Baker v. Brannen/Goddard Co., 559 S.E.2d 450 (Ga. 2002). · Go Syfert
Baker v. Brannen/Goddard Co., 559 S.E.2d 450 (Ga. 2002). Cases Citing This Book View Copy Cite
“where the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must the judgment below was correct and affirm.”
104 citation events (104 in the last 25 years) across 7 distinct courts.
Strongest positive: Southern Telecom, Inc. v. Level 3 Communications, LLC (gactapp, 2008-12-15)
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Top citers, strongest first. 29 distinct citers.
discussed Cited as authority (quoted) Southern Telecom, Inc. v. Level 3 Communications, LLC (2×) also: Cited "see, e.g."
Ga. Ct. App. · 2008 · signal: see also · quote attribution · 1 verbatim quote · confidence low
when the statute of limitations begins running on a breach of contract claim depends on whether the agreement is entire or divisible.
discussed Cited as authority (quoted) Hamburger v. PFM Capital Management, Inc. (2×) also: Cited "see"
Ga. Ct. App. · 2007 · signal: see · quote attribution · 1 verbatim quote · confidence high
a statute of limitations begins to run 'on the date that suit on the claim can first be brought.
discussed Cited as authority (quoted) Bynum v. Horizon Staffing (2×) also: Cited as authority (rule)
Ga. Ct. App. · 2004 · quote attribution · 1 verbatim quote · confidence low
where the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must the judgment below was correct and affirm.
discussed Cited as authority (rule) Crewe Acquisitions, Inc. v. Steven Kendrick, in His Official Capacity as Tax Commissioner of Augusta
Ga. Ct. App. · 2019 · confidence medium
See Executrix of the Estate of Seamans v. True, 247 Ga. 721, 723 (3) ( 279 SE2d 447 ) (1981) (rejecting appellee’s argument that the absence of a transcript of the summary judgment hearing invoked an assumption that evidence presented at that hearing was sufficient to support the summary judgment, where the contested summary judgment order stated that the ruling was based upon the parties’ pleadings and an affidavit);6 see also Baker v. Brannen/Goddard, 274 Ga. 745, 747-748 (1) ( 559 SE2d 450 ) (2002) (explaining that a hearing transcript was irrelevant to the appellate review of the summa…
cited Cited as authority (rule) Campbell v. CGM
D.N.H. · 2017 · confidence medium
“When the statute of limitations begins running on a breach of contract claim depends on whether the agreement is entire or divisible.” Baker v. Brannen/Goddard Co., 559 S.E.2d 450, 453 (Ga. 2002).
cited Cited as authority (rule) David A. Wood v. Unified Government of Athens-Clarke County, Georgia
11th Cir. · 2016 · confidence medium
Put differently, an entire contract involves “a single sum certain.” Baker v. Brannen/Goddard Co., 274 Ga. 745 , 559 S.E.2d 450, 453 (2002).
discussed Cited as authority (rule) Access Insurance Planners, Inc. v. Gee
Fla. Dist. Ct. App. · 2015 · confidence medium
Id.) see also Vetro v. City of Coral Springs, 901 So.2d 875 (Fla. 4th DCA 2004); Bishop v. State, Div. of Ret., 413 So.2d 776 (Fla. 1st DCA 1982); Greene v. Bwrsey, 733 So.2d 1111 (Fla. 4th DCA 1999) (involving monthly installment payments on a promissory note and holding that the statute of limitations had run on some payments but not others); Baker v. Bramen/Goddard Co., 274 Ga. 745 , 559 S.E.2d 450, 454 (2002) (holding that commission contract “for an indefinite total amount which was payable in installments” over an uncertain period was a divisible installment contract).
discussed Cited as authority (rule) fladistctapp 2015
Fla. Dist. Ct. App. · 2015 · confidence medium
Id.; see also Vetro v. City of Coral Springs, 901 So. 2d 875 (Fla. 4th DCA 2004); Bishop v. State, Div. of Ret., 413 So. 2d 776 (Fla. 1st DCA 1982); Greene v. Bursey, 733 So. 2d 1111 (Fla. 4th DCA 1999) (involving monthly installment payments on a promissory note and holding that the statute of limitations had run on some payments but not others); Baker v. Brannen/Goddard Co., 559 S.E.2d 450, 454 (Ga. 2002) (holding that commission contract “for an indefinite total amount which was payable in installments” over an uncertain period was a divisible installment contract).
cited Cited as authority (rule) Wood v. Unified Government of Athens-Clarke County
M.D. Ga. · 2015 · confidence medium
Baker v. Brannen/Goddard Co., 274 Ga. 745, 748-49 , 559 S.E.2d 450, 453-54 (2002).
discussed Cited as authority (rule) Hunt v. State (2×)
Ga. Ct. App. · 2010 · confidence medium
