Malaga Management Co. v. John Deere Co.
| Decision Date | 27 May 1993 |
| Docket Number | No. A93A0415,A93A0415 |
| Parties | MALAGA MANAGEMENT COMPANY v. JOHN DEERE COMPANY. |
| Court | Georgia Court of Appeals |
Jett & Liss, Adam G. Jett, Jr., Douglasville, for appellant.
Thompson, O'Brien, Kemp & Nasuti, R. Michael Thompson, Thomas S. Kenney, Norcross, for appellee.
Appellant/defendant MALAGA Management Company appeals the order of the superior court granting summary judgment to appellee/plaintiff John Deere Company and concurrently issuing a writ of possession of a John Deere mower.
In February 1990, MALAGA purchased and subsequently leased the St. Andrews Country Club to tenants Chris Wyant and to the Bear Lake Corporation. The lease preamble defines "improvements" to include all equipment described in an attached exhibit "B," and defines "property" to include the land and the "improvements." Paragraph nine of the lease allows the tenant to make reasonable alterations, changes, and modifications in and upon the "property" as the tenant may desire. Paragraph nine further authorizes the tenant to remove personalty from the property at the expiration or termination of the lease agreement, and provides that if the tenant fails to remove same by the end of the agreement said items shall become and remain property of MALAGA free and clear of all "tenant" claims thereto.
In June 1990, Metrac, Inc. sold a John Deere mower under a loan contract-security agreement listing the club and William Taylor as borrowers. Metrac subsequently assigned the loan contract-security agreement to John Deere who had provided the purchase money for the sale. The security agreement has never been perfected. Taylor is identified as a "president" on the loan contract; he was at the time president of Bear Lake. However, the loan contract could be reasonably construed as listing Taylor as "president" of the St. Andrews Golf Club. Taylor did not sign the contract; rather, the loan contract was signed by "Tony Musgrove, V.P." Although Musgrove is alleged to be the CEO of Bear Lake, the loan contract could be reasonably construed as identifying him as Vice President of St. Andrews Golf Club. At the time of the lease, the club owned a fairway mower.
In February 1991, tenants defaulted on the lease and turned the club over to MALAGA who discovered their fairway mower missing and took possession of the John Deere mower left on the club premises. Appellee filed writ of possession of the John Deere mower and received grant of summary judgment.
MALAGA asserts the trial court erred in granting appellee's motion for summary judgment because the tenant (Bear Lake Corporation) under the lease agreement owned the mower, and title to personal property of tenant was transferred by terms of the lease to appellant/lessor upon tenant's default under the lease. John Deere alleges it is entitled, as a matter of law, to a writ of possession as MALAGA has no interest in the mower and it holds an unperfected purchase money security interest with the mower as collateral. The trial court granted appellee's motion based on a finding that MALAGA did not have an ownership interest in the mower. Held:
1. Factual representations in briefs unsupported by the record will not be considered on appellate review. Behar v. Aero Med Intl., 185 Ga.App. 845, 846(1), 366 S.E.2d 223. The articles of incorporation of the Bear Lake Corporation are not contained in the record; accordingly, we cannot consider this document.
2. MALAGA asserts there exists evidence of record that its mower was traded-in on the John Deere mower. However, in his deposition, the president of MALAGA testified that he did not have any evidence that their fairway mower was traded-in on the John Deere mower. MALAGA's claim of evidence of a trade-in ("change" of mowers) fails, due to the lack of a reasonable explanation for this inconsistent testimony. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680.
3. Although appellant's president testified that St. Andrews Country Club is a registered or reserved trade name, the record contains no documents establishing that fact, and assuming arguendo such action did occur, the record fails to establish when such trade name was registered or reserved. No reasonable inference can be drawn from the record as to when such registration or reservation may have been accomplished.
4. On the face of the lease and the loan-security agreement, the tenants in the lease are not the same legal entities and/or persons as are the owners of the John Deere mower under the express terms of the loan-security agreement. Appellant, however, asserts Musgrove and Taylor, doing business as St. Andrews Golf Club, is the alter ego of Bear Lake, and that the issue of piercing the corporate veil of Bear Lake is a jury issue. This issue, however, was not raised until appeal; after summary judgment is granted to a movant/plaintiff, a nonmovant/defendant may not raise an argument or defense not asserted in the trial court. Minor v. E.F. Hutton & Co., 200 Ga.App. 645, 646(1), 409 S.E.2d 262.
Thus, we agree with the primary conclusion of the trial court that, on October 4, 1990, the John Deere mower was owned by "St. Andrews Golf Club and/or Tony Musgrove and/or William H. Taylor, Jr.," and that "no party has presented proof of...
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