GAUSE Et Al. v. FIDELITY BANK , 332 Ga. App. 844 ( 2015 )

SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
July 8, 2015
In the Court of Appeals of Georgia
A15A0284. GAUSE et al. v. FIDELITY BANK.
MILLER, Judge.
This case arises from William L. Gause and Gause Construction Company,
Inc’s (collectively “Defendants”) default on a promissory note and unconditional
guaranty. Fidelity Bank, the holder of the note and guaranty, sued the Defendants for
breach of the note and guaranty. Defendants counterclaimed for, inter alia, set-off and
recoupment. The trial court subsequently granted summary judgment to Fidelity, and
the Defendants appeal, contending that (1) the trial court erred in granting summary
judgment to Fidelity on the guaranty and note, (2) the trial court erred in granting
summary judgment to Fidelity on the Defendants’ counterclaims for set-off and
recoupment, and (3) the trial court abused its discretion in considering and relying on
certain deposition testimony. For the reasons that follow, we affirm in part and
reverse in part.
Summary judgment is proper when there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law.
A de novo standard of review applies to an appeal from a [grant or]
denial of summary judgment, and we view the evidence, and all
reasonable conclusions and inferences drawn from it, in the light most
favorable to the nonmovant.
(Citations and footnote omitted.) GEICO Gen. Ins. Co. v. Wright, 299 Ga. App. 280,
281 (682 SE2d 369) (2009).
So viewed, the evidence shows that Gause obtained a $1.1 million loan from
Fidelity’s predecessor in interest, Securities Exchange Bank (“SEB”)1 on August 11,
2008, for the purchase of 25 lots in a subdivision.2 The loan was evidenced by a
contemporaneous promissory note signed by Gause (hereinafter the “Note”). That
same day, as part of the security for the loan, Gause signed an unconditional guaranty
of the note on behalf of Gause Construction (hereinafter the “Guaranty”), as well as
1
After SEB failed and went into receivership, Fidelity purchased SEB’s assets
from the FDIC.
2
In connection with the loan, Gause also signed a waiver of rights to notice and
hearing in the event of default.
2
a corporate resolution authorizing him to execute the Guaranty and a corporate W-9
form.3 On April 28, 2010, Gause renewed the Note for a two-year term in the
principal amount of $1,100,900. Gause and Gause Construction admittedly failed to
pay the Note in full by the due date, April 28, 2012.
1. The Defendants contend that the trial court erred in granting summary
judgment to Fidelity on the Note and Guaranty. We agree in part.
(a) Gause’s Breach of the Note
“A promissory note is an unconditional contract whereby the maker engages
that he will pay the instrument according to its tenor. . . . The note being an
unconditional promise, the contract is complete as written[.]” (Citations and
punctuation omitted.) Devin Lamplighter, Ltd. v. American Gen. Finance, 206 Ga.
App. 747, 749 (2) (426 SE2d 645) (1992).
A plaintiff seeking to enforce a promissory note establishes a
prima facie case by producing the note and showing that it was
executed. Once that prima facie case has been made, the plaintiff is
entitled to judgment as a matter of law unless the defendant can
establish a defense.
3
The loan security also included a security deed on the 25 lots and an
assignment of rents and leases.
3
(Footnote omitted) Core LaVista, LLC v. Cumming, 308 Ga. App. 791, 795 (1) (b)
(709 SE2d 336) (2011).
Defendants argue that a question of fact remains regarding mutual assent to the
Guaranty and, therefore, the trial court erred in finding that the Note is a separate,
independent and enforceable contract. Contrary to Defendants’ argument, a
guaranty, whether entered into on the same or another instrument as that
of the original obligation, whether executed at the same or a different
time, and whether or not purporting to be the separate obligation of the
signer . . . is a separate [and enforceable] contract[.]
(Citations omitted.) Bearden v. Ebcap Supply Co., 108 Ga. App. 375 (133 SE2d 62)
(1963); see also OCGA § 10-7-1 (defining guaranty contract and providing that
principal remains bound for its debt regardless of whether guaranty is given in
consideration for benefit flowing to guarantor or for benefit given to principal).
Fidelity established a prima facie case by producing the Note; the undisputed
evidence showed that the Note was duly executed and was admittedly in default; and
Defendants failed to establish a defense to enforcement of the Note. Accordingly, the
trial court properly determined that Fidelity was entitled to summary judgment on its
claim for breach of the Note.
(b) Gause Construction’s Breach of the Guaranty
4
In a suit on a guaranty, production of the instrument entitles the holder to
recover on it when the signature is admitted or established and the defendant does not
establish a defense. See L. D. F. Family Farm, Inc. v. Charterbank, 326 Ga. App.
361, 363 (756 SE2d 593) (2014).
Here, Fidelity produced the contemporaneous Guaranty which identifies Gause
Construction as the guarantor. The Guaranty is incorporated into the Note; the
Guaranty provides that it was given in consideration of the Note and other financial
accommodations made by Fidelity which are of direct interest and benefit to Gause
Construction as the guarantor; and the Guaranty provides that Gause Construction
“unconditionally guarantees the full and prompt payment” of the Note when due.
