Capital Color Printing, Inc. v. Ahern

SMITH, Presiding Judge,

concurring in part and dissenting in part.

While I fully concur with Division 1 of the majority, I respectfully dissent to the holding in Division 2 that a material issue of fact exists as to whether Heflin signed Ahern’s name with Ahern’s apparent authority, for two reasons. First, the apparent authority doctrine should not be used to reverse in this case because the trial court’s ruling on this issue was not enumerated as error or addressed by any of the parties in their briefs to this court before our initial opinion was issued. Second, no genuine issue of material fact exists as to whether Heflin signed Ahern’s name with apparent authority.

1. In its appeal, Capital Color Printing, Inc. (“Capital Color”) asserts that the trial court erred by granting summary judgment in Ahern’s favor because the trial court erroneously concluded that no genuine issue of material fact existed as to the authenticity of Ahern’s signature. Capital Color asserts that a jury issue exists as to *113whether Ahern signed his own name, not whether Heflin had apparent authority to sign Ahern’s name.

Although the issues of apparent authority and ratification were raised below and ruled upon by the trial court, we cannot consider them on appeal because Capital Color failed to argue on appeal that the trial court erred by ruling that these doctrines do not apply in this case. Summary judgment rulings not enumerated as error on appeal or addressed in an appellant’s brief cannot be considered on appeal. See Young v. Turner Heritage Homes, 241 Ga. App. 400, 401 (2) (526 SE2d 82) (1999); William Goldberg & Co. u. Cohen, 219 Ga. App. 628, 636 (6), n. 5 (466 SE2d 872) (1995); Bill Parker & Assoc. v. Rahr, 216 Ga. App. 838, 840 (2) (456 SE2d 221) (1995).2 As a result, I would grant Ahern’s motion for reconsideration to address only the issue raised on appeal by Capital Color and find that the trial court did not err by granting summary judgment in favor of Ahern.

The record shows that Ahern averred that he did not sign the personal guarantee and that his signature was forged. The only evidence Capital Color points to on appeal to create an alleged issue of material fact on this issue is a document titled “verification” that Capital Color claims verified the allegation in its complaint that Ahern “personally guaranteed the debt.”

This argument lacks merit for two reasons. First, the document does not verify the statements made in Capital Color’s complaint. Instead, it verifies the information contained in the verification document itself and Exhibit “B” to the verification document, which is a list of the amount owed to Capital Color by Quality Printing. Second, even if the document somehow did verify the complaint, the statement in the complaint that “Ahern personally guaranteed the debt” does not provide competent evidence that Ahern’s signature was authentic. Self-serving, conclusory statements that are not supported by facts, even if sworn, are not sufficient to create a genuine issue of material fact. See Sherrill v. Stockel, 252 Ga. App. 276, 278 (557 SE2d 8) (2001).

*114Although the issue of apparent authority is not before us, it is addressed in the majority opinion, and I therefore must address it. I disagree with the majority’s conclusion that a genuine issue of material fact exists as to whether Heflin signed Ahern’s name on an individual guarantee with apparent authority.

The “doctrine of apparent authority is based upon the principle that where one of two innocent parties must suffer from the wrongful act of another, the loss should fall upon the one who, by his conduct, created the circumstances which enabled the third party to perpetrate the wrong and cause the loss.” (Citations and punctuation omitted.) Turnipseed v. Jaje, 267 Ga. 320, 323 (2) (a) (477 SE2d 101) (1996).

Apparent authority is that which the principal’s conduct leads a third party reasonably to believe the agent has; it creates an estoppel allowing third parties to bind a principal to the agent’s acts on account of the principal’s conduct, reasonably construed by third parties acting in innocent reliance thereon. Where there were no manifestations of authority by the principal to a third party, apparent authority is not in issue.

(Citations and punctuation omitted; emphasis supplied.) Gosule v. Bestco, Inc., 227 Ga. App. 863, 864 (1) (490 SE2d 532) (1997).

“[I]t is the principal’s conduct that is crucial to the creation of apparent or ostensible authority.” Fed. Paper Bd. Co. v. Harbert-Yeargin, Inc., 92 FSupp.2d 1342, 1351 (II) (N.D. Ga. 1998). “In other words, apparent authority is not predicated on whatever a third party chooses to think an agent has the right to do, or even upon what the agent says he can do, but must be based on acts of the principal which have led the third party to believe reasonably the agent [has] such authority.” (Citations and punctuation omitted.) Holy Fellowship Church of God in Christ v. Brittain, 240 Ga. App. 436, 438 (1) (523 SE2d 93) (1999).

In this case, there is no evidence showing that Ahern acted in any way that could lead Capital Color to believe reasonably that his business partner had the authority to sign an individual guarantee on Ahern’s behalf. Indeed, there is no evidence that Capital Color even knew at the time that Heflin signed Ahern’s name. As a result, Capital Color cannot demonstrate two of the required elements for application of the apparent authority doctrine: (1) that it knew Heflin was acting as Ahern’s agent when he allegedly signed Ahern’s name; and (2) that Ahern led it to believe that Heflin had authority to sign his name to an individual guarantee.

