COSTA et al.
HAMILTON STATE BANK.
MCFADDEN, P. J., BRANCH and BETHEL, JJ.
McFadden, Presiding Judge.
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
Timeliness of motion for summary judgment.
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
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,
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.
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
State of Georgia v. Rozier, 288 Ga. 767, 768 (707
S.E.2d 100) (2011) (citation omitted).
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.
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