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John C. Wilson Co., Inc. v. DO-034 Regions Bank

Court of Appeals of Georgia, Fourth Division

October 10, 2019

JOHN C. WILSON COMPANY, INC. et al.
v.
DO-034 REGIONS BANK

          DOYLE, P. J., COOMER and MARKLE, JJ.

          Doyle, Presiding Judge.

         In this case, defendants John C. Wilson Company, Inc. ("JCW"), and Frank Alton Black, Sr., appeal from the grant of summary judgment to plaintiff Regions Bank ("the Bank") in the Bank's suit on a note executed by JCW and guaranteed by Black. The defendants contend that the trial court erred because (1) service was improper as to JCW; (2) there was a dispute of fact as to the defendants' demand for an accounting; (3) the Bank violated Black's right to financial privacy; and (4) the superior court should have required the Bank to convey its security interest to the defendants. For the reasons that follow, we affirm in part, vacate in part, and remand the case.

         This court reviews a grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmovant.[1] So viewed, the record shows that in May 2009, JCW executed a note in favor of Regions Bank for the principal amount of $258, 243.74, and Black executed an unconditional guaranty on the debt. According to the terms of the note, JCW was required to make 34 monthly payments of $2, 076.96 with a final payment of the outstanding balance due in April 2012. The interest rate was a variable rate equivalent to prime plus two percent, and the note provided for a late fee of five percent of the unpaid portion of the regular payment. By June 2011, JCW stopped making payments, and it did not pay the balance on the maturity date.

         In September 2015, unable to collect on the note and guaranty, the Bank sued JCW and Black, asserting claims for breach of contract with respect to the note and guaranty. Black was served personally and as the corporate agent of JCW. Black and JCW filed answers, challenging service and, inter alia, asserting a counterclaim for an accounting. Discovery ensued, and the Bank moved for summary judgment, attaching an affidavit from Akinwande Childrey, a Bank vice president with knowledge of the business records reflecting the status of the loan, and attaching records reflecting the loan payments and outstanding balance. The defendants opposed the motion, relying in part on an affidavit by Black averring that he was no longer a shareholder in JCW and denying that he had received an accounting. Following a hearing, [2] the trial court granted the Bank's summary judgment motion. JCW and Black now appeal.

         1. The defendants first argue that summary judgment was not appropriate because JCW was not served properly through its corporate agent. As noted above, the record shows that the Bank filed the complaint in September 2015 and served Black as the registered agent of JCW. JCW relies on affidavits by Horace Weathersby and Black averring that Black sold his interest in JCW to Weathersby in 2010, JCW had been administratively dissolved by 2012, and in 2013, Weathersby purported to send a form to the Secretary of State designating himself as the registered agent.

         Nevertheless, the Bank produced certified copies of corporate records from the Secretary of State showing that JCW was administratively dissolved in 2011 and only later reinstated in April 2016 (with Weathersby as the registered agent) pursuant to an application filed by Weathersby in October 2015, one month after the lawsuit was filed. Thus, at the time Black was served, the Secretary of State records indicated that Black was still the registered agent because JCW had not yet been reinstated through Weathersby's application, and "[t]he administrative dissolution of a corporation [did] not terminate the authority of its registered agent" at that time, i.e., Black.[3] In similar contexts, this Court has held that self-serving and conclusory affidavits such as Weathersby's, in the absence of substantiating facts, are insufficient to create a factual issue when demonstrably opposed by business record evidence.[4] Accordingly, the record does not reveal a factual issue with respect to service, and the trial court correctly deemed service proper on JCW through the service on Black.

         2. The defendants also claim error in (a) the lack of a full accounting for the debt, (b) the interest calculation, (c) the late fee awards, and (d) the attorney fee award.

         (a) Evidence of accounting.

         With respect to the accounting provided by the Bank, the record contains authenticated documents showing the debt owed, the payments made by defendants, the interest accrued, and the late fees charged. Other than making bare assertions that the account statement could contain errors, the defendants offer no evidence of such error. "Although [the defendants] may well have had an opinion that [the Bank] had miscalculated the outstanding balance, [they] failed to offer any evidence to support [t]his belief. Conclusory statements in affidavits unsupported by factual evidence are insufficient to avert summary judgment."[5] Accordingly, this argument does not require reversal.

         (b) Interest award.

         The order granting summary judgment makes the following award: a principal amount of $237, 975.72, accrued interest through July 20, 2017, in the amount of $59, 816.07, and continuing interest "at the rate of 5.25 [percent] per year (or $53.65 per day)." The defendants point out, and the Bank concedes, that annual interest of 5.25 percent on a principal amount of $237, 975.72 does not equal $53.65 per day. The Bank asserts that this was the result of a typographical error in the affidavit of its vice president, and the proper per diem amount when calculated according to the note's terms[6] is $34.90. In light of the mathematical error in the affidavit on this point, we vacate this portion of the award and remand for entry of an award reflecting a per diem interest amount consistent with the undisputed annual interest rate. The evidence is not in conflict with respect to the interest rate such that summary judgment was otherwise inappropriate.

         (c) Late fees.

         The defendants also challenge the summary judgment award with respect to the late fee calculation. This requires a construction ...


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