“Where[, as here,] the transcript is necessary for review and [Hunt] omits it from the record on appeal, the appellate court must presume the judgment below was correct and affirm.” (Citations and punctuation omitted.) Baker v. Brannen/Goddard Co., 274 Ga. 745, 747 (1) ( 559 SE2d 450 ) (2002); Bynum v. Horizon Staffing, 266 Ga. App. 337, 339 ( 596 SE2d 648 ) (2004) (burden is on appellant to show error from the record, not from assertions in his appellate brief).
cited Cited as authority (rule) Teachers Retirement System of Ga. v. Plymel
Ga. Ct. App. · 2009 · confidence medium
Baker v. Brannen/Goddard Co., 274 Ga. 745, 748-749 (2) ( 559 SE2d 450 ) (2002).
discussed Cited as authority (rule) League v. Citibank (South Dakota) (2×)
Ga. Ct. App. · 2008 · confidence medium
In the absence of such reference, the Court will not search for or consider such enumeration."). [6] Baker v. Brannen/Goddard Co., 274 Ga. 745, 747 (1), 559 S.E.2d 450 (2002) (citations and punctuation omitted). [7] 15 U.S.C. § 1666 et seq. [8] 15 U.S.C. § 1666 (a). [9] Id. [10] 15 U.S.C. § 1666 (b)(4). [11] 15 U.S.C. § 1666 (e). [12] 12 C.F.R. § 226.13 (b)(3) (emphasis supplied). [13] See Millan, supra at 1066 (granting summary judgment to bank, which was not required to respond to notice of billing error concerning "signed note(s) as money, credit or payment") (punctuation omitted); Car…
discussed Cited as authority (rule) Jenkins v. Sallie Mae, Inc.
Ga. Ct. App. · 2007 · confidence medium
Co. v. Alma Exchange Bank & Trust, 195 Ga. App. 103, 104 (1) ( 392 SE2d 320 ) (1990). 18 See Loftin v. Brown, 179 Ga. App. 337, 339 (2) ( 346 SE2d 114 ) (1986). 19 See Lewis v. State of New Jersey Dept. of Higher Ed., 165 Ga. App. 574 ( 302 SE2d 128 ) (1983); Baker v. Brannen/Goddard Co., 274 Ga. 745, 749-750 (2) ( 559 SE2d 450 ) (2002).
discussed Cited as authority (rule) New Morn Foods, Inc. v. B & B Egg Co.
Ga. Ct. App. · 2007 · confidence medium
Center, 270 Ga. App. 155, 156 ( 605 SE2d 879 ) (2004), citing OCGA § 9-11-56 (c). 2 OCGA § 9-3-24 provides, in pertinent part: “All actions upon simple contracts in writing shall be brought within six years after the same become due and payable.” 3 (Citation and punctuation omitted.) Koncul Enterprises v. Fleet Finance, 279 Ga. App. 39, 41 (1) (b) ( 630 SE2d 567 ) (2006). 4 (Citation omitted.) Baker v. Brannen/Goddard Co., 274 Ga. 745, 748 (2) ( 559 SE2d 450 ) (2002). 5 (Citation and punctuation omitted.) Id. at 750 (2). 6 Id. at 749 (2) (contract to pay commissions in indefinite total a…
examined Cited as authority (rule) Koncul Enterprises Inc. v. Fleet Finance, Inc. (3×) also: Cited "see"
Ga. Ct. App. · 2006 · confidence medium
“A statute of limitations begins to run on the date that suit on the claim can first bebrought.” (Citation andpunctuation omitted.) Baker v. Brannen/Goddard Co., 274 Ga. 745, 749 (2) ( 559 SE2d 450 ) (2002).
cited Cited as authority (rule) Bay Meadow Corp. v. Hart
Ga. Ct. App. · 2005 · confidence medium
(Citation and punctuation omitted.) Baker v. Brannen/Goddard Co., 274 Ga. 745, 747 (1) ( 559 SE2d 450 ) (2002).
discussed Cited as authority (rule) Griffis v. Branch Banking & Trust Co.
Ga. Ct. App. · 2004 · confidence medium
Co., 261 Ga. App. 670 ( 583 SE2d 466 ) (2003). 6 Burnham v. Cooney, 265 Ga. App. 246, 247 (1) ( 593 SE2d 701 ) (2004). 7 American Car Rentals v. Walden Leasing, 220 Ga. App. 314, 318 (2) ( 469 SE2d 431 ) (1996). 8 Rice v. Baker, 264 Ga. App. 704 (1) ( 592 SE2d 186 ) (2003). 9 Baker v. Brannen/Goddard Co., 274 Ga. 745, 747 (1) ( 559 SE2d 450 ) (2002). 10 Gill v. B & R Intl., 234 Ga. App. 528, 531 (1) (c) ( 507 SE2d 477 ) (1998). 11 Ga. Bldg.
discussed Cited as authority (rule) Vetro v. City of Coral Springs
Fla. Dist. Ct. App. · 2004 · confidence medium
Mar. 27, 1987) (observing that “[ejmployment contracts — in which one party’s performance of services and the other party’s payment of compensation are readily apportionable into individual segments — tend to be divisible”); Baker v. Brannen/Goddard Co., 274 Ga. 745 , 559 S.E.2d 450, 453 (2002); Piedmont Life Ins.
examined Cited as authority (rule) Walker v. Gwinnett Hospital System, Inc. (3×) also: Cited "see"
Ga. Ct. App. · 2003 · confidence medium
Thus, Baker v. Brannen/Goddard Co., 274 Ga. 745, 749-750 (2) ( 559 SE2d 450 ) (2002), held that the six-year period started when the first monthly installment payment of commissions was missed.
discussed Cited as authority (rule) Pfeiffer v. Georgia Department of Transportation (2×)
