Light v. Equitable Mortg. Resources, Inc.

• Decision Date: 17 May 1989
• Docket Number: No. A89A0776,A89A0776
• Citation: 383 S.E.2d 142,191 Ga.App. 816
• Parties: LIGHT et al. v. EQUITABLE MORTGAGE RESOURCES, INC.
• Court: Georgia Court of Appeals

Page 142

383 S.E.2d 142

191 Ga.App. 816

LIGHT et al. v. EQUITABLE MORTGAGE RESOURCES, INC.

No. A89A0776.

Court of Appeals of Georgia.

May 17, 1989.

Rehearings Denied May 31 and June 6, 1989.

Certiorari Denied Sept. 7, 1989.

Kessler & Parks, Michael A. Kessler, Atlanta, for appellants.

Hudspeth & Benedict, Dean A. Williams, Norcross, Chambers, Chambers & Chambers, John W. Chambers, Sr., Hansell & Post, R. Dal Burton, Atlanta, for appellee.

DEEN, Presiding Judge.

The appellants, Gary Light and James Cooley, entered an agreement with North River Builders, Inc. (North River), for North River to acquire certain real property and build two houses on it. In June 1985 North River, which had obtained financing for other projects from the appellee, executed a $975,000 real estate note in favor of the appellee, secured by a deed to secure debt. The appellants co-signed the note and the deed to secure debt as guarantors. North River and the appellee then executed a construction loan agreement delineating the terms for advancing the loan proceeds.

In the fall of 1986, North River requested that the loan be increased to $1,262,030, which the appellee agreed to do, and to which the appellants did not object. At that time the appellants submitted an affidavit stating that they had no legal or equitable title in the property. North River used some of these extended loan proceeds to pay other outstanding obligations it owed the appellee. In December 1986, the appellants requested that the appellee stop advancing funds to North River because North River had financial problems and had not been paying its subcontractors, and the appellee did so. Thereafter, North River defaulted on its obligation, and the appellee advertised the property for foreclosure.

The appellants then commenced this action against the appellee, alleging negligent administration of the loan to North River and misappropriation of funds. Following the expiration of a temporary restraining order, the appellee re-advertised and eventually foreclosed on the property. The appellants subsequently amended their complaint to allege negligent and intentional interference with their contractual rights, and conspiracy to divert and convert money. The trial court granted summary judgment for the appellee, and this appeal followed. Held:

1. Initially, the appellants contend that reversal is mandated because the trial court failed to consider four unsealed depositions filed with the court in opposition to the appellee's motion for summary judgment. In its order granting summary judgment for the appellee, the trial court stated that "[t]he court has examined the affidavits and other materials submitted in support of and in opposition to the motion ..." In General Motors Corp. v. Walker, 244 Ga. 191, 193, 259 S.E.2d 449 (1979), the Supreme Court held that "[i]f a trial court indicates in his order granting a motion for summary judgment that the motion is being granted after a review of the record, this court will not hold that he failed to review the relevant portions of a deposition simply because the original of the deposition on file in the case remained sealed and was not opened until after the order granting the motion was entered." The instant case falls within the ambit of Walker. Cf. Maddox v. Brown, 188 Ga.App. 728, 374 S.E.2d 222 ...