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Lawskills.com Georgia Caselaw
McLEOD v. WESTMORELAND et al.
43513.
Attorneys' fees, etc. Thomas Superior Court. Before Judge Lilly.
QUILLIAN, Judge.
1. Under the provisions of Code Ann. 81A-156 (h) an appeal may be taken where a summary judgment is granted on any issue or as to any party.
2. There being no material issue of fact, the trial judge did not err in granting the plaintiffs' motion for summary judgment as to the defendant's cross action.
John L. Westmoreland and John L. Westmoreland, Jr., filed suit in Thomas Superior Court against Mrs. Josephine C. McLeod seeking recovery of attorney's fees for legal services rendered. The defendant's answer and cross action, as amended, denied the indebtedness and sought damages for breach of contract by the plaintiffs in the discharge of their duties commensurate with the attorney-client relationship. The cross action set out that the plaintiffs had been employed by the defendant to represent her interest in a proposed sale of her stock in a loan company to Waco Finance Company, Inc., in which the agreed general terms were that the defendant would accept $30,000 in debentures and a note for $3,000 for her interest in the loan company; that, during a conference at which the two sole stockholders of the purchasing corporation and a member of the plaintiffs' firm were present, it was agreed that such two stockholders would personally guarantee or endorse the obligations to the defendant. The cross action then alleged that the plaintiffs drew up a contract for the sale of the defendant's business and debentures and a note evidencing the indebtedness to her for the purchase price; however, the plaintiffs failed to protect the interest of the defendant by not securing the personal guarantee or endorsement of the corporate stockholders; that the defendant did not receive a copy of the contract until after she had been advised by the plaintiffs that the corporation (Waco) was insolvent; that the plaintiffs advised the defendant to accept $4,000 in settlement of the $30,000 in debentures; that not until the offer of settlement had been made did the defendant realize the contract did not provide for a personal guarantee or endorsement; that the defendant subsequently settled for approximately one-half the amount owed her and is advised and believes that if the plaintiffs had prepared the debentures and notes so as to provide for a personal guarantee she would have been able to collect the full amount; that by reason of these facts the plaintiffs failed to discharge their duties with reasonable skill and diligence and are indebted to the defendant for the remainder of the amount.
The plaintiffs filed a motion to strike and dismiss the cross action which was overruled. Subsequently, the plaintiffs filed a motion for summary judgment, with supporting affidavits and depositions, on the grounds, inter alia, that there was no material issue of fact as to the cross action. The defendant opposed this motion by affidavit stating "that the facts alleged in her answer and cross action are true and correct" and by deposition of one of the two stockholders in the purchasing corporation. The trial judge sustained the plaintiffs' motion and struck the defendant's cross action. It is from that judgment the defendant appeals to this court.
1. Ordinarily the dismissal of an answer and cross action is not an appealable judgment. Hood v. Akins, 114 Ga. App. 733 (152 SE2d 704); Norbo Trading Corp. v. Wohlmuth, 223 Ga. 258 (154 SE2d 224). Under Parker v. Aver- ett, 113 Ga. App. 576 (149 SE2d 199) and Undercofler v. Grantham Transfer Co., 222 Ga. 654 (151 SE2d 765) it was held that the Appellate Practice Act (Ga. L. 1965, p. 18), being the last expression of legislative intent, controlled over the Summary Judgment Act (Code Ann. 110-1208 (Ga. L. 1959, pp. 234, 236)); hence, the appealability of a judgment was determined by the applicable provisions of the Appellate Practice Act.
However, the Civil Practice Act (Ga. L. 1966, pp. 609, 660; Ga. L. 1967, pp. 226, 238) now provides: "An order granting summary judgment on any issue, or as to any party, shall be subject to review by appeal." While that portion of the Act relating to the denial of a summary judgment treats with the question of reviewability, the tenor of the Act deals with the appealability as is evidenced by the amendatory proviso which reads: "Said Act is further amended by striking Section 56 (h), relating to appeal of orders denying summary judgment, and by substituting in lieu thereof the following." Ga. L. 1967, p. 238, 25. Thus, in construing the statutes the clear and last expression of the legislative intent is to except summary judgments from the general appealability provisions of Code Ann. 6-701 (Ga. L. 1965, p. 18) and to allow an appeal where a summary judgment is granted on any issue or as to any party even though the case is still pending within the purview of Code Ann. 6-701. The instant judgment is subject to review by appeal and we therefore consider the case on its merits.
