Mays v. Citizens and Southern Nat. Bank

• Decision Date: 17 September 1974
• Docket Number: No. 3,No. 49225,49225,3
• Citation: 132 Ga.App. 602,208 S.E.2d 614
• Court: Georgia Court of Appeals
• Parties: , 15 UCC Rep.Serv. 579 Carrie J. MAYS v. CITIZENS & SOUTHERN NATIONAL BANK

Page 614

208 S.E.2d 614

132 Ga.App. 602, 15 UCC Rep.Serv. 579

Carrie J. MAYS v. CITIZENS & SOUTHERN NATIONAL BANK.

No. 49225.

Court of Appeals of Georgia, Division No. 3.

Sept. 17, 1974.

Bobby G. Beazley, Augusta, for appellant.

Fulcher, Hagler, Harper & Reed, John I. Harper, Augusta, for appellee.

Syllabus Opinion by the Court

PANNELL, Presiding Judge.

Appellant entered into a lease agreement on May 1, 1971, with S & S Sales of Florida, Inc., whereby appellant agreed to lease a 1971 Cadillac sedan for a set monthly sum for 24 months. The rentals under the lease, subsequently, were assigned to the appellee bank by an undated assignment which the evidence shows to be either September 28, 1971 or October 1, 1971. The defendant was notified of the assignment and began making payments to the bank. Commencing in November, 1972, appellant made no further rental payments to the bank, leaving 5 months unpaid on the lease. The automobile was surrendered to the bank, which incurred some repair bills on the automobile. Suit was brought by the bank to recover the payments in arrears, the cost of repair and attorney fees as provided for in the contract. The defendant answered, admitted the payments were past due, and admitted the allegation as to the repairs and the notice of attorney fees, but claimed that the plaintiff bank was not a bona fide holder for value, that defendant was only liable for the repairs occasioned by ordinary wear and tear, but was not liable for any repairs made to make the automobile suitable for the use intended. The answer also contained what was denominated a cross claim; that the plaintiff was indebted to defendant in the amount of $2,500, and also sought $1,000 punitive damages. The defendant made a motion to dismiss the plaintiff's complaint on the ground that it failed to state a claim upon which relief could be granted and attached thereto her affidavit to be used in support of her motion to dismiss and in rebuttal of plaintiff's motion for a partial summary judgment. This affidavit contained considerable conclusions of fact; she also in this affidavit denied the existence of S & S Sales of Florida, Inc. at the time the contract was entered into and attempted to prove her counterclaim by stating 'that the vehicle in question was not fit for the use for which it was rented and was defective at the time of purchase; moreover deponent did not rent said vehicle as is.' The plaintiff made a motion for partial summary judgment on the following grounds: '1. That there is no issue as to any material fact and that it is entitled to judgment as a matter of law on the issue of the monthly instalments in default, said instalments totaling the sum of $1,287.50. 2. That there is no issue as to any material fact and that it is entitled to judgment as a matter of law on the issue of the repairs performed on the vehicle by plaintiff, said repairs totaling $286.60,' attaching the affidavit of an officer of the plaintiff in proof thereof, together with a certified copy of Florida records showing that Tom Norton S & S Sales of Florida, Inc., was organized on May 1, 1970, and was dissolved on July 11, 1972 for failure to pay its capital stocks tax. There was no proof that S & S Sales of Florida, Inc., was not in existence. The trial judge granted the plaintiff's motion for partial summary judgment, leaving other issues undisposed of by the order continued for later disposition. Subsequently, the plaintiff made a motion for partial summary judgment on the grounds: 'That there is no issue as to any material fact and that it is entitled to judgment as a matter of law on the issue of attorney's fees, said attorney's fees to be set by the court as provided by law.' On the hearing thereon, the trial judge entered an order vacating his former order and again overruling the motion to dismiss the complaint and entered an order granting a partial judgment 'on the issue' of attorney fees; and further entered the following order: 'Whereupon, it is considered, ordered and adjudged, that the plaintiff, Citizens and Southern National Bank of Georgia do have and recover against the defendant, Carrie J. Mays, Individually, and doing business as Mays Funeral Home, the sum of $1,574.10, plus attorney's fees in the amount of $153.75, plus interest at the rate of 7% per annum from date.' No provision was made therein for the disposition of the 'cross claim' of the defendant. The defendant appeals to this court from this order. Held:

