 'failed to show entitlement to summary judgment because, construing every inference against (him) as we must on (his) motion (citation omitted), (he has) not carried the burden of proving the negative, that is, of ruling out as a matter of law all possibilities of the contract that buyer claims could have been reached.' Duval & Co. v. Malcom, 233 Ga. 784, 787, 214 S.E.2d 356, 359 (1975). (Emphasis supplied.) Accord: Central of Ga. R. Co. v. Woolfolk Chemical Works, 122 Ga.App. 789, 795, 178 S.E.2d 710; Kroger Co. v. Cobb, 125 Ga.App. 310, 312(4), 187 S.E.2d 316; Henderson v. Atlanta Transit System, 133 Ga.App. 354, 356, 210 S.E.2d 845.

The argument is made, however, despite the requirement of Code Ann. § 81A-156(e) that the motion be made 'and supported as provided in this section,' ¹ that there was somehow some burden upon defendant, even though he was the nonmoving party, to do something with respect to the fourth and sixth defenses. The fallacy lies in the assumption that once a motion for summary judgment is made, whether properly supported or not, the burden is then cast upon the opposing party to come forward with proof to support his pleadings.

This notion, although a chronically recurrent one, was explicitly refuted at least as early as Judge Bell's opinion in Shadix v. Dowdney, 117 Ga.App. 720, 162 S.E.2d 245 (1968): 'Defendants contend that the court erred in denying their motion for summary judgment because there was no evidence in support of plaintiff's specifications of negligence. The fallacy of this argument is that it is contra to the rule that the burden of showing the absence of a genuine issue of any material fact rests on the party moving for summary judgment. (Cits.) No duty devolves upon the opposing party to produce rebuttal evidence unless the movant first makes a prima facie showing of right to a summary judgment. (Cits.)'

As has been held over and over again, '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. & Tel. Co. v. Beaver, 120 Ga.App. 420(2), 170 S.E.2d 737. The opposing party is not required 'to present his case in full' (Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 604, 203 S.E.2d 173, 176) or to do anything at all with respect to the motion for summary judgment until it 'is made and supported as provided in this section.' Code Ann. § 81A-156(e) (emphasis supplied.) 'Respondent may resist by doing nothing, relying on the failure of the movant to remove all issues of fact from the case . . .' (Emphasis supplied.) Benefield v. Malone, 110 Ga.App. 607, 610, 139 S.E.2d 500, 503; Alexander v. Boston Old Colony Ins. Co., 127 Ga.App. 783, 784, 195 S.E.2d 277, supra. Accord: Southern Protective Products Co. v. Leasing International, Inc., 134 Ga.App. 945, 946(1), 216 S.E.2d 725.

Here the plaintiff, as the moving party, has simply failed to address himself to the fourth and sixth defenses and has made no attempt to show that he had not wilfully failed to list the note for taxation or to pay the taxes, penalties and interest as required by the Georgia Intangible Tax Statute, Code Ann. §§ 92-118, 125; Moore v. Todd, 223 Ga. 702, 157 S.E.2d 587 (sixth defense), and that the consideration for the note, which was the sale of a residence, did not fail. For all that appears from the record, the house may have been eaten up by termites, the foundation may have crumbled, it might have been declared a nuisance to be abated at defendant's expense, it might have been taken by eminent domain prior to passage of title, or any number of other possibilities. Had plaintiff-movant shown in his affidavit that the house had some value, perhaps the burden would then have shifted as to this defense unless precluded by the rule that a plea of total failure of consideration includes the defense of partial failure of consideration. A. E. Speer, Inc. v. McCorvey, 77 Ga.App. 715(4), 49 S.E.2d 677; Coast Scopitone, Inc. v. Self, 127 Ga.App. 124, 126, 192 S.E.2d 513.

But the point is that plaintiff simply failed to show anything with regard to the value of the house, and that is the trouble with this case. There is no way that a reviewing court can, with propriety, declare a defense a 'sham' until it has been made so to appear by proper proof, and the burden to do so was upon plaintiff-movant. 'There was a complete failure to 'pierce the pleadings' as to this defense . . . Nor was defendant required to offer any testimony to that effect for he had no burden of proof on summary judgment.' Price v. B-Line Systems, Inc., 129 Ga.App. 34, 35, 198 S.E.2d 328, 329 (1973) (Emphasis supplied.) Thus it makes no difference whether a defense, such as failure of consideration, is an affirmative one or not-plaintiff has the burden on plaintiff's motion, just as defendant would have the burden on defendant's motion even though he would not have the trial burden.

We reverse the grant of summary judgment to plaintiff and remand for further proceedings since the issues raised by the fourth and sixth defenses have not been removed from the case. As we said in Watkins ...