Whisenhunt v. Allen Parker Co., 44304

• Decision Date: 18 June 1969
• Docket Number: No. 44304,No. 1,44304,1
• Citation: 168 S.E.2d 827,119 Ga.App. 813
• Parties: , 6 UCC Rep.Serv. 969 H. L. WHISENHUNT, Administrator v. ALLEN PARKER COMPANY
• Court: Georgia Court of Appeals

Page 827

168 S.E.2d 827

119 Ga.App. 813, 6 UCC Rep.Serv. 969

H. L. WHISENHUNT, Administrator v. ALLEN PARKER COMPANY.

No. 44304.

Court of Appeals of Georgia, Division No. 1.

June 18, 1969.

Syllabus by the Court

1. The grant of a summary judgment on any issue or as to any party is subject to review by direct appeal.

2. A ground which is not supported by argument or by citation of authority is deemed abandoned.

3. Where the trial judge expressly recites that certain evidence was unnecessary to a determination of the issues involved this court will not consider it in passing upon the judgment.

4. The defendant failed to establish that the plaintiff was not entitled to any

of the amount sought. Hence, the grant of a summary judgment in the defendant's favor was error.

Henry L. Whisenhunt, as administrator of estate of Estel Dwight Edwards, filed a complaint against Allen Parker Company seeking damages in seven counts, of which only four remain for the purpose of this appeal.

Counts 1, 3 and 6 of the complaint, as amended, contained substantially similar allegations as follows: The complaint asserts that Edwards, who died on December 26, 1967, conducted a retail trailer sales business under the name of Dukes Mobile Homes, and also sold bottled gas and rented mobile homes to tenants as two separate side enterprises, all individually owned by Edwards and situated at the same location. The three enterprises were described as going businesses and were alleged to have a fair market value of $100,000 for the mobile home dealership, and $10,000 each for the bottled gas and trailer rental enterprises. On January 6, 1968, defendant, acting through its agents, wilfully came onto the premises of the deceased and removed 24 house trailers, Edwards' pick-up truck and personal automobile, 25 bottled gas containers, tools and appliances, all having a combined value of $55,000, and demolished an 'add-a-room,' valued at $2,000, which was a part of his office and contained records which the defendant was charged with scattering and removing.

The complaint further alleged that defendant wilfully served water and sewerage lines, electric wires on the premises, and frightened off two of the deceased's tenants. It was alleged that entry was made without notice or permission and for the sole purpose of removing the property; that to replace and recover the lost records, the estate was forced to re-employ the deceased's former bookkeeper and the administration of the estate was hampered and delayed. The complaint also alleged that on May 15, 1968, after the plaintiff qualified as administrator, the defendant seized three more house trailers on the premises without permission or process and with knowledge of the plaintiff representing the estate of the deceased.

Count 1 of the complaint prayed for the recovery of $57,000 for damages represented by the value of the converted mobile homes, the bottled gas containers, and the demolished 'add-a-room.' In Count 3, damages aggregating $120,000 were sought for the reasonable value of the three going enterprises of the deceased which were destroyed by the wilful conduct of the defendant. Count 6 of the complaint prayed for punitive damages for the wilful and tortious conduct of the defendant in the amount of $1,050,000.

In Count 5 of the complaint, it was alleged that Edwards before his death had negotiated for the sale of two mobile homes to two individuals and had received down payments, leaving balances of $3,000 and $3,039, respectively, to be paid. The plaintiff asserted that the defendant's agents had wrongfully induced one of the individuals to pay for the mobile home which had been seized from the deceased's lot and assisted the other individual in completing his purchase of the mobile home, leaving the estate indebted to the defendant for some $800 of a $4,000 agreed purchase price on one mobile home. The complaint prayed that the two isolated sales be set off.

The defendant's answer denied the material allegations of the complaint and set out in defense thereof allegations that it had taken from the deceased's lot 23 house trailers and two motor vehicles under the provisions of certain security instruments, and attached as exhibits the corresponding security instruments thereon listed by letter designations 'A' through 'Y,' which instruments were alleged to have been executed by the deceased from April 1966 to December 22 1967. The defendant divided these units into three categories: 'A' through 'L' being units held by Edwards on floor plan with the defendant holding bills of sale to secure debt and notes thereon; 'M' through 'Q' being five units purchased by Edwards individually and on which the defendant held conditional sale contracts; 'R' through 'Y' being eight house trailers held on floor plan by Edwards and sold by him to customers who had given Edwards conditional sale contracts assigned to the defendant. The customers defaulted in their payments, the units were repossessed by the defendant and placed on Edwards' lot for resale in furtherance of a recourse agreement between the defendant and Edwards.

