Klorer-Willhardt, Inc. v. Martz, 304 S.E.2d 442 (Ga. Ct. App. 1983). · Go Syfert
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Klorer-Willhardt, Inc. v. Martz, 304 S.E.2d 442 (Ga. Ct. App. 1983). Cases Citing This Book View Copy Cite
“where a party desires to raise an issue as to the capacity or authority of a party to bring an action, he must do so by specific negative averment in his responsive pleadings. ocga 9-11-9 (a). . . . otherwise, such defenses are deemed waived.”
23 citation events (9 in the last 25 years) across 2 distinct courts.
Strongest positive: Dana Zahler v. National Collegiate Student Loan Trust 2006-1 (gactapp, 2020-06-10) · Strongest negative: Solid Rock Baptist Church, Inc. v. Freight Terminals, Inc. (gactapp, 1987-09-09)
Treatment trajectory · 1985 → 2026 · click a year to view as-of
1985 2005 2026
Top citers, strongest first. 9 distinct citers.
discussed Cited "but see" Solid Rock Baptist Church, Inc. v. Freight Terminals, Inc. (2×)
Ga. Ct. App. · 1987 · signal: but see · confidence high
Defendant church’s “Motion for Declaratory Judgment” also sought an adjudication that Coldwell Banker and Noonday Baptist Association were “necessary” parties in this case. 2 Assuming without deciding that the motion was adequate to properly raise the issue of joinder under OCGA § 9-11-19 (a) (see OCGA § 9-11-19 (c); but see Klorer-Willhardt, Inc. v. Martz, 166 Ga. App. 446 (1) ( 304 SE2d 442 ) (1983)), we find no error in the trial court’s denial of same.
examined Cited as authority (quoted) Dana Zahler v. National Collegiate Student Loan Trust 2006-1 (2×) also: Cited "see"
Ga. Ct. App. · 2020 · signal: see · quote attribution · 1 verbatim quote · confidence high
where a party desires to raise an issue as to the capacity or authority of a party to bring an action, he must do so by specific negative averment in his responsive pleadings. ocga 9-11-9 (a). . . . otherwise, such defenses are deemed waived.
discussed Cited as authority (rule) Artson, LLC v. Hudson
Ga. Ct. App. · 2013 · confidence medium
Accordingly, Wiepert, supra, 298 Ga. App. at 685 (2), Klorer-Willhardt, supra, 166 Ga. App. at 446 (1), Caswell v. Jordan, 184 Ga. App. 755, 759 (2) ( 362 SE2d 769 ) (1987), Jones v. Dykes, 231 Ga. App. 110, 111 (4) ( 497 SE2d 828 ) (1998), Kammerer Real Estate Holdings, LLC v. PLH Sandy Springs, LLC, 319 Ga. App. 393, 398 (3) ( 740 SE2d 635 ) (2012), and their progeny are disapproved to the extent they hold otherwise.
discussed Cited as authority (rule) Artson, LLC v. David K. Hudson
Ga. Ct. App. · 2013 · confidence medium
Accordingly, Wiepert, supra, 298 Ga. App. at 685 (2), Klorer-Willhardt, supra, 166 Ga. App. at 446 (1), Caswell v. Jordan, 184 Ga. App. 755, 759 (2) ( 362 SE2d 769 ) (1987), Jones v. Dykes, 231 Ga. App. 110, 111 (4) ( 497 SE2d 828 ) (1998), Kammerer Real Estate Holdings, LLC v. PLH Sandy Springs, LLC, 319 Ga. App. 393, 398 (3) ( 740 SE2d 635 ) (2012), and their progeny are disapproved to the extent they hold otherwise. 6 issue of indispensable parties in his pleadings.
cited Cited as authority (rule) WIEPERT v. Stover
Ga. Ct. App. · 2009 · confidence medium
Otherwise, such defenses are deemed waived. [Cit.]” Klorer-Willhardt, Inc. v. Martz, 166 Ga. App. 446, 447 (1) ( 304 SE2d 442 ) (1983).
discussed Cited as authority (rule) Keeley v. Cardiovascular Surgical Associates, P.C.
Ga. Ct. App. · 1999 · confidence medium
Pittman III, for appellee. 1 159 Ga. App. 202, 203 (3) ( 283 SE2d 1 ) (1981). 2 OCGA § 9-11-9 (a). 3 Patterson v. Duron Paints of Ga., 144 Ga. App. 123, 124 (1) (a) ( 240 SE2d 603 ) (1977); see Guthrie v. Bank South, 195 Ga. App. 123, 124 (2) ( 393 SE2d 60 ) (1990); Youmans v. Riley Properties, 180 Ga. App. 176 ( 349 SE2d 1 ) (1986); Klorer-Willhardt, Inc. v. Martz, 166 Ga. App. 446, 447 (1) ( 304 SE2d 442 ) (1983); Dorsey Heating &c.
cited Cited as authority (rule) Jones v. Dykes
Ga. Ct. App. · 1998 · confidence medium
Otherwise, such defenses are deemed waived. [Cit.]” Klorer-Willhardt, Inc. v. Martz, 166 Ga. App. 446, 447 (1) ( 304 SE2d 442 ) (1983).
cited Cited as authority (rule) Caswell v. Jordan
Ga. Ct. App. · 1987 · confidence medium
Otherwise, such defenses are deemed waived. [Cit.]” Klorer-Willhardt v. Martz, 166 Ga. App. 446, 447 (1) ( 304 SE2d 442 ) (1983). 3.
cited Cited as authority (rule) Youmans v. Riley Properties
Ga. Ct. App. · 1986 · confidence medium
Otherwise, such defense[ ] [is] deemed waived.” Klorer-Willhardt, Inc. v. Martz, 166 Ga. App. 446, 447 ( 304 SE2d 442 ) (1983).
KLORER-WILLHARDT, INC.
v.
MARTZ Et Al.; GRANE AVIATION, INC. v. MARTZ Et Al.
65957, 65958.
Court of Appeals of Georgia.
Apr 11, 1983.
304 S.E.2d 442
Ronald L. Hilley, for appellant (case no. 65957)., Alan Armstrong, for appellant (case no. 65958)., W. Kent Bishop, for appellees.
Banke, Deen, Carley.
Cited by 11 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 68%
Citer courts: Court of Appeals of Georgia (1)
Banke, Judge.

