McGivern v. First Capital Income Properties, Ltd.

• Court: Georgia Court of Appeals
• Writing for the Court: William M. Coolidge III, Glyndon C. Pruitt, Buford; BANKE; BIRDSONG; BEASLEY; BEASLEY
• Citation: McGivern v. First Capital Income Properties, Ltd., 373 S.E.2d 817, 188 Ga.App. 716 (Ga. App. 1988)
• Decision Date: 22 September 1988
• Docket Number: No. 77190,77190
• Parties: McGIVERN v. FIRST CAPITAL INCOME PROPERTIES, LTD.

Page 817

373 S.E.2d 817

188 Ga.App. 716

McGIVERN v. FIRST CAPITAL INCOME PROPERTIES, LTD.

No. 77190.

Court of Appeals of Georgia.

Sept. 22, 1988.

Rehearing Denied Oct. 6, 1988.

Ira S. Zuckerman, Atlanta, for appellant.

William M. Coolidge III, Glyndon C. Pruitt, Buford, J. Patrick O'Brien, Norcross, for appellee.

BANKE, Presiding Judge.

The appellee sued the appellant and others to recover an indebtedness allegedly due under a lease agreement. The appellant's liability was predicated on a personal guaranty which he had signed guaranteeing the lessee's obligations during the first two years of the lease. The appellee moved for summary judgment based on an affidavit executed by its "Director of Lease Administration" setting forth the unpaid charges which had accrued under the lease. According to this affidavit, the portion of the lease indebtedness covered by the appellant's guaranty was $9,721.50. The appellant did not oppose the motion for summary judgment; and the trial judge accordingly entered judgment against him for that amount, plus attorney fees. On appeal, however, the appellant contends that this figure included certain charges which had not accrued until after the expiration of the guaranty.

The lease term commenced at 12:01 a.m. on May 1, 1983, and ended on April 30, 1988. As previously indicated, the guaranty was effective by its terms only for the first two years of the lease. The appellee's Director of Lease Administration averred in her affidavit that this meant the guaranty expired on May 1, 1985. The appellant takes issue with this conclusion, contending that a two-year guaranty commencing on May 1, 1983, would expire by its terms on April 30, 1985, in the absence of contractual language evidencing a contrary intention. He contends that the judgment against him was therefore erroneous in that it included a $2,409.83 rental payment which did not become due until May 1, 1985, as well as $524.22 in late charges which did not accrue until after May 1, 1985. Held:

1. We reject the appellee's contention that the appellant forfeited his right to contest the amount of the award by failing to oppose the motion for summary judgment in the trial court. There is no such thing as a "default summary judgment." By failing to respond to a motion for summary judgment, a party merely waives his right to present evidence in opposition to the motion. It does not automatically follow that the motion should be granted. "A motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and evidence that the party so moving is entitled to prevail." Finch v. City of Atlanta, 232 Ga. 415, 416, 207 S.E.2d 46 (1974). See generally OCGA § 9-11-56(c); Sanders v. Colwell, 248 Ga. 376(2), 283 S.E.2d 461 (1981). Thus, "[if] the record does not contain sworn proof of the dollar amount of the recovery to which appellee is entitled, ... [a] grant of specific damages [is] error notwithstanding appellant's failure to respond to the motion for summary judgment." Blue Ridge Ins. Co. v. Maddox, 185 Ga.App. 153, 153-154, 363 S.E.2d 595 (1987).

2. The appellee's director of lease administration averred in his affidavit that the appellant was liable to the appellee "in the amount of ... $9,721.50, which sum represents rental, real estate construction charges incurred in January, February, March, and April of 1985." It is apparent from this averment as well as from the list of the charges set forth in the affidavit that the appellee did not in fact seek to hold the appellant accountable for the rental charge which became due on May 1, 1985. Accordingly, the...