Meade v. Heimanson

• Decision Date: 08 June 1977
• Docket Number: No. 32005,32005
• Parties: Donald R. MEADE v. Neil L. HEIMANSON.
• Court: Georgia Supreme Court

Page 357

236 S.E.2d 357

239 Ga. 177

Donald R. MEADE v. Neil L. HEIMANSON.

No. 32005.

Supreme Court of Georgia.

June 8, 1977.

Smith, Harman, Asbill, Roach & Nellis, Richard D. Elliott, Atlanta, for appellant.

Neil L. Heimanson, pro se.

BOWLES, Justice.

This court granted a writ of certiorari to decide whether and to what extent a plaintiff moving for summary judgment in a suit on a promissory note is required to respond to the defendant's allegation that "the plaintiff has failed to comply with the Georgia law governing suits upon such instruments."

The case is one in which Donald R. Meade filed suit against Neil L. Heimanson to recover $1,500.00, plus interest and attorney's fees, due on an unsecured promissory note. In response to the complaint, Heimanson filed an answer denying most of the allegations of the complaint and pleading the affirmative defenses of failure to state a claim, total failure of consideration, and failure to "comply with the Georgia law governing suits upon such instruments."

Meade filed a motion for summary judgment, supported by affidavit, and Heimanson responded with a motion for summary judgment, unsupported by affidavit. Both motions for summary judgment were heard by the trial judge, who had before him the pleadings filed by both parties, Meade's responses to a request for admissions propounded by Heimanson, the affidavit of Meade, and the oral argument of the parties.

The trial court entered an order granting summary judgment to Meade and denying summary judgment to Heimanson. Heimanson appealed the decision to the Court of Appeals, alleging in part that Meade had failed to make tax returns on the note as intangible property and was barred from prosecuting the action on the note by Code Ann. § 92-125. The Court of Appeals reversed the judgment of the trial court, holding that Meade had failed to pierce the defense of total failure of consideration and the defense of failure to pay intangible taxes on the promissory note, and, therefore, was not entitled to summary judgment.

Code Ann. § 81A-156(e) provides that when a motion for summary judgment is made and supported by evidence outside the pleadings, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate shall be entered against him. Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974); Crutcher v. Crawford Land Co. Inc., 220 Ga. 298, 138 S.E.2d 580 (1964); Georgia Laws 1966, pp. 609, 634.

In the instant case, the defendant in his pleadings or otherwise gave no indication as to the manner in which petitioner "failed to comply with Georgia law." Such a claim is not notice of a defense. Neither the trial court nor the plaintiff, nor this court, for that matter, can tell what defense was intended at that time. On appeal, however, he contended that petitioner wilfully failed to list certain property for taxation in violation of Code Ann. § 92-126.

At the time the trial court ruled on the motion for summary judgment, it had before it evidence which showed that petitioner was and had been a resident of the State of Florida since November 1, 1972; the situs of the promissory note on January 1, 1973, was Florida; the note was not secured by property located in Georgia; and the transaction was not part of any ongoing business operation so as to provide a sufficient nexus to meet the demands of substantive due process. See Columbus Mutual Life Ins. Co. v. Gullatt, 189 Ga. 747, 8 S.E.2d 38 (1940); Davis v. Penn. Mutual Life Ins. Co., 198 Ga. 550, 32 S.E.2d 180 (1944); First Federal Savings and Loan Ass'n v. Abbott, 231 Ga. 864, 204 S.E.2d 594 (1958); Columbia Bank for Cooperatives v. Blackmon, 232 Ga. 344, 206 S.E.2d 424 (1974). This evidence was uncontradicted by any affidavit or admission made by the defendant. The record before the trial court showed that the note was good. There was no evidence that all legal requirements had not been complied with, other than a bare allegation presented in a pleading. Nothing in the record at that time indicated that the petitioner had wilfully failed to pay an intangible tax on the note. Under the facts, petitioner was not obligated for intangible taxes.

As to the allegation of total failure of consideration...