Bell v. Freeport Title & Guaranty, Inc.

• Decision Date: 01 May 2020
• Docket Number: A20A0133
• Citation: 842 S.E.2d 565,355 Ga.App. 94
• Court: Georgia Court of Appeals
• Parties: BELL et al. v. FREEPORT TITLE & GUARANTY, INC.

355 Ga.App. 94

842 S.E.2d 565

BELL et al.

v.FREEPORT TITLE & GUARANTY, INC.

A20A0133

Court of Appeals of Georgia.

May 1, 2020

Weissman PC, Brandon C. Arnold, for appellants.

Clark Law Group, John C. Clark, Tahra T. Porterfield, for appellee.

Miller, Presiding Judge.

Habibah Bell and Grafton Rodriguez ("the appellants") appeal from the trial court's order granting Freeport Title & Guaranty, Inc., as Trustee of the Flat Shoals Townhouse Development Trust's ("Freeport Title") renewed motion for summary judgment in its quiet title action. The appellants argue that the grant of summary judgment was improper because (1) they were not provided an opportunity to conduct additional discovery; and (2) there is a genuine issue of material fact regarding the underlying loan agreement. For the reasons that follow, we affirm the grant of summary judgment.

A de novo standard of review applies to an appeal from a grant of summary judgment and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. If no issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment is proper.

(Citation and punctuation omitted.) Richards v. Wells Fargo Bank , 325 Ga. App. 722, 724 (1), 754 S.E.2d 770 (2014).

So viewed, the record shows that on June 16, 2006, Maja Sly executed a multipurpose note and security agreement ("the note") in favor of First Georgia Community Bank ("FGCB") to fund the purchase of 4.93 acres of property on Flat Shoals Road, Riverdale, Georgia ("the property"). The note matured on June 10, 2007. On June 16, 2006, Sly executed a deed to secure debt ("the security deed") in favor of FGCB that encumbered the property. The security deed was recorded in the Fulton County real estate records and matured on June 16, 2007.

On June 19, 2007, Sly executed another multipurpose note and security agreement ("the first extension") for the property in favor of FGCB to renew the note and to extend the financing. The first extension matured on June 6, 2008. Finally, on June 6, 2008, Sly executed another extension and note renewal in favor of FGCB ("the second extension"), which matured on December 6, 2008. The first extension and the second extension were not recorded.

Despite the extensions, Sly failed to make payments on the note, and FGCB's successor-in-interest, RES-GA Fourteen, LLC ("RES-GA"), executed a nonjudicial foreclosure on July 7, 2015. Matawin Ventures Trust Series 2015-1 ("Matawin Ventures") purchased the property at the foreclosure sale and, on April 14, 2017, it executed a quitclaim deed for the property to Kondaur Capital Corporation as trustee of Matawin Ventures ("Kondaur Capital"). Kondaur Capital then executed a special warranty deed on the property to the appellants on May 12, 2017. More than a year later, however, on May 25, 2018, Sly executed a quitclaim deed on the property to Freeport Title.

Freeport Title filed the instant action to quiet title, asserting that it had fee simple title in the property. Freeport Title subsequently filed a motion for summary judgment, claiming that RES-GA could not have foreclosed on the property because the property reverted to Sly on June 10, 2014, under OCGA § 44-14-80 — more than a year before RES-GA's purported foreclosure. The trial court denied Freeport Title's motion, determining that Freeport Title had "put forth no evidence to establish its title to the [p]roperty." Freeport Title later renewed its motion for summary judgment supporting it with an affidavit from Allie Jett, who averred that the extensions "are not recorded in the Fulton County real estate records." The trial court granted Freeport Title's renewed motion for summary judgment and this appeal followed.

1. First, the appellants argue that the trial court erred by granting Freeport Title's renewed motion for summary judgment because, although Freeport Title had failed to disclose Jett as a witness, the trial court did not afford the appellants time to conduct additional discovery. We disagree.

The grant or denial of a motion for continuance to allow a nonmoving party to conduct additional discovery to respond to a motion for summary judgment "lies in the sound discretion of the trial judge and will not be reversed absent a showing of clear abuse of discretion." (Citation omitted.) JarAllah v. Schoen , 243 Ga. App. 402, 406 (4), 531 S.E.2d 778 (2000).

Georgia's summary judgment statute allows a party opposing summary judgment to request "a continuance to permit affidavits to be obtained or depositions to be taken" or perform additional discovery as the court may permit. OCGA § 9-11-56 (f). Therefore,

[i]f a respondent requires further discovery to properly respond to a motion, [a] possible response[ ] may include filing a motion to extend time to respond to the motion, ... or an affidavit pursuant to OCGA § 9-11-56 (f) setting forth why the respondent is unable to proceed without further discovery.

