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Gause v. Fidelity Bank

Court of Appeals of Georgia

July 8, 2015

GAUSE et al.
v.
FIDELITY BANK

Cert. applied for.

Note. Cobb Superior Court. Before Judge Schuster.

Caldwell & Watson, Harmon W. Caldwell, Jr., Robert S. Carlson; Cauthorn Nohr & Owen, Thomas E. Cauthorn, for appellants.

Arnall Golden Gregory, David J. Marmins, Rebecca I. Lunceford, for appellee.

MILLER, Judge. Andrews, P. J., concurs. Branch, J., concurs fully as to Divisions 1 (a), 2 and 3 and concurs in judgment only as to Division 1 (b).

OPINION

Page 208

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

Page 209

to Fidelity on the Defendants' counterclaims for set-off and [332 Ga.App. 845] 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 S.E.2d 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 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 ...


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