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ELLIS et al. v. CURTIS-TOLEDO, INC.
A92A0541.
SOGNIER, Chief Judge.
Action on guaranty. Effingham Superior Court. Before Judge Martin.
Gerald and Elaine Ellis bring this appeal from the trial court's grant of summary judgment to Curtis-Toledo, Inc. in its action against them based upon a personal guaranty.
In its complaint against appellants, appellee alleged that it was owed a debt on account and that appellants had guaranteed that debt. Attached to the complaint were copies of the purported guaranty agreement executed by appellants and the account statement showing an amount owed for purchases made by Action Compressor and Pump Services ("Action") from appellee. Appellants answered denying liability and asserted the defense of res judicata based on appellee's failure to join appellants in a prior suit in which it had obtained judgment against Action. In response to appellee's requests for admission, appellants admitted they had signed a guaranty agreement, that summary judgment had been entered in the prior action against Action, and that they were officers of Action and had knowledge of its business and legal activities, but denied liability on the guaranty. The trial court's order granting summary judgment in favor of appellee specifically recited that appellants' defense of res judicata was not applicable to this action and that, as appellants had admitted signing the guaranty agreement, appellee was entitled to judgment as a matter of law.
1. We find no merit in appellants' contention that the trial court erred by finding that their affirmative defense of res judicata was inapplicable here. Three prerequisites are necessary for the successful assertion of a res judicata defense based on a prior suit. There must be (1) identity of parties and (2) identity of the cause of action in both suits; and (3) the prior adjudication must have been by a court of competent jurisdiction. Firestone Tire &c. Co v. Pinyan, 155 Ga. App. 343, 345 (270 SE2d 883) (1980). Since the prior suit against Action was based upon an account and the instant action was brought upon a written guaranty, no identity of the cause of action existed, and the trial court did not err by finding that res judicata did not bar this action. See generally Crowe v. Congress Fin. Corp., 196 Ga. App. 36, 39-40 (3) (395 SE2d 321) (1990).
3. Our decision in Division 2 renders unnecessary consideration of appellants' other enumerations of error.
Ackerman, Woodard & Butler, Jeffrey M. Butler, Greer, Klosik & Daugherty, Robert J. McCune, for appellee.
William G. Maston, Birney O. Bull, for appellants.
DECIDED JUNE 4, 1992 -- RECONSIDERATION DENIED JUNE 29, 1992.
Thursday May 21 08:34 EDT


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