POTTS et al.
RUEDA et al.
DILLARD, C. J., MCFADDEN, P. J. and SELF, JJ.
MCFADDEN, PRESIDING JUDGE.
Potts and two limited liability companies bearing his name
filed suit against Edward Rueda and Courtney Lewis, asserting
various contract and tort claims. Rueda counterclaimed for
breach of an oral partnership agreement. The trial court
denied Potts and the companies' motion for summary
judgment as to the counterclaim and granted Rueda's
motion seeking appointment of an auditor. Potts and the
companies appeal, challenging those two trial court rulings.
Because there exist genuine issues of material fact as to the
existence of a partnership and there has been no showing that
the trial court abused its discretion in granting the request
that an auditor be appointed, we affirm.
and the companies argue that the trial court erred in denying
summary judgment on Rueda's counterclaim because there is
no evidence that a partnership existed. We disagree.
On appeal from a grant or denial of summary judgment, we
conduct a de novo review, and we view the evidence and the
inferences drawn from it in the light most favorable to the
nonmoving party. A defendant demonstrates entitlement to
summary judgment by showing that the record lacks evidence
sufficient to create a jury issue on at least one essential
element of the plaintiff's case. The defendant does not
need to affirmatively disprove the plaintiff's case, but
may prevail simply by pointing to the lack of evidence. If
the defendant does so, the plaintiff cannot rest on his
pleadings, but must point to specific evidence that gives
rise to a triable issue of fact.
Keisha v. Dundon, ___ Ga.App.___ (Case No. A17A1534,
decided January 22, 2018) (citation and punctuation omitted).
Rueda pointed to specific evidence showing the existence of
an oral partnership agreement between him and Potts. See
McMillian v. McMillian, 310 Ga.App. 735, 736 (1)
(713 S.E.2d 920) (2011) (oral partnership agreement can be
effective); Asgharneya v. Hadavi, 298 Ga.App. 693,
697 (4) (680 S.E.2d 866) (2009) (partnership may be formed by
oral agreement); Vitner v. Funk, 182 Ga.App. 39,
42-43 (2) (354 S.E.2d 666) (1987) (partnership may be created
by a written or oral contract). In response to the motion for
summary judgment, Rueda testified by affidavit that he and
Potts had entered into an oral partnership agreement, the
terms of which included each partner having a 50 percent
equity stake in the partnership, the partners sharing equally
in the expenses and revenues of the partnership, and the two
partners making equal cash contributions to the partnership.
Rueda also pointed to evidence showing that he had
contributed over $63, 000 to the partnership and he testified
that Potts had held him out to third parties as his partner.
and the companies contend that Rueda's affidavit
testimony contradicts testimony he gave in a another case and
thus it must be construed against him under the contradictory
testimony rule set forth in Prophecy Corp. v. Charles
Rossignol, Inc., 256 Ga. 27 (343 S.E.2d 680)
(1986). See Hudgens v. Broomberg, 262 Ga. 271 (416
S.E.2d 287) (1992) (Prophecy rule concerning
contradictory testimony applies to prior testimony given in
another case and not merely to testimony given in the current
case); accord Shiver v. Norfolk-Southern Ry., 225
Ga.App. 544, 547 (1) (484 S.E.2d 503) (1997) ("The
Supreme Court, in Hudgens[, supra], held that the
contradictory testimony rule applies to any prior testimony
and not merely to testimony given at the trial of the
case."). The contention is without merit.
In Prophecy, the Supreme Court of Georgia announced
a general rule for construing contradictory testimony made by
a summary judgment respondent: When a party has given
contradictory testimony, and when that party relies
exclusively on that testimony in opposition to summary
judgment, a court must construe the contradictory testimony
against [him]. In such a case, the court must disregard the
favorable portions of the contradictory testimony and then
decide whether the remaining evidence is sufficient to get by
summary judgment. For purposes of the Prophecy rule,
testimony is contradictory if one part of the testimony
asserts or expresses the opposite of another part of the
testimony. However, contradictory testimony is not to be
construed against a party if [he] offers a reasonable
explanation for the contradiction.
State Farm Mut. Auto. Ins. Co. v. Fabrizio, ___
Ga.App.___ (Case No. A17A1446, decided January 16, 2018)
(citation and punctuation omitted).
to the appellants' contention, the testimony given by
Rueda in the other case did not contradict his affidavit in
this case. In the other case, Rueda repeatedly testified that
he and Potts were partners, that they had entered into an
oral partnership agreement, and that he had made financial
contributions to the partnership. As the appellants point
out, during that testimony, Rueda was questioned about an
email in which he had referred to himself as a sole
proprietor. But Rueda explained that the email was taken
"completely out of context" from a series of emails
in which he had indicated he was a partner in a law firm.
Rueda testified that the use of the email out of context was
an attempt to give the "wrong impression" and he
reiterated that he and Potts had formed a partnership.
the email was not a sworn statement, the Prophecy
rule does not apply to it. See Pierre v. St.
Benedict's Episcopal Day School, 324 Ga.App. 283,
289 (3) (750 S.E.2d 370) (2013) (Prophecy rule
applies only to contradictions in a party's sworn
testimony and does not apply to unsworn statements). Our
Supreme Court has held
that a witness under oath who testifies that an unsworn
statement is true and accurate [thereby] incorporates the
earlier statement into his present, sworn testimony. When a
contradiction exists between an unsworn statement that a
party has incorporated into his sworn testimony and other
portions of that party's sworn testimony, courts should