Moultrie v. Atlanta Federal Savings & Loan Ass'n

252 S.E.2d 77, 148 Ga. App. 650, 1979 Ga. App. LEXIS 1590
CourtCourt of Appeals of Georgia
DecidedJanuary 9, 1979
Docket56948
StatusPublished
Cited by6 cases

This text of 252 S.E.2d 77 (Moultrie v. Atlanta Federal Savings & Loan Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moultrie v. Atlanta Federal Savings & Loan Ass'n, 252 S.E.2d 77, 148 Ga. App. 650, 1979 Ga. App. LEXIS 1590 (Ga. Ct. App. 1979).

Opinion

Quillian, Presiding Judge.

The plaintiff (appellant in this court) brought an action for damages arising out of the defendant’s attempted imposition of an additional interest adjustment when the plaintiff entered into agreement to assume a loan to the defendant. The plaintiffs complaint contained an allegation that "defendant’s actions also served to defraud plaintiff.”

In response to the complaint defendant moved for more definite statement which asked the court "for an order requiring plaintiff to more definitely to state what actions of the defendant 'served to defraud plaintiff as alleged in paragraph 5 of the complaint.”

An answer to the complaint was filed on the same day as the motion for more definite statement. After both parties had engaged in the discovery process, the trial judge entered an order on January 31,1978, which recited that the allegations of fraud in the complaint were too [651]*651vague and ambiguous for defendant to reasonably frame adequate responsive pleadings and therefore ordered the plaintiff "to make a more definite statement of the claim of fraud alleged in his complaint by stating with particularity the facts alleged by plaintiff to constitute fraudulent acts and how such acts are alleged to have defrauded plaintiff.”

The plaintiff, in response to the order, filed an amendment to the complaint which added a new Count 2 reading as follows: "1. That the defendant through its agents made representations to the plaintiff that no interest adjustment would be required of plaintiff to assume a loan held by the defendant. 2. That at the time the defendant made these representations it knew that said representations were false. 3. That the defendant made said representations with the intention and purpose of deceiving and defrauding the plaintiff. 4. That plaintiff had a right to rely and did rely upon such representations not knowing they were false. 5. That the plaintiff suffered loss and damage as the proximate result of the defendant having made these representations.” The defendant then moved to dismiss the plaintiffs complaint in its entirety for the plaintiffs failure to comply with the order and in the alternative sought the court to dismiss all of Count 2 of plaintiffs amended complaint and those portions of Count 1 of plaintiffs amended complaint which alleged fraud.

Both parties filed briefs and made oral arguments concerning the motion to dismiss for failure to comply with the court’s order. After the hearing the trial judge entered an order that the allegations of fraud in plaintiffs complaint and first amendment thereto were still vague and ambiguous and failed to comply with the requirements of Code Ann. § 81A-109 (b) (Ga. L. 1966, pp. 609, 620). Based upon this finding the trial court struck the plaintiffs complaint as amended in its entirety and dismissed the action with prejudice. From this order appeal was taken. Held:

1. A motion for more definite statement is the modern replacement for a special demurrer. " The test of a special demurrer and a motion for more definite statement is vastly different, however. A special [652]*652demurrer lies to make the plaintiff set out the facts more fully so as to enable the defendant to prepare his defense. Georgia Procedure and Practice § 9-5. A motion for more definite statement, however, lies only when the pleading is so indefinite that the defendant is unable to frame an answer thereto, and only with respect to a pleading to which another responsive pleading must be filed.” Emerson v. Fleming, 127 Ga. App. 296, 298 (193 SE2d 249). A motion for more definite statement does, however, have some of the characteristics of a special demurrer in that it is not favored, Emerson v. Fleming, 127 Ga. App. 296, 298, supra, and, being a critic, it must itself be perfect in that it must state the grounds therefor and must point out the defect complained of and the details desired. Code Ann. § 81A-112 (e) (Ga. L. 1966, pp. 609,622, as amended through Ga. L. 1972, pp. 689, 692, 693). 2A Moore’s Federal Practice 2414, ¶ 12.19 and 2 Kooman, Federal Civil Practice 88,93, § 12.20. Under the Federal Practice, failure to satisfy this requirement would result in the denial of the motion. In Brookshire v. J. P. Stevens Co., 133 Ga. App. 97 (210 SE2d 46) it was reiterated that motions for more definite statement are not favored inasmuch as discovery procedures should be used extensively to obtain such information. Unless the pleadings are so vague and ambiguous that the defendant could not frame the proper responsive pleadings thereto the motion should not be granted. Taylor v. Malden Trust Co., 129 Ga. App. 330 (1) (199 SE2d 553); DeWes Enterprises v. Town & Country Carpets, 130 Ga. App. 610, 612 (203 SE2d 867).

In view of the limited usage of Code Ann. § 81A-112 there appears to be some doubt as to the correctness of the original grant of the defendant’s motion for more definite statement. However, this is not at issue in this case. We are concerned solely with whether there was sufficient compliance with the trial judge’s order or such failure as would require a dismissal under Code Ann. § 81A-112 (e). In Cochran v. McCollum, 233 Ga. 104 (210 SE2d 13) the Supreme Court set forth the applicable guidelines: "Under the CPA, a pleading should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. We hold this [653]*653principle applicable to all pleadings including special matters (fraud, mistake and conditions precedent) under Code Ann. § 81A-109. Management Search, Inc. v. Kinard, 231 Ga. 26 (199 SE2d 899). The proper remedy for seeking more particularity is by motion for a more definite statement (Code Ann. § 81A-112 (e)) at the pleading stage or by the rules of discovery thereafter.” Accord, Filsoof v. West, 235 Ga. 818, 819 (221 SE2d 811); Bryant v. Bryant, 236 Ga. 265 (223 SE2d 662).

It might appear that the amended allegations contained in Count 2 of the plaintiffs complaint would be sufficient to set forth a claim within the meaning of the Civil Practice Act. However, the crucial issue is whether there is sufficient specificity of the claim where fraud is alleged. In a whole court case the Court of Appeals has established the essential criteria for fraud when tested by a motion for more definite statement. In Tucker v. Chung Studio of Karate, 142 Ga. App. 818, 820 (237 SE2d 223) we held: "The more definite statement to be made in response must meet the standard of pleading fraud set forth in cases such as Diversified Holding Corp. [v. Clayton McLendon, Inc., 120 Ga. App. 455, 456 (170 SE2d 863)]; Continental Investment Corp. v. Cherry, 124 Ga. App. 863, 865 (2) (186 SE2d 301) (1971), failing which the complaint will be subject to dismissal at that point. These cases are still controlling on the points for which we have cited them since Cochran [v. McCollum, 233 Ga. 104] did not abrogate the § 9 (b) requirement of pleading with particularity — it held only that failure to do so must, as an initial matter, be taken advantage of by motion for more definite statement and not by motion to dismiss, for the reason that, ' "Rule 9 itself contains no mechanism for enforcing its terms, and the common practice has been to use Rule 12 (e) for that purpose . . .” ’ ”

In this case the plaintiff set forth the essential elements of fraud. However, under the cases cited in Tucker, supra, more than this is required.

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Bluebook (online)
252 S.E.2d 77, 148 Ga. App. 650, 1979 Ga. App. LEXIS 1590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moultrie-v-atlanta-federal-savings-loan-assn-gactapp-1979.