ELLISON v. WILLIAM HUFF FORD, INC

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Docket Number

59671.

Attorney(S)

William H. Arey, William G. Snipes, for appellant. Tyron Elliott, for appellee.

Judges

SOGNIER, Judge.

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Smart Summary

Factual and Procedural Background

Appellant Ellison filed a complaint against appellee William Huff Ford alleging breach of contract and fraud related to the purchase of a 1978 Thunderbird. Ellison claimed that part of the purchase consideration included appellee accepting a trade-in of Ellison's 1977 Gremlin and paying the remaining balance of $1,673.40 owed on the Gremlin to Columbus Bank and Trust Co. William Huff Ford counterclaimed, asserting that Ellison had agreed to pay the balance on the Gremlin and that Ellison's failure to do so caused damages in the amount of $1,673.40. After the counterclaim was filed, Ellison contended that appellee had paid the balance to the bank. Ellison voluntarily dismissed his complaint and moved to dismiss the counterclaim. The trial court denied both motions and granted a certificate for immediate review. This appeal followed.

Legal Issues Presented

Whether appellee's counterclaim remains valid after the alleged payment of the debt to Columbus Bank and Trust Co.
Whether appellant's motion to dismiss the counterclaim was properly denied given the record evidence.

Arguments of the Parties

Appellant's Arguments

The debt owed to Columbus Bank and Trust Co. has been paid by appellee, thus negating appellee's counterclaim.
The motion to dismiss should be treated as one for summary judgment under Rule 12(c), supported by a letter attached to appellant's brief.

Appellee's Arguments

Ellison agreed to pay the balance on the Gremlin, and failure to do so caused damages.
The counterclaim remains valid despite appellant's assertions of payment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Coweta Bonding Co. v. Carter, 230 Ga. 585, 198 S.E.2d 281 (1973)	Briefs cannot be used to introduce factual evidence not contained in the record.	The court refused to consider factual representations in appellant's brief that were not part of the record.
Konscol v. Konscol, 151 Ga. App. 696, 261 S.E.2d 438 (1979)	Same principle regarding consideration of evidence outside the record on appeal.	The court reaffirmed that evidence must be part of the record to be considered.

Court's Reasoning and Analysis

The court analyzed appellant's contention that the debt to Columbus Bank and Trust Co. had been paid, thereby nullifying appellee's counterclaim. Appellant treated his motion as a motion for summary judgment under Rule 12(c), relying on a letter attached to his brief as evidence of payment. However, the court emphasized that it cannot consider factual assertions made in briefs that are not supported by the record. Because the record contained no other evidence of payment, the court concluded that appellant's motion to dismiss was properly denied.

Holding and Implications

Judgment affirmed.

The court upheld the trial court's denial of appellant's motion to dismiss both the complaint and the counterclaim. The decision means that appellee's counterclaim remains viable. This ruling does not establish new precedent but enforces the principle that appellate courts consider only evidence contained in the record, not factual assertions made solely in briefs.

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ELLISON v. WILLIAM HUFF FORD, INC.

SOGNIER, Judge.

Appellant Ellison filed a complaint against William Huff Ford alleging breach of contract and fraud. Ellison purchased a 1978 Thunderbird from appellee and claims that part of the consideration for said purchase was that appellee accept as a trade-in appellant's 1977 Gremlin and pay the balance ($1,673.40) owing on the Gremlin to Columbus Bank and Trust Co. William Huff Ford counterclaimed alleging that Ellison had agreed to pay the balance on the Gremlin and that as a consequence of Ellison's failure to do so that William Huff Ford had been damaged in the amount of $1,673.40. Subsequent to the filing of their counterclaim, appellant contends that appellee paid Columbus Bank and Trust Co. the balance owed on the Gremlin. Ellison voluntarily dismissed his complaint and moved to dismiss appellee's counterclaim. The trial court denied appellant's motion to dismiss both the complaint and the counterclaim and granted certificate for immediate review. We affirm.

Appellant contends that the debt owed Columbus Bank and Trust Co. has been paid, and because of this that appellee's counterclaim no longer states a cause. Appellant treats his motion as one for summary judgment under Rule 12(c) and an appeal attaches a letter to his brief in support thereof. A review of the record discloses no other evidence pertaining to payment. This Court cannot consider factual representations in a brief which do not appear in the record. Coweta Bonding Co. v. Carter, 230 Ga. 585, 586 ( 198 S.E.2d 281) (1973); Konscol v. Konscol, 151 Ga. App. 696 ( 261 S.E.2d 438) (1979).

Appellant's motion to dismiss was properly denied.

Judgment affirmed. Deen, C. J., and Birdsong, J., concur.

SUBMITTED APRIL 7, 1980 — DECIDED JUNE 27, 1980.