Strong v. Wachovia Bank of Georgia, N.A.

Decision Date12 December 1994
Docket NumberNo. A94A2692,A94A2692
Citation451 S.E.2d 524,215 Ga.App. 572
CourtGeorgia Court of Appeals

Zimmerman & Associates, Keith F. Brandon, Atlanta, for appellant.

Mann, Bracken, Laying & Knezo, M. Douglas Mann, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

Appellant Robert W. Strong appeals the judgment entered in favor of appellee Wachovia Bank of Georgia, N.A. (Wachovia).

Appellee Wachovia was the secured party of a loan made to appellant for the purchase of a cabin cruiser. Appellant defaulted and appellee repossessed the cruiser, which served as collateral for the loan; appellee tendered notice to appellant of its intent to sell said collateral at private sale and the boat subsequently was sold. Appellee Wachovia thereafter filed suit asserting its entitlement to deficiency judgment against appellant in the amount of $20,596.59 plus accrued interest. Following denial of appellant's motion for directed verdict, the jury rendered a verdict in favor of appellee in an amount of $12,500 and judgment was entered. Held:

1. Appellant asserts the trial court abused its discretion by denying appellant's motion to compel discovery. " '(A) trial court has broad control over the use and limitations of discovery procedures, and unless there is a clear abuse of this discretion the appellate courts will not interfere.' " Lewis v. Evans, 212 Ga.App. 49, 51, 441 S.E.2d 425. While appellant has established a basis on which the trial court could have granted its motion to compel discovery, appellee has shown certain deficiencies in procedure which would provide a basis for the trial court to deny the motion. Specifically, the record reflects, inter alia, that appellant failed to comply with the requirements of Uniform Superior Court Rule 6.4(B) in that at the time of filing of the motion to compel discovery, appellant failed to attach thereto a certifying statement that a conference had been conducted with opposing party's counsel in a good faith effort to resolve the matters involved and that such effort failed. As appellant failed to comply fully with the Uniform Superior Court Rules pertinent to discovery, some basis existed for the trial court to deny the motion to compel discovery; no clear abuse of discretion by the trial court has been established.

2. Appellant asserts the trial court abused its discretion in denying appellant's motion to add a counterclaim, as authorized pursuant to OCGA § 9-11-13(f). Specifically, appellant contends that he made the affirmative showings required by OCGA § 9-11-13(f) and, further, that justice required the trial court to allow the pro se appellant/defendant to file his counterclaim against appellee/plaintiff "for selling his property in a commercially unreasonable manner." However, during the pretrial proceedings, appellant failed to ground his motion to file a counterclaim out-of-time on grounds that the sale was conducted in a commercially unreasonable manner. Rather, after acknowledging his current awareness that "the price obtained at the time of sale of the property was far less than commercially reasonable," appellant nonetheless stated the following position to the trial court as the grounds for his motion: "Therefore, it is the [appellant/]defendant's position, that the [appellee/]plaintiff willfully and deliberately breached its fiduciary duties owed to the plaintiff by the sale of the property in question at a price that was known to the plaintiff to be below the appraisal of the boat and trailer in question." (Emphasis supplied.) This assertion of grounds would mislead the trial court into believing that the basis of appellant's proposed counterclaim was that of breach of fiduciary duty. In May v. C & S Nat. Bank, 202 Ga.App. 217, 219(1), 413 S.E.2d 780, it was held that creditors deal with debtors at arm's length and do not stand in a fiduciary capacity in relationship to them, and this is true even where the debtor places special trust and confidence in a bank or its officers. Thus, no viable claim of breach of fiduciary duty by appellee bank existed as a matter of law, and the trial court would not err in denying a motion to add such a counterclaim. Appellant cannot now assert that he was seeking authorization to file a counterclaim grounded on a claim of the commercial unreasonableness of the sale. First, such a claim would constitute a shifting of the position raised before and ruled upon by the trial court; as such, it is not preserved for appellate review, as there was no ruling as to the permissibility of filing the particular counterclaim here being asserted. Cf. Westwind Corp. v. Washington Fed. Savings, etc., Assn., 195 Ga.App. 411(1), 393 S.E.2d 479. Additionally, the motion filed by appellant would tend to mislead the trial court as to the viability of the proposed counterclaim thereby contributing to the trial court's denial of the motion. It is well settled that a party cannot complain of an appellate ruling, order, or judgment that his own legal strategy, litigative procedure, or conduct aided in causing. Williams v. Food Lion, 213 Ga.App. 865, 868, 446 S.E.2d 221; Perryman v. Rosenbaum, 205 Ga.App. 784, 790, 423 S.E.2d 673 3. Appellant contends the lower court erred in denying his motion for directed verdict because appellee failed to establish the value of the repossessed collateral at time of repossession.

