Bradley v. Tattnall Bank

ing points appeal. of law the Pursuant might arguably Bethay, ex- rulings to the in we conducted an extensive Anders and in in transcript order amination record and filed case fact, is, On appeal determine the frivolous. the basis that re- view, granted we have motion find that counsel’s to withdraw and the met, requirements Bethay no Anders and have been that reversible record, appears error the that a trier fact and rational could have from presented appellant found the evidence at the beyond guilty Drayton State, was reasonable doubt. 758) (1981). J.,

Judgment McMurray, J., Sognier, C. and concur. affirmed. May Decided Gordon, N. Harry Attorney, appellee. District 67592. BRADLEY v. TATTNALL BANK.

67593. SPIVEY v. TATTNALL BANK.

Quillian, Presiding Judge.

Levy Spivey J. agreed purchase the 95% interest San- Reid Apartments from Rogers. Theron L. also agreed He to assume the outstanding apartments on mortgage to the Farmers Home (FHA). Administration Following signing agreement their sales on 1979, they December entered into a partnership manage and operate apartments. They also entered into an employment con- tract Bradley with Jesse perform “other acts connection with the agreement.” partnership Spivey $135,000 borrowed from the Tattnall Bank to finance the purchase deposited and sum was part- nership account the Tattnall Bank. of Spivey note was guaranteed by Rogers Bradley. and In addition the note was se- cured “DSD covering Apartments San-Reid dated 12/31/79” receivable, “BSSA covering accounts furniture and fixtures of San- Reid Apartments receipts dated Rental from the San-Reid 12/31/79.” Apartments deposited were partnership account.

The sales contract between Spivey Rogers also provided that subject was to approval by FHA expire days and was to date of execution In June the FHA notified the “12/31/79.” application that the They prepared had been denied. a second application and submitted it to the FHA June on 1980. On Sep- tember Rogers Spivey agreement informed that the was ter- Spivey minated. specific (80-285) filed an action performance granted trial court summary judgment Rogers. Supreme Rogers, Court affirmed. Spivey 249 Ga. 179 Apartments receipts from the San-Reid Although the rental account, not to use Spivey asked deposited partnership Rogers in the note. monthly payments due the Tattnall pay those funds to On monthly payment made on note. Accordingly, no ever another September 29, asked to execute about the bank 31,1979 note December The first had been executed on note. in was back-dated monthly installments. The second note payable on 31, and December payable December 1979 and was made due to 30, guaranteed by Rogers note and Brad- 1980. The second Following either note. default and ley. payments No on brought against Spivey, bank payment, demand for the action of the Bradley, Rogers. Rogers and answered and admitted execution Bradley’s and he had the same. answer admitted guaranteed note laches, but forth of fraud the endorsement of the note set inducement, al- Spivey’s lack answer denied all and of consideration. failure state legations complaint pled and defenses of claim, In consideration, types addi- discharge. failure of and several of tion, Spivey set forth a the bank and named a against counterclaim third-party of bank as a vice-president and director the defendant. proceeds placed of registry The trial court ordered the the note the of the court. third, fourth,

