MIKELL, Presiding Judge.
In these related cases, the maker and certain individual guarantors of two promissory notes appeal the trial court's orders granting summary judgment and final judgment in favor of lender Nexity Bank (the "Bank").
Viewing the evidence in the light most favorable to the non-moving party, as we must,
The Note, in the principal amount of $2,100,000, contemplated payments of interest only until the maturity date, at which time the principal and any accrued and unpaid interest became due. Until the maturity date, the Note provided for a variable interest rate based on "Wall Street Journal Prime." After default, however, the Note provided for interest on the unpaid balance at 18% per annum. The maturity date, originally October 19, 2008, was eventually extended to December 31, 2009. On that date, appellants defaulted and failed to pay off the principal due under the Note ($2,099,996.20).
The LOC had an initial credit limit of $760,000; an interest rate of 6.750% per annum, to be adjusted daily based on "Wall Street Journal Prime"; and a maturity date of December 29, 2007. Like the Note, the LOC contemplated payments of interest only until the maturity date, when principal and any accrued and unpaid interest became due; and the interest rate after default was a flat 18% per annum. The Bank and Milton LLC later modified the LOC on several occasions, to increase the credit limit to $1,500,000; to adjust the pre-maturity interest rate; and to extend the maturity date, eventually, to December 31, 2009. On that date, the outstanding principal under the LOC was $1,480,000. Milton LLC and the guarantors failed to make this payment and defaulted on the LOC.
On April 15, 2010, the Bank filed two separate actions against appellants: one seeking recovery under the Note, and the other seeking recovery under the LOC. The Bank subsequently moved for summary judgment in both actions, first against Milton LLC and guarantors Shropshire, Lockwood, Howell. Baker, Wilson, and Shultz; and later against guarantors Klesko and Spear. In neither lawsuit did the defendants request a hearing on the Bank's summary judgment motions, and no hearing was held.
On March 17, 2011, in the Bank's action on the Note, the trial court granted summary judgment in favor of the Bank and against defendants Milton LLC, Shropshire, Lockwood, Howell, Baker, Wilson, and Shultz. On the same day, in the Bank's action on the LOC, the trial court entered an identical order granting summary judgment to the Bank against the same defendants (these orders hereinafter sometimes collectively referred to as the "Milton Orders"). In a separate order entered in each lawsuit, the court granted summary judgment against defendants Klesko and Spear on the Note and on the LOC. In none of these orders, however, did the court set forth the dollar amounts owing and awarded to the Bank under the Note or the LOC. From these orders the defendants appeal.
After appellants filed notices of appeal as to the Milton Orders, the trial court entered a final judgment order in each action, in which the court set forth the amounts awarded to the Bank under the Note and the LOC, respectively. Appellants appeal from these orders as well.
1. In Case Nos. A11A2005 and A11A2006, appellants Milton LLC, Lockwood, Howell, Wilson, Shropshire, and Shultz appeal from the final judgment orders entered by the trial court.
2. In Case Nos. A11A1770, A11A1771, A11A1795, and A11A1796, borrower Milton LLC and guarantors Shropshire, Lockwood, Howell, Baker, Wilson, and Shultz appeal the Milton Orders, in which the trial court granted summary judgment to the Bank cm the Note and the LOC. We first address appellants' contention that the trial court erred in considering the amended affidavits filed by the Bank in support of its motion for summary judgment. We find no error.
In support of its motions for summary judgment, the Bank submitted the affidavits of its employee Joseph Sugg. The affidavits were filed on July 26, 2010, contemporaneously with the filing of the Bank's summary judgment motions; and in each affidavit, Sugg referred to an attached Exhibit A, a ledger recording the payment history of the loan at issue. Subsequently, on September 3, 2010, the Bank filed summary judgment reply briefs in each lawsuit, attaching to each an amended Sugg affidavit. In the action on the Note, the Bank explained that the wrong Exhibit A had been attached to Sugg's original affidavit; and that, in order to correct this clerical error, Sugg's amended affidavit had been filed with the correct exhibit attached. In the action on the LOC, the Bank explained that the amended Sugg affidavit was filed in answer to appellants' response to the Bank's summary judgment motion; and that the amended affidavit contained updated information as to principal payments on the Note made by other guarantors (who are not parties to these appeals).
Defendants moved to strike the amended affidavits in both lawsuits on September 16, 2010; and on September 21, 2010, the Bank moved for leave of court to consider the amended affidavit in both lawsuits. The trial court did not rule on any of these motions.