In considering a ruling on a motion for directed verdict, the evidence must be construed most favorably to the party opposing the motion; and a verdict shall be directed only where there is no conflict in the evidence as to any material issue, and the evidence introduced with all reasonable deductions therefrom, shall demand a particular verdict. Mattox v. MARTA, 200 Ga.App. 697, 698(1), 409 S.E.2d 267. The standard of appellate review of a trial court's denial of a directed verdict motion is the "any evidence" standard. Id.

" 'Where the commercial reasonableness of a sale is challenged by the debtor, the party holding the security interest has the burden of proving that the terms of the sale were commercially reasonable and that the resale price was the fair and reasonable value of the collateral. The secured party must also prove the value of the collateral at the time of repossession and that the value of the goods does not equal the value of the debt. If this proof is not forthcoming, it is presumed that the value of the goods is equal to the amount of the debt.' ... [Further,] [e]ven if the sale is conducted in a commercially reasonable manner, proof of the sale price is not sufficient to overcome the presumption against appellee that the value of the collateral equals the debt on it." Brewer v. Trust Co. Bank, 205 Ga.App. 891, 893(3), 424 S.E.2d 74.

The transcript reveals that the balance due on the debt at time of repossession was...

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11 cases
  • Time Warner Entertainment Co. v. Six Flags Over Georgia
    • United States
    • Georgia Court of Appeals
    • July 13, 2000
    ...that his own legal strategy, litigative procedure, or conduct aided in causing." (Citations omitted.) Strong v. Wachovia Bank, 215 Ga.App. 572, 573(2), 451 S.E.2d 524 (1994). Moreover, this court lacks jurisdiction to consider inadequately enumerated grounds. OCGA § 5-6-40; Meeks v. State, ......
  • Service Merchandise, Inc. v. Jackson
    • United States
    • Georgia Court of Appeals
    • June 27, 1996
    ...introduced with all reasonable deductions therefrom, shall demand a particular verdict.... (Cit.)' Strong v. Wachovia Bank of Ga., 215 Ga.App. 572, 573(3), 451 S.E.2d 524 (1994)." Dept. of Transp. v. Brown, 218 Ga.App. 178 (1), 179, 460 S.E.2d 812. See also OCGA § 9-11-50(a). Under OCGA §§ ......
  • Alternative Health Care Systems v. McCown
    • United States
    • Georgia Court of Appeals
    • March 16, 1999
    ...this Court to speculate as to the findings of fact supporting the verdict, a task we will not undertake. Strong v. Wachovia Bank of Ga., 215 Ga.App. 572, 575(4), 451 S.E.2d 524 (1994). We also note that the verdict simply found for McCown for compensatory damages in the amount of $418,000. ......
  • De Castro v. Durrell
    • United States
    • Georgia Court of Appeals
    • November 18, 2008
    ...(Citation and punctuation omitted.) Ostroff v. Coyner, 187 Ga.App. 109, 117(6), 369 S.E.2d 298 (1988). 37. Strong v. Wachovia Bank, etc., 215 Ga.App. 572(1), 451 S.E.2d 524 (1994). 38. (Citations and punctuation omitted.) Baxley v. Hakiel Indus., 282 Ga. 312, 313, 647 S.E.2d 29 ...
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1 books & journal articles
  • Commercial Law - Robert A. Weber, Jr.
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 48-1, September 1996
    • Invalid date 239 (emphasis added). 172. Id. at 880-81, 456 S.E.2d at 240-41. 173. Id., 456 S.E.2d at 240. 174. Id. at 882, 456 S.E.2d at 241. 175. 215 Ga. App. 572, 451 S.E.2d 524 (1994). 176. Id. at 574, 451 S.E.2d at 527 (internal quotation omitted and emphasis added). 177. Id. at 572, 451 S.E.2d a......

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