Kelly v. Vargo, 405 S.E.2d 36 (Ga. 1991). · Go Syfert
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Kelly v. Vargo, 405 S.E.2d 36 (Ga. 1991). Cases Citing This Book View Copy Cite
42 citation events (22 in the last 25 years) across 2 distinct courts.
Strongest positive: College Park Business and Industrial Development Authority v. College Park Mob, LLC (gactapp, 2024-03-13)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 15 distinct citers.
examined Cited as authority (rule) College Park Business and Industrial Development Authority v. College Park Mob, LLC (3×) also: Cited "see"
Ga. Ct. App. · 2024 · confidence medium
“Because that essential element is missing in the evidentiary materials before the trial court, 10 summary judgment should not have been granted.”3 Kelly v. Vargo, 261 Ga. 422, 422 (2) ( 405 SE2d 36 ) (1991).4 (b) Appellant’s remaining claims challenge the trial court’s determination that Appellant breached the January 2022 version of the PSA.
discussed Cited as authority (rule) Brookview Holdings, LLC v. Suarez (2×)
Ga. Ct. App. · 2007 · confidence medium
Kelly v. Vargo, 261 Ga. 422, 423 (1) ( 405 SE2d 36 ) (1991).
cited Cited as authority (rule) Pavement Techniques, Inc. v. Myrick
Ga. Ct. App. · 2006 · confidence medium
Kelly v. Vargo, 261 Ga. 422, 423 (1) ( 405 SE2d 36 ) (1991).
discussed Cited as authority (rule) Layfield v. Department of Transportation (2×)
Ga. Ct. App. · 2005 · confidence medium
Kelly v. Vargo, 261 Ga. 422, 423 (1) ( 405 SE2d 36 ) (1991).
cited Cited as authority (rule) State Farm Fire & Casualty Co. v. Goodman
Ga. Ct. App. · 2002 · confidence medium
Kelly v. Vargo, 261 Ga. 422, 423 (1) ( 405 SE2d 36 ) (1991).
cited Cited as authority (rule) Hutson v. Young
Ga. Ct. App. · 2002 · confidence medium
Kelly v. Vargo, 261 Ga. 422, 423 (2) ( 405 SE2d 36 ) (1991); Martin v. Bohn, 227 Ga. 660, 662 (2) ( 182 SE2d 428 ) (1971); Surman v. Blansett, supra at 186 (2).
discussed Cited as authority (rule) Surman v. Blansett
Ga. Ct. App. · 2000 · confidence medium
Surman also asserts that Blansett was not entitled to specific performance because he failed to prove that the sale price under the purchase contract represented the fair market value and thus failed to establish that the contract was fair, just, and equitable. “[S]pecific performance is not a matter of absolute right.” Kelly v. Vargo, 261 Ga. 422, 423 (2) ( 405 SE2d 36 ) (1991).
cited Cited as authority (rule) Schneider v. Tri Star International, Inc.
Ga. Ct. App. · 1996 · confidence medium
Kelly v. Vargo, 261 Ga. 422, 423 ( 405 SE2d 36 ). 2.
discussed Cited as authority (rule) Rapps v. PHH US Mortgage Corp.
Ga. Ct. App. · 1996 · confidence medium
Further, any doubts on the existence of a genuine issue of material fact are resolved against the movant for summary judgment (Kelly v. Vargo, 261 Ga. 422, 423 ( 405 SE2d 36 )), and determining the credibility of witnesses and weighing the evidence are functions within the province of the jury.
discussed Cited as authority (rule) McGonagil v. Treadwell
Ga. Ct. App. · 1995 · confidence medium
Nevertheless, the applicable summary judgment standard when movant is defendant is that of Lau’s Corp. v. Haskins, 261 Ga. 491 ( 405 SE2d 474 ); the party opposing a motion for summary judgment is to be given the benefit of all reasonable doubt and all favorable inferences that may be derived from the evidence produced with any doubt as to the existence of a substantial issue of fact being resolved against the movant (Kelly v. Vargo, 261 Ga. 422, 423 (1) ( 405 SE2d 36 ); Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 ( 370 SE2d 843 )).
discussed Cited as authority (rule) Vlahos v. Sentry Insurance
Ga. · 1993 · confidence medium
“The party seeking summary judgment bears the burden of establishing the non-existence of any genuine issue as to any material fact and the right to a judgment as a matter of law.” Kelly v. Vargo, 261 Ga. 422, 423 (1) ( 405 SE2d 36 ) (1991).
discussed Cited as authority (rule) City of Atlanta v. North by Northwest Civic Ass'n
Ga. · 1992 · confidence medium
The party opposing the motion is to be given the benefit of all reasonable doubt and all favorable inferences that may be derived from the evidence produced.” Kelly v. Vargo, 261 Ga. 422, 423 ( 405 SE2d 36 ) (1991).
discussed Cited "see" Baby Days, Inc. v. Bank of Adairsville (2×)
Ga. Ct. App. · 1995 · signal: see · confidence high
See Kelly v. Vargo, 261 Ga. 422, 423 (1) ( 405 SE2d 36 ). 2.
discussed Cited "see, e.g." Henry v. Blankenship (2×)
Ga. Ct. App. · 2005 · signal: see also · confidence medium
See also Kelly v. Vargo, 261 Ga. 422, 423 (2), n. 1 ( 405 SE2d 36 ) (1991) (referring to disadvantages of a trial court entering summary judgment on a claim of equitable relief).
examined Cited "see, e.g." Lee v. Green Land Co., Inc. (4×)
Ga. · 2000 · signal: see also · confidence low
See also Kelly v. Vargo, 261 Ga. 422 , 405 S.E.2d 36 (1991); Laseter v. Brown, 251 Ga. 179 , 304 S.E.2d 72 (1983); Krauth v. Bagley, 243 Ga. 87 , 252 S.E.2d 504 (1979); Whitehead v. Capital Automobile Co., 239 Ga. 460 , 238 S.E.2d 104 (1977); Duval & Co. v. Malcom, 233 Ga. 784 , 214 S.E.2d 356 (1975); Anthony v. Morris Hyles, Inc., 221 Ga. 847 , 148 S.E.2d 326 (1966); Sparks v. Bell, 198 Ga. 827 , 33 S.E.2d 105 (1945); Huggins v. Meriweather, 177 Ga. 461 , 170 S.E. 483 (1933); Gragg v. Hall, 164 Ga. 628 , 139 S.E. 339 (1927); Ga. Southern & Fla. R.
Kelly
v.
Vargo
S91A0274.
Supreme Court of Georgia.
Jun 20, 1991.
405 S.E.2d 36
Dawkins & Serio, Harrill L. Dawkins, Salvatore J. Senior, Donna M. Swilley, for appellant., Read, Huddleston & Medori, Eugene A. Medori, Jr., for appellee.
Smith.
Cited by 20 opinions  |  Published
Smith, Presiding Justice.

