Bryant v. Optima Int'l, Inc.
| Citation | 792 S.E.2d 489,339 Ga.App. 696 |
| Decision Date | 15 November 2016 |
| Docket Number | A16A0827 |
| Parties | Bryant v. Optima International, Inc., et al. |
| Court | United States Court of Appeals (Georgia) |
Louise Thornton Hornsby, for Appellant.
Robert W. Raleigh, for Appellee.
Jeffrey Bryant appeals from two separate orders of the DeKalb County Superior Court, both of which arose out of a single lawsuit and both of which were entered on the same day. The first of these orders granted summary judgment against Bryant and in favor of Optima International, Inc. ("Optima"), on a 2001 promissory note Bryant executed in conjunction with a loan he received from Optima. The second order granted summary judgment against Bryant and in favor of Innovative Consultants Group, Inc. ("Innovative"), on a 2004 promissory note Bryant gave in exchange for a loan from Innovative. Bryant argues that the trial court erred in granting summary judgment in favor of Optima because that company failed to file suit on the 2001 promissory note within the applicable limitation period. Bryant further contends that the trial court erred in granting summary judgment in favor of both Optima and Innovative because the two entities function as Madan's corporate alter egos; because a security interest in the same piece of real property was given to secure both loans; and because after Optima foreclosed on that property, it failed to seek a confirmation of the foreclosure sale. For reasons set forth more fully below, we find that one or more questions of fact exist as to whether Optima's failure to confirm the foreclosure sale bars the claims asserted by Optima and Innovative in this case. Accordingly, we reverse the orders of judgment entered in favor of Optima and Innovative, and remand the case for further proceedings consistent with this opinion.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). "In reviewing a grant or denial of summary judgment, we owe no deference to the trial court's ruling and we review de novo both the evidence and the trial court's legal conclusions." GAPIII, Inc. v. Seal Indus. , 338 Ga.App. 101, 789 S.E.2d 321 (2016) (citation omitted). Moreover, we construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. SKC, Inc. v. EMAG Solutions , 326 Ga.App. 798, 755 S.E.2d 298 (2014).
Here, the facts are largely undisputed and the record shows that Bryant owned and operated a business known as Club Mirage, which was situated on a piece of real property owned by Bryant and located at 3843 Glenwood Road or Avenue in Decatur ("the Glenwood Property".) 1
Bryant's residence was located next door to Club Mirage, at 3837 Glenwood. At all relevant times, Golind Madan was serving as the accountant for Bryant and his business. Bryant contends that Madan is the sole or primary shareholder of both Optima and Innovative. It is undisputed that Madan controls both entities, as he serves as the registered agent, CEO, CFO, and Secretary of both corporations. On November 7, 2001, Optima loaned Bryant $200,000 for the purpose of financing Bryant's business. In exchange, Bryant executed a promissory note with a maturity date of November 7, 2006. Under the terms of the note, Bryant agreed to pay interest at the rate of 24 percent per annum; to make monthly interest payments in the amount of $4,000; to pay back the principal in an amount of not less than $20,000 on or before each anniversary date of the note; and to pay off any balance remaining under the note by November 7, 2006. The note further provided that "should the indebtedness evidenced hereby or any part hereof be collected by law or through an attorney at law, borrower agrees to pay all costs of collection, including fifteen percent (15%) of the aggregate amount of principal and interest then owing here under as attorneys' fees." Additionally, the 2001 promissory note stated:
The indebtedness evidenced hereby is secured by that certain Security Deed and [Security] Agreement from Borrower to Lender of even date herewith conveying to Lender certain real property and other collateral of Borrower located in DeKalb and Fulton Counties, Georgia (said Security Deed and Agreement, together with this Note, and any other instrument evidencing, securing, or relating to the indebtedness evidenced hereby, whether now or hereafter existing, including without limitation, all being hereinafter collectively referred to as the "Loan Documents"); some of which Loan Documents are to be filed for record on or about the date hereof in the public records of DeKalb and Fulton Counties, Georgia.
