Riviera Finance (“Riviera”), an accounts receivable factor, sued Verna LaRundu Staggers (“Staggers”), Rundu Productions, Inc. (“Rundu”) and Cornell McBride, Jr. d/b/a McBride Research Laboratories, Inc. (“McBride”) for conspiracy to defraud. 1 McBride moved for summary judgment and to strike certain portions of a key affidavit. Finding the affidavit contained inadmissible hearsay and that no genuine issue of material fact remained, the trial cоurt granted summary judgment to McBride. Riviera appeals.
To prevail at summary judgment under OCGA § 9-11-56, McBride, the movant, must dеmonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most fаvorable to Riviera, the non-movant, warrant summary judgment as a matter of law. OCGA § 9-11-56 (c).
Lau’s Corp. v. Haskins,
In March 1993 at Staggers’ behest, Riviera purchased a Rundu invoice, the tеrms of which required McBride to pay Rundu $41,000 in May 1993 for 10,000 calendars. Prior to Riviera’s purchase of this invoice, account executive Mary Crenshaw verified the calendar order and McBride’s intent to pay the outstanding balance. Riviera claimed that based on the account debtor McBride’s assurances that he had received the calendars and planned to pay the full purchase price within 60 days, Riviera agreed to factor Rundu’s invoice and proceeded to pay $36,900 to Staggers and Rundu. Riviera sent McBride confirmation that it had purchased the invoice from Staggers and Rundu and directed McBride to make payment directly to Riviera.
After Riviera purchased the invoice and factored it, McBride subsequently disclosed that the calendars were defective, and even *322 tually he rejected the entire order. Rundu later issued McBride a credit memo, stating, “order never corrected, original units returned.”
Riviera’s sole enumeration is that the trial court erred in granting summary judgment in favor of McBride because material issues of fact remain. Held:
To avoid summary judgment, Riviera had to present evidence of the elemеnts of its fraud claim: a false representation by McBride, scienter, an intention to induce Riviera to act in reliance, justifiable reliance and damages.
2
See
Eckerd’s Columbia v. Moore, 155
Ga. App. 4, 5 (1) (
Part of Riviera’s evidence was deemed inadmissible, pursuant to McBride’s motion to strike cеrtain portions of Crenshaw’s affidavit as inadmissible hearsay. However, we find that parts of the challengеd sentences are not hearsay but are probative evidence admissible to explain conduct under OCGA § 24-3-2. Moreover, Crenshaw’s affidavit, taken as a whole, contains sufficient admissible evidence tо demonstrate the existence of material disputed facts. In an unchallenged section, Crenshaw tеstified, “If Mr. McBride had advised me on March 10, 1993, that the calendars delivered to him by Rundu were not satisfactory Riviera would not have factored the $41,000 Rundu invoice.” Although it is undisputed that prior to Riviera’s purchase of thе invoice, Riviera telephoned McBride to verify the order and McBride’s intent to pay, whether McBridе, at the time of this conversation, deliberately misinformed Crenshaw that he had already received сonforming calendars raises a disputed issue of material fact.
Also, in another uncontested portion of Crenshaw’s affidavit, Crenshaw testified that during a telephone conference call which included her manager, McBride made an admission against interest when he admitted knowing that Riviera was relying on his assurances that the calendars were satisfactory in deciding whether or not to factor Rundu’s invoice. See
Colbert v. Doe,
We rejeсt McBride’s contention that any reliance by Riviera on his statements was unjustifiable and that Riviera failed tо exercise due diligence. Whether Riviera’s reliance was justifiable under these circumstances is а jury question, as is the materiality of McBride’s misrepresentations. See
King v. Towns,
Judgment reversed.