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LLC v. Bank of North Georgia

Court of Appeals of Georgia, Fourth Division

October 28, 2019

280 PARTNERS, LLC et al.
v.
BANK OF NORTH GEORGIA; and vice versa. BANK OF NORTH GEORGIA; and vice versa.
v.
280 PARTNERS, LLC et al.

          MCFADDEN, C. J., DOYLE, P. J., and MARKLE, J.

          McFadden, Chief Judge.

         These 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).

         As 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.

         In 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.

         1. Summary judgment (Case No. A19A1567).

         (a) Facts and procedural background.

         "To 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).

         So viewed, [1] 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.

         On 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.

         In 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.

         In late 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.

         Hall 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 ...

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