Springer v. Gaffaglio

• Decision Date: 31 January 1989
• Docket Number: No. 77395,77395
• Citation: 190 Ga.App. 272,378 S.E.2d 691
• Parties: SPRINGER v. GAFFAGLIO.
• Court: Georgia Court of Appeals

Page 691

378 S.E.2d 691

190 Ga.App. 272

SPRINGER v. GAFFAGLIO.

No. 77395.

Court of Appeals of Georgia.

Jan. 31, 1989.

Rehearing Denied Feb. 13, 1989.

Certiorari Granted April 14, 1989.

Schreeder, Wheeler & Flint, John A. Christy, J. Christopher Desmond, Atlanta, for appellant.

Harry J. Winograd, Atlanta, for appellee.

BIRDSONG, Judge.

Appellant, Dennis Springer, appeals the trial court's order granting partial summary judgment to appellee, Diane Gaffaglio, on her complaint as to appellant's liability only, and in favor of appellee on the counterclaim of appellant. The trial court reserved judgment on the issues of damages pending proof by the appellee on the amount of set-off for certain collateral, on payment of the intangible taxes, and on the issue of attorney fees.

Appellee sold her embroidery business to appellant. Appellant later assigned the purchase contract to Springer Enterprises, Inc. (SEI) which, among other financial arrangements, executed a promissory note to MAE, Inc., another corporate entity operated by appellee and which was subsequently liquidated. Appellant also executed a personal limited guaranty backing the promissory note. After MAE was liquidated, both the limited guaranty and the promissory note were assigned to the sole shareholder, the appellee. Appellant subsequently sold the embroidery business, and the secured promissory note made by SEI was assumed by LMF, Inc. Afterwards, LMF failed to make payments on the note, was declared in default, and the entire amount owing under the terms of the note became due and payable. Appellee demanded but did not receive payment from appellant for all amounts due on the note in excess of $74,000, according to the alleged terms of the limited guaranty. When appellant did not make payment, appellee initiated suit on the deficiency guaranty backing the promissory note. Appellant counterclaimed asserting among other pertinent matters that appellee violated a non-competition agreement executed in connection with the sale and that she tortiously interfered "with the contractual relations between the corporation owned by [appellant] and its employees for the sole purpose of interfering with and ruining the business of Springer Enterprises, Inc." Held:

1. Appellant asserts that the trial court erred in failing to enforce the bar to prosecution contained in OCGA § 48-6-32 regarding any action on a promissory note or guaranty where a payee has wilfully failed to pay intangible taxes thereon.

OCGA § 48-6-32 pertinently provides that "[w]illful failure to return any property to the commissioner for taxation as required ... shall be a bar to any action upon the property in any court and may be pleaded as a complete defense to the action, but the holder of the property may at any time pay all taxes.... Payment in full shall relieve the holder from the penalty provided...."

In resolving this issue, we note that appellee's assertion in her brief that she has paid the intangible taxes is unsupported by evidence of record, and accordingly cannot be considered on appeal. Behar v. Aero Med. Intl., 185 Ga.App. 845(1), 366 S.E.2d 223.

In Peters v. Thomason, 157 Ga.App. 513(2), 277 S.E.2d 798, this court held that although intangible tax was not paid before suit was filed, the statute constitutes no barrier to the action when the amount due is fully paid "prior to trial." Assuming without deciding that the record supports a finding that appellee's alleged failure to pay the tax was wilful, we are satisfied that the trial court's order, partially granting summary judgment but reserving judgment on the issues of damages in pertinent part based on the payment of intangible taxes, was in substantial compliance with the provisions of OCGA § 48-6-32. OCGA § 1-3-1(c).

2. Appellant asserts that the trial court improperly received, over his objection, oral testimony in support of appellee's summary judgment motion. The trial court's order reflects that it did consider oral testimony of the appellee over appellant's objection. This oral testimony has not been transcribed and forwarded as a part of the record before us, nor has appellant attempted to otherwise supplement the record as to the alleged content of this testimony.

It is generally a matter within the sound discretion of the trial court whether to permit the introduction of oral evidence on the hearing of a motion for summary judgment. Blackstone Indus. v. Andre, 232 Ga. 715, 208 S.E.2d 815. But the trial court is not obligated to do so; and, when it does admit oral evidence it must do so "in strict conformity with the law." Pierce v. Gaskins, 168 Ga.App. 446, 450, 309 S.E.2d 658. Assuming arguendo that the trial court abused its discretion in considering this evidence when it was not transcribed and "on file" at least 30 days before hearing (Pierce v. Gaskins, supra, and cases therein cited; see Lynch v. Ga. Power Co., 180 Ga.App. 178, 348 S.E.2d 719; Bonds v. John Wieland Homes, 177 Ga.App. 254, 256, 339 S.E.2d 318), appellant has failed to establish how this error was prejudicial to him. The record contains a detailed affidavit by the appellee. This affidavit in conjunction with the total evidentiary posture of record is more than sufficient to support the trial court's ruling. In the absence of the appellant providing this court with the content of the oral evidence of which he complains, we will not presume this assumed error to be prejudicial. It is well-settled that "[a]ppellant must show error which has hurt him." Leverett v. Flint Fuel, 183 Ga.App. 75, 78(3), 357 S.E.2d 882. Further, in the absence of a transcript of the oral evidence or of a stipulation filed in lieu thereof, prepared in any manner authorized by OCGA § 5-6-41, we cannot consider...