The bank filed a motion to strike or dismiss the defenses, counterclaim, complaint and the third-party fifth sixth and hear- Spivey. summary judgment. of The bank also After moved Harvey motion for ing, August Judge on denied the bank’s third-party complaint, the motion to strike the ruling of Spivey. and reserved on the dismissal of the defenses Spivey’s granted. motion to strike On June bank’s counterclaim judge, Judge Findley, “anything any a different ruled that previous pertaining pleading order of this court motion or filed (81-224) denied, hereby is or either this case set aside holding gave judgment against the here demands.” He for the bank defendants, all on jointly severally, plus and the accrued interest attorney appointed apportion and fees. An auditor was and dis- pense registry the sums from the of the court each defendant. De- Held: Bradley appeal. fendants and judge ruling Error is enumerated the of the second trial had not granting judgment plaintiff, where the record of expanded following the first trial the motion. judge’s denial the on argue ruling Defendants that the of first the bank’s The “law of the case” motions must be taken as “the law the case.” controlling legal previous been defined as a rule established has generally See decision between the same the same case. (a). 330, Courts, However, practice, is a and is CJS rule § Legal proceed- distinguishable from res and stare decisis. Id. judicata — hence, development; ings process are “in fieri” “in formation or Dic- incomplete until is entered. Black’s Law or inchoate” courts, tionary. general pending rule is while a cause them, or- proceedings, over record their before have control the and term; if the term the cause judgments, during ders and the and after them, Black, may or set aside. pending is still before and amend them ed.) (2d 154; (5th Judgments Law Judgments Freeman on § ed.) pending ruling 140. While the cause is the is said to be the “breast but judge,” longer pending after cause McCandless expired, term “is has roll.” Conley, SE The “law of the case” rule subject power court, in a may, proper the court case disregard or correct its former decision remains where cause (b). pending 332, Courts, it. 21 superior before CJS “The court plenary power has its at judgments during over orders the term entered, amend, correct, them, are revoke Baxley Bank, Deen v. State purpose promoting justice.” However, Ga. interlocutory ruling an does not pass from at the control of court the end of the term the cause Bank, pending. Union Co. v. Trust Co. Circulation remains (1) (240 715, 100), 2, 717 Div. 241 343. revd. Justice Holmes, Anderson, speaking Supreme Court, for in Messenger v. 436, 739, 1152), 225 U. 444 S. SC 56 LE that stated “[i]n case,’ phrase, absence of of the as to applied ‘law the effect statute previous of rendering orders on the later action of the court them case, the same merely expresses practice of to generally courts reopen decided, refuse to has power.” what a limit their not to Inasmuch as our patterned Civil Practice Act was Fed after the eral Civil Rules of Procedure canwe look to federal court decisions guidance. A collection of expressing cases different views on this analyzed issue was Co., in Miss. Peabody Power Co. v. Coal 69 FRD 558, (1976), they 562 and that while a judge concluded should be cau tious overruling prior about of judge orders another in the same case “nevertheless, he do inso the exercise of sound discretion and if he particularly is convinced such in action is dictated terests of justice.” States Koenig, Accord United v. 290 F2d 172 (5th 1961), Cir. affd. nom. States, sub DiBella v. United 369 U. 121 S. SC 7 LE2d agrees Professor Moore that under Rule 56 (a) (d), (b), and and 42 Rule the trial court exercises a broad author ity dispose in stages interlocutory cases these and decisions are character, entry and until subject remain any change at time. “The doctrine of the of the case law does power limit respect.” the court in this 1B Moore’s Federal Practice practice 0.404 He of treating recommends § [4-1]. each successive as establishing decision the law of case and de- Prac 1B Moore’s Federal only convincing reasons. parting from jurisdictional 0.404 He also found that tice “[t]here [4-1]. ruling by judge], prior a a different inhibition reconsideration [of however, a should not court reversal because judge trial of an erro any more than because ruling judge of another erroneous 127, 0.404 1B Moore’s Federal Practice ruling of his own.” [4- neous Bank, in Castner v. First Nat. reasoning This latter was affirmed 2]. (9th 1960) discre found no F2d where the court abuse Cir. prior judge of a judge reversing tion a second a decision They judge conscientiously that the must same case. reasoned second presiding in which he carry judicial any out his function case is a duty prior ruling not fulfill sworn if he found he would It from an permitted it to the case. is clear erroneous control a analysis judge’s of these reconsidera cases restriction ruling upon by prior judge a motion in the same case tion of principle comity upon jurisdiction.” a limitation “is a (7th Teresi, ques F2d Cir. United States appeal judge on whether the second abused his discretion. tion (9th Co., United States v. Gold 433 F2d Cir. Mining Desert Machines, F2d Greyhound Computer v. Business Int. (9th 1977), Cir. den. 434 U. cert. S. directly point

