MOM Corp. v. Chattahoochee Bank

• Decision Date: 17 March 1992
• Docket Number: No. A92A0418,A92A0418
• Parties: MOM CORPORATION et al. v. CHATTAHOOCHEE BANK et al.
• Court: Georgia Court of Appeals

Page 74

418 S.E.2d 74

203 Ga.App. 847

MOM CORPORATION et al. v. CHATTAHOOCHEE BANK et al.

No. A92A0418.

Court of Appeals of Georgia.

March 17, 1992.

Reconsideration Denied April 8, 1992.

Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, Atlanta, for appellants.

Kilpatrick & Cody, Susan Cahoon, Stephen E. Hudson, Bedford, Kirschner & Venker, Andrew R. Kirschner, Atlanta, for appellees.

BIRDSONG, Presiding Judge.

This case is a suit to collect on a note and guarantees in the principal sum of $480,017.33. This appeal is from the trial court's grant of summary judgment to appellee bank et al., upon appellees' "renewed" motion for summary judgment with resubmittal of affidavit evidence, following the Supreme Court's decision in a former appeal (Taquechel v. Chattahoochee Bank, 260 Ga. 755, 400 S.E.2d 8) wherein the court held insufficient the affidavit of the bank's loan officer as to bank records not attached to the affidavit.

In four enumerations of error, appellants contend summary judgment was error because the new affidavit, submitted by the loan officer on remand of the case to the trial court, showed on its face that the bank charged usurious interest by charging a daily rate based on the annual interest rate divided by 360 days rather than by 365. Held:

1. The Supreme Court's failure to state that it was remanding the case to the trial court for new evidence did not prohibit the trial court from proceeding with the case on remand and receiving additional evidence. The cases cited by appellants to prove that the trial court could not receive new or corrective evidence following a reversal of summary judgment, in fact prove the contrary, which is that following appellate review of summary judgment, "the law of the case" rule does not limit or prohibit the trial court from receiving new evidence which changes the evidentiary posture of the case. Stiltjes v. Ridco Exterminating Co., 192 Ga.App. 778, 779, 386 S.E.2d 696; Modern Roofing, etc., Works v. Owen, 174 Ga.App. 875, 332 S.E.2d 14. On a reversal of summary judgment, a case is remanded in the posture existing prior to summary judgment; although the appellate court may choose to remand with express direction, this is generally for purposes of clarity, and the mere failure of the appellate court expressly to direct a "remand" does not prohibit the parties from proceeding with the evidence.

2. Georgia courts have held that an interest rate based upon a daily charge equal to the annual rate divided by 360 is not usurious per se. See Broce v. Master Loan Svc., 171 Ga. 22, 154 S.E. 324; Patton v. Bank of LaFayette, 124 Ga. 965, 968-970, 53 S.E. 664; Beazley v. Ga. R. Bank, etc., Co., 144 Ga.App. 215, 241 S.E.2d 39.

Appellants have gone behind the decisions in those cases in an effort to present facts not contained in the opinions, based on appellants' view of the "archival records" in those cases. This is an attempt to impeach appellate decisions by adding facts not contained in the decisions. The decisions of our appellate courts must speak for themselves, and the archival records are not available to litigants in other cases to raise questions about facts or issues not stated or decided in them. "[N]otwithstanding their paucity, it is the facts contained within an officially reported case which have legal significance when applying the case as precedent, not bare assertions of facts found within the briefs of the parties and not contained in the text of the reported case." Chan v. W-East Trading Corp., 199 Ga.App. 76, 77(3), 403 S.E.2d 840.

Moreover, OCGA § 7-4-2(a)(1)(B) expressly states that the parties may establish by written contract any rate of interest, expressed in simple interest terms or otherwise. Accordingly, the trial court did not err in granting summary judgment to the bank.

3. In enumeration five, appellants urge "the trial court erred ... in that there remained issues of fact as to liability as a result of the expanded record ... furnished by the plaintiff's renewed motion for summary judgment."

As to this enumeration, appellants gave this statement of fact in Part One of their brief: "Appellants contend that the expanded record now supplies record facts missing in the prior appeal so that whether the present record supports summary judgment as to liability should be reviewed. The very documents...