Korey v. BellSouth Telecommunications

• Citation: 269 Ga. 108,498 S.E.2d 519
• Decision Date: 23 February 1998
• Docket Number: No. S97G1240.,S97G1240.
• Parties: KOREY v. BELLSOUTH TELECOMMUNICATIONS, INC.
• Court: Supreme Court of Georgia

498 S.E.2d 519

269 Ga. 108

KOREY v. BELLSOUTH TELECOMMUNICATIONS, INC.

No. S97G1240.

Supreme Court of Georgia.

February 23, 1998.

Mark Peter Groves, Groves Business Advocates, Marietta, for Harold Korey.

Leeza Rhee Cherniak, Strongwater & Cherniak, Atlanta, for BellSouth Telecommunications, Inc.

HUNSTEIN, Justice.

We granted Harold Korey's petition for writ of certiorari from the Court of Appeals' opinion in Korey v. BellSouth, 225 Ga.App. 857, 485 S.E.2d 498 (1997) to address whether the Court of Appeals correctly applied the rules regarding contradictory testimony of a party-witness as set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680 (1986). Because the Court of Appeals in affirming the grant of summary judgment against Korey misapplied our holding in Prophecy by failing to give due weight to other evidence in the record favorable to Korey, we reverse.

BellSouth brought suit seeking to hold Korey individually liable on an unpaid telephone account he opened in May 1985. Korey answered claiming that the account was opened by a company that was doing business as Atlanta Temps, Inc.; he later stated in an interrogatory response that the account was opened by a different business which subsequently transferred the account to Atlanta Temps. Atlanta Temps was not incorporated until August 1986. BellSouth supported its motion for summary judgment with an affidavit averring that Korey established the account on behalf of Atlanta Temps. The Court of Appeals acknowledged that "Bell-South would not ordinarily be entitled to recover from Korey because it had knowingly done business with Atlanta Temps, Inc. after it was created. See OCGA § 14-2-204." Korey, supra at 858, 485 S.E.2d 498. However, the Court of Appeals affirmed the grant of summary judgment to BellSouth by construing against Korey the unexplained contradiction in Korey's testimony regarding the entity for whom the account was established.

Prophecy stands for the position that self-contradictory testimony is construed against the equivocator, absent a reasonable explanation for the contradiction. Id., 256 Ga. at 30(2), 343 S.E.2d 680. The holding in Prophecy is based on directed verdict and summary judgment cases which clearly state that the opposing party is entitled to judgment only where the favorable portion of the party's self-contradictory testimony "is the only evidence of his right to recover or of his defense." (Emphasis supplied.) Id. at 28(1), 343 S.E.2d 680. In Barentine v. Kroger Co., 264 Ga. 224, 443 S.E.2d 485 (1994), this Court explained that under Prophecy, the opposing party is not entitled to judgment in its favor where there is evidence other than the favorable portion of the equivocator's self-contradictory testimony that supports the equivocator's...