450 S.E.2d 263 | Ga. Ct. App. | 1994
Appellant/defendant Georgia Recovery, Inc. appeals the order
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 Nations-Bank 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 Nations-Bank 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
Judgment affirmed.
On Motion for Reconsideration.
Appellant Georgia Recovery, Inc. has filed a motion for reconsideration. Appellant contended inter alia that the Clerk of the State Court of Fulton County agreed to correct a statement in the certificate of the record to reflect that a certain transcript therein referenced pertains to the hearing on NationsBank’s motion of May 27, 1993, and in no relevant manner pertains to appellees’ motion for summary judgment. As of the date of our determination of this motion, the trial record has not been corrected by any procedure authorized by statute. It is not the duty of this appellate court to correct any asserted deficiencies in the record to the benefit of one party to an appeal. Appellant’s factual contentions in its reconsideration motion regarding this matter are not supported by the existing appellate record and therefore cannot be considered. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223). As a general rule, “it is the state of an appellate record and transcript duly before us at the time of our original disposition of [an] appeal, and not the state of the record as amended in an attempt to support an appellate position argued on motion for reconsideration, that is controlling as to the adequacy of the record for purposes of appellate review.” Williams v. Food Lion, 213 Ga. App. 865, 868 (446 SE2d 221). We see no reason to depart from a general rule fashioned to protect our judgments (Ga.
Motion for reconsideration denied.