The appellant, James W. Kelly, and the appellee, William R. Vargo, were the sole shareholders in a Georgia corporation, Var-Kel, Inc. A series of disputes between the parties resulted in a liquidation discussion. The parties entered into a liquidation agreement on De[*423] cember 31, 1988. Subsequently, appellee Vargo filed suit seeking specific performance under one of the terms of the agreement. Mr. Vargo’s motion for summary judgment for specific performance was granted. We reverse.

Decided June 20, 1991 — Reconsideration denied July 10, 1991. Dawkins & Serio, Harrill L. Dawkins, Salvatore J. Senior, Donna M. Swilley, for appellant. Read, Huddleston & Medori, Eugene A. Medori, Jr., for appellee.

1. The party seeking summary judgment bears the burden of establishing the non-existence of any genuine issue as to any material fact and the right to a judgment as a matter of law. Any doubt as to the existence of substantial issues of fact is resolved against the movant. The party opposing the motion is to be given the benefit of all reasonable doubt and all favorable inferences that may be derived from the evidence produced. See OCGA § 9-11-56 (c).

2. The parties expressly agreed that either party could seek specific performance of any provision under the liquidation agreement; however, specific performance is not a matter of absolute right. Inadequacy of price or any other fact that shows that the contract was unfair, unjust, or against good conscience justifies a court in refusing to decree a specific performance. OCGA § 23-2-133. To prevail in a suit for specific performance of a contract for the sale of land, the “plaintiff must prove the value of the property so as to enable the court to determine that the contract was fair, just and not against good conscience. [Cits.]” Moody v. Mendenhall, 238 Ga. 689, 693 (234 SE2d 905) (1977). Because that essential element is missing in the evidentiary materials before the trial court, [1] summary judgment should not have been granted.

Judgment reversed.

All the Justices concur.
1

“See generally Beaulieu of America v. L. T. Dennard &c., 253 Ga. 21 (1, 2) (315 SE2d 889) (1984), regarding the disadvantages of a trial court entering summary judgment on a claim of equitable relief.” Amdahl Corp. v. Ga. Dept. of Administrative Svcs., 260 Ga. 690, 698 (398 SE2d 540) (1990). “We note that inadequacy of consideration is an equitable matter, which may be resolved without a jury.” Guillebeau v. Yeargin, 254 Ga. 490 (3) (330 SE2d 585) (1985).