Charles Rossignol, Inc. v. Prophecy Corp.

Sognier, Judge,

dissenting.

I respectfully dissent. Appellant Rossignol stated in his deposition that he deposited appellee’s check before he made the “emotional night call” in which appellee’s agent allegedly agreed to reconsider the amount due, thus admitting an accord and satisfaction of the debt. After appellee moved for summary judgment on the basis of that deposition, appellant filed his affidavit stating that after he “reviewed [his] notes and records” he remembered that the crucial telephone call took place before he deposited the check and thus no accord and satisfaction occurred. This is a direct contradiction of a material fact and under the rule announced in Tri-Cities Hosp. Auth. v. Sheats, 247 Ga. 713 (279 SE2d 210) (1981), where there is a direct contradiction in the testimony of the respondent as to a material issue of fact, that party’s unfavorable testimony will be taken against him. Id. at 714.

The summary judgment language in King v. Brasington, 252 Ga. 109 (312 SE2d 111) (1984), cited by the majority, is dicta because it was not at all necessary to the King decision, which revolved around contradictory trial testimony given by the plaintiff. Thus, it is not controlling authority. See State Hwy. Dept. v. Cooper, 104 Ga. App. 130, 136 (121 SE2d 258) (1961); Rider v. State, 103 Ga. App. 184, 185 (2) (118 SE2d 749) (1961). The dicta was included in King, supra at 111, because “[ijt has been suggested that our holding in Combs v. Adair Mortgage Co., [245 Ga. 296 (264 SE2d 226) (1980)], is in conflict with Western & Atlantic R. Co. v. Evans, [96 Ga. 481 (23 SE 494) (1895)].” (Emphasis supplied.) As noted by the Supreme Court, no such conflict exists between these cases: Combs was written in response to a certified question from this court to reconcile the “deliberate or intentional” rule in Chambers v. C & S Nat. Bank, 242 Ga. 498 (249 SE2d 214) (1978) (which was based on language in Western & Atlantic R. Co., supra at 486) with the general rule as to the movant’s burden on summary judgment set forth in Burnette Ford, Inc. v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971). The Supreme Court subsequently moved away from the “deliberate or intentional” rule of Chambers, supra, in the Tri-Cities Hosp. Auth. opinion, where the Supreme Court corrected this court’s interpretation of Chambers, stating that in Chambers “we held that when self-contradictory statements were made by a party in opposition to a motion for summary judgment, the trial court would be authorized to take that portion of the testimony more unfavorable to the respondent into consideration in making a decision.” Tri-Cities Hosp. Auth., supra at 714. After reiterating the validity of the rule in Burnette, supra, the Supreme Court proceeded clearly to set forth the “direct contradiction” rule.

The significance of the Supreme Court’s decision in Tri-Cities Hosp. Auth. was recognized by this court in Cook v. Delite Beauty Supply, 165 Ga. App. 859, 860 (1) (303 SE2d 40) (1983), where we commented, “[T]he Supreme Court has recently ruled that where there is a direct contradiction in the testimony of the respondent as to a material issue of fact, that party’s unfavorable testimony will be taken against him. Tri-Cities Hosp. Auth. v. Sheats, 247 Ga. 713 (279 SE2d 210) (1981). This is a modification of the previous rule, set forth in Chambers v. C & S Nat. Bank, 242 Ga. 498 (249 SE2d 214) (1978), to the effect that a respondent’s testimony will be construed against him only where the contradiction is deliberate or intentional.” (Emphasis supplied.) The propriety of Cook’s interpretation of Tri-Cities Hosp. Auth. has been acknowledged subsequently by several panels of this court in cases such as Henson v. Atlanta Cas. Co., 169 Ga. App. 754, 755 (315 SE2d 268) (1984) and Curlee v. Mock Enterprises, 173 Ga. App. 594, 598 (3) (327 SE2d 736) (1985). The majority, however, would overrule Cook, supra, on the basis that King, supra, has sub silentio replaced the “direct contradiction” rule announced in Tri-Cities Hosp. Auth., supra, with the earlier “deliberate or intentional” rule of Chambers, supra. Considering that the language in King relied upon by the majority was obiter dicta and, understandably, did not fully explore the issue now before us (as shown by the absence of any citation to Tri-Cities Hosp. Auth. or any reference either explaining or overruling the “direct contradiction” rule set forth in that case), I cannot agree with the majority’s conclusion that King is controlling authority here.

Decided November 20, 1985 Rehearing denied December 17, 1985 Gene A. Major, Suzanne Wynn, for appellants. Edwin L. Hoffman, for appellee.

It follows that I do not agree with the majority’s conclusion that questions of fact were raised by appellant’s affidavit claiming he “inadvertently” rather than “intentionally or deliberately” deposed himself out of court. In view of the direct contradiction between appellant’s statements on this material issue, I would follow the standard set forth in Tri-Cities Hosp. Auth., supra, and would allow the trial court to disregard the more favorable part of appellant’s testimony. I would not overrule this court’s opinion in Cook, supra, but rather would affirm the trial court’s grant of summary judgment to appellee.

I am authorized to state that Chief Judge Banke and Presiding Judge Birdsong join in this dissent.