Keller Bldg. Products of Atlanta, Inc. v. Young

• Court: Georgia Court of Appeals
• Writing for the Court: CLARK; BELL, C.J., and STOLZ
• Citation: Keller Bldg. Products of Atlanta, Inc. v. Young, 224 S.E.2d 815, 137 Ga.App. 682 (Ga. App. 1976)
• Decision Date: 17 February 1976
• Docket Number: Nos. 51737,No. 1,51738,s. 51737,1
• Parties: KELLER BUILDING PRODUCTS OF ATLANTA, INC. v. R. A. YOUNG et al. (two cases)

Page 815

224 S.E.2d 815

137 Ga.App. 682

KELLER BUILDING PRODUCTS OF ATLANTA, INC. v. R. A. YOUNG et al. (two cases).

Nos. 51737, 51738.

Court of Appeals of Georgia, Division No. 1.

Feb. 17, 1976.

Hopkins, Gresham & Whitley, Thomas P. Gresham, J. Arthur Lee, Jr., Atlanta, for appellant.

Carlisle & Carlisle, Ralph E. Carlisle, Decatur, for appellees.

CLARK, Judge.

These two appeals involve a single suit brought by Keller Building Products of Atlanta, Inc. against Robert A. Young and Young Development Company, Inc. to foreclose a materialman's lien and recover the amount of its claim. The complaint alleged that plaintiff had furnished labor and materials to defendants for improvement of two pieces of property owned by the individual defendant and that defendants refused to pay the amounts ($25,426.73 and $14,299.34) owing for such labor and materials. It also pleaded timely filing (3 months) of materialman's liens against the individual defendant's properties and timely commencement (12 months) of suit.

Defendants answered separately, each denying the material allegations of the complaint. Both defendants thereafter moved for summary judgment in whole or in part on the basis of the pleadings and their answers to interrogatories. This motion was denied on April 17, 1975, by the trial court. This court's order read in part as follows: 'It appears that the deposition of defendant Robert A. (Bob) Young was taken, but has not been filed and counsel for plaintiff objects to its consideration. Counsel for defendants contends this deposition would show there are no disputed material facts, and a summary judgment is demanded. However, it is self-evident that without this deposition being a part of the record, there are disputed material facts. Therefore, it is ordered and adjudged that said motion for summary judgment be and same is hereby overruled and denied.' (R. 84).

Thereafter a second summary judgment motion was filed by the individual defendant along. In support of this motion, defendant filed an affidavit wherein he averred the following: 'On or about July of 1972 arrangements were made by me in my representative capacity as president of Young Investments, Inc., a Georgia corporation, for plaintiff to furnish carpeting for an apartment development known as Valencia Villas . . . On or about December of 1971, acting in my representative capacity as president of Coronado Cliffs Apartments, Inc., I asked plaintiff to furnish some carpeting for an apartment development known as Coronado Cliffs Apartments . . . In all of the dealings, transactions and negotiations conducted between the agents, servants and employees of plaintiff corporation and myself, I was acting in a representative capacity as an officer of Young Investments, Inc. and Coronado Cliffs Apartments, Inc., and never in my individual capacity. I have never personally purchased any materials from . . . Keller Building Products of Atlanta, Inc. (plaintiff) . . . and am not indebted to Keller Building Products of Atlanta, Inc. in any amount.'

Responding to defendant's motion for summary judgment, plaintiff amended its complaint by adding the following paragraph: '(T)he defendant, Robert A. Young, so commingled his activities and confused his activities with the activities of the corporations known as Bob Young Investments, Inc., Coronado Cliffs Apartments, Inc., and Bob Young Development Company, Inc., and perhaps other corporations, that the result of such confusion and commingling of activities was to hinder, delay and defraud creditors and thereby enable Robert A. Young to evade contract obligations.' (R. 107).

Following a hearing on the second summary judgment motion, the trial court entered judgment in favor of the individual defendant. These appeals followed.

1. Case No. 51737. In this appeal, plaintiff asserts the trial court erred in granting the individual defendant's summary judgment motion because (1) a previous motion for summary judgment was denied and (2) genuine issues of material fact remained for trial.

( a) Consideration of a second motion for summary judgment lies within the discretion of the trial judge, especially where, as here, additional evidence is presented in support of the second motion. Suggs v. Brotherhood of Locomotive Firemen & Enginemen, 106 Ga.App. 563, 564(2), 127 S.E.2d 827; Stein Steel &c. Co. v. Briggs Mfg. Co., 110 Ga.App. 489, 493(3a), 138 S.E.2d 910; Walker v. Small Equipment Co., 114 Ga.App. 603, 152 S.E.2d 629. "While we certainly do not approve in general of the piecemeal consideration of successive motions for summary judgment, since defendants might well normally be held to the requirement that they present their strongest case for summary judgment when the matter is first raised, we do not believe the rules prohibit the consideration by a trial court of a second motion of this nature." Sams v. McDonald, 119 Ga.App. 547, 167 S.E.2d 668; O'Pry v. Goodman, 132 Ga.App. 191, 207 S.E.2d 674. Compare Summer-Minter & Associates v. Giordano, 231 Ga. 601, 203 S.E.2d 173. The trial court did not err in permitting a second motion for summary judgment.

( b) Did the individual defendant succeed in carrying the burden imposed upon him as movant for summary judgment? Prior to the plaintiff amending its complaint, defendant was unquestionably entitled to prevail. 'One person may own all the stock of a corporation, and still such individual shareholder and the corporation would, in law, be two separate and distinct persons.' Waycross Air-Line R. Co. v. Offerman & C.R. Co., 109 Ga. 827, 828, 35 S.E. 275; Shingler...