Phillips Sons Logging, Inc.v.Pioneer Machinery

Court of Appeals of GeorgiaApr 14, 1998
232 Ga. App. 240 (Ga. Ct. App. 1998)
232 Ga. App. 240501 S.E.2d 585

A98A0386.

DECIDED APRIL 14, 1998.

Action on contract. Schley Superior Court. Before Judge Smith.

Patrick D. Gill, for appellants.

Jones, Cork Miller, Sharon H. Reeves, Cater C. Thompson, for appellee.


Pioneer Machinery, Inc. sold logging machinery to Phillips Sons Logging, Inc. The sale contract provided for a $15,000 down payment plus $125,904 to be paid in 48 monthly installments. Averett Phillips, Glen Phillips and Greg Phillips each personally guaranteed payment of the sums due under the contract. Pioneer sued Phillips Sons and all three of the personal guarantors for the $15,000 down payment, claiming it was never paid. The trial court granted Pioneer's motion for summary judgment and denied the motion for summary judgment brought by Phillips Sons and the three personal guarantors.

On appeal from the grant of summary judgment, Phillips Sons and the three personal guarantors do not claim that the $15,000 down payment was paid to Pioneer. In fact, the appellees admit that the down payment was not paid to Pioneer at the time of the sale and that after the sale, they attempted to raise money to pay the $15,000 portion of the sale price represented by the down payment, but they were unable to do so.

The record shows that the $125,904 financed portion of the sale price was assigned by Pioneer and that the machinery was eventually repossessed or returned and sold by either the assignee or Pioneer to satisfy this portion of the debt. The appellees raised no defense that the sale was unreasonable or that Pioneer failed to mitigate its damages by the sale of the machinery. See Strong v. Wachovia Bank c., 215 Ga. App. 572, 574 ( 451 S.E.2d 524) (1994); Moreland Auto Stop v. TSC Leasing Corp., 216 Ga. App. 438, 441 ( 454 S.E.2d 626) (1995).

The appellees' sole defense is that because the sale contract provided for a $15,000 down payment, we should construe the unambiguous terms of the contract as establishing that the down payment was made at the time of the sale and refuse to consider any evidence to the contrary. Just because the contract provided for a $15,000 down payment to be made at the time of the sale does not demand that we find it was made. Because the evidence is undisputed that the $15,000 down payment was part of the sale price and that the appellees owed it and did not pay it, Pioneer carried its burden as movant for summary judgment of demonstrating that there was no genuine issue of fact requiring jury resolution. OCGA § 9-11-56; Lau's Corp. v. Haskins, 261 Ga. 491 ( 405 S.E.2d 474) (1991). The trial court correctly granted Pioneer's motion for summary judgment and correctly denied the appellees' motion for summary judgment.

There being no adequate legal basis upon which the appellants could have anticipated that the judgment of the trial court would be reversed, we conclude that the appeal was for the purpose of delay only. Accordingly, the trial court is directed to enter judgment in favor of Pioneer Machinery, Inc. for damages in the amount of ten percent of the judgment awarded, to be entered in the remittitur pursuant to OCGA § 5-6-6.

Judgment affirmed. Eldridge, J., and Senior Appellate Judge Harold R. Banke concur.


ANDREWS, Chief Judge.

DECIDED APRIL 14, 1998.