Patterson v. Professional Resources, Inc.

• Citation: 249 S.E.2d 248,242 Ga. 459
• Decision Date: 31 October 1978
• Docket Number: Nos. 33788,33789 and 33790,s. 33788
• Parties: , 25 UCC Rep.Serv. 551 PATTERSON et al. v. PROFESSIONAL RESOURCES, INC., et al. PROFESSIONAL RESOURCES, INC., et al. v. PATTERSON et al. (two cases).
• Court: Supreme Court of Georgia

Page 248

249 S.E.2d 248

242 Ga. 459, 25 UCC Rep.Serv. 551

PATTERSON et al. v. PROFESSIONAL RESOURCES, INC., et al.

PROFESSIONAL RESOURCES, INC., et al. v. PATTERSON et al. (two cases).

Nos. 33788, 33789 and 33790.

Supreme Court of Georgia.

Argued July 11, 1978.

Decided Oct. 31, 1978.

Bivens & Richardson, L. Brown Bivens, Atlanta, for Patterson et al.

Richard C. Freeman, III, Atlanta, for Professional Resources, Inc.

MARSHALL, Justice.

This is an action by William and Frances Patterson against Professional Resources, Inc., and its registered agent, Phillips. The complaint as amended contains five counts. The corporate defendant filed an answer and counterclaim. The trial judge sustained defendant Phillips' motion to dismiss as to him, entered final judgment for him, and sustained two motions to dismiss of the corporate defendant, the latter collectively dismissing all five counts as to it. On October 27, 1977, the trial judge entered a final judgment against the plaintiffs, from which they filed a notice of appeal on November 25, 1977. The defendants cross appeal from the orders denying their motions to dismiss the main appeal.

1. (a) The trial judge did not err in denying the motion to dismiss the main appeal on the ground of failure to timely appeal from the order of October 8, 1977, which dismissed all of the remaining counts of the complaint, hence was contended to be a final, appealable judgment. Regardless of the appealability or not of this order had there been no counterclaim pending, the pendency of the counterclaim plus the absence in said order of the trial judge's express determination that there was no just reason for delay and express direction for the entry of judgment, prevented the order from being final and appealable. Code Ann. § 81A-154(b) (Ga.L.1966, pp. 609, 658; 1976, pp. 1047, 1049).

( b) Nor did the trial judge abuse his discretion in denying the motion to dismiss the appeal on the ground of the appellants' delay in paying the costs and filing the transcript. It appears from the record that the delay in transmission of the record until December 29, 1977, was due to the stress of work in the clerk's office; that the appellants received the statement from the clerk's office on January 3, 1978, and paid the costs on January 13, 1978; and that the trial judge did not find that the delay was unreasonable, or that any unreasonable delay was inexcusable.

" The failure to timely file a transcript is not a basis for dismissal of the appeal unless the trial court finds that the delay was unreasonable, and that the unreasonable delay was inexcusable. Code Ann. § 6-809(b). See Young v. Climatrol Southeast Dist. Corp., 237 Ga. 53, 226 S.E.2d 737 (1976). The trial court's decision on this issue will be reversed only for an abuse of discretion. See Gilman Paper Co. v. James, 235 Ga. 348, 219 S.E.2d 447 (1975). Cf. Young v. Climatrol Southeast Dist. Corp., supra. There was no abuse of discretion in this case." DuBois v. DuBois, 240 Ga. 314(1), 240 S.E.2d 706 (1977).

2. Our rulings as to the merits in the remaining divisions of this opinion make the appellees' motion to dismiss defendant Phillips as a party appellee moot; therefore, the motion is not ruled on.

3. Counts 1 and 3 seek recovery based on an alleged oral agreement for the defendants to purchase stock from plaintiff Frances Patterson, and ask the court to reform the provisions of the alleged written agreement.

"The Uniform Commercial Code specifically repealed Code § 20-401(7) dealing with the sale of goods, etc., and enacted a new section dealing with the sale of securities and the (S)tatute of (F)rauds. Code Ann. § 109A-8 319 specifically provides that a contract for the sale of securities is not enforceable by way of action or defense unless there is (a) some writing signed by the party against whom enforcement is sought or by his authorized agent sufficient to indicate that a contract has been made for sale of a stated quantity of securities at a stated price, or (b) that the securities have been delivered, accepted, and payment made, or (c) that there has been a writing in confirmation of the sale within a reasonable time, or (d) the party against whom enforcement is sought admits in his pleading, testimony, or otherwise in court that a contract was made for sale of a stated quantity of described securities at a defined or stated price." Godwin v. Westberry, 231 Ga. 492, 493, 202 S.E.2d 402 (1973).

The only written agreement in the record allegedly pertaining to the sale of the stock is one between the defendant corporation and plaintiff William Patterson, which agreement specifies that "(t)his contract represents the entire agreement between the parties." The appellants have conceded that this contract was invalid by acceding to the trial...