Sofet v. Roberts

• Decision Date: 17 December 1987
• Docket Number: No. 74466,74466
• Citation: 185 Ga.App. 451,364 S.E.2d 595
• Parties: SOFET v. ROBERTS.
• Court: Georgia Court of Appeals

Page 595

364 S.E.2d 595

185 Ga.App. 451

SOFET v. ROBERTS.

No. 74466.

Court of Appeals of Georgia.

Dec. 17, 1987.

Rehearing Denied Jan. 4, 1988.

Certiorari Denied Feb. 5, 1988.

Thomas W. Tobin, Atlanta, Valerie G. Tobin, Decatur, for appellant.

Joseph E. Cheeley III, Buford, for appellee.

BENHAM, Judge.

Appellant Sofet purchased a used 1979 Mercedes Benz 280SE that appellee Roberts allegedly had imported into the United States. Although appellant did not purchase the vehicle from Roberts, he bought it "under the belief and information that the original importer had conformed to all State and Federal laws and that the vehicle could be properly licensed, titled, registered and insured in the State of Georgia." Asserting he was damaged by appellee's failure to bring the car into compliance with the applicable standards, appellant filed suit. In a pre-trial order, the issues were narrowed to breach of contract and negligence. Concluding that no privity of contract existed between the parties, the trial court granted appellee's motions to dismiss and for judgment on the pleadings. This appeal followed.

1. Appellant argues that matters outside the pleadings were considered, thereby converting appellee's motion for judgment on the pleadings into one for summary judgment (see OCGA § 9-11-12(c)), and that he was not given the requisite 30 days from the date of service of the motion in which to respond to the motion. See OCGA § 9-11-56; Rule 6.2 of the Uniform Superior Court Rules. Since there is nothing in the trial court's order or in the record that reflects that the trial court considered matters outside the pleadings, we cannot join in appellant's conclusion. See Thigpen v. Johnson, 169 Ga.App. 410(2), 313 S.E.2d 121 (1984).

2. " 'Under the Civil Practice Act a motion to dismiss a complaint for failure to state a claim upon which relief may be granted should not be granted unless averments in the complaint disclose with certainty that [plaintiff] would not be entitled to relief under any state of facts that could be proven in support of the claim.' [Cit.]" Ledford v. Meyer, 249 Ga. 407(2), 290 S.E.2d 908 (1982). A similar standard must be met to justify the grant of a judgment on the pleadings. See Bergen v. Martindale-Hubbell, 176 Ga.App. 745(1), 337 S.E.2d 770 (1985). In the case at bar, appellant attempted to set forth a breach of contract claim. Since privity of contract must exist between parties in order to maintain a suit on the contract ( Stein Steel, etc., Co. v. Goode Constr. Co., 83 Ga.App. 821, 822, 65 S.E.2d 183 (1951)), and there is no evidence of the existence of a contract between appellant and appellee, it was not error to grant the motions to dismiss and for judgment on the pleadings to appellee on the contractual claim.

In his negligence claim, appellant maintains that appellee, as importer of the vehicle, had a duty under federal and state law to modify the car in order to meet applicable standards and that appellee's breach of that duty injured appellant. OCGA § 51-1-6 provides: "When the law requires a person to perform an act for the benefit of another ... although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby." It is clear from the pleadings, however, that appellant did not allege that appellee's negligence caused appellant damage to his person or property but that appellant sought damages " 'attendant to his receiving a vehicle not up to the standards that he contracted to purchase [from a third party]; he simply sued for loss...