Kingston Development Co., Inc. v. Kenerly, 49006

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtCLARK; BELL, C.J., and QUILLIAN
Citation208 S.E.2d 118,132 Ga.App. 346
PartiesKINGSTON DEVELOPMENT COMPANY, INC. v. Daniel B. KENERLY et al
Docket NumberNo. 1,No. 49006,49006,1
Decision Date18 June 1974

Page 118

208 S.E.2d 118
132 Ga.App. 346
KINGSTON DEVELOPMENT COMPANY, INC.
v.
Daniel B. KENERLY et al.
No. 49006.
Court of Appeals of Georgia, Division No. 1.
June 18, 1974.
Rehearing Denied July 11, 1974.

Page 119

[132 Ga.App. 354] Kilpatrick, Cody, Rogers, McClatchey & Regenstein, R. Lawrence Ashe, Jr., Frederick S. Middleton, III, Atlanta, for appellant.

Troutman, Sanders, Lockerman & Ashmore, John J. Dalton, Hamilton Lokey, Charles M. Lokey, Atlanta, for appellees.

Syllabus Opinion by the Court

[132 Ga.App. 346] CLARK, Judge.

'Career case' is a term used by lawyears to describe litigation which contains complex claims and lengthy legalities to the extent that extraordinary amounts of time and effort are necessarily required of the advocates in representing their clients. Such appellation applies to the instant situation. Consider merely numbers: there were three plaintiffs, two defendants, one rejected intervenor, and eight attorneys officially listed as representing these six parties. The result is an appellate record of 176 pages with an index thereto of 71 entries and a nine-volume trial transcript totaling 1,668 pages covering testimony of 19 witnesses and more than 70 documentary exhibits. In behalf of their clients the able attorneys have furnished this court with nine excellent briefs. Additionally, in fulfillment of their advocacy of their clients' cause, they have referred us to the record and extensive briefs in another case involving some similarities recently ruled upon by a different division of our court.

Personal prefatory pensive ponderings, 1 such as the foregoing recognizably play partial part in this court's eventual decision. Yet when an opinion is limited in length when compared to such a numerical situation, the parties and their advocates who have put so much into their cause may not realize that the participants on the bench have likewise devoted much worry, study, and toil, towards our goal of making certain that our judicial [132 Ga.App. 347] decision represents the correct legal determination.

The instant brouhaha stems from a suit seeking commissions of $210,000 filed by two licensed real estate brokers, Brannan,

Page 120

Marriott & Turner, Inc. ('BM&T') and Daniel B. Kenerly d/b/a Kenerly Realty Co., against Kingston Development Co. ('Kingston'). The claim was based upon an agreement allegedly made by defendant to pay a fee of 10% to plaintiffs by virtue of their having performed their contract to obtain a purchaser for a tract of land in Gwinnett County owned by defendant company. An intervenor plaintiff, Alvin Ashey, and a co-defendant, the Presidential Realty Corporation ('Presidential'), were added by consent. An application for intervention as a plaintiff by Linda Poland, an agent of Kenerly, was denied. Instead of the transaction between Kingston and Presidential being consummated by the usual deed of conveyance from seller to buyer transferring the property which was Kingston's principal asset, the two corporations worked out a stock swap for tax purposes. Thereby all of Kingston's stock was exchanged by Presidential for Presidential's issuance of specified amounts of its restricted stock to the six individuals who constituted Kingston's sole stockholders. The result was that Kingston became a subsidiary of Presidential. There is no contention here that this method was adopted as a device to avoid payment to the brokers of any amounts which might have been owed them nor is there any connotation of wrong-doing therein. In fact, although appellant urges the absence of a legally binding obligation upon the corporation, appellant argues this suit should have been brought against the stockholders as being liable as individuals on a quantum meruit basis. Other facts will be discussed in this opinion where we deal directly with their legal implications.

At the end of a two-weeks trial which by agreement was held before a single judge without a jury, judgment was rendered for $171,250 in behalf of BM&T against Kingston based upon nineteen findings of fact and seven conclusions of law derived therefrom. A motion for new trial and/or modification of said findings, conclusions [132 Ga.App. 348] and judgment pursuant to Code Ann. § 81A-152(b) was then filed. After that motion was overruled this appeal followed.

It should be noted that the trial court's judgment also included a decision on the claims of the other litigants inter sese, excepting Linda Poland, but we are not called upon to consider those rulings.

1. The legal principle which is determinative of many of the questions so capably presented by all nine briefs on this appeal was first enunciated in 1853 by Justice (later Chief Justice) Warner 2 in Wiley, Parish & Co. v. Kelsey, 13 Ga. 223. Generically referred to as 'the any evidence rule,' it provides that when a non-jury single-judge judgment is reviewed in the Georgia appellate courts neither the Supreme Court nor the Court of Appeals will interfere with a finding by the trial tribunal 'where there is any evidence to support it.' That phrase, including the italicization of the word 'any,' comes from Balkcom v. Vickers, 220 Ga. 345, 348, 138 S.E.2d 868, 870. There Justice (now Chief Justice) Grice pointed out that this rule stems historically from the long struggle in our state for the establishment of a Supreme Court, 'one of the charges of the opposition being that this court would re-try factual issues.' Thus, our appellate courts are limited to 'correction of errors of law' as stated in the Georgia Constitution. Justice Grice also noted our 'any evidence' requirement differs from [132 Ga.App. 349] the standards used by other judicial systems including the federal reviewing

Page 121

courts where their inquiry is 'whether the evidence is 'substantial' or whether the finding is 'clearly erroneous,' or 'manifestly wrong'.'

