IN THE SUPREME COURT OF THE
STATE OF GEORGIA
William C. Solomon, DBA
Graphic Engineering
APPELLANT,
vs.
W. Harry Barnett, et al,
APPELLEES.

 CASE NO.
S06C0496
 

BRIEF OF THE AMICUS CURIAE COMMITTEE
GEORGIA TRIAL LAWYERS ASSOCIATION

This Court has granted certiorari because the Court of Appeals shifted the burden (in the summary judgment context) by requiring that the non-movant (Appellant Solomon) establish equitable estoppel as a matter of law (i.e. unequivocably). Amici urges this Court to uphold the established summary judgment standards and reject the burden shifting instituted by the Court of Appeals panel below.

INTEREST OF AMICUS CURIAE

Amicus GEORGIA TRIAL LAWYERS ASSOCIATION is a statewide organization of some 3,000 lawyers with a special interest in the procedural rules and doctrines that govern litigation and trials in Georgia. Amici is particularly interested in protecting the right to a trial by jury for all Georgia litigants. In light of the Court of Appeals failure to apply the accepted and long standing summary judgment standards, Amici files this brief urging this Court to reverse the decision and reject this attempt to shift the burden to the non-moving party.

ARGUMENT AND CITATION OF AUTHORITY

The issue in this case is whether the doctrine of equitable estoppel must be established by the non-moving party as a matter of law when used defensively as part of the non-moving party’s opposition to a summary judgment motion. This Court remanded this case to the Court of Appeals because it failed to consider the Appellant’s equitable estoppel argument. The Court of Appeals on remand held that it was Appellant’s burden to “come forward, in response to Barnett’s motion for summary judgment on the issue of corporate reinstatement, with sufficient evidence to show equitable estoppel as a defense to corporate reinstatement as a matter of law.” 276 Ga. App. 210, 211, 623 S.E.2d 4, 6 (2005). Inexplicably, this panel of the Court of Appeals cited this Court’s opinion in Eiberger v. West, 247 Ga. 767, 281 S.E.2d 148 (1981) and its own opinion in Smith v. Direct Media Corp., 247 Ga. App. 771, 773, 544 S.E.2d 762 (2001). It is Eiberger and Smith v. Direct Media that dictate that the issue of equitable estoppel is one for the jury and not a matter of summary adjudication.

In Eiberger, the case concerned a note that allegedly charged a ursurious rate of interest on a sale of real property. The borrower/buyer of the property in that case stopped making payment on the note and the seller filed suit. Both parties moved for summary judgment. The trial court found that the borrower acted fraudulently to perpetrate a scheme to avoid payment of interest and was “estopped from asserting the defense of usury.” 247 Ga. at 768, 281 S.E.2d at 149. The trial court granted summary judgment for the plaintiff/seller (denying summary judgment for buyer). The buyer/borrower appealed, and this Court affirmed. This Court re-affirmed the following, well established, principle:

Where the facts relied on to establish the estoppel do not unequivocally show an estoppel in pais [by conduct], the jury, and not the judge, should determine whether the facts constitute such an estoppel. [citation omitted]. Estoppel is usually an issue of fact to be decided by the jury. [citations omitted].

247 Ga. at 769, 281 S.E.2d at 150. This Court found that Eiberger was one of those unusual cases where the estoppel was unequivocally established. Smith v. Direct Media held the same: “Whether a party is estopped by his conduct is generally a question for the factfinder to resolve.” 247 Ga. App. at 773, 544 S.E.2d at 764 (trial court sitting as finder of fact in bench trial found defendant “equitably estopped” from raising statue of frauds defense because of his conduct).

Equitable estoppel is always highly fact driven by its very nature. This is evident from the elements required to establish equitable estoppel which were clearly put forth in Tinsley v. Rice, 105 Ga. 285, 31 S.E. 174, 176-177 (1898).

In the summary judgment context, the burden is on the movant to prove the nonexistence of any genuine issue of material fact. Whitehead v. Capital Auto Co., 239 Ga. 460, 238 S.E.2d 104 (1977) (trial court’s grant of summary judgment to defendant reversed where defendant failed to meet its burden of “establishing the nonexistence of any genuine issue of material fact”).

In the case at bar, equitable estoppel was raised in response to a motion for summary judgment. This issue of estoppel was based on an individual’s (Appellee Barnett’s) dealings and his relationship with his corporations. These issues of particular individual conduct, relationships, and representations are typical in equitable estoppel claims. The Court of Appeals acknowledged as much in this case: “the record here is replete with disputed facts concerning the dealings between Barnett, his corporations, and Solomon. . ..” 276 Ga. App. at 211. Equitable estoppel was neither “unequivocably established,” nor unequivocably denied. The Court of Appeals failed to find that there was a “complete absence” or “nonexistence” of any genuine issue of material fact as it related to equitable estoppel. Rather, the Court of Appeals affirmed summary judgment because the non-movant did not produce “sufficient evidence” of equitable estoppel. Id. Thus, it held the non-movant to a “sufficiency of evidence” standard. It shifted the burden by requiring that the non-movant (Appellant Solomon) establish estoppel as a matter of law (i.e. unequivocably). This placed a super burden on the non-movant inconsistent with the law as it relates to summary judgment.

The Eiberger case and the law it relies upon have stood the test of time, and have been cited repeatedly by this Court and the Court of Appeals for the principle that “where the evidence on summary judgment is ambiguous or doubtful, the party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that can be drawn from the evidence. Eiberger v. West, 247 Ga. 767 (1)(a), 281 S.E.2d 148 (1981).” Fiumefreddo v. Scudder, 252 Ga. 279, 283, 313 S.E.2d 683, 686 (1984); see also Smith v. Georgia Koalin Co., Inc., 264 Ga. 755, 757, 449 S.E.2d 85, 87 (1994). The decision of the Court of Appeals must not be allowed to stand. It erodes the long-standing standards applicable to summary judgment, and will be used in future cases to deny legitimate disputed claims and defenses that should otherwise be decided by juries or judges sitting as triers of fact.

CONCLUSION

This Court should reverse the Court of Appeals, and remand this matter to the trial court.

Respectfully submitted, this 16th day of May, 2006.

Robin Frazer Clark
President,
Georgia Trial Lawyers Association

Mathew G. Nasrallah
R. Hutton Brown and
Co-Chairs, Amicus Curiae Committee
Georgia Trial Lawyers Association

This Brief Prepared by: Mathew G. Nasrallah
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