Harrell v. Bank of the South, N.A.

330 S.E.2d 147, 174 Ga. App. 384, 1985 Ga. App. LEXIS 1816

• Court: Court of Appeals of Georgia
• Decided: March 15, 1985
• Docket: 69527
• Status: Published

Opinions

Birdsong, Presiding Judge.

Power of Court to Change a Party by Judgment. This complaint by Mrs. Harrell alleged that in September, 1980, the Harrells (husband and wife) opened a business account at a branch of the Bank of the South, N.A. Apparently marital discord ensued and the parties dissolved the marriage. At an undisclosed time, Mrs. Harrell opened her separate and personal account in the Bank of the South, Clayton County. For unstated reasons, the principal depositor of the business account, the ex-husband, removed Carol Harrell’s name as an authorized signatory, on the South DeKalb Branch account. Mrs. Harrell was not so informed. However after her name was removed, Mrs. Harrell wrote a check on the South DeKalb Branch against the joint account for $5,200 and deposited that sum in her personal account in Bank of the South, Clayton County. When the check was presented to the payor bank (Bank of the South, South DeKalb Branch), the check was refused because it was not drawn by an authorized signatory. The returned check when received by the depository bank, Bank of the South, Clayton County, was charged back to Mrs. Harrell’s account.

Mrs. Harrell brought suit, naming Bank of the South, South DeKalb Branch as party defendant. It is now undisputed that Bank of the South, South DeKalb Branch, is not a discrete entity subject to suit, having no independent existence. Nevertheless, Mrs. Harrell persisted in her suit against the non-entity and alleged that the non-entity bank caused her damage by charging back her check to her account. It is incontestable that the bank that charged her account with the $5,200 was the Bank of the South, Clayton County, a wholly separate entity from Bank of the South, N.A., the appellee in this case. Mrs. Harrell also alleged that Bank of the South, South DeKalb Branch, the non-entity, without notice removed her name as an authorized signatory. Thus under the pleadings, Mrs. Harrell alleges that the two wrongful acts (the removal of the signatory authorization and the charge back) were performed by the same “defendant” bank which she alleged to be the non-entity, Bank of the South, South DeKalb Branch.

By means not made clear, the complaint reached the hands of the appellee, Bank of the South, N.A. That bank as its first defense made it clear that Bank of the South, South DeKalb Branch, was a nonentity and that Bank of the South N.A. and Bank of the South, Clayton County were two wholly separate corporate entities. Notwithstanding this answer, Mrs. Harrell never amended her pleadings to show the relationship between the South DeKalb Branch and the main bank, Bank of the South, N.A. Apparently because counsel for appellee were unaware that the action had been called for trial, the appellee Bank of the South N.A. did not appear at trial. Verdict by the jury was found against the non-entity South DeKalb Branch for the $5,200 plus costs. However, after the jury verdict against the named defendant, Bank of the South, South DeKalb Branch, the trial court apparently, on its own motion, amended the verdict and entered judgment against a newly designated defendant, Bank of the South, N.A. Bank of the South successfully moved the trial court to set aside the judgment as an ultra vires amendment of the jury’s verdict. It is the grant of that motion that gives rise to this appeal. Held:

Mrs. Harrell asks this court to apply what is commonly recognized as the “alter ego” principle. It is her argument that the appellee bank (Bank of the South, N.A.), though never properly identified in the pleadings, was served and answered; therefore, it “has had its day in court.” We have no dispute with the alter ego theory. It simply does not apply to the factual situation presented in this case. Its relevance is more apropos to the situation where a sole or controlling officer in a corporation uses its assets personally, or a member of a partnership acts for the partnership, or a person does business under a separate or even fictitious name. In each of these situations, two entities or what purports to be two entities are involved. Logically, inasmuch as the entities are the same and fully exchangeable, the real party in interest is before the court. Specifically, as to a corporation, where the individual and corporation use assets and authority interchangeably, the corporate veil is pierced and the person actually incurring the liability is before the court. Thus, the logic of the alter ego is apparent: suit against one is suit against the other.

However where there are not two discrete entities involved, neither are alter egos involved. Where one of the parties is a corporation, the principles of corporate entity raise the issue that it is a separate and discrete entity. In this case, Mrs. Harrell was placed on notice that her complaint was against a non-entity. While she could have amended her complaint, she chose not to do so. A jury award was returned against the non-entity. Thereafter, the trial court, for undisclosed reasons, apparently reached new findings of fact, a finding not made by the jury, that the party against whom the verdict was found was not a discrete entity and in substance amended the pleadings by substituting appellee, a separate and new corporate entity, as the judgment debtor.

While a court may, in a proper case, mould a verdict so as to correct a mere matter of form, where a verdict has been received and recorded, and the jury dispersed, the trial court may not amend the verdict in a matter of substance, even if it appears that the jurors intended to find liability against the proper party. After dispersal of the jury, the judge has no power either to add to or take from the findings, and has not the power, by amendment or reformation, to supply substantial omissions or make substantial changes in the verdict as rendered by the jury. Fried v. Fried, 208 Ga. 861 (3) (69 SE2d 862). Nor can the trial judge accomplish the same result by amending the verdict in a matter of substance by entering a decree different from the verdict of the jury, thereby eliminating substantial findings of the verdict and thus substantially modifying or changing the other findings of the jury. To do so requires the judge to find facts which the jury did not, and thus usurp their peculiar province. Law v. Coleman, 173 Ga. 68 (159 SE 679); Lake v. Hardee, 57 Ga. 459, 466.

The jury in this case returned a verdict against a non-entity. To apply the rule of alter ego to such a finding as contended by Mrs. Harrell would abrogate the rule of law that furnishes the corporate veil (and judicial separateness) (Thrift v. Maxwell, 162 Ga. App. 237, 239 (2) (290 SE2d 301)) and allow a judge to reach findings of fact not made by a jury.

Inasmuch as we have no trial transcript, we must assume that the trial court’s action in recognizing his error and in setting aside the judgment entered was based upon good and sufficient reason and affirm its judgment. Goforth v. Fogarty Van Lines, 143 Ga. App. 432 (238 SE2d 768). See also Abbott v. Roach, 113 Ga. 511 (38 SE 955); Mayo v. Keaton, 78 Ga. 125. That is the course we must follow and correspondingly affirm the judgment of the trial court.

Judgment affirmed.

Banke, C. J., Deen, P. J., McMurray, P. J., Carley and Pope, JJ., concur. Benham and Beasley, JJ., dissent. Sognier, J., disqualified.