Ga. · 2002 · confidence medium
"It is the grant itself that is to be reviewed for error, and not the analysis employed. [Cit.]" Albany Oil Mill v. Sumter EMC, 212 Ga.App. 242, 243 (3), 441 S.E.2d 524 (1994). "[A] trial court does not sit as the trier of fact, but `review(s) the evidence and determine(s) whether a prima facie case has been proven by the movant.' [Cits.]" Baker v. Brannen/Goddard Co., 274 Ga. 745, 747 (1), 559 S.E.2d 450 (2002).
discussed Cited as authority (rule) Brannen/Goddard Co. v. Baker
Ga. Ct. App. · 2002 · confidence medium
Division 7 of the decision of the Court of Appeals in this case has been affirmed in part and reversed in part by the Supreme Court, Baker v. Brannen/Goddard Co., 274 Ga. 745, 750 (2) ( 559 SE2d 450 ) (2002), as follows: [T]he judgment of the Court of Appeals is reversed to the extent that it allows B/G and Rich to recover for any unpaid monthly commissions due before September of 1992.
discussed Cited as authority (rule) Harvey v. J. H. Harvey Co.
Ga. Ct. App. · 2002 · confidence medium
Baker v. Brannen/Goddard Co., 274 Ga. 745, 748-749 ( 559 SE2d 450 ) (2002); Douglas & Lomason Co. v. Hall, 212 Ga. App. 475, 476-477 (1) ( 441 SE2d 870 ) (1994); see Schuck v. Blue Cross &c., 244 Ga. App. 147 ( 534 SE2d 533 ) (2000); Barker v. CTC Sales Corp., 199 Ga. App. 742 (1) ( 406 SE2d 88 ) (1991).
discussed Cited "see" Iler Group, Inc. v. Discrete Wireless, Inc. (2×)
N.D. Ga. · 2015 · signal: see · confidence high
See Baker v. Brannen/Goddard Co., 274 Ga. 745 , 559 S.E.2d 450 (2002).
discussed Cited "see" Jenkins v. Blue Moon Cycle, Inc. (2×)
Ga. Ct. App. · 2006 · signal: see · confidence high
See Executrix of the Estate of Seamans v. True, 247 Ga. 721, 723 (3) ( 279 SE2d 447 ) (1981).” Baker v. Brannen/Goddard Co., 274 Ga. 745, 747 (1) ( 559 SE2d 450 ) (2002).
discussed Cited "see" Carswell v. Oconee Regional Medical Center, Inc. (2×)
Ga. Ct. App. · 2004 · signal: see · confidence high
See Baker v. Brannen/Goddard Co., 274 Ga. 745, 750 (2) ( 559 SE2d 450 ) (2002).
discussed Cited "see, e.g." JILL EDEN v. JOHN F. EDEN (2×)
Ga. Ct. App. · 2021 · signal: see also · confidence medium
See also Baker v. Brannen/Goddard Co., 274 Ga. 745, 750 (2) ( 559 SE2d 450 ) (2002) (Sears, P. J., concurring) (cautioning against considering matters outside of the appellate record for the case on review). 2 Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 09/16/2021 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia.
discussed Cited "see, e.g." Cameron v. Miles (2×)
Ga. Ct. App. · 2011 · signal: see also · confidence medium
Co., 183 Ga. App. 577, 578 ( 359 SE2d 441 ) (1987) (“[T]he failure of a party either to respond to interrogatories or to seek a protective order authorizes the imposition of immediate sanctions without the preliminary necessity of an order to compel.” (citation omitted)). 8 Wetherington, 153 Ga. App. at 305 (2) (citation and punctuation omitted); see also Sterling, Winchester & Long, LLC v. Loyd, 280 Ga. App. 416, 419 (4) ( 634 SE2d 188 ) (2006). 9 See, e.g., Baker v. Brannen/Goddard Co., 274 Ga. 745, 747 (1) ( 559 SE2d 450 ) (2002). 10 Neely v. Jones, 264 Ga. App. 795, 796 ( 592 SE2d 447 …
discussed Cited "see, e.g." Phoenix Insurance Company v. Patterson (2×)
Ga. Ct. App. · 2008 · signal: compare · confidence medium
Compare Baker v. Brannen/Goddard Co., 274 Ga. 745, 747-748 ( 559 SE2d 450 ) (2002) (reaching merits despite missing transcript of summary judgment hearing when “the trial court limited itself to the evidence which had been filed in the case and did not consider any additional evidence”).
discussed Cited "see, e.g." Oakwood Acceptance Corp. v. Ahmad (2×)
Ga. Ct. App. · 2005 · signal: see, e.g. · confidence medium
See, e.g., Baker v. Brannen/Goddard Co., 274 Ga. 745, 749 (2) ( 559 SE2d 450 ) (2002) (each breach of a contract payable in installments constitutes a separate cause of action); see also OCGA § 13-6-14.
BAKER
v.
BRANNEN/GODDARD COMPANY Et Al.
S01G0920.
Supreme Court of Georgia.
Feb 4, 2002.
559 S.E.2d 450
Chamberlain, Hrdlicka, White & Williams, James L. Paul, Matthew J. McCoyd, for appellant., Morris, Manning & Martin, Lewis E. Hassett, Jessica F. Pardi, Jennifer L. McKernan, Perry A. Phillips, for appellees., Weissman, Nowack, Curry & Wilco, Seth G. Weissman, Steven D. Caley, amici curiae.
Carley, Sears.
Cited by 35 opinions  |  Published
3 passages pin-cited by 3 cases
Pinpoint authority: #18,144 of 633,719
Citer courts: Court of Appeals of Georgia (3)

