Doss & Assocs. v. First Am. Title Ins. Co.
| Decision Date | 19 May 2014 |
| Docket Number | A13A0990.,A13A0989,Nos. A13A0988,s. A13A0988 |
| Citation | 325 Ga.App. 448,754 S.E.2d 85 |
| Court | Georgia Court of Appeals |
| Parties | DOSS & ASSOCIATES v. FIRST AMERICAN TITLE INSURANCE COMPANY, INC. First American Title Insurance Company v. Doss & Associates. Gerova Asset Backed Holdings, L.P. v. Doss & Associates. |
Hawkins, Powell, Thackston & Young, H. Lane Young II, Jackson A. Dial, for Doss & Associates.
Morris, Manning & Martin, Lewis E. Hassett, Shannon A. McNulty, John B. Vitale, for First American Title Insurance Company, Inc.
Foltz, Martin & Knapp, Halsey G. Knapp, Jr., Jonathan E. Hawkins, for Gerova Asset Backed Holdings, L.P.
This case arises from a $4.75 million loan from Stillwater Asset–Backed Fund, LP (“Stillwater”) 1 to Cohutta Water, Inc. Steve Carroll, Cohutta's president and CEO, guaranteed the loan and executed a security deed for seven parcels of real estate to secure it. Stillwater did not obtain a first–position lien on one of the tracts (48.2 acres) due to a prior encumbrance held by Branch Banking & Trust (“BB & T”) for a personal loan to Carroll. In 2008, Cohutta defaulted on the Stillwater loan, and Carroll breached the guaranty and filed for bankruptcy. In 2009, BB & T foreclosed on the 48.2 acre tract and paid $1 million as the highest bidder; the total principal amount of the BB & T loans secured by the property was $910,831. Stillwater received title to land valued at $5.6 million from the foreclosure sale of the remaining lots securing Carroll's guarantee.
Stillwater subsequently sued Doss & Associates (“Doss”), the closing attorney and title agent for the loan, as well as First American Title Insurance Company, Inc. (“First American”), claiming it should have received a first-position lien on the 48.2 acre tract in the closing and seeking damages. First American asserted a cross-claim against Doss for contractual indemnity and professional negligence.
In Case No. A13A0988, Doss appeals from the trial court's grant of partial summary judgment in favor of First American on its contractual indemnity claim, asserting that it was premature for the trial court to rule upon the claim and that it cannot be held liable for an insurer's bad faith failure to pay a claim. In Case No. A13A0989, First American cross-appeals from the trial court's order denying summary judgment in its favor, claiming it cannot be held liable for Stillwater's interest, costs, and attorney fees associated with the loan, that Stillwater cannot prove a bad faith claim, and that Doss should be required to indemnify it for its attorney fees. In Case No. A13A0990, Stillwater appeals from the trial court's order granting summary judgment in favor of Doss on Stillwater's claim for breach of an alleged oral escrow agreement.2 For the reasons explained below, we affirm in Case No. A13A0988; affirm in part and reverse in part in Case No. A13A0989; and reverse in Case No. A13A0990.
In its sole enumeration of error, Stillwater contends that the trial court erred by failing to conclude that genuine issues of fact exist as to whether an oral escrow agreement existed between it and Doss in connection with the closing of the $4.75 million loan. We agree and therefore reverse.
The record shows that on December 14, 2006, Allison Prouty, Stillwater's counsel in New York, orally requested that Doss execute an escrow agreement in connection with the closing. No later than the morning of December 20, 2006, Doss provided Stillwater's counsel with a form escrow agreement that had been obtained from a “form library” on a First American website.
At 11:28 a.m. on December 20, Prouty sent an e-mail to Michelle Tipton, a paralegal at Doss, thanking her for sending a “form of escrow agreement” in addition to other documents. Prouty requested that Doss prepare an escrow agreement for her firm “with all the normal provisions pertaining to any escrow agreement” in order for Stillwater “to wire loan proceeds into your firm's escrow account.” She also stated:
Escrow Agreement:
Specific to language in the title company's brief form you sent, you need to list, after “as follows:” at the end of the first paragraph, the prior liens, taxes and title premiums and recording charges to be paid off at closing. Basically you will need to determine the figures that will appear in the borrower's title bill, listing all payments to be made at closing prior to release of the balance of funds to the borrower. Paragraph 2 is in reverse: our client, the depositor, must be indemnified if ... your firm's obligations as escrowee are not performed—Stillwater will not be indemnifying your firm. Paragraph 3 should be struck, as it does not apply to this transaction.
Less than two hours later, Lynn Doss, the closing attorney, sent a reply to Prouty stating in part, Although Doss did not hear back from Prouty, Doss' paralegal, Tipton, sent an e-mail to Prouty at 5:08 p.m. on December 20, stating: The attached escrow agreement included the changes requested by Prouty with regard to paragraph 2 and the listing of amounts to be paid off at closing.
