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GEORGIA RECOVERY, INC. v. DANLEY et al.
A94A2225.
BIRDSONG, Presiding Judge.
Action for damages. Fulton State Court. Before Judge Vaughn.
Appellant/defendant Georgia Recovery, Inc. appeals the order granting summary judgment in favor of appellees/plaintiffs, the Danleys, and from the final order and judgment of the superior court entered in favor of appellees. Appellees brought suit after an agent of defendant attempted to repossess an automobile titled in Mrs. Danley's name but being used by Mr. Danley who was making late payments there on. The Danleys averred, under the liberal notice pleading procedures of the Civil Practice Act (see generally Wade v. Polytech Indus., 202 Ga. App. 18, 21 (2) (413 SE2d 468)), several causes of action including that of an attempted wrongful repossession resulting in a breach of the peace. Appellant enumerates four errors. Held:
1. The trial court did not err in entering final judgment against appellant merely because appellees had compromised and settled their claim against NationsBank and dismissed said claim with prejudice. Appellant's contention that it was an agent of NationsBank is not supported by the record before us. Rather, the record before us on appeal establishes, without contravention, that appellant was hired only as an independent contractor of NationsBank. Thus, appellant's assertion that release of the principal, NationsBank, extinguished any claims against appellant as NationsBank's agent is inapposite and the cases cited in support of such proposition are not controlling. There is direct and unrefuted evidence in this case that appellant was hired by NationsBank only as an independent contractor and that NationsBank at no time directed or controlled the manner and method of appellant's automobile repossession operation. This direct evidence pierced the general averments of agency in the pleadings of the parties. In response to a motion for summary judgment, a party cannot rest on generalized allegations, but must come forward with specific facts to show that there is a genuine issue for trial. Precise v. City of Rossville, 261 Ga. 210, 212 (3) (403 SE2d 47). Appellee Leonard Danley testified by way of deposition that the tow-truck operator (who appellant concedes in its brief was the employee of Georgia Recovery, although he did not identify himself as such at the time of attempted repossession) said that NationsBank had ordered him to repossess the truck. However, this evidence is entirely consistent with the direct evidence that Georgia Recovery was acting as an independent contractor and does not raise a genuine issue of agency between NationsBank and Georgia Recovery. Moreover, "it is a long-standing rule that a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists." Johnson v. Rogers, 214 Ga. App. 557 (448 SE2d 710), and cases cited therein.
2. Further, this court is obliged to conclude that the trial court did not err as enumerated and to affirm the judgment of the trial court. Appellant averred in his notice of appeal that the transcript of the evidence and proceedings in this case would be forwarded; but the court reporter has certified that "there is a transcript of evidence, however, the appellant's attorney has never ordered the transcript from the court reporter, nor was the appellant's attorney present to share in the take down cost." A grant of summary judgment must be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746). Examination of the order of the trial court granting appellees' motion for summary judgment and its final order and judgment reveals that a summary judgment hearing was held, evidence was presented at that hearing, and the trial court considered all the evidence before it, prior to granting summary judgment and entering a final order and judgment in behalf of appellees/plaintiffs. It thus would be necessary for purposes of appellate review to have access to and examine the evidence contained in the hearing transcript. "Without a transcript to review, this court must assume as a matter of law that the evidence presented . . . supported the [trial] court's findings." Johnson v. State, 261 Ga. 678, 679 (2) (409 SE2d 500); compare Malin Trucking v. Progressive Cas. Ins. Co., 212 Ga. App. 273 (1) (441 SE2d 684); see Nodvin v. West, 197 Ga. App. 92, 97 (3c) (397 SE2d 581).
ON MOTION FOR RECONSIDERATION.
Const. of 1983, Art. VI, Sec. I, Par. IV), particularly as the alleged deficiency in the certificate was not detected and corrected during the original appellate process. Moreover, the record was not even corrected in a manner authorized by statute as of the date this reconsideration motion was considered by this court.
Danley & Associates, Timothy J. Crouch, for appellees.
McLanahan & Comolli, John M. Comolli, for appellant.
DECIDED OCTOBER 31, 1994 -- RECONSIDERATION DENIED NOVEMBER 16, 1994 -- CERT. APPLIED FOR.
Thursday May 21 06:33 EDT


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