Summer-Minter & Associates, Inc. v. Giordano

• Decision Date: 28 January 1974
• Docket Number: No. 28256,SUMMER-MINTER,28256
• Citation: 231 Ga. 601,203 S.E.2d 173
• Parties: & ASSOCIATES, INC., et al. v. Joseph GIORDANO et al.
• Court: Georgia Supreme Court

Page 173

203 S.E.2d 173

231 Ga. 601

SUMMER-MINTER & ASSOCIATES, INC., et al. v. Joseph GIORDANO et al.

No. 28256.

Supreme Court of Georgia.

Jan. 28, 1974.

Manning, Read & Richardson, Curtis R. Richardson, Decatur, for appellants.

Haas, Holland, Levison & Gibert, Hugh W. Gibert, Atlanta, for appellees.

Claude E. Hambrick, Atlanta, amicus curiae.

Syllabus Opinion by the Court

INGRAM, Justice.

Certiorari was granted in this case to consider whether a party can amend his pleadings after reversal on appeal of a trial court's order denying a motion for summary judgment but before the appeal remittitur is entered in the trial court by asserting a new theory of recovery in the amendment.

The background of the case may be stated briefly as follows: The plaintiff's complaint, as thrice amended in the trial court, alleged a conspiracy among the defendants Pope, Stubbs, Summer and Summer-Minter & Associates, Inc., to defraud the plaintiffs of their interest in certain real property. Under the amended complaint, plaintiffs held a second security deed on the property while defendant Stubbs held the first lien security deed. Defendant Pope, the owner of the property, defaulted on the obligation to defendant Stubbs and the property was subsequently purchased at a foreclosure sale by defendant Stubbs. Defendant Summer-Minter & Associates was a real estate agency which had some prior dealings with the property. The amended complaint alleged that defendant Summer, as President of the real estate agency, had personal knowledge of the default by Pope on the obligation to Stubbs; that Summer had a duty to inform the plaintiffs, but instead of doing so, Summer actively concealed the information from plaintiffs.

Defendants Summer and Summer-Minter & Associates, Inc., moved for summary judgment and their motion was denied by the trial court but certified for review on appeal. The case then came directly to this court and, after examination of the pleadings and evidence considered on the motion, we reversed the denial of summary judgment. That decision is reported in 228 Ga. 86, 184 S.E.2d 152. Before the remittitur became the judgment of the trial court, the plaintiffs amended their complaint a fourth time by eliminating the original complaint and three amendments thereto and by dismissing defendants Pope and Stubbs as parties in the case. This fourth amendment recast the plaintiffs' complaint to allege basically the same facts contained in the original complaint, as amended, with the additional allegation that 'Hugh Summer falsely and maliciously stated to the said Hicks that he (Summer) would take care of the matter and that, in any event, it was unnecessary to advise plaintiffs of the default since, in the event of a foreclosure by Stubbs, the property would revert to the plaintiffs.'

The fourth amended complaint changed the plaintiffs' theory of recovery from essentially one of civil conspiracy to defraud to one of tortious interference with the rescue of the property. The last amendment, however, introduced no new facts in the case not already appearing in the affidavits considered on the motion for summary judgment or ascertainable from the third amended complaint.

The defendants (appellants in certiorari) objected in the trial court to the plaintiffs' last amendment by moving for a judgment on the pleadings on the grounds of estoppel, former adjudication and res judicata. The trial court granted defendants' motion for judgment but, on appeal to the Court of Appeals, this judgment was reversed in a 6-3 decision which held that until the remittitur from this court in the first appeal was made the judgment of the trial court, the case was still pending in the trial court and plaintiffs' complaint could be amended to seek recovery on a different theory. See Giordano v. Stubbs, 129 Ga.App. 283, 199 S.E.2d 322.

Therefore, by way of restatement, the question now presented is whether after this court reversed the trial court's denial of defendants' motion for summary judgment, but before the remittitur became the judgment of the trial court, the plaintiffs can amend their complaint by alleging a new theory of recovery.

We view this case as one of public gravity and importance since, in our judgment, it deals with the function and efficacy of Georgia's motion for summary judgment and will have an impact on trial practice throughout the State.