Lead Opinion

Carley, Justice.

We granted certiorari to review Divisions 5 and 7 of Brannen/Goddard Co. v. Baker, 248 Ga. App. 248, 251-253 (544 SE2d 750) (2001). The case concerns the interplay between two successive Fulton County lawsuits, each of which seeks recovery of the same real estate commission. It also raises issues as to the relationship between the two separate appeals filed in connection therewith.

The original action was brought by Brannen/Goddard Company (B/G) and King Industrial Realty, Inc. (King) against PNC Realty Holding Corporation of Georgia (PNC) and Nolan Road West, Ltd. (Nolan), a limited partnership headquartered in Clayton County. In 1987, Nolan, in its capacity as the then-owner of certain leased property, entered into an agreement to pay a commission to B/G and King as consideration for their procurement of a tenant. The commission was payable in monthly installments over the term of the lease and any extension or renewal thereof. Nolan claimed that PNC assumed the obligation to pay the commission when it purchased the property in 1992 and became the lessor. PNC denied that it assumed Nolan’s obligation for the commission, and moved for summary judgment. The trial court granted PNC’s motion, and the Court of Appeals affirmed. Brannen/Goddard Co. v. PNC Realty Holding Corp., 238 Ga. App. 387 (519 SE2d 35) (1999). Accordingly, the original action proceeded against Nolan. For purposes of this appeal, that proceeding will be referred to as the “Nolan Action.”

