Rome v. Polyidus Partners LP

744 S.E.2d 363, 322 Ga. App. 175, 2013 Fulton County D. Rep. 1887, 2013 WL 2477328, 2013 Ga. App. LEXIS 472
CourtCourt of Appeals of Georgia
DecidedJune 11, 2013
DocketA13A0338
StatusPublished
Cited by6 cases

This text of 744 S.E.2d 363 (Rome v. Polyidus Partners LP) 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
Rome v. Polyidus Partners LP, 744 S.E.2d 363, 322 Ga. App. 175, 2013 Fulton County D. Rep. 1887, 2013 WL 2477328, 2013 Ga. App. LEXIS 472 (Ga. Ct. App. 2013).

Opinion

BARNES, Presiding Judge.

Polyidus Partners LP sued Wade Rome for breach of contract and other claims arising out of Rome’s alleged failure to pay the outstanding principal and interest on a loan extended by Polyidus to Rome. The trial court granted summary judgment to Polyidus and denied Rome’s cross-motion for summary judgment. Rome appeals from the grant of summary judgment to Polyidus, and we reverse because genuine issues of material fact remain as to whether Rome is indebted to Polyidus and, if so, the amount of the debt.

We review the grant of a motion for summary judgment de novo, viewing “the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” (Citation and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010). So viewed, the record shows that on December 31, 2004, Robert Thomas III, a principal of Polyidus, transferred $250,000 to Rome’s account in Missouri via wire transfer. Rome averred that the funds were loaned to him by Thomas, individually, and were to be repaid with no defined terms, interest rate, or repayment schedule. According to Rome, on September 6, 2005, he transferred $250,000 to the account of Polyidus in Thomasville, Georgia, as directed by Thomas, in satisfaction of any indebtedness he owed to Thomas. Rome further averred that after Thomas demanded an additional [176]*176payment of interest, Rome paid $11,500 to Thomas on or about November 11, 2005, with Rome’s understanding that this payment was in full satisfaction of the obligation arising from the $250,000 funds previously transferred to Rome on December 31, 2004.

Notwithstanding Rome’s understanding that he had paid the obligation in full, Polyidus sued Rome on December 6,2010, claiming that on December 31, 2004, Polyidus loaned $250,000 to Rome at an interest rate of 10 percent, with the principal to be repaid “over time.” According to the complaint, Rome had repaid $100,000 of the principal and had made periodic interest payments but was in default on his agreement to repay the remaining $150,000 plus interest.

Rome filed a special appearance and responded to the complaint subject to the defense of lack of personal jurisdiction. On November 30, 2011, Polyidus moved for summary judgment relying on Thomas’s affidavit, although the affidavit was not served on Rome until January 3, 2012. Rome later filed his cross-motion for summary judgment, his reply to Polyidus’s motion for summary judgment, and his supporting affidavit. On January 26, 2012, the date of the hearing on Polyidus’s summary judgment motion, Polyidus filed Thomas’s second affidavit. After considering Rome’s objection to the timeliness of Thomas’s first affidavit, the trial court granted Rome additional time to respond to Polyidus’s summary judgment motion.1 On July 3, 2012, the trial court entered its order denying Rome’s motion for summary judgment, granting Polyidus’s motion for summary judgment, and ordering that Polyidus recover from Rome principal in the amount of $150,000 and prejudgment interest in the amount of $70,685.51. Rome appeals.

1. Rome asserts that the trial court lacked personal jurisdiction over him. The trial court, however, never ruled on the matter. It is nevertheless appropriate for us to consider whether the trial court’s ruling on the merits of the case was premature. “[W]hen the record reflects that a judgment was rendered by a court which has failed to address [a properly preserved jurisdictional issue], this Court on its own motion will reverse the judgment and remand the case for consideration of the pending . . . jurisdictional issue[ ].” Hight v. Blankenship, 199 Ga. App. 744, 745 (406 SE2d 241) (1991). Notably, although Rome raised the issue of lack of personal jurisdiction in his [177]*177initial response to the complaint, Rome moved for summary judgment without reasserting or reserving his defense that the court lacked personal jurisdiction. Rome points out that among the facts asserted in his brief in support of his motion for summary judgment was that the transaction forming the subject matter of the complaint was conducted “orally or electronically while [Rome] was a resident of Missouri and at no time was he present in Georgia.” But Rome’s argument in support of his motion for summary judgment was based solely on the merits of the case and could not be reasonably construed as a motion to dismiss for lack of jurisdiction, nor did he indicate that he was reserving the jurisdictional defense. In addition, Rome actively participated in the litigation and allowed the case to proceed to final judgment without asking the trial court to rule on his claim that the court lacked personal jurisdiction. Thus, as in Hodge v. Howes, 260 Ga. App. 107, 109 (1) (578 SE2d 904) (2003), Rome’s actions were “manifestly consistent with and indicative of an intention to voluntarily relinquish his defense of lack of personal jurisdiction.” (Punctuation omitted.) Id. (finding jurisdictional defense waived where defendant moved for summary judgment without reserving or reasserting the defense, actively participated in the litigation, and allowed final judgment to be entered without seeking a ruling thereon). Compare Hight, 199 Ga. App. at 745 (where defendant reasserted his defenses in abatement in motion for summary judgment, a ruling on merits of the case without addressing the issues in abatement was premature); Baiye v. Gober, 254 Ga. App. 288, 289-290 (2) (562 SE2d 249) (2002) (notwithstanding defendants’ failure to respond to plaintiff’s motion for summary judgment, it was premature for the trial court to rule on the merits of the case without addressing defendants’ service and jurisdictional defenses). We find, therefore, that the trial court did not act prematurely in ruling on the merits.

2. Rome also claims that the trial court erred in granting Polyidus’s motion for summary judgment because there remain genuine issues of material fact. We agree.

Summary judgment is warranted when any material fact is undisputed, as shown by the pleadings and record evidence, and this fact entitles the moving party to judgment as a matter of law. So, to prevail on a motion for summary judgment, the moving party must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law.

[178]*178(Citations and punctuation omitted.) Strength v. Lovett, 311 Ga. App. 35, 39 (2) (714 SE2d 723) (2011). Here, Rome averred that all relevant dealings were between Rome and Thomas, individually, and that it was agreed that the funds transferred from Thomas to Rome on December 31, 2004 could be repaid as cash became available to Rome. According to Rome, “[o]n or about September 6, 2005 [he] transferred the sum of $250,000[ ], as directed by . . . Thomas, from [Rome] in Missouri to the account of Polyidus ... in full payment and satisfaction of any indebtedness to . . . Thomas.” As part of this averment, Rome specified Polyidus’s account number, the routing transit number, and the name and address of the bank to which the funds were transferred. Rome also averred that after Thomas demanded interest on the monies previously paid by Rome, he paid Thomas $11,500 on November 11, 2005, and that Rome understood that payment to be in full satisfaction of the obligations arising from the transfer of $250,000 on December 31, 2004.

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Bluebook (online)
744 S.E.2d 363, 322 Ga. App. 175, 2013 Fulton County D. Rep. 1887, 2013 WL 2477328, 2013 Ga. App. LEXIS 472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rome-v-polyidus-partners-lp-gactapp-2013.