While a genuine issue of material fact exists as to whether Ahern *115knew that Capital Color required an individual guarantee from both partners,3 this issue of fact cannot be converted into an issue of fact as to whether Ahern acted in a manner that could lead Capital Color to believe that his business partner had the power to bind him to an individual guarantee. Even if we assume for purposes of summary judgment that Ahern did know that Capital Color required individual guarantees, there is simply no evidence showing that he acted in any manner in his relations with Capital Color that would allow it to reasonably conclude that his business partner was authorized to sign his name to an individual guarantee. See Addley v. Beizer, 205 Ga. App. 714, 721 (423 SE2d 398) (1992) (on motion for reconsideration) (finding alleged principals entitled to directed verdict in their favor on personal guarantee despite their knowledge that third party was requesting personal guarantee). It simply defies logic to conclude that Ahern led Capital Color to believe that Heflin could sign Ahern’s name to an individual guarantee when Capital Color was not even aware that Heflin might have done so.

A review of Georgia law on apparent authority demonstrates that parties cannot survive summary judgment on an apparent authority issue without pointing to specific acts by the principal creating such authority. Bresnahan v. Lighthouse Mission, 230 Ga. App. 389, 391 (1) (496 SE2d 351) (1998) (summary judgment in favor of principal when evidence undisputed that principal never held out alleged agent “as anyone who, on her sole signature, could bind the corporation”); Fed. Paper Bd. Co., supra, 92 FSupp.2d at 1352 (II) (summary judgment in favor of principal when plaintiff failed to “point to any affirmative act on the part of defendant creating the impression that [alleged agent] had . . . authority to single-handedly bind the defendant”); Holy Fellowship, supra, 240 Ga. App. at 438 (1) (summary judgment granted when third party did not assert any act or statement by principal that would cause third party to believe that an alleged agent had authority to make the agreement); Gosule, supra, 227 Ga. App. at 865 (1) (summary judgment granted because plaintiff failed to show that principal demonstrated to him that alleged agent had authority to act as he did); Kinard v. Nat. Indem. Co., 225 Ga. App. 176,178-179 (1) (483 SE2d 664) (1997) (summary judgment granted because no evidence insurance company held independent insurance agent out as its agent with *116authority to bind coverage). These cases demonstrate that Georgia courts strictly adhere to the requirements for application of the apparent authority doctrine. In sum,

Decided March 25, 2008 Reconsideration denied April 14, 2008 Janis L. Rosser, for appellant. Pankey & Horlock, Larry A. Pankey, Deming, Parker, Hoffman, Green, Campbell & Daly, Frank F. Pape, Jr., Conaway & Strickler, Dylan E. Wilbanks, for appellees.
[wjhere the only evidence that a person is an agent of another party is the mere assumption that such agency existed, or an inference drawn from the actions of that person that he or she was an agent of another party, such evidence has no probative value and is insufficient to authorize a finding that such agency exists.

(Citation, punctuation and footnote omitted.) Ellis v. Fuller, 282 Ga. App. 307, 309 (1) (638 SE2d 433) (2006).

For all these reasons, the trial court’s grant of summary judgment to Ahern should be affirmed. The issue of apparent authority is not before us, and there is no genuine issue of fact with regard to the issue that is before us, the authenticity of Ahern’s signature on the guarantee. The approach advocated by the majority to find a genuine issue of fact on the issue of apparent authority in this case will unsettle well-established apparent authority law. I therefore respectfully dissent to Division 2 of the majority opinion.

I am authorized to state that Presiding Judge Andrews and Presiding Judge Johnson join in this opinion.

The authorities cited by the majority in support of its contention that this court can consider the issue of apparent authority are inapposite. In Mills v. Norfolk Southern R. Co., 242 Ga. App. 324, 331 (4) (a) (526 SE2d 585) (2000) (full concurrence in Division 4), we merely held that we have discretion to address an issue actually raised in a party’s brief on appeal, but not enumerated separately as error. In this case, Capital Color does not argue apparent authority anywhere in its brief before this court.

The majority cites OCGA § 5-6-48 (f) as authority for addressing the apparent authority issue. That Code section provides in part that when it is clear what judgments were appealed from or what errors are sought to be asserted on appeal, an appeal should be considered even though the enumeration of errors failed to clearly enumerate the error sought to be reviewed. Id. Here, it is clear from Capital Color’s brief that it makes no argument whatsoever concerning apparent authority.

Ahern asserted in interrogatory responses that “it was not [his] business practice to ever extend a personal guarantee on any application for credit.” He also averred in an affidavit that he “was unaware that Plaintiff required personal guarantees before performing work for customers” until he was served with the lawsuit in this case. A representative of Capital Color submitted an affidavit in which she claimed that she told Ahern in a telephone call that both owners of Quality Printing 4 Less “would have to execute personal guarantees before Capital would do business with Quality.”