The record does not contain a copy of the security deed referenced in the 2001 promissory note, but other evidence in the record shows that on November 7, 2001, Bryant gave Optima a security deed on his real property located at 3843 Glenwood Road and that this deed is recorded in DeKalb County Deed Book 12715, page 417.2
On March 5, 2004, Innovative loaned Bryant $345,000 for the purpose of financing Bryant's business, and in exchange, Bryant executed a promissory note in favor of Innovative. Under the terms of that note, Bryant agreed to pay $131,100 in interest in 23 equal monthly installments of $5,700; repay the principal at the rate of $75,000 per year for the calendar years 2004 and 2005; and pay the remaining principal balance on March 5, 2006. Additionally, the 2004 promissory note provided that "[s]hould the indebtedness evidenced hereby or any part thereof be collected by law or through an attorney at law, [borrower] agrees to pay all costs of collection, including an amount equal to fifteen (15%) percent of [the] indebtedness, as attorney's fees." The note further stated that it was "secured by a security interest in certain real property owned by [Bryant] which is more particularly described in a Deed to Secure Debt of even date herewith, executed and delivered by the undersigned in favor of Holder[3 ]known as 3837 and 3843 Glenwood Road, Decatur, Georgia."4 A copy of the Deed to Secure Debt referenced in the 2004 promissory note does not appear in the record.
On January 1, 2007, Optima loaned Bryant an additional $498,900 for the purpose of financing Bryant's business. In exchange, Bryant executed another promissory note in favor of Optima. Under the terms of this note, Bryant agreed to pay an interest rate of 12% per annum, to pay interest on a monthly basis, and to pay the principal no later than December 31, 2008. The note further stated that it was "secured by a Deed to Secure Debt dated March 5, 2004[,] granting the Holder[5 ]a security interest in the real property known as 3843 Glenwood Road, DeKalb County, Georgia." The record does not contain a copy of the deed to secure debt referenced in the 2007 promissory note.
The Deed Under Power also described the property foreclosed upon; stated that the property had been sold at a foreclosure sale held on the first Tuesday of November, 2007 for $1,417,993.35; recited that this property was "commonly known as 3843 Glenwood Avenue (Road), Decatur, Georgia"; and asserted that "[t]he above [-] described property is conveyed subject to a certain Deed to Secure Debt from Jeffrey D. Bryant to Optima International, Inc., dated November 7, 2001, and recorded in Deed Book 12715, page 417, DeKalb County records." (Emphasis supplied.)
On April 23, 2008, Optima transferred the Glenwood Property to Madan. Several months later, on November 24, 2008, Bryant filed the current lawsuit against Madan, Optima, and Innovative, in which he asserted claims for fraud, fraud in the inducement, breach of the duties of good faith and fair dealing, RICO, predatory lending, and conversion. Bryant also sought to set aside the foreclosure of the Glenwood Property under the security deeds he gave to secure the December 2001, March 2004, and January 2007 loans. In conjunction with this lawsuit, Bryant also filed a notice of lis pendens as to the real property Optima had foreclosed on a year earlier.7 On January 8, 2009, an answer, defenses and counterclaims was filed apparently on behalf of all three defendants, in which they sought cancellation of the notice of lis pendens.8 The defendants thereafter filed a brief in support of their motion to cancel the notice of lis pendens, and on February 10, 2009, the trial court entered an order granting that motion.9 Bryant then appealed the cancellation of the lis pendens, and this court affirmed the order in an unpublished opinion.
While Bryant's appeal of the lis pendens issue was pending, Madan filed a plea in abatement, seeking to have Bryant's claims against him dismissed.10 During this same time period, Optima filed an amended counterclaim against Bryant seeking amounts allegedly due under the 2001 promissory note, and Innovative amended its counterclaim to seek recovery of amounts allegedly due under the 2004 promissory note. Following our decision in Bryant's first appeal and remittitur of the case to the trial court, the three named defendants filed a joint motion for summary judgment on all of...
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