On December 21 at 9:44 a.m., Stephen Semian, another New York attorney representing Stillwater, sent an e-mail to Lynn Doss, copied to Tipton, that stated: Tipton sent the following reply to Semian at 10:14 a.m.:
At 1:31 p.m., Prouty sent an e-mail to Lynn Doss stating: At 4:38 p.m., Lynn Doss sent another e-mail to Prouty attaching “the revised escrow agreement.” The new revision corrected the error mentioned by Prouty in her e-mail. Prouty testified that Doss ultimately “provided an escrow agreement that was acceptable.” At another point in her deposition, she testified that the last version of the agreement “actually seemed to have most of the requirements I had asked for.”
Semian sent an e-mail at 8:00 p.m. on the evening of the closing (December 22), requesting Tipton to “send up a signed escrow agreement,” but it is undisputed that neither Doss nor Stillwater signed any version of the escrow agreement. Semian testified that while a signed escrow agreement was “wanted before closing,” he was not concerned that it was not signed before the closing on December 22, because they “had agreed on the final form of the agreement.”
Lynn Doss testified that she did not sign the escrow agreement before the closing based upon an e-mail she received from Prouty on December 21, 2006 at 5:17 p.m. Doss interpreted that e-mail to mean that Stillwater was no longer insisting upon a first position for the 48.2 acre tract as a condition for closing.3 Doss also believed, based upon this e-mail, that a subordination agreement from BB & T would no longer be a condition of closing and that Stillwater would address it after closing.4 Based upon this understanding, the provision in the last version of the escrow agreement requiring her to obtain a first lien on all properties listed, including the 48.2 acre tract, “was obviously a mistake because there's nothing that indicates that they're paying off BB & T.” She testified that she “presumed” Stillwater's counsel no longer wanted the escrow agreement when she received no further communication about it after sending the last revised draft. Although she testified that she asked Stillwater's counsel “to tell me if my draft escrow agreement was acceptable,” her last e-mail stated only: “Attached is the revised escrow agreement.” Nowhere in her e-mail does she ask if the last revised escrow agreement is acceptable.
1. “To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” OCGA § 13–3–1.
In determining whether there was a mutual assent, courts apply an objective theory of intent whereby one party's intention is deemed to be that meaning a reasonable man in the position of the other contracting party would ascribe to the first party's manifestations of assent, or that meaning which the other contracting party knew the first party ascribed to his manifestations of assent. Further, in cases such as this one, the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement. Where such extrinsic evidence exists and is disputed, the question of whether a party has assented to the contract is generally a matter for the jury.
(Citations and punctuation omitted.) Turner Broadcasting System v. McDavid, 303 Ga.App. 593, 597(1), 693 S.E.2d 873 (2010). Additionally, ...
To continue reading
Request your trial
-
Old Republic Nat'l Title Ins. Co. v. RM Kids, LLC.
...of foreclosure signifies that a lender will not collect on its note.” (citation omitted)).9 Doss & Assoc. v. First Am. Title Ins. Co., Inc. , 325 Ga.App. 448, 463 (4) n. 15, 754 S.E.2d 85 (2013).10 First Am. Bank , 759 F.3d at 433 (III) (punctuation omitted); see also Gibraltar Sav. v. Comm......
-
Vernon v. Assurance Forensic Accounting, LLC.
...System v. McDavid, 303 Ga.App. 593, 601(1)(a)(iii), 693 S.E.2d 873 (2010). See also Doss & Assoc. v. First American Title Ins. Co., 325 Ga.App. 448, 452(1), 754 S.E.2d 85 (2013) (“[A] formal, written agreement may be a condition precedent to the 333 Ga.App. 385formation of a binding contrac......
-
First Am. Title Ins. Co. v. King (In re King), CASE NO. 18-50593-WLH
...may be a condition precedent to the formation of a binding contract when the parties so intend. Doss & Assoc. v. First American Title Ins. Co., 325 Ga. App. 448, 452, 754 S.E.2d 85 (2013). Circumstances indicating the parties intended to prepare a subsequent writing is strong evidence that ......
-
SIS, LLC v. Stoneridge Holdings, Inc.
...App. [761, 765-766(1) (1998)].Turner Broad. Sys., Inc. v. McDavid, 303 Ga. App. 593, 601 (2010); see also Doss & Assocs. v. First Am. Title Ins. Co., 325 Ga. App. 448, 452 (2013) (finding that "assent to the terms of a contract may be given other than by signatures" and "assent may be impli......
-
Insurance
...against State Farm because the insureds had entered into a voluntary settlement without State Farm's consent or knowledge).213. 325 Ga. App. 448, 754 S.E.2d 85 (2013).214. Id. at 457-59, 754 S.E.2d at 94-95. 215. Id. at 448-51, 754 S.E.2d at 88-90.216. Id. at 457, 754 S.E.2d at 94.217. Id. ......