Smith v. Jones

• Decision Date: 18 June 1980
• Docket Number: No. 59489,59489
• Citation: 154 Ga.App. 629,269 S.E.2d 471
• Parties: SMITH v. JONES et al.
• Court: Georgia Court of Appeals

Page 471

269 S.E.2d 471

154 Ga.App. 629

SMITH v. JONES et al.

No. 59489.

Court of Appeals of Georgia.

Argued Feb. 7, 1980.

Decided April 28, 1980.

Rehearing Denied May 15, 1980.

Certiorari Denied June 18, 1980.

R. Phillip Shinall, III, Decatur, for appellant.

D. R. Sloan, Jr., Atlanta, for appellees.

BIRDSONG, Judge.

Summary judgment. The appellant D. L. Smith invested $20,000 in a joint venture together with several others in Intersouth, Inc., a land development company wholly owned by the appellee, T. D. Jones. Smith initially invested in a trailer court site. That enterprise did not come into fruition. Jones had executed a separate letter agreement with Smith that if the trailer court enterprise did not successfully evolve, Jones would return the entire investment to Smith or reinvest Smith's share in some other enterprise. Jones issued a new agreement wherein the trailer site enterprise was dissolved and Smith signed the new agreement as a joint venturer investing his $20,000 in Georgia West Investors in lieu of the return of the $20,000 in cash. The development efforts of Georgia West Investors likewise proved fruitless. Interstate then purchased all the shares held by the venturers in Georgia West and issued notes as payments. In view of the separate agreement between Jones and Smith wherein Jones agreed to hold Smith harmless from loss of his investment, Jones had given to Smith additional shares from Jones' own assets when the trailer enterprise had been "rolled over" into Georgia West. Thus, Smith was given a note for $27,500. Jones then interested several investors, including Smith, in a mall project in Kentucky. Smith was induced to invest an additional $2,500 in cash. Thus, Smith invested $30,000 in the Cumberland Square Shopping Center, but with only $22,500 of his own assets involved. Smith asserts that Jones repeatedly told him (Smith) that Jones would protect and guarantee Smith's investment, but admits that the promise to hold him harmless from loss was not put into writing after the first investment of $20,000 in the trailer enterprise. Smith offered evidence that Jones assured him (Smith) that leases had been obtained for spaces in the shopping center; that financing had been obtained; and that things were well under way toward a successful development. Jones however encountered financial difficulty and offered to sell the mall interests to a third party. A contract was entered into to sell those rights for $160,000. The purchaser defaulted causing Intersouth to lose the property. Intersouth sued the purchaser and eventually settled for $55,000. Intersouth offered to settle with Smith for $6,600 which equaled Smith's pro rata share in the enterprise. Smith declined the offered settlement. Instead Smith brought the present complaint against Jones seeking the return of his investment per the promise of Jones (Count 1) as well as punitive damages for fraudulently inducing Smith to invest in the Cumberland Mall enterprise (Count 2). Jones moved for summary judgment and offered to the court two depositions plus affidavits and a brief. These were countered by affidavits and a brief by Smith. The trial court granted summary judgment to Jones but left the two depositions sealed. Smith brings this appeal contesting the grant of summary judgment because the trial court did not open and consider the depositions as well because Smith believes there remain genuine issues of fact as to the fraud count. Held :

1. The first enumeration is adversely governed as to the appellant by the recent decision of the Supreme Court in General Motors Corp. v. Walker, 244 Ga. 191, 193, 259 S.E.2d 449. That case holds that because the order of the trial court indicated the record was reviewed, this was a sufficient showing of review of the documents even though the depositions were still sealed. In this case the order of the court does not affirmatively indicate that it considered the record. We do not believe the omission of such language is of any significance. In summary judgments, the parties need not formally offer their outside matter as evidence or have it marked as an exhibit at the hearing on the motion. Given this process, the court is obligated to take account of the entire setting of the case on a Rule 56 motion. In addition to the pleadings, it will consider all papers of record, as well as any material prepared for the motion that meets the standard prescribed in Rule 56(e) as submitted by both parties. Jackson v. Couch Funeral Home, 131 Ga.App. 695, 696, 206 S.E.2d 718. We will presume that the trial court as a public official faithfully and lawfully performed the duties devolving upon him by law. Bank of Clearwater v. Kimbrel, 240 Ga. 570, 572, 242 S.E.2d 16; Pope v. U. S. Fidelity, etc., Co., 200 Ga. 69, 74, 35 S.E.2d 899. This includes depositions on file whether opened or not. General Motors v. Walker, supra, 244 Ga., p. 193, 259 S.E.2d...