Appellant/defendant MALAGA Management Company appeals *765 thе order of the superior court granting summary judgment to appellee/plaintiff John Deere Company and concurrently issuing a writ of possession of a John Deеre mower.
In February 1990, MALAGA purchased and subsequently leased the St. Andrews Country Club to tenants Chris Wyant and to the Bear Lake Corporation. The lease preamble defines “improvements” to include all equipment described in an attached exhibit “B,” and defines “property” to include the land and the “improvements.” Paragraph nine of the lease allows the tenant to make reasonable alterations, changes, and modifications in and upon the “property” as the tenant may desire. Paragraph nine further authorizes the tenant to remove personalty from the property at the expiration or termination of the lease agreement, and provides that if the tenant fails to remove same by the end of the agreement said items shall become and remain property of MALAGA free and clear of all “tenant” claims thereto.
In June 1990, Metrac, Inc. sold a John Deere mower under a loan contract-security agreement listing the club and William Taylor as borrowers. Metrac subsequently assigned the loan contract-security agreement to John Deere who had provided the purchase money for the salе. The security agreement has never been perfected. Taylor is identified as a “president” on the loan contract; he was at the time president of Bеar Lake. However, the loan contract could be reasonably construed as listing Taylor as “president” of the St. Andrews Golf Club. Taylor did not sign the contract; rather, the loan contract was signed by “Tony Musgrove, V.P.” Although Musgrove is alleged to be the CEO of Bear Lake, the loan contract could be reasonably construed аs identifying him as Vice President of St. Andrews Golf Club. At the time of the lease, the club owned a fairway mower.
In February 1991, tenants defaulted on the lease and turned the club over tо MALAGA who discovered their fairway mower missing and took possession of the John Deere mower left on the club premises. Appellee filed writ of possession оf the John Deere mower and received grant of summary judgment.
MALAGA asserts the trial court erred in granting appellee’s motion for summary judgment because the tenant (Bеar Lake Corporation) under the lease agreement owned the mower, and title to personal property of tenant was transferred by terms of the lease to appellant/lessor upon tenant’s default under the lease. John Deere alleges it is entitled, as a matter of law, to a writ of possession as MAL-AGA has no interest in the mower and it holds an unperfected purchase money security interest with the mower as collateral. The trial court granted appеllee’s motion based on a finding that MAL-AGA did not have an ownership interest in the mower. Held:
1. Factual representations in briefs unsupported by the record will not be considеred on appellate review.
Behar v. Aero Med Intl.,
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2. MALAGA asserts there exists evidence of record that its mower was traded-in on the John Deere mower. However, in his dеposition, the president of MALAGA testified that he did not have any evidence that their fairway mower was traded-in on the John Deere mower. MALAGA’S claim of evidencе of a trade-in (“change” of mowers) fails, due to the lack of a reasonable explanation for this inconsistent testimony.
Prophecy Corp. v. Charles Rossignol, Inc.,
3. Although appellant’s president tеstified that St. Andrews Country Club is a registered or reserved trade name, the record contains no documents establishing that fact, and assuming arguendo such action did occur, the record fails to establish when such trade name was registered or reserved. No reasonable inference can be drawn from the record as to when such registration or reservation may have been accomplished.
4. On the face of the lease and the loan-security agreement, the tenants in the lеase are not the same legal entities and/or persons as are the owners of the John Deere mower under the express terms of the loan-security agreement. Appellant, however, asserts Musgrove and Taylor, doing business as St. Andrews Golf Club, is the alter ego of Bear Lake, and that the issue of piercing the corрorate veil of Bear Lake is a jury issue. This issue, however, was not raised until appeal; after summary judgment is granted to a movant/plaintiff, a nonmovant/defendant may not raise an argument or defense not asserted in the trial court.
Minor v. E. F. Hutton & Co.,
Thus, we agree with the primary conclusion of the trial court that, on October 4, 1990, the John Deerе mower was owned by “St. Andrews Golf Club and/or Tony Musgrove and/or William H. Taylor, Jr.,” and that “no party has presented proof of any transfer of title from those persons or entities to the tenants” listed in the lease agreement. A legal status (such as ownership) when proved to exist will be presumed to have continued to exist, until evidencе is introduced to the contrary. See
Esco v. Jackson,
At most, only a shadowy semblance of an issue remains whether appellant had an ownership interest in the John Deere mower. In disposition of summary judgment cases, while there may be some shadowy semblance of an issue a case may nevertheless be decided as a
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matter of law where, as in the case at bar, the evidence shows clearly and palpably that the jury could reasonably draw but one conсlusion.
Peterson v. Liberty Mut. Ins. Co.,
5. Additionally, the construction of both the lease and loan contracts, whether or not such contracts contained ambiguous provisions, presented questions of law for the trial court in this case.
Travelers Ins. Co. v. Blakey,
Further, assuming arguendo the term “property” included the original fairway mower, there exists no genuine material issue of fact (see Division 2 above) that the John Deere mower was used to alter, change, or modify said original mower, and thus no evidence exists that the John Deere mower would constitute “personalty” within the meaning of paragraph nine in any event. “[A] grant of summary judgment must be affirmed . . . if it is right for any reason.”
Newsome v. Dept. of Human Resources,
6. Appellee made a prima faсie showing of its legal entitlement to the mower by establishing attachment of its unperfected security interest. OCGA §§ 11-9-201; 11-9-203; 11-9-301; see OCGA § 11-9-306 (2); see generally
Babson &c. Plan v. Cordele &c. Assn.,
For each of the above reasons, appellant’s contentions in support of its enumerations of error are without merit.
Judgment affirmed.