Cary v. Guiragossian, No. S98A1134

• Court: Georgia Supreme Court
• Writing for the Court: THOMPSON, Justice.
• Citation: 508 S.E.2d 403,270 Ga. 192
• Parties: CARY v. GUIRAGOSSIAN et al. SPARTAN MORTGAGE INC. v. GUIRAGOSSIAN et al.
• Docket Number: No. S98A1134, No. S98A1139.
• Decision Date: 02 November 1998

508 S.E.2d 403
270 Ga. 192

CARY
v.
GUIRAGOSSIAN et al.
SPARTAN MORTGAGE INC.
v.
GUIRAGOSSIAN et al

Nos. S98A1134, S98A1139.

Supreme Court of Georgia.

November 2, 1998.

Reconsideration Denied November 23, 1998.

508 S.E.2d 404

Fred S. Clark, Clark & Clark, Savannah, for R. Philip Cary

Victor J. Tetreault, Wallace & Tetreault, Savannah, for Spartan Mortgage, Inc.

Sarah B. Akins, Painter, Ratterree & Bart, Savannah, for Araz Guiragossian et al.

THOMPSON, Justice.

Araz Guiragossian filed suit against R. Philip Cary to quiet title to a residential parcel of land located in Savannah, Georgia. Spartan Mortgage, Inc. (Spartan), the entity which sold Guiragossian the property, was also named as a defendant on theories of breach of warranty of title and warranty to defend title. In addition, Guiragossian sought attorney fees against all defendants. Cary counterclaimed for a determination of title in his favor and to eject Guiragossian from the property. On cross-motions for summary judgment, the trial court determined that Guiragossian held title to the property and awarded summary judgment in his favor. It also found that Guiragossian was entitled to attorney fees from Spartan in defending his title.

In Case No. S98A1134, Cary appeals from the entry of summary judgment in favor of Guiragossian; in Case No. S98A1139, Spartan appeals from the award of attorney fees to Guiragossian.

Guiragossian's claim of title emanates from a security deed given by the original owners, Benjamin and Retha Jenkins, in favor of Southern Finance Corporation. The security deed was assigned to a succession of banks. In late 1994, when the Jenkinses defaulted on the loan, the security deed was owned by Centerbank Mortgage Company. Centerbank commenced foreclosure proceedings, but then entered into an agreement to sell the note and deed to Spartan. Spartan paid Centerbank the agreed upon sum of 42,880.98, but for some unexplained reason, Centerbank failed to transfer, assign or deliver the note and security deed to Spartan. Nonetheless, in January 1995, Spartan foreclosed on the security deed given by the Jenkinses in 1979 to Southern Finance. Spartan, the purchaser at the foreclosure

508 S.E.2d 405

sale, sold the property to Guiragossian by warranty deed dated July 27, 1995. That warranty deed, which was recorded on the following day, conveyed fee simple title, and also guaranteed [270 Ga. 193] that Spartan "will warrant and forever defend the right and title ... against the claims of all persons whomsoever." Guiragossian took possession of the property and remained in possession during the course of these proceedings

Cary's claim of title stems from a quitclaim deed from the Jenkinses in August 1995, which was recorded on August 21, 1995. Cary paid the Jenkinses 1,000, and agreed to pay an additional 8,000 in the event he were to sell the property for a profit.

Upon learning that Cary claimed title to the property, Guiragossian notified Spartan and requested that it defend title pursuant to the language of the warranty. When Spartan failed to respond to his demand, Guiragossian instituted the present action in November 1995.

During the pendency of the litigation, Spartan filed a separate, related action against Cary, Guiragossian, and Centerbank, seeking an order compelling Centerbank to assign the security deed to Spartan. The trial court granted Spartan's request for relief and on January 8, 1997, ordered Centerbank to assign and deliver the note and deed so as to correct the defect in the prior foreclosure. It dismissed Cary as a party to that action for insufficiency of service of process, and lifted a stay in the present suit.

Thereafter, Centerbank transferred, assigned and delivered the note and security deed to Spartan, and Spartan published notice that it would sell the property at a foreclosure sale. Cary sought, but was denied, a restraining order preventing the foreclosure. Spartan again foreclosed on the property on August 5, 1997; Guiragossian was the purchaser at foreclosure.

Cary then amended his answer in the main action and asserted a cross-claim to set aside the foreclosure. Finally, Spartan and Cary filed cross-motions for summary judgment with respect to Cary's attempt to set aside the foreclosure.

In its final order, the trial court determined that Spartan's second foreclosure was valid and that Spartan had thereafter conveyed the property in fee simple to Guiragossian. It accordingly awarded summary judgment to...