Branch Banking & Trust Company v. Camco Management, LLC
704 F. App'x 826
| 11th Cir. | 2017Background
- Camco Management, LLC and Jeffrey and Lori Cohen (Appellants) guaranteed a promissory note secured by a shopping center; they later defaulted.
- BB&T sued for breach of the note and guaranties and sought attorneys’ fees under O.C.G.A. § 13-1-11.
- Appellants moved to dismiss the attorneys’ fees claim and opposed BB&T’s summary judgment on breach and damages.
- BB&T submitted declarations and a loss calculation supporting default and damages; some supporting deposition testimony was filed under seal.
- After the shopping-center sale, BB&T filed a supplemental declaration explaining application of net sale proceeds; the district court considered it limited to that purpose.
- The district court denied the motion to dismiss, granted BB&T summary judgment, and awarded attorneys’ fees; Appellants appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BB&T’s attorneys’ fees claim should be dismissed because fees sought were calculated under O.C.G.A. § 13-1-11(a)(2) rather than fees “actually incurred” under the note and guaranties | Appellants: Statutory percentages were not the contractual measure; claim should be dismissed | BB&T: § 13-1-11 authorizes collection of attorney fees and statutory method applies; notice requirements were satisfied | Court: Denial of dismissal affirmed; statutory entitlement met and Appellants did not dispute statutory prerequisites (TermNet test) |
| Whether genuine issues of material fact precluded summary judgment on default and damages | Appellants: Bank’s records contained inaccuracies, High Risk Reports suggested loan was paid, and loss calculation errors create disputes | BB&T: Forbearance agreements and admissions show default; declarations, loan history, and witness testimony support loss calculation; corrections explained in sealed testimony | Court: Summary judgment proper—Appellants failed to produce admissible contradictory evidence; bank’s evidence was sufficient |
| Whether the district court abused its discretion by considering BB&T’s supplemental Paulk declaration filed with its summary-judgment reply | Appellants: Supplemental declaration was untimely and included material beyond the limited purpose, causing prejudice | BB&T: Declared it would supplement if sale occurred; Appellants knew sale evidence and were not prejudiced; court limited reliance to application of sale proceeds | Court: No abuse of discretion; declaration was considered only for its limited purpose |
| Whether the court must perform a reasonableness determination under O.C.G.A. § 13-1-11(b) for attorneys’ fees | Appellants: Fees over $20,000 require a reasonableness review under the 2012 amendment | BB&T: Note and guaranties predate amendment; § 13-1-11(b) is not retroactive | Court: No remand for reasonableness; § 13-1-11(b) does not apply retroactively to contracts dated before July 1, 2011 (Austin) |
Key Cases Cited
- Estate of Gilliam ex rel. Waldroup v. City of Prattville, 639 F.3d 1041 (11th Cir.) (standard of review for motion to dismiss)
- Nat’l Parks Conservation Ass’n v. Norton, 324 F.3d 1229 (11th Cir.) (standard of review for summary judgment)
- Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160 (11th Cir.) (view facts in light most favorable to nonmoving party)
- TermNet Merch. Servs., Inc. v. Phillips, 588 S.E.2d 745 (Ga.) (elements required to compel attorney’s fees under § 13-1-11)
- Chapman v. AI Transp., 229 F.3d 1012 (11th Cir.) (nonmoving party must present sufficient evidence to create genuine factual dispute)
- Macuba v. Deboer, 193 F.3d 1316 (11th Cir.) (hearsay may be considered at summary judgment if reducible to admissible form)
- Wright v. Farouk Sys., Inc., 701 F.3d 907 (11th Cir.) (abuse of discretion review for evidentiary rulings at summary judgment)
- Austin v. Bank of Am., N.A., 743 S.E.2d 399 (Ga.) (2012 amendment to § 13-1-11(b) not retroactive to pre-2011 contracts)