Giordano v. Stubbs

Pannell, Judge,

concurring specially. I concur in the judgment of reversal.

1. On the right to amend. The dissent of Judge Hall to the judgment of reversal is based on what is referred to as an "axiomatic” rule of law, that an amendment to pleadings cannot be made in the lower court, where on appeal the appellate court holds that the trial court erred in refusing to grant a summary judgment to the defendant, and where the amendment offered to the plaintiffs pleadings is offered prior to the time the remittitur of the appellate court becomes the judgment of the lower court. I find no authority for this statement in the Georgia cases and he has cited none. The decisions I find are to the contrary.

Whether the pleadings were amendable at the time the amendment here was allowed subject to objection depends upon the determination of whether the case was still pending in the lower court when the amendment was offered, or whether the case had been terminated in the lower court. After this latter determination is made the application of the rule is very simple. If the case is pending the amendment is allowable. If the case is not pending in the lower court the amendment is improper.

In cases where the sustaining of a motion for summary judgment, or a general demurrer, or motion to dismiss, or motion for judgment on the pleadings, or a motion for directed verdict, or a motion for nonsuit at the close of plaintiffs evidence (now converted to a motion for directed verdict) all of which if sustained by the trial judge would terminate the case in the lower court, is appealed from and affirmed on appeal, no amendment can be filed before the remittitur is filed or after it is filed, as, in the first instance, the case is not then pending in the lower court, nor is it pending in the lower court after the remittitur is made the judgment of the lower court. If the sustaining of such a motion is reversed on appeal, no amendment can be filed until the judgment of the appellate court is made the judgment of the lower court, thus reinstating the case in the lower court. However, if, as in the present case, the lower court overrules such a motion, the case is left pending in the lower court during the appeal and does not cease pending in the lower court during the appeal even after reversal, until the remittitur of the appellate court is made the judgment of the lower court.

The dissent seeks to distinguish the present case from those cited by the majority on the ground that the cases cited in the majority opinion happen to relate to cases of general demurrer and this case relates to summary judgment. In doing so, the dissent has missed the point entirely, that is, was the case still pending in the court below when the amendment was filed.

The dissent, then drawing the analogy between a motion for directed verdict and a motion for summary judgment, presents arguments which have nothing to do whatsoever with whether the case was pending in the court below at the time the amendment was offered. It may be well to note that at the present time the motion for nonsuit no longer exists, but instead a motion for direction of verdict may be made at the close of the plaintiffs evidence. While the nonsuit was in vogue (the sustaining of which would have terminated the case in the lower court just as the grant of a summary judgment by the lower court would have terminated the case here) the Supreme Court of this State applied the rule to cases where the denial of a nonsuit was reversed by the Supreme Court. See in this connection Sullivan, Cabot & Co. v. Rome R. Co., 28 Ga. 29; Fenn v. Seaboard A. L. R., 120 Ga. 664 (1) (48 SE 141).

2. In the present case the trial judge sustained a motion for judgment on the pleadings, which motion was made on the following grounds: "1. That judgment in favor of these defendants and against plaintiffs was rendered by the Supreme Court of Georgia in the above-styled case on September 27, 1971 in case no. 26546, Summer-Minter & Assoc. v. Giordano, 228 Ga. 86 (184 SE2d 152), and said judgment never having been reversed or set aside, plaintiffs cannot subsequently amend their pleadings. 2. That the amended complaint purports to allege a claim based upon the same facts, transactions and occurrences as were alleged in the original complaint and is, therefore, barred under the principles of former adjudication res judicata, and estoppel. 3. That the purported amendment is in direct violation of the procedural and substantive laws of Georgia.”

A motion to dismiss the amended complaint and a motion to strike the amended complaint were expressly not ruled upon in the order sustaining the motion for judgment on the pleadings.

Neither of the grounds stated in the motion for judgment on the pleadings is a proper or sustainable ground of such a motion. While the defense of failure to state a claim may be raised by a motion for judgment on the pleadings, no such ground is stated in the motion; nor is the motion made generally so that all proper grounds could be argued and considered. Neither can we consider the motion for judgment on the pleadings as a motion to dismiss or strike the amendment, as the trial judge expressly stated in his order he was not passing on these motions which were separately filed. The grounds not being such as are properly presented in a motion for judgment on the pleadings and which cannot be considered as a motion to strike or dismiss the amendment (which struck the entire complaint and substituted another) the trial court should be reversed, the amendment having been allowed subject to the objection.

Treating the motion for judgment on the pleadings for what it is, the only basis upon which the trial judge would be authorized to sustain the motion, would be that the pleadings, the amended complaint and the answer show the defendant was entitled to a judgment as a matter of law. No defense of former adjudication was filed. It follows, therefore, that the trial court erred in sustaining this motion upon unsustainable grounds. The dissents of Judges Hall and Stolz have gone beyond the questions properly presented by a motion for judgment on the pleadings, and have actually passed on questions as to the propriety of the allowance of the amendment and whether the petition as amended was subject to dismissal, which the trial judge expressly did not pass upon.

3. However, should I assume the merits of the amended and redrawn complaint to be properly before this court I would be unable to agree that the law of the case precludes proceeding with the present theory of the case as is made by the amendment. The original complaint was brought based upon a conspiracy to defraud the complainant formed among all the named defendants, and seeking to set aside a foreclosure sale, the defendants being H. F. Stubbs, Bob E. L. Pope, Summer-Minter & Associates, Inc. and Hugh Summer. The prayers were for setting aside the foreclosure sale, or damages actual, punitive and for attorney’s fees. Summer-Minter & Associates, Inc. and Hugh Summer moved for a summary judgment and upon its denial they appealed to the Supreme Court, which reversed. By the amendment a new theory of recovery, not based upon conspiracy but based upon statements made by Summer individually and as agent for the corporation allegedly purposely made which prevented the complainant, the holder of a second mortgage, from being informed of a foreclosure of the first mortgage. Did the Supreme Court decide this latter issue? It expressly did not do so. It decided the evidence did not show a conspiracy in the following language: "We have carefully reviewed all the evidence and there is not a microscopic scintilla of evidence that there existed a conspiracy between the defendants as to the foreclosure of the subject property and its purchase of Stubbs for the purpose of injury or damage to the appellees. There being no material issue as to the existence or nonexistence of a conspiracy, the court erred in denying the appellants’ motion for a summary judgment on the appellees’ complaint against the appellants.” Summer-Minter & Assoc. v. Giordano, 228 Ga. App. 86, 90, supra. The Supreme Court also failed to pass upon the theory and issue now involved when it said (just preceding the ruling above quoted) and in regard to the testimony of one Hicks that H. Summer told Hicks, or led Hicks, not to tell complainant of the pending foreclosure the court said that "this evidence does not support or raise any issue as to a conspiracy. Even if it be conceded that Summer’s purpose was to harm the Giordanos it was his act alone, and one person cannot be guilty of a conspiracy.” Whether the Supreme Court should have ruled directly upon the question posed is not the question here, but the question here is the law of the case, and the decision of the Supreme Court makes no law of the case on that point. In my opinion, the amended complaint sets forth a claim against the defendants, unresolved by the previous appeal of the case based upon conspiracy.