Moreover, the closing attorney, who prepared the loan documents, including the Note
and Guaranty, testified in his deposition that the Guaranty was prepared under his
supervision at SEB’s direction and that Gause signed the Guaranty at the loan closing.
Defendants nevertheless argue that a question of fact remains regarding mutual
assent to the Guaranty. Specifically, Defendants argue that they have disputed the
authenticity and validity of the Guaranty from the beginning of this case, and argue
that the page bearing Gause’s genuine signature on the Guaranty was attached
5
without his knowledge or consent. In their defense, Defendants point to Gause’s
testimony.
Gause initially deposed that he did not recall executing that instrument. In his
subsequent affidavit, Gause averred that,
Since my deposition, I have carefully examined the copy of the
purported August 11, 2008 Guaranty Agreement handed to me and
attached to Fidelity Bank’s Complaint. I am certain that I did not
execute the Guaranty. While it does appear to bear my signature on the
last page, I believe the signature page may have [sic] come from another
document and [was] attached to give the appearance that I signed it.
As the nonmoving party to Fidelity’s summary judgment motion, the
Defendants were not required to present conclusive proof that Gause’s signature was
invalid. Lee v. Suntrust Bank, 314 Ga. App. 63, 65 (722 SE2d 470) (2012). Rather,
Defendants only had to point to evidence giving rise to a triable issue of material fact,
which they did by submitting Gause’s affidavit averring that he did not sign the
Guaranty. Id.Notwithstanding considerable evidence in the record to the contrary, including
the closing attorney’s testimony, we are constrained to conclude that Gause’s
affidavit testimony stating that he did not execute the Guaranty is sufficient to create
6
a genuine issue of fact with regard to the enforceability of that instrument. See Virgil
v. Kapplin, 187 Ga. App. 206, 207 (1) (369 SE2d 808) (1988) (guarantor’s affidavit
stating that he did not sign guarantees at issue raised genuine issue of fact); Lee,
supra, 314 Ga. App. at 65 (affidavit denying validity of signature created factual
dispute for trial).4 Accordingly, we reverse the grant of summary judgment to Fidelity
on its claim for breach of the Guaranty.
2. Defendants contend that the trial court erred in granting summary judgment
on the Defendants’s counterclaims for setoff and recoupment. We do not agree.
Under Georgia law, a set-off . . . allows the defendant to set off a
debt owed him by the plaintiff against the claim of the plaintiff. A
recoupment is a right of the defendant to have a deduction from the
amount of the plaintiff’s damages because the plaintiff has not complied
with the cross-obligations or independent covenants arising under the
contract being sued upon.
4
Since Gause initially deposed that he did not remember signing the Guaranty,
his affidavit testimony stating that he certainly did not sign the Guaranty cannot be
construed as contradictory, and we must construe his affidavit testimony in the light
most favorable to him as the non-movant. See Prophecy Corp. v. Charles Rossignol,
Inc., 256 Ga. 27, 28-30 (1) (343 SE2d 680) (1986); Virgil, supra, 187 Ga. App. at 207
(1).
7
(Footnotes omitted.) Automated Print v. Edgar, 288 Ga. App. 326, 330 (2) (654 SE2d
413) (2007). The Defendants argue that they are entitled to setoff and recoupment
based on $200,000 in loans to SEB which Gause made between December 30, 2008
and January 2, 2009. Gause’s own deposition testimony, however, shows that the
loans in question were made to a separate and distinct entity, SEB Bancorp, Inc., and
not to Fidelity’s predecessor in interest, SEB. Accordingly, the trial court did not err
in granting summary judgment to Fidelity on the Defendants’s counterclaims for set-
off and recoupment.
3. Defendants contend that the trial court erred in considering the closing
attorney’s deposition testimony. We discern no error.
The record belies Defendants’ argument that they were unaware that Fidelity
intended to take the closing attorney’s deposition. Notably, the record shows that,
more than a week prior to taking the deposition, Fidelity served Defendants with a
copy of the subpoena requiring the closing attorney to appear for his deposition, as
well as the notice of the deposition, and Fidelity filed these documents with the trial
court the day after such service. Moreover, Defendants admitted at the hearing in this
case that they had notice of the closing attorney’s deposition, but did not participate
in or attend the deposition.
8
Defendants also argue that the trial court erred in failing to strike the closing
attorney’s deposition from the record because it was taken after the close of formal
discovery in this case. “A trial court has wide discretion to shorten, extend, or reopen
the time for discovery, and its decision will not be reversed unless a clear abuse of
that discretion is shown.” (Citations omitted.) Woelper v. Piedmont Cotton Mills, 266
Ga. 472, 473 (1) (467 SE2d 517) (1996). Defendants have not shown that the trial
court abused its discretion in failing to strike the closing attorney’s deposition
testimony.
Judgment affirmed in part and reversed in part. Andrews, P. J., concurs.
Branch, J., concurs in judgment only as to Division 1 (b) and concurs fully as to
Divisions 1 (a), 2 and 3.
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