1. The defendant appellant, by presenting her affidavit in support of her motion to dismiss the plaintiff bank's complaint, converted her motion to dismiss into a motion for summary judgment. The defendant in her answer admitted the execution of the lease agreement and the nonpayment of the rentals claimed. There was no dispute as to the amount of the repairs or the right to attorney fees in the event of a recovery by plaintiff, nor was there proof of any alleged defenses other than that relating to breach of warranty, which under the terms of the lease agreement were not available to defendant as shown in Division 3 of this opinion. There was no error in overruling the motion to dismiss the complaint.

2. Paragraph (d) of Section 56 of the Civil Practice Act (Ga.L.1966, pp. 609, 660; Code Ann. § 81A-156(d)) reads: 'If on motion under this section judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall, if practicable, ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.' Section 16 and Section 56 of our Civil Practice Act is patterned after and similar to Rules 16 and 56 of the Federal Rules of Civil Procedure, and we might look to construction of these rules as helpful in the present case. 'The objective of Rule 16 on pre-trial procedure and the formulation of issues is to facilitate the actual trial of issues by eliminating beforehand those which are not really disputed and leaving only the disputed issues for trial. The general purpose of Rule 56 is to dispense with a trial. While Rules 16 and 56 complement one another, each serves its own special purpose. The use of Rule 16 is discretionary with the district court. The right to invoke Rule 56 is, however, vested in a party. Accordingly, a party should not through the technique of a partial summary judgment force the court to pre-try the case where, or pre-try it in a manner, not consonant with its practice. Nevertheless, on a motion for summary judgment, it may be apparent that certain issues are not in dispute, but that others are, and consequently the court may be unable to adjudicate the case fully on the motion. When a case is not fully adjudicated on a motion for summary judgment the issues should be simplified and, accordingly, an express provision was inserted in Rule 56(d) requiring the court, if practicable, to simplify and narrow the issues for actual trial when the case is not fully adjudicated.' 6 Moore's Federal Practice (2d Ed.) p. 2037, § 56.02(5). The Federal Advisory Committee notes, in reference to paragraph (d) of Federal Rule 56 state: 'Subdivision (d) of Rule 56 indicates clearly, however, that a partial summary 'judgment' is not a final judgment, and therefore, that it is not appealable, unless in a particular case some statute allows an appeal from the interlocutory order involved. (Note: an appeal from such an order is permissible in Georgia solely by reason of statute.) The partial summary judgment is merely a pre-trial adjudication that certain issues shall be deemed to establish for the trial of the case. This adjudication is more nearly akin to the preliminary order Rule 16, and likewise serves the purpose of speeding up litigation by eliminating before trial matters wherein there is no genuine issue of fact. See, Leonard v. Socony-Vacuum Oil Co., 130 F.2d 535; Biggins v. Oltmer Iron Works, 154 F.2d 214; 3 Moore's Federal Practice (1938) 3190-3192.' Id., pp. 2016-2017, § 56.01(7).

It will be noted that the motions for partial summary judgment sought an adjudication on the three issues involved in the motions; that is, that there was no issue as to the number and amount of the instalments past due, there was no issue as to the amount of repairs, and there was no issue as to the right of attorney fees if recovery be had by the plaintiff.

Because there was a cross claim pending at the time the motions were filed, seeking recovery of sums in excess of the amount sought by plaintiff, and plaintiff in its motion sought no adjudication thereof, it would appear that plaintiff's partial motion for summary judgment sought an interlocutory adjudication under Par. (d) of Section 56 of the Civil...