White Miss. Bap. Church v. Trustees of First Bap. Church

492 S.E.2d 661 (1997)

268 Ga. 668

WHITE MISSIONARY BAPTIST CHURCH v. TRUSTEES OF FIRST BAPTIST CHURCH OF WHITE, GEORGIA

No. S97A1772.

Supreme Court of Georgia.

November 17, 1997.

John W. Childers, Woodstock, for White Missionary Baptist Church.

Newton Hansel Purvis, Decatur, for Trustees of First Baptist Church of White, Georgia.

CARLEY, Justice.

First Baptist Church of White, Georgia (First Baptist), a Southern Baptist Church, called a Missionary Baptist minister, Richard Huskins, to be its new pastor. At the instigation of the Rev. Huskins, White Missionary Baptist Church (Appellant) was organized and began to use First Baptist's property. However, no deed conveying the property from First Baptist to Appellant was ever executed. Subsequently, the trustees of First Baptist (Appellees) brought suit for recovery of First Baptist's property. Appellant answered and counterclaimed for recovery *662 of checkbooks and other records held by Appellee Frank Stephens, but alleged to belong to Appellant. The trial court granted Appellees' motion for summary judgment, and Appellant appeals.

1. Appellant contends that it was error to grant summary judgment because genuine issues of material fact remain as to whether First Baptist's membership voted to disband and to transfer its assets and liabilities to the newly organized Appellant. The only indications in the record of such a vote are contained in affidavits of Rev. Huskins, his wife, and Evie Drawdy.

In one affidavit, Ms. Huskins declared that she was elected clerk pro tem of First Baptist and that the attached minutes were made in the regular course of business. However, she did not state that it was the regular course of business to create those minutes at the time of the acts recorded therein or within a reasonable time thereafter. OCGA § 24-3-14(b). Without such a statement, the alleged minutes are not admissible. Moore v. State, 154 Ga.App. 535, 268 S.E.2d 706 (1980). Compare Martin v. Glenn's Furniture Co., Inc., 126 Ga.App. 692, 695(1), 191 S.E.2d 567 (1972). Thus, we are unable to consider those minutes on review of the order granting summary judgment. Leasecomp, Inc. v. Mercedes-Benz Credit Corp., 202 Ga.App. 567, 568(2), 415 S.E.2d 178 (1992); Sullivan v. Fabe, 198 Ga.App. 824, 829(3), 403 S.E.2d 208 (1991).

In the other affidavits, the Huskinses and Ms. Drawdy stated that the members of First Baptist voted to disband and to transfer all assets and liabilities to Appellant. By doing so, however, they were recounting, in indirect form, the collective statement of First Baptist members in favor of disbanding and transfer to prove that group's decision to do so. Thus, the Huskinses' and Ms. Drawdy's statements regarding the First Baptist vote are inadmissible hearsay. See State v. Judkins, 242 N.W.2d 266, 267-268 (Iowa 1976); Frampton v. Hartzell, 179 Cal. App. 2d 771, 4 Cal. Rptr. 427, 429 (1960); Clark v. Hudson, 265 Ala. 630, 93 So. 2d 138, 142 (Ala.1956); Bauman v. People, 130 Colo. 248, 274 P.2d 591, 592 (1954); Village of Ponca v. Crawford, 18 Neb. 551, 26 N.W. 365, 367-368 (1886).

"[H]earsay testimony is not only inadmissible but wholly without probative value, and its introduction without objection does not give it any weight or force whatever in establishing a fact." Higgins v. Trentham, 186 Ga. 264(1), 197 S.E. 862 (1938). Therefore, the hearsay contained in the affidavits filed by Appellant cannot be considered in determining whether the grant of summary judgment was correct. Southern Med. Corp. v. Liberty Mut. Ins. Co., 216 Ga.App. 289, 291(2), 454 S.E.2d 180 (1995). Accordingly, Appellant has produced no probative evidence that First Baptist no longer exists or that it voted to transfer its assets to Appellant. Thus, evidence that the Church property is held in the name of the trustees of First Baptist and their successors is undisputed. On this basis, the trial court correctly granted summary judgment in favor of Appellees, as the current trustees of First Baptist.

2. In asserting that the trial court erred in granting summary judgment in favor of Appellees on the counterclaim, Appellant argues that no evidence was presented as to the identity or ownership of the parties' bank accounts. However, in verified responses to interrogatories and requests for admission, Stephens and the other Appellees denied changing the name of any account from White Missionary Baptist Church to First Baptist Church or transferring funds from a White Missionary Baptist account to a First Baptist account. Appellant, as the plaintiff-in-counterclaim, "did nothing to meet its burden of proof; it did not rebut [Appellees'] verified answer to the request for admissions and response to interrogatories." Herman v. Walsh, 154 Ga.App. 712, 713, 269 S.E.2d 535 (1980). Thus, the trial court correctly found that the parties should retain their bank accounts in their respective names, as presently held. See Herman v. Walsh, supra.

Judgment affirmed.

All the Justices concur.