Howell Mill/Collier Associates v. Gonzales, 76103
| Decision Date | 25 April 1988 |
| Docket Number | No. 76103,76103 |
| Citation | 368 S.E.2d 831,186 Ga.App. 909 |
| Parties | HOWELL MILL/COLLIER ASSOCIATES v. GONZALES. |
| Court | Georgia Court of Appeals |
John G. Grubb, Jr., Atlanta, for appellant.
Frank P. Samford III, Decatur, for appellee.
Howell Mill/Collier Associates (HM/CA) brought an action against Fernando Gonzales, Larry Lee, and Jim Marett, based on their personal guaranty of the lease of Sarita's, Inc., a former corporate tenant of HM/CA. All three defendants filed answers raising affirmative defenses and counterclaims. HM/CA filed a motion for summary judgment against all three defendants, but Lee and Marett thereafter were voluntarily dismissed from the lawsuit by HM/CA. Gonzales opposed the motion for summary judgment, alleging that HM/CA was collaterally estopped from bringing this action because of the judgment in a prior lawsuit it had initiated against Tropikitchen, Inc., the successor in interest to Sarita's, Inc. The trial court denied HM/CA's motion for summary judgment, and dismissed the action based on its finding of collateral estoppel. HM/CA appeals.
The record reveals that HM/CA leased space in a shopping center it was developing to Sarita's Inc., and that Gonzales, Lee, and Marett signed a personal guaranty covering Sarita's obligations under the lease. When Sarita's experienced financial difficulties, the lease was renegotiated in several respects, including the substitution of Tropikitchen as tenant in place of Sarita's. When, after a period of time, the restaurant was still unable to meet its obligations under the lease, HM/CA brought suit against Tropikitchen. Our analysis of the issues in this appeal necessarily involves a review of the salient facts in the suit against Tropikitchen, Inc. ("the Tropikitchen suit"), although no portion of that action is before this court. The only parties to that action were HM/CA, as plaintiff, which is also the appellant in the case at bar, and Tropikitchen, Inc., as defendant. Neither Sarita's, Inc., nor Gonzales, Lee, or Marett was a party to the Tropikitchen suit. Tropikitchen obtained a dismissal of that suit (the "first Tropikitchen dismissal") on the ground that the suit was brought by HM/CA, which did not denote a legal entity. The Tropikitchen suit having been dismissed, HM/CA then filed this action against appellee, Lee, and Marett, and moved for summary judgment. Several days before the hearing on HM/CA's motion, the first Tropikitchen dismissal in the other suit was vacated by consent order agreed to by the parties in that suit, HM/CA and Tropikitchen, Inc. On the day before the summary judgment hearing on HM/CA's motion, the parties in the Tropikitchen suit (HM/CA and Tropikitchen, Inc.), having reinstated the Tropikitchen suit by means of the consent order vacating the first Tropikitchen dismissal, thereafter mutually dismissed without prejudice all claims against each other in that action (the "second Tropikitchen dismissal").
1. Appellant contends the trial court erred by dismissing the action sub judice based on collateral estoppel. We agree and reverse. The record shows that no dismissal order in the Tropikitchen suit remained which could have estopped appellant. The record in this appeal affirmatively indicates that the first Tropikitchen dismissal had been vacated, and that the second Tropikitchen dismissal was without prejudice under OCGA § 9-11-41(a). Even assuming, arguendo, that the first Tropikitchen dismissal was improperly vacated and set aside by means of the consent order, the present action is not a proper forum for addressing that issue. Rather, appellant must avail himself of the procedure set forth in OCGA § 9-11-60(b) for setting aside a judgment. We have found no authority to support the trial court's conclusion that the preclusive effect of the first Tropikitchen dismissal order survived simply because it was vacated by consent order, and we do not agree that this is a correct statement of the law. The consent order is not void on its face, and a judgment which is not void on its face is valid until it is set aside. Camera Shop v. GAF Corp., 130 Ga.App. 88, 90, 202 S.E.2d 241 (1973). Since it was not set aside, it operated to vacate the first Tropikitchen dismissal order, and placed the parties to that suit in the status they held before the first Tropikitchen dismissal order was entered, which allowed the voluntary mutual (second Tropikitchen) dismissals without prejudice. Accordingly, no order existed which estopped appellant, and the trial court erred by dismissing this action based on collateral estoppel. That dismissal must, therefore, be reversed.
2. Appellant also maintains the trial court erred by denying its motion for summary judgment, because appellee relied exclusively on his collateral estoppel defense and did not file the documents supporting its other arguments in opposition to appellant's motion until after the...
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...by cases such as Bradley. The district court's order was valid until set aside. See generally Howell Mill/Collier Assoc. v. Gonzales, 186 Ga.App. 909, 910(1), 368 S.E.2d 831 (1988). It was never set aside, and the superior court was therefore bound by it. In filing an amended complaint in s......
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