Govindasamy v. Wells Fargo Bank , 311 Ga. App. 452, 454 (2), 715 S.E.2d 737 (2011). "It is not, however, the trial court's obligation to sua sponte determine whether discovery is complete. Herrman v. Cohen , 252 Ga. App. 84 (1), 555 S.E.2d 17 (2001).

Here, while the parties filed a joint stipulation extending the time for the appellants to respond to Freeport Title's initial motion for summary judgment, the record is devoid of any requests to conduct additional discovery to respond to the renewed summary judgment motion. Additionally, after Freeport Title submitted its renewed motion and Jett's affidavit, the appellants had nearly two months to invoke OCGA § 9-11-56 (f) before the trial court ruled on the renewed motion, but failed to do so. Accordingly, the appellants have not shown that the trial court erred by proceeding to rule on the renewed motion for summary judgment and their claim therefore fails. See Fortson v. Brown , 302 Ga. App. 89, 90-91 (2), 690 S.E.2d 239 (2010) (holding that the trial court did not err by preventing the appellant from conducting additional discovery prior to ruling on the summary judgment motion, where the appellant made no attempts to alert the trial court that additional discovery was needed to respond to the motion); Carr v. Kindred Healthcare Operating , 293 Ga. App. 80, 82 (1), 666 S.E.2d 401 (2008) (holding that "[t]he trial court was not required to allow the completion of discovery before ruling on the motion for summary judgment" and that "if [the nonmovants] needed additional discovery for their response to [the] motion, they should have invoked OCGA § 9-11-56 (f)").

We also reject the appellants’ argument that the trial court could not consider Jett's affidavit and should have refrained from ruling on Freeport Title's renewed motion for summary judgment in light of Freeport Title's failure to disclose Jett.¹ A similar issue was raised in Hart v. Northside Hosp. Inc. , 291 Ga. App. 208, 661 S.E.2d 576 (2008). There, the Harts appealed from the trial court's order granting Northside Hospital's motion for summary judgment and its motion in limine which barred the Harts from presenting testimony from an expert witness who was not disclosed during the discovery period. Id. at 208, 661 S.E.2d 576. In reversing the trial court's grant of the motion in limine, we held that "[t]he only appropriate remedy for the Harts’ alleged failure to update their discovery responses was postponement of trial or a mistrial. The trial court simply did not have authority or latitude to grant the defendants’ motion in limine." (Punctuation omitted.) Id. at 210 (1), 661 S.E.2d 576. We also reversed the trial court's order granting summary judgment because the excluded testimony created issues of fact that precluded the grant of summary judgment. Id. at 210 (2), 661 S.E.2d 576. See also Thakkar v. St. Ives Country Club , 250 Ga. App. 893 (1) (a), 553 S.E.2d 181 (2001) ("[The] exclusion of probative trial evidence is not an appropriate remedy for curing an alleged discovery omission.") (citation and punctuation omitted). Thus, the appropriate remedy was for the appellants to request a continuance under OCGA § 9-11-56 (f),² and, in the absence of that request, the trial court did not err by considering Jett's affidavit in its grant of Freeport Title's renewed motion for summary judgment.³

2. Next, the appellants argue that the grant of summary judgment was improper because genuine issues of material fact still remain regarding the underlying loan agreement. We conclude that no genuine issues of material fact remain.

(a) As an initial matter, the appellants argue that there is a genuine factual issue as to whether the extensions prevented the property from reverting to Sly in 2014, such that RES-GA could foreclose on the property. This argument, however, lacks merit.

"Deeds are contracts, the interpretation of which is a matter of law for the court unless an ambiguity remains after the court applies the rules of construction." United Bank v. West Central Ga. Bank , 275 Ga. App. 418, 420, 620 S.E.2d 654 (2005). Georgia's reversion statute provides that title to property used to secure a debt reverts to the grantor

at the expiration of seven years from the maturity of the debt; provided, however, that where the parties by affirmative statement contained in the record of conveyance intend to establish a perpetual or indefinite security interest in the real property conveyed to secure a debt or debts, the title shall revert at the expiration of the later of (A) seven years from the maturity of the debt; or (B) 20 years from the date of the conveyance as stated in the record[.]

OCGA § 44-14-80 (a) (1). Therefore, "[i]f title has reverted to the grantor under this statute, all actions to foreclose upon and to recover the property are barred." Mike's Furniture Barn v. Smith , 342 Ga. App. 558, 560 (2), 803 S.E.2d 800 (2017). However, where the initial security deed was recorded and the debt's...