As we pointed our in Pinkerton & Laws v. Atlantis Realty, 128 Ga.App. 662, 665, 197 S.E.2d 749 this 'any evidence rule' still applies even though Code Ann. § 81A-152(a) which was added in 1969 to our Civil Practice Act of 1966 duplicated Rule 52 of the Federal Rules of Civil Procedure and reads, 'Findings of fact shall not be set aside unless clearly erroneous . . .' Since the instant appeal is from the Civil Court of Fulton County, we observe that in Spivey v. Mayson, 124 Ga.App. 775, 186 S.E.2d 154 this court ruled that...

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32 practice notes
  • Sachs v. Lesser, 20060257-CA.
    • United States
    • Court of Appeals of Utah
    • 17 Mayo 2007
    ...the substance of the transaction. Everett v. Goodloe, 268 Ga.App. 536, 602 S.E.2d 284, 289 (2004) (quoting Kingston Dev. Co. v. Kenerly, 132 Ga.App. 346, 208 S.E.2d 118 (1974)). We cannot agree that 163 P.3d 678 the sale of the stock of a corporation is legally equivalent to a sale of its a......
  • Leverett v. Jasper County Bd. of Tax Assessors, A98A0243.
    • United States
    • United States Court of Appeals (Georgia)
    • 16 Julio 1998
    ...the evidence is "substantial" or whether the finding is "clearly erroneous," or "manifestly wrong."'" Kingston Dev. Co. v. Kenerly, 132 Ga.App. 346, 348-349, 208 S.E.2d 118 (1974). See also Thompson v. Hill, 143 Ga.App. 272, 238 S.E.2d 271 (1977). Such "any evidence" rule does not apply to ......
  • Hogan v. Olivera, 52664
    • United States
    • United States Court of Appeals (Georgia)
    • 24 Enero 1977
    ...jury. We do not re-try factual issues but limit our review to correction of errors of law. Kingston Development Co., Inc. v. Kenerly, 132 Ga.App. 346, 348, 208 S.E.2d The first two enumerations of error are without merit. 2. In enumerations 3 and 4 defendant urges that the court erred in ce......
  • Bank Bldg. & Equipment Corp. of America v. Georgia State Bank, Nos. 49289
    • United States
    • United States Court of Appeals (Georgia)
    • 5 Septiembre 1974
    ...& Ins. Co. v. Oakland Consolidated of Georgia, Inc., 113 Ga.App. 231, 233, 148 S.E.2d 53, 55; Kingston Development Co. v. Kenerly, 132 Ga.App. 346(5), 208 S.E.2d 118. Accord: Johns v. League, Duvall & Powell, Inc., 202 Ga. 868, 876, 45 S.E.2d 211 and plethora of cases cited; Ramsey v. Langl......
  • Request a trial to view additional results
32 cases
  • Sachs v. Lesser, 20060257-CA.
    • United States
    • Court of Appeals of Utah
    • 17 Mayo 2007
    ...the substance of the transaction. Everett v. Goodloe, 268 Ga.App. 536, 602 S.E.2d 284, 289 (2004) (quoting Kingston Dev. Co. v. Kenerly, 132 Ga.App. 346, 208 S.E.2d 118 (1974)). We cannot agree that 163 P.3d 678 the sale of the stock of a corporation is legally equivalent to a sale of its a......
  • Leverett v. Jasper County Bd. of Tax Assessors, A98A0243.
    • United States
    • United States Court of Appeals (Georgia)
    • 16 Julio 1998
    ...the evidence is "substantial" or whether the finding is "clearly erroneous," or "manifestly wrong."'" Kingston Dev. Co. v. Kenerly, 132 Ga.App. 346, 348-349, 208 S.E.2d 118 (1974). See also Thompson v. Hill, 143 Ga.App. 272, 238 S.E.2d 271 (1977). Such "any evidence" rule does not apply to ......
  • Hogan v. Olivera, 52664
    • United States
    • United States Court of Appeals (Georgia)
    • 24 Enero 1977
    ...jury. We do not re-try factual issues but limit our review to correction of errors of law. Kingston Development Co., Inc. v. Kenerly, 132 Ga.App. 346, 348, 208 S.E.2d The first two enumerations of error are without merit. 2. In enumerations 3 and 4 defendant urges that the court erred in ce......
  • Bank Bldg. & Equipment Corp. of America v. Georgia State Bank, Nos. 49289
    • United States
    • United States Court of Appeals (Georgia)
    • 5 Septiembre 1974
    ...& Ins. Co. v. Oakland Consolidated of Georgia, Inc., 113 Ga.App. 231, 233, 148 S.E.2d 53, 55; Kingston Development Co. v. Kenerly, 132 Ga.App. 346(5), 208 S.E.2d 118. Accord: Johns v. League, Duvall & Powell, Inc., 202 Ga. 868, 876, 45 S.E.2d 211 and plethora of cases cited; Ramsey v. Langl......
  • Request a trial to view additional results

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