Shiva Mgmt. v. Walker

• Decision Date: 29 March 2011
• Docket Number: No. A10A1787.,A10A1787.
• Citation: 708 S.E.2d 710,308 Ga. App. 878
• Parties: SHIVA MANAGEMENT, LLC et al.v.WALKER et al.
• Court: Georgia Court of Appeals

308 Ga.App. 878

708 S.E.2d 710

11 FCDR 1161

SHIVA MANAGEMENT, LLC et al.

v.WALKER et al.

No. A10A1787.

Court of Appeals of Georgia.

March 29, 2011.

Richard Scott Alembik, Decatur, Willis Linton Miller IV, for appellants.Ayoub & Mansour, John Antoine Bailey Ayoub, John George Mansour, Atlanta, for appellees.DILLARD, Judge.

Shiva Management, LLC(“Shiva”), and the estate of its sole member and owner, William Gottlieb(collectively “Shiva/Gottlieb”), appeal a grant of summary judgment in favor of Joe Walker and Linda Jackson(collectively “Walker/Jackson”) on their claim against them for slander of title.Shiva/Gottlieb contend that the trial court erred in (1) precluding jury consideration of whether a lien filed against the subject property was slanderous or libelous, (2) precluding jury consideration of whether Shiva/Gottlieb acted with malice, and (3) considering the motion for summary judgment after it was untimely filed.Because we conclude that there are genuine issues of material fact precluding summary adjudication, we reverse and remand this case with direction.

Viewing the facts in the light most favorable to the nonmovants (Shiva/Gottlieb), as we are required to do in a summary-judgment action, ¹ the record shows that Gottlieb first met Walker at a makeshift flea market in DeKalb County, which Walker operated on property owned by Jackson.Gottlieb was an occasional customer, and he repeatedly expressed to Walker an interest in purchasing the subject property.Walker initially advised Gottlieb that he was not interested in selling the property (that unbeknownst to Gottlieb he did not own), but eventually “agreed” to enter into a contract for the sale of the property in exchange for a loan of $7,000 through Gottlieb's real estate investment firm, Shiva.This loan was memorialized in a promissory note and deed to secure debt, both of which were signed by Jackson (who was acting as a pass through for Walker).The deed to secure debt gave Shiva a second position security interest in the property, and the loan was to be repaid with interest on or before June 23, 2004.In connection with the loan transaction, Jackson and Walker both signed a sales contract with Gottlieb, agreeing to sell the property for $170,000 on or before June 23, 2004.²In signing the sales contract, Gottlieb made no explicit reference to Shiva.

The sales contract provided that “time is of the essence” and gave Gottlieb the right to specific performance.Additionally, at the same time the sales contract was executed, Gottlieb signed an affidavit of filing and recorded this document along with the sales contract as an attachment.In this affidavit, Gottlieb averred that the “undersigned [Shiva] has vested interests [,] including specific performance of the contract.”Gottlieb claims that he intended to sign the sales contract in his corporate capacity and that his failure to do so was inadvertent, and he further argues that the affidavit of filing effectively assigned any “vested interest”he had in the sales contract to Shiva pursuant to the assignment clause contained in that contract.Thereafter, from February to June 2004, Shiva/Gottlieb assert that they contacted Walker on numerous occasions in an effort to set a closing date for the subject property, advising that they were fully prepared to pay the entire purchase price in cash.³Notwithstanding these efforts, as of June 23, 2004, the loan had not been repaid and the sale of the property had not closed.

The situation became even murkier in August 2004(a little over a month after the expiration of the sales contract), when Jackson purportedly quitclaimed to Walker a 50 percent interest in the subject property.Then, in September 2004, Shiva recorded an “Affidavit–Notice of Contract/Claim of Beneficial Interest Lien” in the DeKalb County real-estate records, claiming a lien on the subject property by virtue of the unsatisfied sales contract and the specific-performance provision contained therein.

In April 2006, Jackson authorized Walker, through a general power of attorney, to handle certain aspects of her financial affairs (including real-estate transactions).Almost a year later, in March 2007, Walker filed suit against both Shiva/Gottlieb for fraud and slander of title, alleging that Shiva's lien against the property was (1) false, (2) clouded his title, and (3) prevented him from taking out additional loans on the subject property.Shiva/Gottlieb answered and filed counterclaims for conspiracy, fraud, breach of contract, and specific performance, and sought to add Jackson as a party.In October 2009, Walker/Jackson moved for summary judgment on their slander-of-title claim, which the trial court granted.This appeal follows.

