Wood v. Chatham Engineering & Construction Co.

326 S.E.2d 8, 173 Ga. App. 289, 1985 Ga. App. LEXIS 1509

• Court: Court of Appeals of Georgia
• Decided: January 15, 1985
• Docket: 69412
• Status: Published

Opinion

Birdsong, Presiding Judge.

Wood et al. appeal the grant of summary judgment to Chatham Engineering & Construction Co., based on delinquency in paying rental upon three heavy equipment items. Held:

1. Appellants’ contention that they are released from their indebtedness to appellee by the release language on insurance company checks as reimbursement for repairs made payable jointly to appellants and appellee, is wholly without merit. Appellants received full credit for these payments and only the surplus was charged against them in the order granting summary judgment. The record is wholly opposed to any intent by the parties for the indorsement of these checks to result in a release of unpaid damages.

Decided January 15, 1985. Thomas H. Antonion, for appellants. Brent Bremer, Robert D. Feagin, Seaton D. Purdom, for appellee.

2. Appellants’ counter affidavit was insufficient to raise any issue of material fact, as it contained only unsupported and vague assertions amounting to conclusions of non-indebtedness contrary to positive and ascertainable obligations established by the lease documents. See Levine v. First Bank of Savannah, 154 Ga. App. 730 (270 SE2d 20). An affidavit opposing motion for summary judgment must “set forth specific facts showing ... a genuine issue for trial.” (OCGA § 9-11-56 (e)); facts contained in an affidavit, and not argumentative conclusions as in this case, determine whether a genuine issue of fact exists. Matthews v. Wilson, 119 Ga. App. 708 (168 SE2d 864).

3. Enumerations of error 7 and 9 are patently without merit when examined against the face of the record. The affidavit in support of appellee’s motion for summary judgment when read in conjunction with the simultaneously filed statement of material facts not in issue presented documented facts and not mere conclusions.

4. The trial court did not err in awarding attorney fees to the appellee, the same being provided by the lease agreements and duly noticed to the appellants according to OCGA § 13-1-11, and being supported by the evidence and the record as a whole.

5. Enumeration 2 is abandoned for failure to argue. Summerfield v. DeCinque, 143 Ga. App. 351, 352 (238 SE2d 712); Flexible Prods. Co. v. Lavin, 128 Ga. App. 80, 81 (195 SE2d 677).

6. The remaining enumerations concern the propriety of granting summary judgment in this case, and, accordingly are without merit. The pleadings, depositions, and affidavits show that there is no genuine issue as to any material fact, and that Chatham is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).

Judgment affirmed.

Carley and Beasley, JJ., concur.