We have two federal as to this issue. found cases (2d Corp., In Cir. Dictograph Prods. Co. Sonotone F2d 1956), judge’s the court held that district denial of a defendant’s “[a] did not become ‘law of the case’ motion preclude judge entering judg another thereafter notwithstanding general practice ment . . . of one to defer to judge respect, first judge rule of the as a matter of mutual since there no duty Circuit imperative ruling.” to follow earlier Ninth [the] assigned that where a case judge found a second to whom had been after the first denied summary judgment, had convinced committed, error of that an law had been there was no abuse dis in his first First reversing judge. cretion Castner v. Nat. Bank, 376, supra. Koenig, 278 F2d Accord States v. United F2d States, 166, 172, supra, U. affd. sub nom. DiBella v. United S. (5) Miner, supra; Corp. Commerce Oil v. 303 F2d Refining (1st 1962); Airlines, F2d LeRoy Belgian Cir. v. Sabena World (3) (2d (2) 1965); &c., Cir. v. Bank F2d 468 Dessar of America (9th 1965); (1) Technology, Cir. Burns v. Mass. 394 F2d Inst. (2) (3) (1st Co., Mining & Cir. v. Desert United States Gold Teresi, supra; supra; States F2d United F2d (2d America, Diapulse Corp. States v. 514 F2d 1097 Cir. United 1975), the cert. den. 423 U. S. 838. find that second trial We upon his the ruled reconsidering did not abuse discretion motions by the first trial judge. dismissal

2. error the court’s Spivey Defendant asserts fourth, fifth, his the bank alleged and sixth defenses. These defenses recourse,” “impaired the collat- “impaired right the Defendant’s been eral” as on the and that “has com- security taken (2),” pletely Georgia 109A-3—601 discharged pursuant Code (a).” The brief that there “Georgia argues Code 109A-3—606 bank’s pled or which were Spivey’s no foundation in fact law for similar issue in Heimanson form. This court faced a Meade, App. appealed 140 Ga. Heimanson summary him on a note he executed to judgment against with court could question Meade. We were faced of whether this “properly plaintiff by declaring ipse direct a for a ” pleaded dixit defenses are ‘a sham.’ 140 Ga. defendant’s App. at defense alleged 535. Defendant’s fourth a “total failure of pled consideration” and his sixth defense has failed to “plaintiff com- ply governing with the suits such Georgia upon law instruments.” We may reasoned that while conclusions generally used affida- vits support oppose summary or judgment, permissible in pleadings under Civil Practice It was Act. determined that plaintiff had made no as to the fourth sixth defenses and which “pleadings pierced, conclusory ones, have not been including do create . jury App. issues resolution. . .” 140 Ga. at 536. We cited plaintiff burden, movant, law extant as having to the as summary judgment, including negate properly pled the burden to de- Co., fenses. Smith v. First Am. Bank &c. App. argument was made “there was somehow some burden

upon defendant, though even nonmoving party, he was the to do something with respect to the fourth and sixth defenses.” We recited “ existing law that moving party produces evidence or ‘[u]ntil materials prima which facie pierce pleadings opposing party, duty no rests upon opposing party produce any counter evidence or materials affirmative of its side of the issue as ” the pleadings.’ at grant 537. We reversed the of summary judgment plaintiff proceed- remanded further ings since the issues raised the fourth sixth defenses had not certiorari, removed from the case. Ga. App. On the Su- preme reversed, Court holding: “that when a motion for summary supported by made and pleadings, evidence outside the an adverse allegations rest the mere or denials pleadings, his response, by otherwise, but his or affidavits must set forth specific facts showing genuine that there is a issue for trial. If he respond, does not appropriate shall be en- against tered him. [Cits.] case,

