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Costa v. Hamilton State Bank

Court of Appeals of Georgia, Fifth Division

June 19, 2017

COSTA et al.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         This appeal concerns an action brought by Hamilton State Bank (the bank) on guaranties signed by Juan R. Costa and Freddy A. Achecar (the appellants). The trial court granted summary judgment to the bank, and Costa and Achecar appeal pro se. They argue that the bank's summary judgment motion was untimely, but we find it was within the trial court's discretion to consider the motion. They argue that the bank did not establish their liability on the guaranties, but we find the evidence set forth a prima facie case of liability. Finally, they argue that the bank did not establish its damages, and we agree. Consequently, we affirm the trial court's grant of summary judgment as to liability, but reverse the trial court's grant of summary judgment as to damages.

         1. Timeliness of motion for summary judgment.

         The guarantors argue that the trial court erred in considering the bank's motion for summary judgment because the motion was untimely. A party, such as the bank, seeking to recover upon a claim, "may, at any time after the expiration of 30 days from the commencement of the action . . . move with or without supporting affidavits for a summary judgment in [its] favor upon all or any part thereof." OCGA § 9-11-56 (a). But

the phrase "at any time" does not mean that a motion for summary judgment may be filed without any time limit whatsoever. Uniform Superior Court Rule (USCR) 6.6 provides that "(m)otions for summary judgment shall be filed sufficiently early so as not to delay the trial. No trial shall be continued by reason of the delayed filing of a motion for summary judgment."

Steele v. Riverchase Dev. Co., 311 Ga.App. 340, 341 (1) (715 S.E.2d 760) (2011) (citation and punctuation omitted). Nevertheless, "the trial court has broad discretion in regulating its business and scheduling trials." Cooper-Bridges v. Ingle, 268 Ga.App. 73, 75 (1) (601 S.E.2d 445) (2004) (citation and punctuation omitted).

         The record shows that in January 2016 the trial court entered a case management order stating that, "[e]xcept as otherwise provided in the Civil Practice Act or ordered by the Court, the period for filing motions has already closed." On March 10, 2016, the bank filed a notice of substitution of counsel. On May 2, 2016, the trial court entered a trial notice placing the case on a May 20 trial calendar and stating that outstanding motions "shall be heard prior to the call of the case for trial." And on May 5, 2016, the bank's new counsel filed a motion for summary judgment, which the trial court granted on June 7, 2016.

         The trial court did not abuse his discretion. The bank's new counsel filed the motion for summary judgment three days after the trial court entered the notice of the trial calendar. That notice reflected that the case was not scheduled for trial on a particular day but was one of several cases to be tried on a calendar that "shall continue until exhausion, " on a schedule to be determined at the calendar call. "No continuance of the trial was sought or granted because of the motion for summary judgment; instead, the trial was obviated by the grant of the [bank's] motion for summary judgment. . . . " Pullen v. Oxford, 227 Ga.App. 782 (1) (490 S.E.2d 478) (1997) (citation and punctuation omitted). And more than 30 days elapsed before the trial court ruled on the motion, giving Costa and Achecar the opportunity to respond to it. See OCGA § 9-11-56 (c) (a motion for summary judgment "shall be served at least 30 days before the time fixed for the hearing"); Brown v. Shiver, 183 Ga.App. 207, 209 (2) (358 S.E.2d 862) (1987) (OCGA § 9-11-56 (c) "allows the party opposing a motion for summary judgment at least thirty days to respond before the motion is heard"). We find no error in the trial court's consideration of the bank's motion for summary judgment.

         2. Summary judgment.

To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Where the movant is the plaintiff, [it] has the burden of presenting evidence to support [its] claim and the burden of piercing the defendant's affirmative defenses.

State of Georgia v. Rozier, 288 Ga. 767, 768 (707 S.E.2d 100) (2011) (citation omitted).

         In support of its motion for summary judgment, the bank submitted the affidavit of Paul McLaughlin, its senior vice president and special assets manager, who was the bank employee primarily responsible for administering and recovering upon the guaranties at issue in this case and who also testified as the bank's custodian of records. McLaughlin testified that in January 2006, CA Associates, LLC executed a promissory note in favor of Douglas County Bank. Costa and Achecar each executed guaranties of this obligation, and copies of the guaranties, along with other loan documents, were attached to the affidavit. Douglas County Bank subsequently closed and an appointed receiver assigned all of its assets to bank. Copies of the note, guaranties, and assignment were attached to and referenced in McLaughlin's affidavit. After CA Associates defaulted on its obligation under the note, Costa and Achecar defaulted on their obligations under the guaranties.

         Costa and Achecar argue that the bank was not entitled to summary judgment because it did not establish a prima facie case allowing it to recover on the guaranties and because there exist genuine issues of material fact. A plaintiff in a suit on a guaranty "establishes a prima facie case by producing [the] guarant[y] and showing that it was executed[.]" CSS Real Estate Dev. I v. State Bank and Trust Co., 324 Ga.App. 184, 185 (749 S.E.2d 773) (2013) (citation omitted). When the signature on the guaranty "is admitted or established, production of the instrument entitles the holder to recover on it unless the defendant establishes a defense." L. D. F. Family Farm v. Charterbank, 326 Ga.App. 361, 363 (756 S.E.2d 593) (2014) (citation omitted). "However, where a party sues for damages, it has the burden of proof of showing the amount of loss in a manner in which the trial judge can calculate the amount of the loss with a reasonable degree of certainty." Ware v. Multibank 2009-1 RES-ADC ...

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