Raza v. Swiss Supply Direct, Inc.
| Decision Date | 27 June 2002 |
| Docket Number | No. A02A0072.,A02A0072. |
| Citation | 568 S.E.2d 102,256 Ga. App. 175 |
| Parties | RAZA v. SWISS SUPPLY DIRECT, INC. et al. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Lynwood D. Jordan, Jr., Cumming, for appellant.
Banks, Stubbs, Neville & Cunat, John R. Neville, Cumming, for appellees.
The trial court granted partial summary judgment to plaintiff Swiss Supply Direct, Inc. and against defendant Ali Raza. For the following reasons, we affirm the court's grant of partial summary judgment, but we reverse the court's dismissal of Raza's counterclaim against Swiss Supply.
Swiss Supply is a Florida business which sells rare watches and jewelry to dealers and to the general public. The president of Swiss Supply is Melvyn Franks. On December 22, 1999, Franks went to defendant Raza's house in Georgia to deliver various watches and jewelry. The men agreed that the price for the items would be $227,250. Franks prepared two invoices to reflect this agreement; both documents were signed by Raza and Franks.
Raza took the watches and jewelry and gave two checks, payable to Swiss Supply, to Franks. The checks, dated December 22, 1999, totaled $227,250. Within 30 days of receiving the checks, Franks tried to negotiate both and they were dishonored.
Initially Raza admitted that he owed the money for the watches and jewelry. The record contains three letters in which Raza acknowledged the debt. Furthermore, Franks initiated criminal proceedings against Raza, and in sworn testimony from the criminal case, Raza conceded that he owed the money and that he planned to pay it back.
On August 28, 2000, when Raza had not repaid the money after more than eight months, Swiss Supply sued him in five counts, including breach of contract and fraud. In essence Franks claimed that Raza had given him worthless checks and that he had consistently failed to make good on his promises to repay him. Raza filed a counterclaim, seeking his attorney fees under OCGA § 13-6-11 for defending the action. Raza admitted receiving the watches and jewelry from Franks, but claimed that Franks had agreed to hold the checks until he sold the jewelry. Raza claimed that the jewelry was stolen from him and that he had told Franks that it would be necessary for him to sell property in order to repay the debt.
In December 2000, Raza filed a motion for leave to amend his answer and counterclaim and to add Franks and Rebecca Nachlas, the owners and operators of Swiss Supply, as additional parties, asserting claims of malicious prosecution, intentional infliction of emotional distress and Racketeer Influenced and Corrupt Organizations (RICO) Act violations. With the motion, Raza filed his proposed recast answer and counterclaim. On January 25, 2001, the court granted Raza's motion to file the pleading.
Swiss Supply filed its motion for partial summary judgment as to the $227,250, plus interest, which it claimed Raza owed. It also sought summary judgment on Raza's counterclaim. Included with the materials which Swiss Supply filed was Franks' affidavit in which he denied that there had been an agreement, as Raza claimed, that Franks wait to cash the checks.
On February 2, 2001, Raza filed his amended, recast and consolidated answer and counterclaim, claiming that he was entitled to receive damages from "the plaintiffs" for malicious prosecution, intentional infliction of emotional distress and civil RICO violations. On February 21, 2001, he amended the counterclaim again and specifically stated that Swiss Supply was jointly and severally liable for the claims in that pleading. The court granted Swiss Supply's motion for partial summary judgment on March 6, 2001.
1. In his first enumeration of error, Raza claims that the court erred in granting summary judgment because certain oral agreements regarding the checks were admissible and because he was not a holder in due course under the Uniform Commercial Code. Raza claims that the arrangement was a "consignment deal" and that he gave the checks to Franks as good faith collateral. As the trial court determined, these arguments lack merit.
Pretermitting the issues addressed in Mason v. Blayton, 119 Ga.App. 203, 205, 166 S.E.2d 601 (1969), Raza has admitted under oath that he owed the money, and the trial court correctly construed this contradictory testimony against him. As stated above, the record contains one letter from Raza in which he promises to repay Franks and two more letters in which he outlines the terms of his plan for repayment. In fact, in Raza's affidavit filed in this case, he does not dispute the payment, but argues that Franks was to hold the checks until January 15, 2000. The superior court did not err in rejecting Raza's arguments and entering summary judgment in Swiss Supply's favor.
2. Secondly, Raza argues that the court erred in determining that no counterclaim remained pending against Swiss Supply after the grant of the motion for summary judgment. The court concluded that Raza's claims for malicious prosecution, intentional infliction of emotional distress and RICO violations were made solely against Franks and Nachlas and not against Swiss Supply, and that the only claim that remained pending against Swiss Supply was for reasonable attorney fees. In the absence of the underlying substantive action, the court reasoned, it was also necessary to grant summary judgment on this claim. Here, Raza argues that his amended, recast and consolidated answer and counterclaim alleged that all of the acts were done by the individuals as agents of the corporate defendant, and that all the claims were asserted jointly and severally against all of the defendants.
On this point, we agree with Raza. A review of the record shows that the court allowed Raza to file an amended, recast and consolidated answer and counterclaim and that he filed this pleading on February 2, 2001, asserting his new claims. In the answer portion of the pleading Raza generally asserted that he was entitled to receive damages from "the plaintiffs" for malicious prosecution, intentional infliction of emotional distress, consequential damages and civil RICO violations. He referred to the "wrongful and...
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