Summary
setting forth cases addressing the standard for pleading fraud, including Diversified Holding Corp., supra
Summary of this case from Roberts v. JP Morgan Chase Bank, Nat'l Ass'nOpinion
54104.
SUBMITTED JULY 6, 1977.
DECIDED JULY 13, 1977.
Action on note. DeKalb State Court. Before Judge Smith.
Thomas H. Antonion, for appellant.
Ronald J. Armstrong, Leonard C. Lewellen, for appellee.
Chung Studio of Karate, Inc., d/b/a Joe Corley Karate Studios, brought suit on a promissory note against Barney Tucker. Tucker answered with a general denial and in addition asserted a counterclaim setting up failure of consideration and fraud. The allegations as to fraud were: "6. That plaintiff, by and through its agent, Joe Corley, has been guilty of fraud, deceptive devices, trickery and chicanery ... 8. That by virtue of the trickery, chicanery, diverse means, fraud and deceit, details of which will be hereinafter supplied by amendment, plaintiff is indebted to the defendant [for punitive damages]."
Plaintiff, apparently thinking that paragraphs 2 through 8 of the answer were concerned solely with the defense of fraud, moved to strike them on the ground that fraud was not alleged with particularity as required by CPA § 9 (b) (Code Ann. § 81A-109 (b)). Alternative motions for judgment on the pleadings and for summary judgment without supporting affidavits were addressed to the same paragraphs on the same ground.
Paragraph 2 is a general denial of indebtedness on the note; paragraphs 3 through 5 relate to failure of consideration.
The trial court granted the motion for judgment on the pleadings or alternative motion to strike and did not pass upon other matters. For some reason not apparent, however, the court struck the entire answer and counterclaim, including the specific denials in paragraph 1 of the answer, which was not attacked by the motion, and entered up judgment on the note in plaintiff's favor. Tucker appeals, and we reverse.
1. No reason appears why the defense of failure of consideration should have been stricken, and the judgment dismissing the answer in its entirety must be reversed for that reason. "[W]hen an objection is made to a pleading or evidence as a whole, or a bloc, a part of which is not subject to the objection, the entire general objection fails in its office as a critic." McDaniel v. Pass, 130 Ga. App. 614, 617 ( 203 S.E.2d 903) (1974).
2. The denial of the execution of a contract (non est factum) is no longer a defense which must be affirmatively pleaded, a general denial being sufficient. Morgan v. White, 121 Ga. App. 794 (2) ( 175 S.E.2d 878) (1970); Tankersley v. Security Nat. Corp., 122 Ga. App. 129, 130 (3) ( 176 S.E.2d 274) (1970). Paragraph 2 of the answer, which is a general denial, as well as the specific denials of paragraph 1, were thus not subject to the en bloc motion, and the judgment must likewise be reversed on this ground again. McDaniel v. Pass, 130 Ga. App. 614, 617, supra.
3. Finally, Tucker's plea of fraud, consisting of nothing but a rank conclusion, and failing even to identify the transaction or occurrence from which his grievance stems, or even the injury supposedly inflicted upon him, is not subject to dismissal at this time on the ground that fraud is not alleged with particularity as required by CPA § 9 (b). Cochran v. McCollum, 233 Ga. 104 ( 210 S.E.2d 13) (1974). That case held with respect to an initial motion to dismiss, or motion to strike, that a claim of fraud should not be dismissed unless it appears beyond doubt that the pleader can prove no set of facts in support of the claim which would entitle him to relief, and that the remedy at that stage of the pleading is not a motion to dismiss but a motion for more definite statement under CPA § 12 (e) (Code Ann. § 81A-112 (e)).
The standards to be applied are the same. Rhyne v. Garfield, 236 Ga. 694, 695 ( 225 S.E.2d 43) (1976).
The decision is criticized at 27 Mer. L. Rev. 235, 247-52; 28 Mer. L. Rev. 257, 275-76. It has been followed in Filsoof v. West, 235 Ga. 818, 819 (2) ( 221 S.E.2d 811) (1976), Bryant v. Bryant, 236 Ga. 265 ( 223 S.E.2d 662) (1976), and Lawyers Co-Operative Publishing Co. v. Huff, 142 Ga. App. 45 ( 234 S.E.2d 842) (1977). A similar result had been reached by this court in Diversified Holding Corp. v. Clayton McLendon, Inc., 120 Ga. App. 455 ( 170 S.E.2d 863) (1969), where we held in effect that a motion to strike should have been treated as a motion for more definite statement and sustained on that basis. Accord, Filsoof, supra, this note. See also Hayes v. Hallmark Apts., 232 Ga. 307, 309 ( 207 S.E.2d 197) (1974).
Our decision in Holder v. Brock, 129 Ga. App. 732 (2) ( 200 S.E.2d 912) (1973), being in conflict with the new rule announced in Cochran, is overruled. Likewise Henry v. Allstate Ins. Co., 129 Ga. App. 223, 225 (1a) ( 199 S.E.2d 338) (1973), holding that a general allegation of fraud need not be negatived by a summary judgment movant, is overruled to the extent it is in conflict.
Compare Bob's Dairy Barn Restaurant v. I. D. S. Leasing Corp., 135 Ga. App. 227 ( 217 S.E.2d 462) (1975); Duke Enterprises v. Espy, 140 Ga. App. 527 ( 231 S.E.2d 522) (1976). We take it that MacNerland v. Barnes, 129 Ga. App. 367, 371 ( 199 S.E.2d 564) (1973) and Howard v. Dun Bradstreet, 136 Ga. App. 221, 223 ( 220 S.E.2d 702) (1975), holding that an inference of fraud need not be so negatived, are still good law.
The order of the trial court striking and dismissing the plea of fraud will be reversed with direction to treat the motion to strike and for judgment on the pleadings as a motion for more definite statement under CPA § 12 (e) and to sustain it on that basis. Diversified Holding Corp. v. Clayton McLendon, Inc., 120 Ga. App. 455, supra, note 3; Filsoof v. West, 235 Ga. 818, 819 (2), supra, note 3. 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., supra; Continental Investment Corp. v. Cherry, 124 Ga. App. 863, 865 (2) ( 186 S.E.2d 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 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...'" DeWes Enterprises v. Town Country Carpets, 130 Ga. App. 610, 612 ( 203 S.E.2d 867) (1974), cited with approval in Cochran. Judgment reversed with direction. Bell, C. J., Deen, P. J., Quillian, P. J., Marshall, McMurray, Smith, Shulman and Banke, JJ., concur.
Also, Candler v. Clover Realty Co., 125 Ga. App. 278 ( 187 S.E.2d 318) (1972), Henry v. Allstate Ins. Co., 129 Ga. App. 223, 225 (1a), supra, Robinson v. A. Construction Co., 130 Ga. App. 56, 57 (2) ( 202 S.E.2d 248) (1973) (revd. other grounds sub nom. Walker v. Robinson, 232 Ga. 361 ( 207 S.E.2d 6) (1974) and McMichen v. Martin Burks Chevrolet, 128 Ga. App. 482 ( 197 S.E.2d 395) (1973).