“In the instant pleadings defendant otherwise gave no indication petitioner the manner ‘failed to defense. not notice a comply Georgia with law.’ Such a claim is court, mat- this for that plaintiff, nor the nor Neither trial court Hei- Meade v. time.” ter, tell was intended at that can what defense 357). (Emphasis supplied.) manson, enti- prima a facie conclusively showed plaintiff court recited that by any “[tjhis tlement to evidence was uncontradicted judgment and by The record before the affidavit or admission made the defendant. There no evidence that good. court showed that the note was was with, other than a bare legal requirements complied all had in- clearly . presented . . Act ‘was pleading in a allegation [T]he time expeditiously to and avoid useless dispose litigation tended trial, though petition fairly expense go through jury to a even opportunity if notice and allegations, given bristles with serious when competent testify to to on their own produce by persons affidavits pleader knowledge allegations, nothing of such does to the truth right there of the movant which show contradict the affidavits opposite party prevail.’ written, places Ann. OCGA “As Code 81A-156 § 9-11-56] [now issues of moving party the burden on the to show that no material however, shifted, prima proof fact exist. The burden can be when a moving facie is is entitled to showing party made that opposite as matter of law. come forward with rebut- a must time, at that him . . . judgment against tal or suffer evidence Act, “The we inter- purpose Summary as have Judgment it, sum- preted be if a motion for party opposing would defeated a mary judgment permitted suggesting to defeat the motion vague prevent a defense as to the movant or the court ascertain- ing theory opposing the defense. One motion must behind him. present judgment against of his case else suffer As essence or itself, show- response specific stated the Act a ‘must set forth facts ” genuine that is a 239 Ga. at 180. ing there issue trial.’ although permissible is interpret holding We Meade as that format, plaintiff a motion allege defenses where a files defenses, summary judgment, strike such or files a motion issue, prima evidence offered on if the establishes a plaintiff rest con- right summary judgment, upon facie a defendant clusory pleadings, or in his must come for- allegations but (See 9-11- showing genuine ward with facts issue remains for trial. (e), for sum- provides, pertinent part: “When a motion mary in this Code sec- supported provided tion, deni- party may allegations an adverse not rest the mere his or as otherwise pleading, response, by als of but his affidavits provided section, specific facts must set forth Code If sum- genuine respond, there issue he does not so is a for trial. him.”) mary appropriate, against shall entered bar, In plaintiff, the case at the movant of his motion for summary judgment proved on the execution guarantors. They the maker and the two the maker showed received $135,000 deposited partnership They proved account. paid no amount had been on either note and that the note had ma- complaint tured. The stated a valid claim consideration to the proved. The defense of fraud the inducement is not supported by the of facts this case because an officer of a bank is without authority recourse, to limit the bank’s right of can- fraud predicated upon statements which are their na- ture as to future acts. First Nat. Bank &c. Thompson, v. 240 Ga. (241 495 Bank, Chambers v. C & S Nat. 253); SE2d 242 Ga. (249 Drake, v. 214); (260 SE2d 475). 244 Ga. SE2d Craft two accommodation legally cannot assert lack of considera- tion, as the consideration by received party accommodated is the consideration Bank, Lewis v. C & S Nat. they for which bargained. (229 139 Ga. App. 855, 765). SE2d Although it was the second upon note present which the based, action is given was as a renewal of, of, or in place the first note. No new consideration is necessary for an given instrument in payment of, for, or as security an antecedent obligation of Beazley v. 11-3-408; kind. OCGA &c., Ga. R. Bank (2a) (241 Ga. App. 39). SE2d

Accordingly, plaintiff’s evidence shows prima facie entitlement which was by uncontradicted any evidence of the defen- dants. Under Meade v. Heimanson, 239 Ga. at supra, where plaintiff’s evidence is in this posture on motion for summary judg- ment, “an adverse upon not rest the mere allegations denials of his pleadings, but response, his otherwise, affidavits or must set specific forth facts showing that there is a genuine issue for . . . even though petition fairly bristles with [of defendant] serious allegations, if when given notice and opportunity produce by persons affidavits competent testify on their own knowledge to the truth of such allegations, pleader does nothing to contradict the affidavits of the movant . . . The opposite party must come for- ward with time, at that rebuttal evidence or suffer judgment against him .. . purpose of the . . . Act . . . would be defeated if a party opposing a motion for summary judgment permitted to de- feat the motion by suggesting vague a defense prevent as to movant or the court from ascertaining theory behind the defense. One opposing the motion present must the essence of his case or else suffer judgment against him.” 239 Ga. at 178-180. This is consistent with our Code, Commercial (2), OCGA 11-3-307 which states: signatures “When are established, admitted or production of the in- strument entitles a holder to unless es- recover on it defendant tablishes a (Emphasis supplied.) defense.” Spivey, execution faced with a

