Summer-Minter & Associates, Inc. v. Giordano, SUMMER-MINTER

• Decision Date: 27 September 1971
• Docket Number: No. 26546,SUMMER-MINTER,26546
• Citation: 184 S.E.2d 152,228 Ga. 86
• Parties: & ASSOCIATES, INC. et al. v. Joseph GIORDANO et al.
• Court: Georgia Supreme Court

Page 152

184 S.E.2d 152

228 Ga. 86

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

No. 26546.

Supreme Court of Georgia.

Sept. 27, 1971.

Syllabus by the Court

1. A civil conspiracy is a combination between two or more persons to do some unlawful act which is a tort or else to do some lawful act by methods which constitute a tort.

2. There is no evidence to show that the defendants were agents of the plaintiffs, that they occupied any confidential relationship toward the plaintiffs, or that they owed any duty to the plaintiffs.

3. There is no evidence whatsoever that a conspiracy existed between the defendants; there being no material issue as to the existence or non-existence of a conspiracy, the court erred in denying the motion for summary judgment.

Curtis R. Richardson, Decatur, for appellants.

Peek, Whaley & Haldi, Glenville Haldi, Haas, Holland, Freeman, Levison & Gibert Hugh W. Gibert, Andrew C. Hall, Huie & Harland, Harry F. Cashin, Jr., Atlanta, for appellees.

ALMAND, Chief Justice.

In February, 1970, Joseph and Sam Giordano filed their complaint against H. F. Stubbs, seeking to annul and set aside a foreclosure sale, under power given in a security deed, of a described tract of land in Gwinnett County, and for a money judgment against Stubbs.

In this complaint it was alleged that one Donald E. Gaston, in November, 1963, executed to Stubbs a deed to secure debt in the sum of $30,000 to a described tract of land; that the Giordanos were the grantees of a deed to secure a debt in the amount of $163,500 in the described property, wherein the defendant's deed is superior to Giordano's deed; that the fair market value of the property was $250,000; that Stubbs, proceeding under the power of sale in his security deed foreclosed and at the sale on February 3, 1970, purchased the property for the sum of $35,000; that the Giordanos were unaware of the sale; that such sum was grossly inadequate; that it was a fraudulent sale, and, that the plaintiffs were ready, willing and able to pay any and all sums due the defendant.

On the presentation of the complaint a temporary injunction was granted.

On February 24, 1970, the plaintiffs amended their complaint and named Bob E. L. Pope as a party defendant. In substance the amendment alleged that the Giordanos purchased the subject property in 1966 and later sold the property to Pope who assumed the debt the Stubbs and executed a second mortgage to the Giordanos in the sum of $163,500. The amendment further alleged that the Giordanos received notice by letter from Stubbs on November 1, 1969, indicating an amount of principal and interest which was due and payable to the Trust Company of Georgia.

The plaintiffs again amended their complaint on August 18, 1970, in which they added Summer-Minter & Associates, Inc., and Hugh Summer as defendants. In substance the amendment alleged: that at all times pertinent a conspiracy existed among all of the defendants for the purpose of defrauding the plaintiffs of their interest in the land involved in the present action; that at the time Pope bought the tract from the plaintiffs he intended to let the debt to the plaintiffs go into default so that Stubbs could foreclose and 'cut off' the second mortgage; that Stubbs failed to advise plaintiffs of Pope's default; that the sale of the land by plaintiffs to Pope was arranged through Summer-Minter & Associates, Inc., which collected a real estate commission on the sale; and that Hugh Summer as president of the corporation had personal knowledge of the default and was under a duty to inform the plaintiffs of such fact, but that he concealed the information from the plaintiffs.

The additional prayers were: if the foreclosure sale be not set aside, in the alternative the plaintiffs have judgment against all of the defendants, jointly and severally, in certain specified sums for actual and punitive damages and attorneys fees.

In their answer and counterclaim, Summer-Minter & Associates, Inc., and Hugh Summer gave as their defense that the complaint failed to state a claim against them, and they denied the material allegations of the complaint. In their counterclaim, they asked for a judgment for money damages on the ground that the plaintiffs acted maliciously and without probable cause in joining them in these proceedings.

Summer-Minter & Associates, Inc. and Hugh Summer filed their motion for a summary judgment in their favor and against the plaintiffs as to the relief sought in the plaintiffs' complaint.

Under the pleadings, interrogatories and answers in the case, the court upon consideration denied this motion and certified the order as being subject to immediate review. The appellants filed their notice of appeal, and error is assigned on this order.

1. A civil conspiracy has been defined as a combination between two or more persons to do some unlawful...