Cumberland Contractors, Inc. v. State Bank & Trust Co.
327 Ga. App. 121
Ga. Ct. App.2014Background
- State Bank, as successor to Security Bank, sued Cumberland Contractors and Michael and Lucy Thomas on four notes and related guarantees.
- FDIC, appointed as receiver for Security Bank, assigned the notes and related documents to State Bank, which obtained the loan records and documents.
- After default, State Bank accelerated the loans and filed suit to enforce the notes and guarantees; the Thomases counterclaimed for invasion of privacy and intentional infliction of emotional distress.
- At trial, the Thomases moved for a directed verdict; the trial court denied and the jury returned a verdict for State Bank; a supersedeas bond motion was denied.
- On appeal, the court reversed the judgment in A13A2221 on enforceability of a settlement agreement, and affirmed the denial of supersedeas bond in A13A2222.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether State Bank was the real party in interest | State Bank showed a valid assignment from FDIC as receiver. | Defendants argued no enforceable assignment or privity. | State Bank was the real party in interest. |
| Whether Thomases’ counterclaims for invasion of privacy and IIED were properly dismissed | Counterclaims were improper based on asserted publication of SSNs. | Counterclaims should not have been dismissed as to privacy/IIED. | Counterclaims properly dismissed. |
| Whether there was a enforceable settlement agreement | February 8, 2012 email memorialized an agreement; drafting of documents was not a condition to acceptance. | No binding agreement; terms differed and documents were not signed. | Settlement agreement enforceable; trial court erred in denying enforcement. |
| Whether the trial court properly denied a directed verdict on collection | Evidence supported collection on notes. | Insufficient or disputed evidence on collection parameters. | Not addressed on appeal due to disposition. |
| Whether the trial court properly denied a directed verdict as to attorney fees/holder in due course instruction | State Bank's request regarding fees and holder in due course should be upheld. | No error in denying directed verdict on these issues. | Not addressed on appeal due to disposition. |
Key Cases Cited
- Level One Contact, Inc. v. BJL Enterprises, LLC, 305 Ga. App. 78 (2010) (assignment of contract rights requires a writing; promissory notes are negotiable)
- Pourreza v. Teel Appraisals & Advisory, Inc., 273 Ga. App. 880 (2005) (writing to satisfy contract-formation requirement for settlement agreements)
- Racette v. Bank of America, N.A., 318 Ga. App. 171 (2012) (outrageousness standard for IIED is a question of law)
- Finnerty v. State Bank and Trust Co., 301 Ga. App. 569 (2009) (absolute privilege under OCGA § 51-5-8 not controlling invasion claim; disapproved on extent)
- Commercial Union Ins. Co. v. Marco Transp. Co., 211 Ga. App. 844 (1994) (settlement agreements—prior agreement to settle can be enforceable even if release not signed)
- Sims v. Southern Bell Telephone & Telegraph Co., Inc., 111 Ga. App. 363 (1965) (judicial notice proper for certain official documents)
- Angel Business Catalysts, LLC v. Bank of the Ozarks, 316 Ga. App. 253 (2012) (liberally interpreted business records admissibility under former OCGA § 24-3-14(b))