Jaycee Atlanta Dev., LLC v. Providence Bank

• Decision Date: 21 November 2014
• Docket Number: No. A14A1469.,A14A1469.
• Citation: 765 S.E.2d 536,330 Ga.App. 322
• Court: Georgia Court of Appeals
• Parties: JAYCEE ATLANTA DEVELOPMENT, LLC et al. v. PROVIDENCE BANK.

330 Ga.App. 322

765 S.E.2d 536

JAYCEE ATLANTA DEVELOPMENT, LLC et al.

v.PROVIDENCE BANK.

No. A14A1469.

Court of Appeals of Georgia.

Nov. 21, 2014.

Reconsideration Denied Dec. 11, 2014.

Certiorari Denied March 2, 2015.

Johnson & Ward, Stanley E. Kreimer Jr., for Appellants.

McGee & Oxford, James J. Brissette, DLA Piper, Ann Marie Byrd, Scott Andrew Lange, Atlanta, for Appellee.

Opinion

BRANCH, Judge.

Jaycee Atlanta Development, LLC (“Jaycee”) obtained a $15 million line of credit from a bank that later failed and had its assets transferred to Providence Bank. When Jaycee defaulted on the loan, Providence sued Jaycee and its members, Charles Woodson and James Crawford, to recover the remaining principal balance, plus interest. On cross-motions for summary judgment, the trial court ruled in favor of Providence, and Jaycee, Woodson, and Crawford now appeal. For reasons that follow, we affirm.

Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue of material fact and that the undisputed facts warrant judgment as a matter of law. Nixon v. Pierce County School Dist., 322 Ga.App. 745, 747, 746 S.E.2d 225 (2013). In reviewing the trial court's ruling on a motion for summary judgment, we apply a de novo standard of review and view the evidence in a light most favorable to the nonmoving party. Graham v. HHC St. Simons, 322 Ga.App. 693, 694(2), 746 S.E.2d 157 (2013). We will affirm the grant of summary judgment if it is right for any reason. Stephen A. Wheat Trust v. Sparks, 325 Ga.App. 673, 679(4), n. 8, 754 S.E.2d 640 (2014).

The record shows that Woodson and Crawford formed Jaycee with the goal of acquiring separate parcels of property near the Georgia Dome and assembling them into a multi-use development. Woodson and Crawford negotiated with Premier Bank, a financial institution based in Missouri, for a line of credit that would help them purchase the necessary parcels. At the closing, which occurred in September 2007, Premier and Jaycee executed a loan agreement and promissory note for $15 million, and Woodson and Crawford executed personal guaranties on the note.¹

In October 2010, the Missouri Division of Finance declared Premier to be insolvent, closed it down, and appointed the Federal Deposit Insurance Corporation (“FDIC”) as receiver of its assets. The FDIC then transferred Premier's assets to Providence Bank.

In February 2011, Providence notified Jaycee that it was in default on the loan and demanded repayment. When Jaycee failed to pay, Providence sued Jaycee, Woodson, and Crawford for breach of the loan agreement, promissory note, and guaranties, seeking the remaining principal balance of more than $5 million, plus interest and attorney fees.² Providence attached copies of the relevant loan documents to the complaint. The defendants answered, denying liability, and Jaycee counterclaimed for breach of contract, alleging that Premier had broken certain oral promises.

Providence moved for summary judgment on its own claims, arguing that Jaycee borrowed money from Premier which it failed to repay in full, and that Woodson and Crawford were personally responsible for Jaycee's debt, Providence also sought summary judgment on Jaycee's counterclaims. The defendants filed a cross-motion for summary judgment on Providence's claims, asserting a variety of defenses. In a lengthy, thorough order, the trial court granted Providence's motions and denied the defendants' motion. The defendants filed a timely notice of appeal. At Providence's request, the trial court entered an order requiring the defendants to post $1 million, as well as the subject property, “to secure the judgment pending appeal.”³

On appeal, the defendants argue that Providence is not the real party in interest on the loan documents, that it failed to properly authenticate the loan documents, that the loan documents Providence produced are not the ones they signed, that the guaranties violate the Statute of Frauds, that Providence breached anti-assignment provisions in the loan documents, and that no supersedeas bond was authorized here. These arguments lack merit.

1. Pointing out that only “current holders of an interest in the contract” may sue on it, Sawgrass Builders v. Key, 212 Ga.App. 138(1), 441 S.E.2d 99 (1994), the defendants assert that Providence failed

to show that it has an interest in the loan agreements. But there was ample undisputed evidence that Providence was Premier's successor-in-interest in those agreements.

