Wright v. Aflac, Inc., A06A2335.
| Decision Date | 31 January 2007 |
| Docket Number | No. A06A2335.,A06A2335. |
| Citation | 643 S.E.2d 233,283 Ga. App. 890 |
| Parties | WRIGHT et al. v. AFLAC, INC. |
| Court | Georgia Court of Appeals |
Bonnie M. Smith, for appellants.
Waldrep, Mullin & Callahan, Joseph L. Waldrep, Ben Kirbo, Bainbridge, for appellee.
Ector and Maude Wright sued AFLAC, Inc., an insurance company, claiming that they own stock in AFLAC as a result of their 1957 purchase of stock in Security Finance and Investment Corporation ("Security Finance"). The trial court granted AFLAC's motion for summary judgment, and the Wrights appeal. Because we agree with the trial court that AFLAC was entitled to judgment as a matter of law, we affirm.
On appeal from a grant of summary judgment, we examine the evidence de novo, and we view the evidence and all inferences drawn therefrom in a light favorable to the nonmoving party.1 A defendant is entitled to summary judgment if it shows that 2 If this is shown, the plaintiff "cannot rest on his pleadings, but must point to specific evidence that gives rise to a triable issue of fact."3
The evidence shows that the Wrights entered into a stock subscription agreement with Security Finance in January 1957. The salesman they allegedly dealt with was W.W. Sasser. In June 1957, the Wrights cancelled the contract, which left them with 20 shares of Security Finance stock. In 1964, the Wrights sought to have the 20 shares issued to them, along with any dividends. They never received stock certificates from Security Finance.
Security Finance was a Georgia corporation whose stated business purposes were, among others, to conduct "a general brokerage business," to buy and sell real property and "conduct a general mortgage loan business," and "[t]o conduct any other legally valid type [of] business." No mention of insurance was made in the company's charter. Security Finance was administratively dissolved in 1988. There is no evidence in the record that shares of Security Finance stock were ever transformed into AFLAC stock.
Marguerite Smith, a friend of the Wrights, purchased stock through Sasser in the 1950s. She does not know if the Wrights bought the same stock she purchased. When she sold her stock, it was American Family Life stock. Another friend of the Wrights, Merrell Ramick, also purchased stock through Sasser in the 1950s. She "received dividends from the stock from American Family Life Assurance Company or what is known today as AFLAC."
In 2005, the Wrights filed a declaratory judgment action against AFLAC, seeking to have AFLAC issue them the equivalent of "20 original shares of AFLAC stock" with splits and dividends that had accrued since 1957. They subsequently amended their complaint to allege fraud and seek liquidated and punitive damages. They contend that because their friends purchased stock from the same salesman during the same time period, they must have purchased the same stock as their friends, which became AFLAC stock. AFLAC moved for summary judgment, and the trial court granted its motion, finding that: the Wrights failed to show that the stock they purchased is today AFLAC stock; their claims to enforce the stock subscription agreement and for fraud are both barred by the applicable statutes of limitation; and their claims are barred by the doctrine of laches.
1. As a threshold matter, we address the grave deficiencies of the Wrights' brief. While they have enumerated 11 errors, they have not numbered their arguments correspondingly in the brief and have failed to support some of the arguments with citation of authority.4 We caution counsel that this Court's rules "are designed to facilitate the consideration of enumerated errors and compliance with such rules is not optional," and that future violations may result in sanctions.5 The Wrights' failure to adhere to our rules has hampered our ability to ensure that all their arguments are addressed. Accordingly, the Wrights are wholly responsible for any allegation of error that we are unable to fully address.6
Many of the Wrights' enumerations of error are duplicative. Their main contentions appear to be that: (1) the trial court erred in ruling on the motion for summary judgment prior to the close of discovery; (2) the trial court should have struck AFLAC's answer; (3) the statute of limitation should have been tolled on their fraud claim until the discovery of the fraud; and (4) the statute of limitation should have been tolled on their declaratory judgment claim. We thus address the Wrights' contentions in this order.
2. Upon reviewing the record, we conclude that the Wrights have utterly failed to present evidence sufficient to create a triable issue of fact as to their claims against AFLAC. The crux of the Wrights' argument is that they purchased stock in a company that subsequently became AFLAC. But it is undisputed that the Wrights purchased stock in Security Finance. And there is no evidence in the record, other than the speculation of the Wrights, that Security Finance stock was ever transformed into AFLAC stock.7 The Wrights' assertion that "[s]ome [Security Finance] stock was exchanged for [AFLAC] stock" is likewise unsubstantiated, as Smith and Ramick did not state that they originally purchased Security Finance stock.