We look first to the purpose of the summary judgment provisions of our law as viewed by the two appellate courts of this State in several reported cases of both courts. 'The purpose of the Summary Judgment Act . . . was to eliminate the necessity for a trial by jury where, giving the opposing party the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence, there is no genuine issue to any material fact, and the moving party is entitled to a judgment as a matter of law.' Holland v. Sanfax Corp., 106 Ga.App. 1, 126 SE.2d 442. See Code Ann. § 81A-156(c). In Crutcher v. Crawford Land Co., 220 Ga. 298, 303, 138 S.E.2d 580, 583, this court stated: 'We believe the Act was clearly intended to dispose of litigation expeditiously and avoid useless time and expense to go through a jury trial, even though the petition fairly bristles with serious allegations, if when given notice and opportunity to produce affidavits by persons competent to testify on their own knowledge to the truth of such allegations the pleader does nothing to contradict the affidavits of the movant which show there is no right of the opposite party to prevail.' And, it was noted on p. 304, 138 S.E.2d p. 584 of the opinion that, 'In this case the petitioner had his choice of producing counter proof and thus make an issue of fact, or do nothing, that is, create no issue of fact and suffer judgment.' In Standard Accident Insurance Co. v. Ingalls Iron Works Co., 109 Ga.App. 574, 575, 136 S.E.2d 505, 506, the Court of Appeals observed that: 'The trial court's function in ruling on a motion for summary judgment is analogous to the function it performs when ruling on a motion for directed verdict. The essence of both motions is that there is no genuine issue of material fact to be resolved by the trior of the facts, and that the movant is entitled to judgment on the law applicable to the established facts.'

Code Ann. § 81A-156(e) provides in part that 'When a motion for summary judgment is made . . ., an adverse party may not rest . . . (on) his pleading, but his response . . ., must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. (Emphasis supplied.)'

It is thus seen that it is the duty of each party at the hearing on the motion for summary judgment to present his case in full. Crutcher v. Crawford Land Co, 220 Ga. 298, 138 S.E.2d 580, supra; Studstill v. Aetna Casualty & Surety Co., 101 Ga.App. 766, 115 S.E.2d 374. A party against whom summary judgment has been granted is in the same position as if he suffered a verdict against him. Chandler v. Gately, 119 Ga.App. 513, 522, 167 S.E.2d 697; McKnight v. Guffin, 118 Ga.App. 168(1), 162 S.E.2d 743; Dykes v. Hammock, 116 Ga.App. 389(1), 157 S.E.2d 524; Montgomery v. Pickle, 108 Ga.App. 272(3), 132 S.E.2d 818; Scales v. Peevy, 103 Ga.App. 42, 46, 118 S.E.2d 193. Thus, it is evident that an adjudication on summary judgment is an adjudication on the merits of the case. See Pickett v. Paine, 230 Ga. 786, 797, 199 S.E.2d 223.

Prior cases of this court dealing with amendment of the pleadings, and the distinction made when a general demurrer was overruled rather than denied, do not require a similar holding in this summary judgment case. For example, in Sammons v. Tingle, 216 Ga. 814, 120 S.E.2d 124, this court observed that a decision upon one state of facts is not binding upon another state of facts and an amendment to the pleadings was held to be properly allowed after reversal on appeal of a trial court's overruling of a general demurrer before the appeal remittitur was entered in the trial court. ¹ But, as seen from the case itself, summary judgment was not involved there and new facts were alleged in the amendment. That case, like Sanders v. Alpha Gamma Alumni Chapter, 107 Ga.App. 403, 130 S.E.2d 255, was decided under the former demurrer practice in Georgia and dealt basically with the sufficiency of the pleadings to state a cause of action. The same is true of Grizzard v. Grizzard, 224 Ga. 42, 159 S.E.2d 400, where this court noted that a ruling on a motion for summary judgment does not determine the sufficiency of the petition to state a cause of action. Such terminology is simply not applicable since the advent of the Civil Practice Act which abolished causes of action wherein the case had to be set forth fully in the pleadings. Under the concept of notice pleading, now used in Georgia practice, a complaint will be sustained against a motion to dismiss for failure to state a claim so long as the complaint admits of any conceivable set of facts which would support a recovery. Bourn v. Herring, 225 Ga. 67(3), 166 S.E.2d 89; Hunter v. A-1 Bonding Service, 118 Ga.App. 498(2), 164 S.E.2d 246. However, once the issues are narrowed for trial, the complaint stands only upon those facts adduced at trial by the plaintiff, and...