K/C ICE, LLC et al.
BARNES, P. J., MERCIER and BROWN, JJ.
the second appearance in this Court of an action filed by
Phillip Connell against K/C Ice, LLC and Bobby Courson
(collectively the "Defendants") alleging unjust
enrichment and breach of two promissory notes and personal
guaranties on those notes. See K/C Ice, LLC et al. v.
Connell, A18A0229 (decided June 27, 2018). In the first
appeal, this Court affirmed the grant of partial summary
judgment to Connell but vacated the judgment as to the amount
and remanded the case for "clarification and/or
correction of the judgment amount entered against each
respective defendant." See id. at 14. On remand, the
trial court held a hearing on the issue of damages, and found
that Connell was entitled to $469, 712.76 from Courson, and
$1, 645, 061.38 from K/C Ice. In this appeal, the defendants
allege that the trial court erred in awarding damages against
Courson and erred in entering the judgment nunc pro tunc. For
the following reasons, we reverse in part, vacate in part and
affirm in part.
2010, K/C Ice, a company jointly owned by Connell and
Courson, borrowed $960, 034.99 from Farmers & Merchant
Bank, which was secured by a multipurpose note and security
agreement signed by Connell and Courson (the "K/C Ice
Note.")See K/C Ice, LLC, supra at 3. In
2013, Farmers & Merchant Bank called the K/C Ice note due
and demanded payment. See id. at 4. Connell paid off the note
and thereafter demanded payment for the full amount of the
K/C Ice Note from K/C Ice and Courson. See id. When Connell
received no response, he filed the underlying action against
the Defendants alleging breach of the promissory notes as
well as the guaranties signed by Courson, and subsequently
filed a motion for summary judgment. See id. at 5. The trial
court granted partial summary judgment to Connell and entered
judgment against Courson and K/C Ice for the full amount of
the K/C Ice Note. See id. at 13-14 (3).
Court affirmed the trial court's grant of partial summary
judgment, but vacated and remanded the judgment, holding that
while Connell was "entitled to recover from K/C Ice the
full amount paid on the [K/C Ice Note]," Connell was
only entitled to recover contribution from his co-obligor
Courson for "the proportion for which" Courson was
liable. See id. at 14 (3). This Court directed the trial
court to clarify and/or correct the judgment amount entered
against each defendant as to the K/C Ice Note. See id. at 14.
the remittitur from the first appeal, the trial court
conducted a hearing on the issue of damages regarding the K/C
Ice Note. At the damages hearing, Courson testified that he
had seen bank records which demonstrated that Connell had
made payments from the bank account of K/C Ice, LLC, for his
own personal benefit. Connell did not testify at the damages
hearing. The trial court issued an order entering judgment
against K/C Ice in the full amount of the K/C Ice Note. The
trial court also held that Courson failed to provide evidence
sufficient to rebut the presumption that the proper measure
of contribution is the amount owed to a third party divided
by the number of persons subject to the debt. The trial court
thereby entered judgment against Courson for one-half of the
principal balance due and owing at the time Connell paid the
K/C Ice Note, and one-half of the pre-assignment interest on
the K/C Ice Note, and entered the order nunc pro tunc to
April 28, 2017, the date the first partial summary judgment
order was signed.
judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. OCGA § 9-11-56 (c). On appeal from a
grant of summary judgment, we apply a de novo standard of
review and view the evidence in the light most favorable to
the nonmovant." Hayek v. Chastain Park Condo.
Assn., 329 Ga.App. 164 (764 S.E.2d 183) (2014) (citation
guaranty contract "is one whereby a person obligates
himself to pay the debt of another in consideration of a
benefit flowing to the surety or in consideration of credit
or indulgence or other benefit given to his principal, the
principal in either instance remaining bound therefor."
OCGA § 10-7-1. Guarantors "are jointly and
severally liable with their principal unless the contract
provides otherwise." Id. "Where several
persons guaranty the same principal by one or more distinct
instruments and one person pays more than an equal share of
the sum, he may compel contribution from his
co-guarantor[.]" McCaughey v. Murphy, 225
Ga.App. 874, 878 (3) (485 S.E.2d 511) (1997) (citations
omitted). "The presumption that each co-obligor
benefitted in an equal degree is subject to rebuttal by proof
that there was an inequality of benefits received."
Steele v. Grot, 232 Ga.App. 847, 848-849 (1) (503
S.E.2d 92) (1998) (citation omitted).
Defendants argue that issues of material fact exist as to
whether Connell received unequal benefits, and as such the
trial court erred by granting summary judgment on the amount
of damages. Inter alia, the Defendants point to copies of
checks showing payments Connell made from the K/C Ice bank
account for his own personal benefit. In response, Connell
cites his testimony at the first motion for summary judgment
hearing wherein he admitted that he made some payments from
the K/C Ice bank account for his personal benefit due to
"cash flow problems." However, Connell asserted at
the hearing that he returned the money to the account.
Connell does not cite to any evidence in the record, outside
of his own testimony, that he returned the money to the
deciding a motion for summary judgment, neither the trial
court nor this Court can consider the credibility of
witnesses; and a finder of fact must resolve the question of
credibility and the conflicts in the evidence which it
produces. See Miller v. Douglas, 235 Ga. 222, 223
(219 S.E.2d 144) (1975); Harding v. Georgia General
Ins., 224 Ga.App. 22, 25 (479 S.E.2d 410) (1996).
Construing the evidence in favor of the Defendants as
respondent to Connell's motion for summary judgment, we
conclude that there are genuine issues of material fact as to
whether Connell received an unequal benefit as compared to
Courson regarding the K/C Ice Note. See Steele,
supra at 849 (1); see generally Hayek, supra at 168
(1). As such, the trial court erred in granting summary
judgment on damages regarding the K/C Ice Note as to Courson.
The court's order granting summary judgment against
Courson is thereby reversed.
first appeal, this Court held that "Connell is entitled
to recover from K/C Ice the full amount paid on the [K/C Ice
Note.]" K/C Ice, LLC, supra at 14 (3). As such,
the portion of the trial court's order entering judgment
"[i]n favor of Connell and against K/C Ice" for the
"full amount paid on the [K/C Ice Note]" is
Defendants argue that the trial court erred by entering the
damages order nunc pro tunc to the date of the first summary
judgment order. We agree.
The general rule is that nunc pro tunc entries are proper to
correct clerical errors but not judicial errors. A clerical
error involves an error or mistake made by a clerk or other
judicial or ministerial officer in writing or keeping
records; it does not include an error made by the court
itself. To be clerical in nature it must be one which is not
the result of judicial reasoning or determination.
In the Interest of H. L. W., 244 Ga.App. 498, 499
(535 S.E.2d 834) (2000) (citation and punctuation omitted).
The original summary judgment order was "unclear as to
the liability of each defendant," and this Court vacated
and remanded the judgment portion of the order. See K/C
Ice, LLC, supra. The change made to the original order
by the nunc pro tunc order (changing the amount of damages
owed by Courson) "went beyond correcting mere clerical
errors or ...