"The above and foregoing case came before the Court for a hearing on the 28th day of April, 1980, pursuant to Order of the 3rd day of March, 1980. The Court had before it the following motions:
"1. Defendant Heller's oral Motion to Modify Order of the 3rd day of March, 1980...
"3. Defendant Heller's Motion for Partial Summary Judgment.
"4. Plaintiff Aetna's Motion for Summary Judgment against defendant Garrison and against defendant Heller.
"The motions were heard and extensively argued by counsel. Briefs have been filed and considered and the Court now enters its Order on each motion in sequentia.
-1-
"Heller complains of the portion of the Court's Order of the Court's Order of the 3rd day of March, 1980, wherein the transcription thereof stated that the granting of Heller's motion to permit filing of counterclaim approximately three and one-half (3 1/2) years after the plaintiff instituted its action, 'would prejudice the plaintiff.'
"The Court has reviewed the transcript of the hearing and finds Heller's motion to be well taken in part. The Court orders that the following phrase be stricken, 'The Court finds that to permit Heller to assert its proposed counterclaim some three and one-half (3 1/2) years after the date upon which it was known to the defendant Heller would prejudice the plaintiff.' and the court inserts in lieu thereof the following phrase, 'The Court finds that Heller has not demonstrated that the plaintiff Aetna would not be prejudiced.' The result of the Court's ruling is not affected by this Order. The Court declines to amend its ruling further. The Court is persuaded by Division 4 of the opinion expressed in Blount v. Kicklighter, et al., 125 Ga.App. 159 at 161-163... (186 S.E.2d 543)
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"Heller's Motion for Partial Summary Judgment sounds in the language endorsed on the bottom of the guaranty of March 30, 1976, as follows: 'This guaranty cancels and supersedes any previously issued guaranty.' See Exhibit 'E' to plaintiff's complaint. Heller argues that the import of this language is to terminate any obligation that Heller might have had under any prior guaranties. Such a position is simply untenable under our law. Divisible and continuing guaranties may be cancelled 'in futuro only'. Haynie v. First National Bank, 117 Ga.App. 766 (162 S.E.2d 27); White v. Chapman, 149 Ga.App. 409 at 412 (254 S.E.2d 434). Accordingly, defendant Heller's Motion for Partial Summary Judgment is denied.
-4-
"The first issue which presents itself to the Court for determination is whether or not the trial court can grant a Motion for Summary Judgment after a reversal by the Court of Appeals in the same case of a previous trial court order granting of a Motion for Directed Verdict where the moving party in each instance was the plaintiff below.
"The Court answers the question in the affirmative. The requirement of a new trial on the merits de novo does not necessarily contemplate a jury trial and does not preclude the granting of such a motion. Worley v. Travelers Indemnity Company, 121 Ga.App. 179 (173 S.E.2d 248). Furthermore, in Worley the Court is directed to examine the reasons given for the previous reversal and to respect and apply the same in the conduct of the new trial even though there is no direction to that effect. However, where there has been no direction from the Appellate Court, as here, this Court is cautioned that it should not embody the reasons set forth in the opinion in a new judgment based upon the former trial. This Court is therefore not to operate in a vacuum, but is to examine the record de novo on Motion for Summary Judgment.
"Accordingly, the Court's method of approach to this rather complicated case has been to examine plaintiff's contentions as to the establishment of the amount due on account and under each of the guaranties separately and then to examine each of the defenses interposed by Garrison and/or Heller in sequentia to determine whether or not any new evidence has been presented and is in the record which would require a result different from that obtained in the previous appearance of this case before this Court and the Court of Appeals. If the Court had found material issues of fact to exist, the Court would have denied the Motion for Summary Judgment as to any issue controlled thereby. It was and is the court's intention to rule severally on each issue presented by the motions pending pursuant to 81A-156(a), (b), (c) and (d). In all, the Court approached the issues de novo, but with respect for and application of the opinion of the Court of Appeals in this case especially where new facts do not mandate some change therein.
"Plaintiff contends that under the rule in Escambia Chemical Corporation v. Rocker, et al., 124 Ga.App. 434 (184 S.E.2d 31) (2), and Tri-State Culvert Manufacturing, Inc. v. Crum, et al., 139 Ga.App. 448, (228 S.E.2d 403) that the burden on the Motion for Summary Judgment shifts to Heller when the plaintiff establishes its right of recovery against Garrison, the principal, and the coverage of the guaranties issued by Heller, as this Court has found in Division 4(a) of this opinion, infra. The Court does not agree with the plaintiff's position in this regard. The plaintiff would be correct upon the trial of the case if the plaintiff had first obtained judgment against the principal. In such a case the presumption of Escambia would shift the burden of proof to the guarantor. However, the burden of proof on Motion for Summary Judgment is upon the plaintiff to show that there is no genuine issue of material fact regardless of whether the plaintiff or the defendant would have the burden upon the trial of the case, and the party opposing the motion must be given the benefit of all reasonable doubts and of all favorable inferences from the evidence. Burnette Ford, Inc. v. Hayes, et al., 227 Ga. 551, (181 S.E.2d 866) and Word v. Henderson, et al., 110 Ga.App. 780 (140 S.E.2d 92).
"However, this does not mean that the party opposing the motion may merely sit back and rest without presenting evidence contrary to the movants prima facie case. This Court is most persuaded in the instant case by the opinion of the Supreme Court in Summer-Minter & Associates, Inc., et al. v. Giordano, et al., 231 Ga. 601, (203 S.E.2d 173) which presents facts strikingly similar to the case at bar. In Summer-Minter, a case had been tried, reversed without direction, amendments to defenses had been permitted, there as here after the reversal, and Motion for Summary Judgment had been made. The Supreme Court held:
" '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.
"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. (Citations omitted.) A party against whom summary judgment has been granted is in the same position as if he suffered a verdict against him. (Citations omitted.) Thus, it is evident that an adjudication on summary judgment is an adjudication on the merits of the case (Citations omitted.) ... In the present case, plaintiffs restyled their original complaint, framed according to a civil conspiracy theory of recovery, to conform to a different theory of recovery based on tortious interference with rescue of property. This second theory of recovery, if it exists at all, was ascertainable under the original complaint as amended. Under our practice of notice pleading, the plaintiff has the benefit of any theory of recovery which can be gleaned from his complaint. Accordingly, restyling the complaint in terms of a theory of recovery ascertainable in the original case did not
cause the case to survive the prior adjudication on the merits.'
"See also Goldsmith v. American Food Services, Inc., 123 Ga.App. 353, (181 S.E.2d 95) where the Court held:
" 'Plaintiff here in support of his motion relied upon the pleadings, the evidence at the prior trial and our holding on the earlier appeal. Insofar as the defendant's defense based on grounds which we held to be insufficient as a matter of law, the defendant did nothing. Thus, on these defenses, summary judgment for plaintiff would be demanded.'
"4. (a) Neither Heller nor Garrison have interposed any evidence, facts or authority which would controvert Aetna's assertion that the total debt on account is $142,901.20. Therefore, Aetna's Motion for Summary Judgment against Garrison Carpet Mills, Inc. is GRANTED.
"4. (b) The next issue to be determined is whether or not Heller's three guaranties cover all or any part of Garrison's debt to...