During the pendency of the Nolan Action, the other lawsuit was filed, in which B/G and Jack Rich, an agent of King, sought to recover the same commission from Baker, who was a former general partner in Nolan. For purposes of this appeal, that case will be referred to as the “Baker Action.”

The lawsuits were assigned to different trial judges, and the parties objected to the consolidation of the two proceedings. However, the judge who was handling the Baker Action eventually transferred[*746] that case to the judge to whom the Nolan Action was assigned. Thereafter, the two cases, though technically remaining separate, were both pending before the same trial judge. In November of 1999, the trial court held a consolidated hearing and issued orders in both cases. Nolan filed a notice of appeal in the Nolan Action, and B/G and Rich filed a notice of appeal in the Baker Action. In each notice of appeal, Appellant requested that the record include a copy of the transcript of the November 1999 hearing. Due to an apparent clerical error below, however, two transcripts were filed in the Nolan Action and none was filed in the Baker Action. B/G and King moved to supplement the record in the Baker Action with a transcript. By order, the Court of Appeals noted that the record in the pending Nolan Action contained duplicate transcripts and, for that reason, denied as unnecessary the motion to supplement the record in the Baker Action.

The Court of Appeals addressed the merits of both appeals in a single consolidated opinion. Nolan Road West v. PNC Realty Holding Corp., 248 Ga. App. 248 (544 SE2d 750) (2001). In the Nolan appeal, Nolan enumerated as error the denial of its motion to transfer the case to Clayton County, contending that basing venue in Fulton County as the residence of its limited partner was improper. However, the Court of Appeals affirmed that ruling. Nolan Road West vPNC Realty Holding Corp., supra at 250 (2). Nolan applied for and we granted certiorari in order to review the venue issue. Today, the holding of the Court of Appeals in that regard has been reversed in a separate opinion. Nolan Road West v. PNC Realty Holding Corp., 274 Ga. 742 (559 SE2d 447) (2002).

This appeal concerns the trial court’s grant of summary judgment in favor of Baker in the Baker Action, on the ground that the statute of limitations had run on any claim for the commission against him personally. The Court of Appeals reversed that ruling. Brannen/Goddard Co. v. Baker, supra at 252 (7). In connection with its holding, that Court noted that it had taken judicial notice of the transcript of the consolidated hearing of November 1999, even though that transcript had been filed only in connection with the appeal in the separate Nolan Action. The Court of Appeals concluded that the appeals in the Nolan and Baker Actions were “companion cases,” which status authorized an appellate court to consider in both cases the record filed in either. Brannen/Goddard Co. v. Baker, supra at 252 (5). We granted certiorari to review both the procedural judicial notice issue and the substantive statute of limitations issue.

1. According to Baker, the Court of Appeals erred in treating the Nolan and Baker Actions as “companion cases,” and that erroneous treatment was harmful to his appeal because, without the transcript, the evidence would be conclusively presumed sufficient to support[*747] the trial court’s ruling in his favor. “[W]here the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm. [Cits.]” Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) (1981). Thus, the principle upon which Baker relies to assert harmful error applies only if the Court of Appeals’ consideration of the transcript was essential to the resolution of the appeal.

The transcript at issue revealed what took place at a hearing on Baker’s motion for summary judgment. In connection with such a motion, the trial court does not sit as the trier of fact, but “review [s] the evidence and determine [s] whether a prima facie case has been proven by the movant.” Dental One Assoc. v. JKR Realty Assoc., 269 Ga. 616, 618 (1) (501 SE2d 497) (1998). A motion for summary judgment must be filed 30 days before the hearing and can be granted only

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .

OCGA § 9-11-56 (c). Thus, “[o]nly supporting material which is ‘on file’ at least 30 days before the hearing shall be considered for the movant.” Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631, 632 (278 SE2d 377) (1981). Since the purpose of the hearing is not the reception of evidence, the transcript is not usually necessary in an appeal from the grant of a motion for summary judgment. See Executrix of the Estate of Seamans v. True, 247 Ga. 721, 723 (3) (279 SE2d 447) (1981). Legal argument presented to the trial court as to whether the material already on file authorizes the grant of summary judgment is not evidence. “It is the evidence of record, not the assertions and objections made by counsel at the hearing, which determines the validity or invalidity of the grant of summary judgment. [Cits.]” Dental One Assoc. v. JKR Realty Assoc., supra at 617-618 (1).