(a) Appellants assert that the trial court erred in not granting their motions to strike Sugg's amended affidavits from the record, on the ground that these amended affidavits were not filed contemporaneously with the Bank's motions for summary judgment in each action.
Even had this issue not been waived, however, it is without merit. Appellants cite OCGA § 9-11-56(c), which provides that motions for summary judgment "shall be served at least 30 days before the time fixed for the hearing." We note that in both the underlying lawsuits, no hearing was requested or held. Thus, the 30-day period never applied in these cases. Appellants also rely on OCGA § 9-11-6(d), which provides that "[w]hen a motion is supported by affidavit, the affidavit shall be served with the motion." As this Court has explained, the purpose of this contemporaneous filing requirement "is to ensure that the other side has adequate notice of and opportunity to respond to such evidence."
(b) Appellants contend that Sugg's amended affidavits fail to show any basis for the loan instruments' variable interest based on Wall Street Prime Rate. Contrary to appellants' contention, however, the amended Sugg affidavits are sufficient to support the Bank's allegations as to the interest charges on the loans.
It is true that, absent evidence to establish the variable interest rate, defined in the debt instrument as a fixed percentage above a particular prime rate, summary judgment for the lender would be improper in the face of the debtor's denial of the interest amount sought.
3. Appellants contend that the trial court erred in granting summary judgment to the Bank because the evidence submitted by the Bank was insufficient to prove the amounts owed under the Note or under the LOC. However, the trial court ruled for the Bank in each of the challenged summary judgment orders on the issue of liability only. As to liability, "[a] plaintiff seeking to enforce a promissory note establishes a prima facie case by producing the note and showing that it was executed. Once that prima facie case has been made, the plaintiff is entitled to judgment as a matter of law unless the defendant
Therefore, we affirm the trial court's orders granting summary judgment in favor of the Bank and against appellants Milton LLC, Shropshire, Lockwood, Howell, Baker, Wilson, and Shultz; and we remand for further proceedings proving the damages to be awarded to the Bank and entering judgment in a sum certain.
4. In Case Nos. A11A1772 and A11A1797, appellant Klesko raised the affirmative defense of lack of personal jurisdiction, both in his answer and again in his response to the Bank's motion for summary judgment; thus, Klesko has preserved this issue for adjudication.
Klesko's liability under his guaranties of the Note and the LOC, as well as his defense of failure of consideration, are matters to be considered by a court having proper jurisdiction of the merits.
5. In Case No. A11A1772, appellant Spear contends that the Bank failed to mitigate its damages, as required by OCGA § 13-6-5,
Appellant further invites us to overturn our Supreme Court's 1926 decision in Reid v.
6. In Case No. A11A1797, Spear contends that an issue of fact exists as to whether his guaranty of the LOC was supported only by past consideration, because the guaranty in question was not dated. It is true that
But Spear has not raised a genuine issue of fact as to the consideration for this guaranty. Spear has admitted that he executed the guaranty of the LOC, but he has submitted no evidence that the consideration given for the LOC was only "past" consideration. In particular, he has submitted no evidence, by affidavit or otherwise, that his guaranty of the LOC was executed after the LOC had already been executed. The cases cited by Spear are distinguishable from the case at bar on this ground.
7. In Case No. A11A1797, Spear contends that his guaranty of the LOC was limited to the principal amount of $750,000. This contention is without merit.
The guaranty defined the term "Debt" to include: "debts, liabilities, and obligations of the Borrower [Milton LLC] ... and all extensions, renewals, refinancings and modifications of these debts whether now existing or created or incurred in the future." Under the guaranty, Spear specifically agreed to guaranty the $750,000 loan set forth in the original LOC executed on December 29, 2006, as well as those amounts incurred from all future extensions, modifications, and renewals of the loan:
(Emphasis supplied.) Thus, the plain language of the guaranty includes amounts beyond the initial $750,000 loan. As the trial court has ruled only on the issue of liability, as discussed in Division 3 above, we affirm the grant of summary judgment in favor of the Bank and against Spear, and we remand for further proceedings proving the damages to be awarded to the Bank and entering judgment in a sum certain.
Judgment affirmed in part and reversed in part in Case Nos. A11A1772 and A11A1797, and cases remanded with direction.
Judgment vacated in Case Nos. A11A2005 and A11A2006, and cases remanded with direction.
DILLARD and BOGGS, JJ., concur.