Nothing in Passmore v. Truman & Smith Institute, 116 Ga. App. 803 (159 SE2d 92), is contrary to what is here held since the Passmore case was decided, based on authority of Parker v. Averett, 113 Ga. App. 576, supra, and Undercofler v. Grantham Transfer Co., 222 Ga. 654, supra, under the law prior to the Civil Practice Act.
2. The trial judge overruled the plaintiffs' general demurrer to the defendant's cross action. Hence, assuming arguendo that the law of the case fixed the right of the defendant to recover if the facts supported the allegations of the cross action, we now consider the motion for summary judgment in this posture.
The plaintiffs, by affidavit and depositions, submitted proof that: the defendant had seen the contract prior to the offer of settlement since she had executed it and initialed each page thereof; the representative of the plaintiffs' firm (to the best of his recollection) never heard of any guarantee or endorsement by the corporate stockholders; this was substantiated by Waco's attorney who, although he was not present at the particular final meeting, carried out the negotiations and finalization of the agreement and related he was never given any instructions as to providing for personal guarantee or endorsement; he further stated that in several similar transactions the two shareholders of the corporation never gave their personal endorsement.
The defendant attempted to counter this proof by an affidavit which in effect was only a verification of the allegations of the answer and cross action. This, under the rulings of Scales v. Peevy, 103 Ga. App. 42, 47 (118 SE2d 193) and Crutcher v. Crawford Land Co., 220 Ga. 298 (138 SE2d 580), is not sufficient to withstand a motion for summary judgment.
The only other proof submitted in opposition to the motion is found in the deposition of Mr. Tanner, one of the two stockholders of Waco. He testified that at the time of the oral finalization of the agreement Dr. Greene, the other shareholder, agreed to personally guarantee payment to the defendant. Thus, the defendant contends a material issue of fact is presented.
We find no merit in this contention. In view of the allegations of the answer there is serious doubt as to whether a dispute as to this fact alone would preclude the grant of a summary judgment. Moreover, although on summary judgment the evidence is construed most strongly in favor of the party opposing the motion, we must consider the evidence as a whole to ascertain its manifest import. Here Tanner testified that he, personally, never agreed to guarantee payment (thus contradicting the allegations that both agreed) and in explaining the circumstances of Dr. Greene's statement he related: "Dr. Greene had a, was always one to say, 'Well, we will back this up personally.' That is what he would say. I think that he felt that he would. Of course, I didn't say anything really, but he would do that."
"Well, to be perfectly frank with you, he said it and I used to say to Doc, 'Look, Doc, we have got a corporation,' I said, 'We can't personally guarantee these things.' He said, 'Well, I always feel that we can personally back them up. We should personally back them up.' I have discussed it with him before when he would say, 'We'll personally guarantee it.' I said, 'Doc, we can't personally guarantee this.' He said, 'I feel if we take people's money we should be able to personally guarantee it.' I don't think we got a purchase or something that he didn't more or less bring this up, but frankly I would have, I knew that I could not personally back it up, I didn't have the money to personally back anything up like that."
There is no showing that Dr. Greene would have been willing to individually guarantee payment but only that he would be willing, apparently if Tanner also would, to act as a co-endorser or guarantor.
The trial judge did not err in granting the motion for summary judgment.
Judgment affirmed. Bell, P. J., and Hall, J., concur.
Donald E. O'Brien, Frank Strickland, Marcus B. Calhoun, John L. Westmoreland, Jr., for appellees.
Charles F. Johnson, for appellant.
ARGUED MARCH 5, 1968 -- DECIDED APRIL 19, 1968.
Friday May 22 18:45 EDT


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