In the order granting Baker’s motion, the trial court indicated that it considered the “pleadings, affidavits, briefs, depositions and other matters on file. The court has also considered oral argument of counsel.” Thus, the trial court limited itself to the evidence which had been filed in the case and did not consider any additional evidence on behalf of Baker. Executrix of the Estate of Seamans v. True, supra at 723 (3). Compare Gill v. B&R International, 234 Ga. App. 528, 531 (1) (c) (507 SE2d 477) (1998); Georgia Recovery v. Danley, 215 Ga. App. 236, 237 (2) (450 SE2d 263) (1994). Moreover, Baker’s motion was[*748] based, in relevant part, upon his statute of limitations defense. Although the attorneys obviously presented opposing legal arguments as to when the applicable statute began to run, the controlling factor in that regard was the complaint bearing the date that it was filed. Under these circumstances, the transcript of the hearing was irrelevant to an appellate consideration of the grant of Baker’s motion based upon the statute of limitations. Thus, we need not determine whether the Court of Appeals erred in treating the Nolan and Baker Actions as “companion cases.” Even assuming without deciding that it was erroneous to characterize them as such, Baker was not harmed by the Court of Appeals’ consideration of the transcript filed in the Nolan Action which contained no relevant evidence that was not otherwise of record in the Baker Action.

2. In January of 1992, Nolan filed for bankruptcy and ceased to make any commission payments and, in September of that same year, it sold the property to PNC. There is no dispute that the six-year statute of limitations applies to B/G’s and Rich’s claim for the unpaid commissions. OCGA § 9-3-24. The contested issue is when that statute began to run. Citing Hunter v. Benamy Realty Co., 115 Ga. App. 829 (156 SE2d 160) (1967), the Court of Appeals held that the six-year period did not commence until September of 1992, when Nolan sold the property without requiring that PNC assume the obligation for the commission payments. Baker urges that the Court of Appeals erred and that he is entitled to summary judgment, because the statute started to run as to all installments in January of 1992, upon Nolan’s bankruptcy and initial default on its monthly obligation to pay the commissions.

When the statute of limitations begins running on a breach of contract claim depends on whether the agreement is entire or divisible. Douglas & Lomason Co. v. Hall, 212 Ga. App. 475, 477 (1) (441 SE2d 870) (1994). Here, the agreement is not entire, because the contractual consideration at issue is not a single sum certain which remained unpaid after a definite due date. Compare Wall v. C & S Bank, 153 Ga. App. 29, 31 (4) (264 SE2d 523) (1980) (suit on promissory note containing acceleration clause), overruled on other grounds, McKeever v. State of Ga., 189 Ga. App. 445, 446 (375 SE2d 899) (1988); Slaten v. College Park Cemetery Co., 54 Ga. App. 451 (2) (188 SE 257) (1936) (suit on an unaccelerated purchase-money contract); Glass v. Grant, 46 Ga. App. 327, 328 (2) (167 SE 727) (1933) (suit on an unaccelerated promissory note). The agreement provided for the ongoing monthly payment of commissions

during the initial [lease] term and any extension or renewal hereof. . . . [I]t being the intention of the parties that [B/G and King] shall continue to be compensated so long as the[*749] parties hereto, their successors and/or their assigns continue the relationship to [Nolan] and Tenant which initially resulted from the efforts of [B/G and King]....

Thus, the contract was for an indefinite total amount which was payable in installments over the uncertain period of the underlying tenancy. Accordingly, the commissions were only earned on a month-to-month basis as the tenant procured by B/G and King incurred the legal obligation to pay rent to Nolan or its successor or assignee. See Douglas & Lomason Co. v. Hall, supra at 477 (1). See also Pope v. Read, 152 Ga. 799 (2) (111 SE 382) (1922); McLaughlin v. Maund, 55 Ga. 689 (1876); Brackett v. Cartwright, 231 Ga. App. 536, 538 (1), fn. 1 (499 SE2d 905) (1998); Nickerson v. Candler Building, 156 Ga. App. 396, 399 (5) (274 SE2d 582) (1980); Piedmont Life Ins. Co. v. Bell, 103 Ga. App. 225, 235 (3) (119 SE2d 63) (1961).

