Big Sandy Partnership, LLC v. Branch Banking & Trust Co.
313 Ga. App. 871
| Ga. Ct. App. | 2012Background
- BB&T sued Big Sandy Partnership, Harlan, and McCook to collect on promissory notes and guarantees.
- The Debtors defaulted on the notes and guarantees, creating a prima facie right to judgment.
- The trial court granted BB&T summary judgment on the notes and guarantees.
- Debtors argued affirmative defenses exist but failed to point to specific record evidence supporting them, other than mitigation.
- The court held BB&T was not required to mitigate damages for an absolute promise to pay, and affirmed judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment was proper despite alleged defenses | BB&T showed no genuine fact issue; defenses lacked record support. | There are genuine issues of material fact as to affirmative defenses. | Summary judgment proper; defenses insufficient |
| Whether BB&T had to mitigate damages under OCGA § 13-6-5 | Note guarantees were absolute; § 13-6-5 does not apply. | BB&T failed to mitigate by foreclosure as security required. | No mitigation duty; absolute promise controls |
Key Cases Cited
- Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (Ga. 1991) (burden shifting on summary judgment after default on notes)
- Miller v. Calhoun/Johnson Co., 230 Ga.App. 648, 497 S.E.2d 397 (Ga. App. 1998) (burden shifts to debtor to show defenses on summary judgment)
- Gentile v. Bower, 222 Ga.App. 736, 477 S.E.2d 130 (Ga. App. 1996) (principles on summary judgment and defenses)
- Reece v. Chestatee State Bank, 260 Ga.App. 136, 579 S.E.2d 11 (Ga. App. 2003) (summary judgment burden and defense analysis)
- Helton v. Jasper Banking Co., 311 Ga.App. 363, 715 S.E.2d 765 (Ga. App. 2011) (defenses not supported by record evidence)
- Bell v. Smith, 227 Ga.App. 17, 488 S.E.2d 91 (Ga. App. 1997) (evidence required to pierce pleadings on summary judgment)
- Imex Intl., Inc. v. Wires Engineering, 261 Ga.App. 329, 583 S.E.2d 117 (Ga. App. 2003) (absence of contrary record evidence suffices for judgment)
- REL Development, Inc. v. Branch Banking & Trust Co., 305 Ga.App. 429, 699 S.E.2d 779 (Ga. App. 2010) (holder/grantee may sue on note or exercise security power)
- Southeast Reducing Co. v. Wasserman, 229 Ga.App. 1, 493 S.E.2d 201 (Ga. App. 1997) (damages mitigation principles in contract cases)
- Reid v. Whisenant, 161 Ga. 503, 131 S.E. 904 (Ga. 1926) (absolute promises not subject to § 13-6-5 mitigation doctrine)
- Haley v. Oaks Apartments, Ltd., 173 Ga.App. 44, 325 S.E.2d 602 (Ga. App. 1984) (mitigation doctrine limitations with absolute promises)