Gunter v. Hamilton Bank of Upper East Tennessee, A91A1311

• Decision Date: 30 September 1991
• Docket Number: No. A91A1311,A91A1311
• Citation: 411 S.E.2d 115,201 Ga.App. 379
• Parties: GUNTER v. HAMILTON BANK OF UPPER EAST TENNESSEE.
• Court: Georgia Court of Appeals

Page 115

411 S.E.2d 115

201 Ga.App. 379

GUNTER v. HAMILTON BANK OF UPPER EAST TENNESSEE.

No. A91A1311.

Court of Appeals of Georgia.

Sept. 30, 1991.

Hunton & Williams, Alan M. Wolper, Scott R. Phillips, Atlanta, for appellant.

Lamb & Associates, Andrew Bickwit, Norcross, for appellee.

ANDREWS, Judge.

Gunter appeals from the trial court's order granting summary judgment to Hamilton Bank. The bank sued Gunter to collect amounts claimed due under a promissory note executed by Gunter in favor of the bank. Gunter answered denying he owed any sums under the note, and claiming failure of consideration. No discovery was conducted prior to the motion for summary judgment.

It is undisputed that Gunter executed the note by which he promised to pay the bank $40,000 in principal, plus interest and reasonable attorney fees incurred in the event of collection upon default. The supporting affidavit filed along with the bank's motion for summary judgment on July 19, 1990, established the terms of the note and the amounts claimed to be due. After the time for response was extended by agreement, Gunter filed a timely response to the motion along with his responsive affidavit on September 14, 1990. In his affidavit, Gunter admitted executing the note and receiving a check for $40,000 made jointly payable to him and the bank, but not endorsed by the bank. He further stated that he endorsed the check, returned it to the bank, and never received any funds from the bank in consideration for the note.

With only these facts before the trial court, Gunter argues that the bank is not entitled to summary judgment because the check he received from the bank was no consideration for the note, and, in effect, he paid the note in full by returning the check to the bank. The check for $40,000, without the bank's endorsement, and made jointly payable to Gunter and the bank, was not negotiable by Gunter alone, and conveyed no consideration. See Trammell v. Farmers, etc., Bank, 170 Ga.App. 347, 317 S.E.2d 323 (1984); OCGA §§ 11-3-116(b) and 11-3-202.

Apparently recognizing this problem, the bank filed a supplemental affidavit in support of its motion for summary judgment which stated that the consideration for Gunter's execution of the note was the bank's agreement to extend the due date on a defaulted loan it made to Gunter's parents. At the summary judgment hearing held on November 16, 1990, Gunter objected to the bank's supplemental affidavit, and moved to have it stricken as untimely filed. In the alternative, Gunter submitted his own responsive affidavit at the hearing refuting the allegations in the bank's supplemental affidavit. The bank objected to Gunter's supplemental affidavit as not timely filed. At the hearing, the bank also filed a deposition taken of Gunter's mother in a separate case involving the bank and Gunter's parents which purported to establish that Gunter executed the note for the bank's agreement to modify the terms of a loan between the bank and Gunter's parents. Gunter objected to the deposition on the basis that it also was not timely filed. The trial court allowed the deposition to be filed, and stated that it would consider both supplemental affidavits.

Relying on facts supplied in its supplemental affidavit and the deposition, the bank contended that failure of consideration was no defense since, even if Gunter received no proceeds from the note, he signed it as an accommodation party for his parents in connection with an extension of time on their loan to the bank. See Scott v. Citizens Bank of Americus, 188 Ga.App. 618-620, 373 S.E.2d 633 (1988) (accommodation party has no viable defense of failure of consideration). The bank further pointed out that Gunter's answer to the complaint asserts the affirmative defense that he executed the note as an accommodation party. However, this assertion in Gunter's pleadings alleges no facts giving context to the defense, but only the bare legal assertion that he acted as an accommodation party. To be binding, a judicial admission must be one of fact, and not merely the pleader's opinion or conclusion as to law or fact. Aiken v. Dept. of Transp., 171 Ga.App. 154, 319 S.E.2d 58 (1984). Asserting the legal defense of accommodation party was not an admission sufficient to eliminate consideration as an issue, and warrant summary judgment for the bank. See Cameron v. Moore, 199 Ga.App. 800, 801-803, 406 S.E.2d 133 (1991) (because deposition testimony not an admission of fact, it was not a judicial admission supporting summary judgment).

An order was entered by the trial court on November 30, 1990 granting summary judgment to the bank. It is apparent from the transcript of the summary judgment hearing, and from the legal authority cited in the order granting summary judgment, that the trial court considered the bank's supplemental affidavit and the deposition filed at the hearing in granting summary judgment to the bank. Pretermitting whether summary judgment would have been...