At the outset, we note that when a party moves for summary judgment, this “does not authorize the trial court to sit as both judge and jury, weighing the evidence and deciding issues that are traditionally for the jury.”⁴Instead, “[t]he sole function of the court on a motion for summary judgment is ... to determine whether there exists a genuine issue of material fact.”⁵And here, having viewed the facts in the light most favorable to Shiva/Gottlieb,⁶we find for the reasons noted infra that genuine issues of material fact precluded the trial court's grant of summary adjudication.

1.First, there is a genuine issue of material fact as to whether Shiva was a party to the sales contract.As noted supra, at the time the sales contract was executed contemporaneously with the promissory note and deed to secure debt (both of which identified Shiva as the party to those agreements), Gottlieb executed an affidavit of filing claiming specifically that Shiva (not Gottlieb) had a vested interest in the subject property pursuant to the sales contract, and this affidavit was then recorded along with the contract as an attachment.These contemporaneous filings, considered together, create an ambiguity as to whether Gottlieb signed the sales contract in his personal or corporate capacity.⁷Moreover, even if there were no evidence that Shiva was a party to the sales contract, this would merely mean that Gottlieb himself had a vested interest in the contract, as noted infra.

2.Having concluded that a genuine issue of material fact remains as to whether Shiva or Gottlieb was the optionee to the sales contract, we will now consider whether the trial court erred in concluding that Shiva/Gottlieb did not have a vested interest ⁸ in the property because of a failure to exercise the option contained in the sales contract to purchase the subject property.⁹Specifically, the trial court found that Shiva/Gottlieb failed to exercise this option because they never (1)“obtained or applied for financing to purchase the subject property,”(2)“set up a closing with a closing attorney,” or (3)“contacted Linda Jackson, the owner of the subject property, to close the subject property.”We will address each of these findings in turn.

The relevance of Shiva/Gottlieb failing to obtain or apply for financing is difficult to discern at the summary-judgment stage of these proceedings,¹⁰ given Gottlieb's claim that he told Walker he was fully prepared to tender the entire purchase price for the subject property in cash at closing.¹¹And indeed, Walker admitted that he understood Gottlieb to be a man of significant wealth.Until this disputed fact is resolved, any consideration of Shiva/Gottlieb's alleged failure to obtain or apply for financing is premature.¹²

Likewise confusing is the trial court's finding that Shiva/Gottlieb failed to exercise its option to purchase the subject property because they“ failed to set up a closing with a closing attorney.”As noted supra, Gottlieb claimed that he attempted to set up a closing date with Walker on several occasions, offered to tender the full purchase price in cash at closing, and was precluded from scheduling a closing because Walker flatly refused to comply with and honor the sales contract.¹³If Shiva/Gottlieb can establish that they failed to schedule a closing on the subject property because Walker refused to sell (or to allow Jackson to sell) the property, then Walker/Jackson cannot rely upon or benefit from such a failure as a means of establishing that Shiva/Gottlieb failed to exercise the option to purchase the property.¹⁴

Finally, while it is undisputed that Shiva/Gottlieb had no communications with Jackson—the only owner of the subject property during the time period outlined in the sales contract—about exercising the option to purchase the subject property,¹⁵ this fact, in and of itself, cannot serve as a basis for summary adjudication given the current state of the evidentiary record.Indeed, there is a significant amount of evidence that both Walker and Jackson represented to Shiva/Gottlieb—explicitly and/or through their conduct—that Walker was either an owner in the subject property, a person with a vested (but perhaps unperfected) interest in the property,¹⁶ or, at the very least, a person with the apparent authority to act as the equivalent of Jackson's agent/broker with respect to the property.¹⁷Moreover, it is undisputed that Jackson's interest in the subject property was only revealed to Shiva/Gottlieb when Gottlieb's attorney conducted a title search and informed Gottlieb that Jackson was in the chain of title, and yet both Walker and Jackson signed a contract that explicitly stated that they both held an interest in the property.¹⁸In any event, for purposes of our review, we need not conclusively decide whether Walker had any actual interest in or authority with respect to the subject property during the sales-contract period.All we conclude today is that there are genuine issues of material fact as to whether Shiva/Gottlieb were justified in their belief that Walker had at least apparent authority to deal on Jackson's behalf while Shiva/Gottlieb were attempting to exercise the...