William Mitchell, a vice president at Providence and its OCGA § 9–11–30(b)(6) witness, testified that after Premier failed and the FDIC stepped in, Providence “bought the assets” of Premier.⁴ Mitchell also identified a document titled “Transfer of Liens” showing that the FDIC “has sold, transferred, assigned and conveyed” to Providence the Jaycee loan “and all other documents evidencing, securing or relating to the Loan.” Finally, Mitchell identified a list that the FDIC supplied of all loans included in the asset purchase, and that list contains the Jaycee loan. The defendants, on the other hand, have pointed to no evidence suggesting that Providence is not Premier's successor-in-interest on the Jaycee loan documents.⁵ Thus, the trial court properly rejected the defendants' real-party-in-interest defense. See HWA Properties v. Community & Southern Bank, 322 Ga.App. 877, 883(1)(c), 746 S.E.2d 609 (2013) (given “affirmative and uncontradicted evidence” that bank's acquisition of other bank's assets after FDIC receivership included the subject loan, “unsupported assertion” that acquisition may not have included subject loan “constitutes mere speculation or conjecture that is insufficient to defeat ... summary judgment”) (citation omitted).⁶

2. The defendants also argue that Providence failed to properly authenticate the loan documents. We disagree.

In general, “a writing will not be admitted into evidence unless the offering party tenders proof of the authenticity or genuineness of the writing.” Nyankojo v. North Star Capital Acquisition, 298 Ga.App. 6, 7, 679 S.E.2d 57 (2009) (punctuation and footnote omitted). The requirement of authentication “shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” OCGA § 24–9–901(a). But the new Georgia Evidence Code specifies a number of documents that are self-authenticating and do not require “[e]xtrinsic evidence of authenticity as a condition precedent to admissibility,” including “[c]ommercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.” OCGA § 24–9–902(9). Although the defendants concede that this statute encompasses the loan agreement and promissory note, as well as the amendments thereto, they insist that the guaranties are not self-authenticating. This argument lacks merit, as the statute applies not only to commercial paper, but also to “documents relating thereto,” such as guaranty agreements. See United States v. Varner, 13 F.3d 1503, 1509–1510(III) (C) (11th Cir.1994) (assumption agreements showing transfer of promissory notes were self-authenticating under federal counterpart to OCGA § 24–9–902(2) ); see also Gunter v. True, 203 Ga.App. 330, 334(3), 416 S.E.2d 768 (1992) (guaranty agreement was “part and parcel of the note itself”).

3. The defendants argue that even if the loan documents are admissible, there are disputes of fact as to whether they were the same documents that Woodson and Crawford signed, or intended to sign, at the closing. The defendants point out that some pages of the loan documents contain footers, while others do not, and that the content of the footers is not consistent from page to page. They also insist that the terms of the documents attached to Providence's complaint are different from what they negotiated. But the defendants have failed to present any evidence, beyond speculation, to support these claims.

Mark Burr, Premier's closing attorney, testified that he prepared the loan documents, which reflected the loan amount that Jaycee and Premier had initially agreed upon—$20 million. Burr brought the unsigned loan documents to the closing, which occurred at the law offices of Jaycee's local Atlanta counsel. The closing was attended by Burr, Crawford, and Steven Buckman, the defendants' lawyer, as well as a few non-parties. When Burr arrived, he learned that the parties had renegotiated the amount of the loan to $15 million, and he had to change and reprint pertinent pages of the loan documents, including the guaranties, to reflect the new loan amount.⁷ Although Burr did not have a clear memory of how, exactly, he accomplished this task (the closing occurred five years before his deposition), he testified that he probably used a printer at local counsel's office to print corrected pages from his laptop. With regard to the footer inconsistencies, Burr testified that in his experience, when printing a document from a system that is different from the one on which it was created, “these footers don't always transfer properly.”

Burr testified that he personally observed Crawford sign the loan documents (except for Woodson's guaranty) at the closing table, and that Buckman gave him a signature page that Woodson had previously signed to be attached to Woodson's guaranty. Burr further testified that Buckman actively participated in the closing negotiations and that he reviewed the loan documents, including Woodson's guaranty, before they were executed. After the documents were executed and copies made, Burr boxed up the originals and sent them to Premier, keeping copies for himself and the defendants. During his deposition, Burr identified the loan documents attached to Providence's complaint as the ones executed at the closing.

As to the defendants' evidence, Crawford admits that he personally signed a loan agreement, promissory note, and guaranty at the closing. During his deposition, however, he...