Strong v. Wachovia Bank of Georgia, N.A.
| Decision Date | 12 December 1994 |
| Docket Number | No. A94A2692,A94A2692 |
| Parties | STRONG v. WACHOVIA BANK OF GEORGIA, N.A. |
| Court | Georgia Court of Appeals |
Zimmerman & Associates, Keith F. Brandon, Atlanta, for appellant.
Mann, Bracken, Laying & Knezo, M. Douglas Mann, Atlanta, for appellee.
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.
" ... 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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