Plaintiffs Charles R. Martz and Kenneth P. Bottoms filed this action against Grane Aviation, Inc., and Klorer-Willhardt, Inc., to[*447] recover $10,000 allegedly paid to Grane as a deposit on the purchase of an airplane owned by Klorer. According to the complaint, Grane accepted the $10,000 after negotiating a sale agreement with Martz on Klorer’s behalf which was contingent on three conditions: The plaintiffs’ ability to obtain satisfactory financing, certification of the airplane as being airworthy, and Martz’s being given ground school and other training by Grane. The complaint alleges that Grane subsequently paid half the $10,000 to Klorer and that although none of the conditions precedent were met, the two defendants refused to return the money on demand. The defendants denied liability and counterclaimed for damages for fraud and breach of contract. These appeals are from a grant of partial summary judgment awarding the plaintiffs $5,000 from each defendant. The appeals were originally directed to the Supreme Court due to an apparent belief on the defendants’ part that claims for equitable relief were involved, and the Supreme Court transferred the cases to this court. Held:

Decided April 11, 1983 Rehearing denied April 29, 1983 Ronald L. Hilley, for appellant (case no. 65957). Alan Armstrong, for appellant (case no. 65958).

1. We cannot agree with the defendants’ contention that plaintiff Bottoms must automatically be declared an improper party to prosecute this suit because the $5,000 contribution which he seeks to recover was made by a corporation rather than by him personally. Where a party desires to raise an issue as to the capacity or authority of a party to bring an action, he must do so by specific negative averment in his responsive pleadings. OCGA § 9-11-9 (a) (Code Ann. § 81A-109). Where it is claimed that the plaintiff has failed to join an indispensable party, the issue must be raised by motion to dismiss filed pursuant to OCGA § 9-11-19 (Code Ann. § 81A-119). Otherwise, such defenses are deemed waived. See Dorsey Heating &c. Co. v. Gordon, 162 Ga. App. 608, 610 (292 SE2d 452) (1982).

2. The grant of partial summary judgment was nevertheless improper, as material issues of fact clearly remain as to whether all the alleged conditions precedent to the contract for the sale of the airplane were met, and, if so, whether the defendants were thereby authorized to retain the $10,000 deposit as liquidated damages for the plaintiffs’ failure to go through with the purchase. See generally OCGA § 9-ll-56(c) (Code Ann. § 81A-156); Ham v. Ham, 230 Ga. 43, 45 (195 SE2d 429) (1973).

Judgment reversed.

Deen, P. J., and Carley, J., concur. [*448] W. Kent Bishop, for appellees.