The defendant alleged that upon the death of Edwards, certain specified amounts were due one each of the units and that under the terms of the various security instruments, the defendant had the right and option, without legal process, to enter upon the premises of Edwards and take possession thereof; that at the time it took the units from the premises, Edwards' estate was unrepresented and insolvent, and the mobile homes were unprotected and in danger of pilferage, damage and destruction.

The defendant filed a motion for summary judgment supported by various affidavits, certain documents and exhibits, and its verified pleadings. The plaintiff, in opposition to the motion, produced his verified complaint, several affidavits and exhibits incorporated therein. The trial judge granted the defendant's motion for summary judgment and dismissed Counts 1, 3, 5 and 6 of the plaintiff's complaint. Appeal was taken from that judgment. Any detailed recitations of the proof submitted necessary to decision is this case will be found in the opinion.

Louis Saul, Oliver Mixon, Augusta, for appellant.

Sanders, Hester, Holley, Ashmore & Boozer, Thomas R. Burnside, Jr., Richard A. Slaby, Augusta, for appellee.

QUILLIAN, Judge.

1. The appellee moves to dismiss the appeal on the ground that it is premature since a counterclaim is still undisposed of.

It is true that ordinarily an appeal is premature where the case remains pending. However, the Civil Practice Act now provides with regard to summary judgments: 'An order granting summary judgment on any issue, or as to any party, shall be subject to review by appeal.' Code Ann. § 81A-156(h) (Ga.L.1966, pp. 609, 660; 1967, pp. 226, 238). 'Review of orders and judgments with respect to motions for summary judgment shall be governed by Section 56(h), as amended, of the Georgia Civil Practice Act ( § 81A-156(h)).' Code Ann. § 6-701(a 4) (Ga.L.1965, p. 18; 1968, pp. 1072, 1073).

Thus, it is apparent that the grant of a summary judgment is an exception to the rule requiring a final judgment in order to appeal. One may appeal the grant of a summary judgment on any issue or as to any party. See McLeod v. Westmoreland, 117 Ga.App. 659, 660, 161 S.E.2d 335; Levy v. G.E.C. Corporation, 117 Ga.App. 673, 676, 161 S.E.2d 339. The motion to dismiss the appeal is denied.

2. Any issue regarding Count 5 of the amended complaint is neither supported by argument and citation of authority nor is it supported by specific reference to the record. Hence, it is deemed to be abandoned. Court of Appeals Rule 17(c)(2, 3).

3. We now consider the proof submitted with reference to Counts 1, 3 and 6 of the amended complaint.

The trial judge in his order granting the defendant's motion for summary judgment stated: 'It is further ordered and adjudged that consideration of the evidence presented by the parties to which objections were filed being unnecessary to reach the conclusion and judgment hereby rendered it is unnecessary to rule upon such objections. The admission or exclusion of the evidence offered over objection would not change or vary the judgment hereby rendered.'

Although the defendant relies on the provisions of a confidential financial statement, the plaintiff filed his written objections to such statement. Since the trial judge by the express terms of his order did not consider the statement and since it was objected to, we do not consider it in ruling upon the motion. The rule that a judgment right for any reason will be sustained is not applicable in these circumstances. For, in order to consider such evidence, we would have to pass upon its admissibility where there was no ruling in the lower court and act in direct contravention of the lower court's determination that the evidence need not be considered.

4. Without the financial statement, each individual contract was determinative of the defendant's and the deceased's rights in repossessing the property. Though there were several different forms used, we point out two pertinent examples, styled exhibits 'N' and 'Q' respectively. 'N' was a contract of conditional sale for a 1968 Mascot; 'Q' a contract of conditional sale for a 1966 Pontiac. Both provided: 'Time is of the essence of this contract, and if purchaser default in complying with any of the terms hereof, seller, at his...