The commissions agreement is, therefore, a divisible installment contract. See Douglas & Lomason Co. v. Hall, supra at 477 (1); Martin v. McLain, 51 Ga. App. 336 (3) (180 SE 510) (1935). In such an agreement, “the breaches occur at successive periods . . . [and] an action will lie for each breach; but all the breaches occurring up to the commencement of the action must be included therein.” OCGA § 13-6-14. Unlike a payee who accelerates the remaining indebtedness evidenced by an overdue promissory note, B/G and Rich did not have an immediate claim for the entirety of all future unearned monthly installments payable under the contract. See Brackett v. Cartwright, supra at 538 (1), fn. 1; Nickerson v. Candler Building, supra at 399 (5). Baker urges an estoppel against recognition of the agreement as an installment contract, because B/G and Rich elected to treat it as an entire contract by making an unauthorized claim for accelerated unearned commissions in their complaints. However, those allegations relate solely to B/G’s and Rich’s remedy and, therefore, do not constitute a basis for asserting an estoppel in this proceeding. “A plaintiff may pursue any number of consistent or inconsistent remedies against the same person or different persons until he shall obtain a satisfaction from some of them.” OCGA § 9-2-4. Compare Wolfork v. Tackett, 273 Ga. 328 (540 SE2d 611) (2001); Anderson v. Oakley, 133 Ga. App. 758, 759 (1) (212 SE2d 875) (1975). Although B/G and Rich unsuccessfully sought unearned future commissions below, they are not estopped from obtaining a judgment inclusive of any past due commissions to which they might be entitled.

A statute of limitations begins to run “on the date that suit on the claim can first be brought.” Hoffman v. Ins. Co. of N.A., 241 Ga. 328, 329 (245 SE2d 287) (1978). Thus, the six-year period in this case started when the first breach of the commissions agreement[*750] occurred. Mobley v. Murray County, 178 Ga. 388 (1) (173 SE 680) (1934). Had that taken place in September of 1992 when the new owner failed to assume Nolan’s contractual obligation, the statute would have started running then. See Hunter, supra. However, that breach was preceded by the one which occurred in January of 1992, when Nolan defaulted on its obligation to pay the commissions. Because Nolan was already in default when it transferred the property, the breach which occurred in September of 1992 is irrelevant for statute of limitations purposes. Therefore, the Court of Appeals erred in holding that the six-year period did not commence until the date of that subsequent breach. The statute started running in January of 1992.

Suit was filed against Baker in September of 1998, more than six years after the statute began to run. However, claims for only those unpaid monthly installments due more than six years before the suit was filed are barred. Because the agreement is “strictly divisible, the statute will run separately as to each payment or performance when it becomes due, either as an independent obligation or as a return for an instal[l]ment of the counter-performance. [Cit.]” Piedmont Life Ins. Co. v. Bell, supra at 235 (3). See also Douglas & Lomason Co. v. Hall, supra at 477 (1). Thus, the judgment of the Court of Appeals is reversed to the extent that it allows B/G and Rich to recover for any unpaid monthly commissions due before September of 1992. Recovery is limited to the six-year period preceding the filing of the complaint and, in the event of an amendment, any unpaid installments which become due in the months subsequent to September 1998. Nickerson v. Candler Building, supra at 399 (5).

Judgment affirmed in part and reversed in part.

All the Justices concur.

Concurrence

Sears, Presiding Justice,

concurring.

I agree with the majority that the Court of Appeals’ consideration of the transcript from the Nolan action when deciding the present appeal was not harmful, as it did not result in the consideration of any evidence not already included in the record in this appeal. However, I believe that the Court of Appeals clearly erred by considering matters outside the appellate record in this case. If repeated, such a practice will bring uncertainty to an appellate record’s limited scope, something in which litigants should have confidence. Furthermore, while there appears to be no harm in the present appeal, I am convinced that in most instances, considering matters outside of the record when deciding an appeal would result in harmful error. Therefore, I caution against this practice in future cases.

[*751] Decided February 4, 2002. Chamberlain, Hrdlicka, White & Williams, James L. Paul, Matthew J. McCoyd, for appellant. Morris, Manning & Martin, Lewis E. Hassett, Jessica F. Pardi, Jennifer L. McKernan, Perry A. Phillips, for appellees. Weissman, Nowack, Curry & Wilco, Seth G. Weissman, Steven D. Caley, amici curiae.