Here, when defendant maturity receipt consideration, of the note and default of the in gave conclusory payment, which no indication rested they theory upon based, consisted and his affidavit were hearsay, principally law, recitation of of fact and of conclusions argumentative conclusions of fact which It set forth character. clearly His affidavit offered at trial. had inadmissible theory of fact for us to discern a sufficient basis did not set forth Joseph’s Goodman v. St. fifth, See fourth, and sixth defenses. (241 487); Hyman App. Infirmary, Horwitz, v. SE2d 144 Ga. (252 74); Logan, App. 249, App. 778, v. 150 Ga. Belcher SE2d Ga. 251 782 299); Realty Hood, Hudson 151 Ga. A. R. SE2d produced Hence, sufficient evidence as the bank SE2d summary judgment, and defendant’s entitlement to show its fourth, fifth, thereof sixth defenses and the affidavit plaintiff, court, the trial nor this that neither the were so theory grant judg- defenses, such is aware of the court plaintiff Heimanson, 239 Ga. at Meade for the was not error. ment Dodge Major supra; Barnes, v. Blackburn, 177, (257 (261 Allen Kane’s Co. v. Withrow Timber plaintiff summary judgment for was author- Because striking the defenses. ized, harmed defendants were not denying Spivey’s in Motion for Par- not err 3. The trial court did Summary Judgment of whether the as to the issue tial note which was Federal Consumer Credit Protection Lending Regulations. compliance in with the for this action was basis in Act and the Federal Truth the factual basis has never articulated by allegation. facts A movant must his motion for such presented summary proper is ac- in form. in this “As knowledge, by personal complished supporting affidavit, made on setting as evidence the trial which would be admissible forth facts genuine case, issue on these facts.” (Emphasis sup- that there 479). (235 Dickson, 672, 238 Ga. SE2d Dickson “ plied.) . . . can- facts and conclusions of law ‘Ultimate ” summary judgment Stewart, Morton v. motion.’ not be utilized on a 230). (266 replete Spivey’s affidavit 153 Ga. SE2d hearsay He recites as fact and the with conclusions of law and fact. sup- argumentative. of “fact” His tenor of his affidavit is affidavit comply port not with of his states: “The note sued does motion requirements Consumer Credit Protec- the disclosure tion Act nor the Federal of the Federal Lending Regulations, (Regulation

Truth in Z), CFR, of law and not a etc.” This is a conclusion Section Wigmore 1952; 81, § McCormick on Evid. See VII statement of fact. (99 209); Corp. Stanfield, 213 Ga. SE2d 26, § 12; Oil Gulf Dept., Morningside-Lenox Hwy. 224 Ga. Park Assn. v. State (1) (190 859); Canady, Woods v. 126 Ga. App. SE2d Miller, App. 133, 722). Hutchins v. movant carry failed to his burden.

4. The holdings Divisions and 2 equally applicable above are to the enumerations of by error made Bradley. defendant Supplement Plaintiff’s Motion to appeal Record on is denied. Judgments Birdsong, Carley, J. concurs. J. concurs affirmed. specially. — April Decided —

Rehearing May denied (case Braun, Richard E. appellant no. Stubbs,

M. Francis Williams, Jr., (case Joel E. appellant no. Jones, Bobby T. appellee. Judge, concurring specially.

Carley, I concur in the decision of the majority to affirm the grant of favor of appellee in the above-styled cases. I agree with the result reached majority Division the opinion to the effect that the law of the case rule did prevent subsequent grant of summary judgment after the earlier denial However, thereof. I believe that such result is mandated the clear language of portion (h) of OCGA 9-11-60 which provides that law the case abolished; rule is “[t]he but generally judgments and orders shall not be set aside or just and, modified without cause setting aside or otherwise modifying orders, judgments the court shall consider whether rights have vested thereunder and whether or innocent would be injured thereby . . .” In case, first judge trial reserved a decision on appellee’s motion to strike certain defenses set forth appellant’s pleadings. The trial judge subsequently considering the case entered an order striking these de- fenses. After these stricken, defenses had been the second granted then Thus, judgment. I believe that the record ade- quately compliance shows of the trial court’s ruling with the criteria (h). of OCGA 9-11-60

67709. BENNETT et al. v. NATIONAL UNION FIRE INSURANCE COMPANY PITTSBURGH, OF PENNSYLVANIA. Judge.

Benham, (husband Appellants wife) when, injured were while seated their moving automobile, a third intentionally

Case Details

Case Name: Bradley v. Tattnall Bank

Court Name: Court of Appeals of Georgia

Date Published: Apr 9, 1984

Citation: 318 S.E.2d 657

Docket Number: 67592, 67593

Court Abbreviation: Ga. Ct. App.