Miller v. Calhoun/Johnson Co.
| Decision Date | 18 February 1998 |
| Docket Number | No. A98A0165,A98A0165 |
| Citation | 497 S.E.2d 397,230 Ga.App. 648 |
| Parties | , 98 FCDR 926 MILLER v. CALHOUN/JOHNSON COMPANY. |
| Court | Georgia Court of Appeals |
Daniels & Taylor, Wayne A. Bailey, Lawrenceville, for appellant.
Jackel, Rainey, Marsh & Busch, James C. Busch, Chad K. Reed, Marietta, for appellee.
HAROLD R. BANKE, Senior Appellate Judge.
Calhoun/Johnson Company d/b/a Williams Brothers Lumber Company ("Williams") filed an action for money damages against Donald Miller d/b/a Millercraft Construction Company ("Millercraft"). Asserting five errors, Miller appeals the summary judgment awarded to Williams.
Millercraft purchased building materials and supplies from Williams pursuant to an open account agreement for which Miller had executed a personal guaranty. When Miller wanted lien waivers on four of his construction projects, he contacted Fabian Boudreau, Williams' credit manager. Boudreau refused to agree because Millercraft's account was about $28,000 delinquent. Boudreau and others then negotiated a settlement with Miller, whereby Williams agreed to execute and deliver the desired lien waivers, and, in exchange, Miller agreed to execute a no interest promissory note for $11,000 to settle the unpaid balance. Miller concedes that he executed a promissory note for that amount. Boudreau testified that at no time did Miller state that he was executing the note under protest or as a result of coercion or duress. According to Boudreau, although it was agreed that Williams would review Miller's account if he provided new evidence of credits due, Miller never gave any such evidence to Williams. Williams' regional vice president, Chuck Mooney, testified that he had personally spent several weeks reviewing the Millercraft account, and had examined all the documentation and credits and determined that the unpaid balance was $28,332.86.
After Miller defaulted on the promissory note, Williams sued him. Miller contended that Williams breached its agreement not to demand payment of the note until it conducted an audit and review of the underlying account. Miller asserted that this purported breach amounted to a failure of consideration. He further argued that Williams took unfair advantage of his financial and family situation. Determining that no material issue of disputed fact remained, the trial court granted judgment to Williams. Held:
1. We reject Miller's contention that the trial court could not grant summary judgment because it had previously denied summary judgment during an earlier term of court. The denial of a motion for summary judgment is not, by definition, a final judgment. See Pace Constr. Corp. v. Northpark Assoc., 215 Ga.App. 438, 439, 450 S.E.2d 828 (1994). Notwithstanding Miller's argument to the contrary, because the denial of Williams' motion was not a final judgment, OCGA § 9-11-60(d) was inapplicable. Inasmuch as the underlying case was still pending after the initial denial of Williams' motion, the trial court retained jurisdiction to enter a subsequent order.
2. Notwithstanding Miller's contention to the contrary, the record does not show that the trial court entered a judgment on the pleadings. An apparent clerical error in the first sentence of the summary judgment order misstates that it is a judgment on the pleadings. However, the context of the order as a whole, as well as the court's statement that it was granting summary judgment in the absence of genuine issues of material fact, make plain the nature of the order at issue.
3. (a) Miller's claim that the trial court improperly considered matters outside the pleadings is incomprehensible, especially in light of his own submission of "Defendant's Response to Plaintiff's Motion for Summary Judgment."
(b) Miller contends that the trial court failed to consider evidence from conflicting affidavits as to the exact amount owed, whether Williams breached its agreement to audit the account, and whether his financial and family circumstances gave rise to Williams' use of undue influence in forcing him to sign the note at issue for an amount he did not admit to owing. We disagree. Once the record evidence, as here, shows a promissory note has been duly executed and is in default, a prima facie right to judgment is established and the burden shifts to the debtor to establish an affirmative defense. Jay Gleason Advertising Svc. v. Gleason, 193 Ga.App. 445(1), 388 S.E.2d 43 (1989). This Miller did not do.
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