280 PARTNERS, LLC et al.
BANK OF NORTH GEORGIA; and vice versa. BANK OF NORTH GEORGIA; and vice versa.
280 PARTNERS, LLC et al.
MCFADDEN, C. J., DOYLE, P. J., and MARKLE, J.
McFadden, Chief Judge.
related appeals arise from a suit on a promissory note
secured by real property. The lender, Bank of North Georgia
(the bank), alleges that the borrower, 280 Partners, LLC,
defaulted on the note because 280 Partners failed to make
certain payments required under it. 280 Partners and two of
its principals who guaranteed the loan, Douglas Bonner and
Mark Griswell, (collectively, the defendants) allege that the
bank told them they did not need to make the payments while
they were negotiating a renewal of the loan in anticipation
of selling the property to a third party, Integrity
Development Group, LLC, which ultimately declined to buy the
property after speaking with the bank. In response to the
bank's suit on the note, the defendants counterclaimed
for tortious interference with contractual or business
relations and for invasion of privacy. The trial court
granted summary judgment to the bank on its claims and the
defendants' counterclaims (Case No. A19A1567), and it
denied the bank's motion to dismiss the defendants'
notice of appeal, which the bank based on a claim that the
defendants had failed to timely file the transcript of the
summary judgment hearing (Case No. A19A1568).
detailed below, we find no error in the grant of summary
judgment to the bank. The defendants admit that 280 Partners
executed the note and that Bonner and Griswell executed the
guarantees, there is also no dispute that 280 Partners failed
to make all of the payments required by the written terms of
that note, and the defendants have not pointed to any
evidence giving rise to a genuine issue of material fact on
the two affirmative defenses they argued to the trial court -
that the parties had modified the terms of the note and that
the bank breached a duty of good faith and fair dealing. The
defendants have offered no argument or citation of authority
on appeal in support of their counterclaim for tortious
interference. And they have pointed to no evidence giving
rise to a genuine issue of material fact on their
counterclaim for invasion of privacy. So we affirm the
judgment in Case No. A19A1567.
light of our decision to affirm the summary judgment ruling,
we dismiss as moot the bank's appeal from the order
denying the bank's motion to dismiss the appeal from the
summary judgment ruling in Case No. A19A1568.
Summary judgment (Case No. A19A1567).
Facts and procedural background.
prevail at summary judgment under OCGA § 9-11-56, 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." Peterson v. Peterson, 303
Ga. 211, 213 (1) (811 S.E.2d 309) (2018) (citations and
punctuation omitted). "On appeal from an order granting
or denying summary judgment, we conduct a de novo review,
construing the evidence and all reasonable conclusions and
inferences drawn therefrom in the light most favorable to the
nonmovant." State Farm Automobile Mut. Ins. Co. v.
Todd, 309 Ga.App. 213, 213-214 (1) (709 S.E.2d 565)
(2011) (citation and punctuation omitted). But to the extent
that a party's sworn testimony is self-contradictory
without offering a reasonable explanation for the
contradiction, we apply the rule in Prophecy Corp. v.
Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 S.E.2d
680) (1986), to discount the testimony that is more favorable
to that party. See Hayward v. The Kroger Co., 317
Ga.App. 795, 798-799 (3) (a) (733 S.E.2d 7) (2012).
viewed,  the evidence showed that on April 25,
2013, 280 Partners executed a promissory note that renewed an
existing debt with the bank. The loan was secured by real
property in Opelika, Alabama (the property) and subject to
the personal guarantees of defendants Bonner and Griswell. It
required 280 Partners to make seven monthly interest payments
and to pay the outstanding balance on November 25, 2013. Bank
officer John Hall, who oversaw 280 Partners' loan, signed
the note on the bank's behalf.
September 21, 2013, 280 Partners entered into an agreement to
sell the property to Integrity. That agreement permitted
Integrity to cancel it with notice to 280 Partners during a
defined due diligence period that ended in mid-December 2013.
280 Partners told the bank about the agreement with Integrity
and discussed renewing the loan to extend the maturity date
until early 2014, after the anticipated sale of the property.
Hall told 280 Partners that it did not need to make any
payments on the note while it was negotiating the renewal of
the loan with the bank. 280 Partners made no further payment
on the loan after September 23, 2013.
October 2013, the bank drew up loan documents to renew the
loan, which included a new note and a paper reflecting the
amount of accrued interest on the loan to be paid in
connection with the renewal. The new note provided for three
monthly payments, beginning on December 5, and a payment of
the outstanding loan balance on February 5, 2014. 280
Partners signed the new note on October 29, 2013 and returned
it to the bank, but 280 Partners did not pay off the accrued
interest. Although 280 Partners knew that a payoff was a
condition of the loan renewal, Hall had told it that it did
not need to pay that amount until Hall returned from a
multi-week medical leave, at which time they would "get
it straightened out." The bank did not sign the new note
and the loan was not extended.
November 2013, around the time that the April 2013 note
matured, principals of 280 Partners met with Hall, who had
just returned to work from his leave. They discussed the
anticipated sale of the property to Integrity, and 280
Partners agreed to put Hall in touch with John Hastings,
Integrity's general manager. At this point, the bank
still had not signed the renewal note and 280 Partners still
had not made the payoff of accrued interest required for
renewal. Hall stated that he would address the renewal
documents after speaking with Hastings.
and Hastings met in mid-December 2013 and discussed the
property. At that meeting, Hall told Hastings that 280
Partners was behind on its payments and "may be headed
to foreclosure," and he indicated that if the bank
foreclosed on the property it would be willing to sell the
property to Integrity at a discount. Based on what Hall said
at this meeting, Hastings decided to cancel Integrity's
agreement with 280 Partners to buy the property. In a
December 16 letter notifying 280 Partners of the
cancellation, Hastings stated:
I recently met with John Hall with The Bank of North Georgia
to discuss our contract on the [property]. During our
meeting, John indicated to me that if we were able to wait a
while longer to purchase the property, we would be able to
purchase it from the bank for a significant discount.
Consequently, we will not be moving forward with the
Contract. I hope ...