Furthermore, there is absolutely no evidence in the record of fraud on the part of AFLAC. Fraud must be pleaded with particularity.8 The Wrights' allegations of fraud are vague at best and seem to hinge on the unsubstantiated assertion that the father of AFLAC's founder was one of the incorporators of Security Finance. Accordingly, the trial court properly granted summary judgment to AFLAC.9
3. The Wrights argue that the trial court should not have entertained the motion for summary judgment because AFLAC had not yet responded to their discovery requests. A defendant, however, may move for summary judgment "at any time."10 If the Wrights believed that AFLAC's discovery responses were necessary in order to adequately respond to the motion, they could have sought a continuance to obtain the discovery.11 They did not do so. In fact, the Wrights consented to two extensions of time for AFLAC to respond to discovery, first agreeing that AFLAC's responses would be due December 30, 2005 and then that the responses would be due 30 days after the trial court ruled on the motion for summary judgment. In their response to the motion for summary judgment, filed January 17, 2006, the Wrights pointed out that AFLAC had not responded to discovery, but did not suggest what relevant facts might be learned through discovery.12
cannot fail to exercise [their] legal remedies to compel discovery and/or to file a proper motion to request additional time to complete discovery and allege as error that the trial court failed to defer ruling on pending motions [for summary judgment] until either the other parties decide to respond to discovery or the party filing the discovery decides to utilize his legal remedies.13
As the Wrights never moved for a continuance and agreed to an extension of time for discovery responses, the trial court was authorized to rule on the motion for summary judgment before the Wrights completed...
To continue reading
Request your trial
-
Stewart v. Johnson
...of enumerated errors and compliance with such rules is not optional." (Citation and punctuation omitted.) Wright v. AFLAC, Inc. , 283 Ga. App. 890, 891 (1), 643 S.E.2d 233 (2007). Appellants filed briefs in response to those filed by the Johnsons and the Brookers; the reply briefs present n......
-
Bazin v. State
...5. See Mackey v. State, 296 Ga.App. 675, 675 S.E.2d 567 (2009). 6. (Punctuation and footnote omitted.) Wright v. AFLAC, Inc., 283 Ga.App. 890, 891-892(1), 643 S.E.2d 233 (2007). 7. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 8. Kurtz v. State, 287 Ga.App. 823, 825, 652 S.E.2d 858 (2007). 9......
-
Roberts v. Nessim
...(2000). 16. (Punctuation omitted.) Id. 17. See Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991); Wright v. AFLAC, Inc., 283 Ga.App. 890, 892(2), 643 S.E.2d 233 (2007); Aliabadi v. McCar Dev. Corp., 249 Ga.App. 309, 312-313(1), 547 S.E.2d 607 (2001); Johnson, 242 Ga.App. at 498-499......
-
Leone v. Servicing
...Klosik & Daugherty, 256 Ga.App. 370, 372(2), 568 S.E.2d 503 (2002). 7. (Punctuation and footnotes omitted.) Wright v. AFLAC, Inc., 283 Ga.App. 890, 891–892(1), 643 S.E.2d 233 (2007). 8. See Salazar v. State, 256 Ga.App. 50, 53(4), 567 S.E.2d 706 (2002) (holding that a pro se defendant “is n......
-
2007 Annual Review of Case Law Developments: Georgia Corporate and Business Organization Law
...corporation with requirements that differ from those of the Georgia Civil Practice Act. The Court of Appeals in Wright v. AFLAC, Inc., 283 Ga. App. 890, 643 S.E.2d 233 (2007) discussed a corporate issuer's recordkeeping responsibilities and its burden of proof with respect to claims to owne......
-
2007 Annual Review of Case Law Developments Georgia Corporate and Buissness Organization Law
...corporation with requirements that differ from those of the Georgia Civil Practice Act. The Court of Appeals in Wright v. AFLAC, Inc., 283 Ga. App. 890, 643 S.E.2d 233 (2007) discussed a corporate issuer's recordkeeping responsibilities and its burden of proof with respect to claims to owne......