dissenting.
“ ‘If a man does not keep pace with his companions, perhaps it is because he hears a different drummer. Let him step to the music which he hears, however measured or far away.’ — Thoreau. I must dissent.” Gray v. Quality Fin. Co., 130 Ga. App. 762, 764 (204 SE2d 483) (1974).
The majority opinion acknowledges that “the corporation’s action against Gregory Jr., as well as Gregory Jr.’s defense and counterclaims against the corporation, depended upon whether an issue of fact had been established over the existence of certain corporate bylaws which required the presence of two-thirds of the shareholders for a quorum necessary to transact business.” I cannot agree, however, with the majority’s conclusion that no such factual issue was established in this case.
Admittedly, Gregory Jr. was unable to swear to any specific memory of the adoption of such bylaws at the creation of the corporation in 1963. But it is clear that prior to the actual commencement of this litigation, both Gregory Sr. and Gregory Jr. conducted themselves with the understanding that the bylaws did exist. Gregory Jr. had the corporate documents, including bylaws, reconstructed in 1978, long before Gregory Sr. resurfaced and reclaimed his corporate position; thereafter, Gregory Jr. treated these reconstructed bylaws as the bylaws of the corporation. It is apparent that Gregory Sr. initially did likewise, because when he officially called for shareholders’ meetings in 1982, he had instructed the corporation’s secretary to follow the procedures “as provided in the by-laws.” The drumbeat most audible to me compels a conclusion that the evidence, though scant, was sufficient to create an issue of fact over the existence and adoption of the bylaws.
In summary, because a jury question existed over the existence of bylaws which provided for a quorum consisting of two-thirds of the shareholders, the trial court properly denied the corporation’s motion for summary judgment on Gregory Jr.’s counterclaim seeking liquidation of the corporation, but erred in granting that motion on the counterclaim for loss of earnings. Moreover, assuming that the existence and validity of the bylaws were established as fact, there was no *795quorum to transact business at the shareholders’ meeting of March 14, 1984, when the course of action against Gregory Jr. was approved. In the event that the factual issue regarding the bylaws should be resolved in favor of Gregory Jr., it would follow that the corporation was unauthorized to commence this action against Gregory Jr.; thus summary judgment for the corporation was inappropriate and premature until this crucial factual issue is determined.
Decided October 21, 1985 Rehearing denied November 8, 1985 James A. Parker, Wade M. Crumbley, Rodney G. Meadows, for appellant. Joab O. Mangum III, for appellee.I am authorized to state that Presiding Judge McMurray, Presiding Judge Birdsong, and Judge Benham join in this dissent.