324 Ga. App. 219
Ga. Ct. App.2013Background
- CTIC sued DS and Mara for indemnity and breach of title insurance agency contracts and Mara’s guaranty, arising from DS’s errors in Georgia closings.
- Agency Contract authorized DS to issue CTIC policies in GA with a 30% remittance to CTIC; Mara signed a personal guaranty indemnifying CTIC.
- Amendments in 2003 and 2004 lowered remittance to 25% with minimums and rebates conditioned on claims-to-remittance ratios; 2005 termination preserved ongoing obligations.
- Trial court denied DS’s res judicata and illegality defenses, but granted CTIC partial summary judgment on several counterclaims and on Mara’s rescission of the guaranty.
- This appeal involves whether the Agency Contract was illegal, whether res judicata bars CTIC’s claims, and whether CTIC properly prevailed on DS’s counterclaims and Mara’s guaranty rescission.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the Agency Contract illegal under RESPA and thus unenforceable? | DS argues RESPA violation from rebate; contract’s legality impacto | DS contends RESPA illegality voids contract | RESPA issue severable; contract not interdict by illegality; res judicata unaffected. |
| Does CTIC’s prior Tennessee suit bar the Georgia claims under res judicata? | CTIC should be barred if same transaction | DS—same cause of action | CTIC’s Georgia claims arise from Georgia closings, not same transaction; res judicata not bars. |
| Did CTIC prove entitlement to DS’s breach-of-contract counterclaim on rebates as a matter of law? | CTIC entitled to breach remedy due to 25% remittance condition precedent | DS timely remittance percentage disputed; conditions precedent not met | CTIC entitled to judgment on DS’s breach-of-contract counterclaim. |
| Are DS’s counterclaims for complaint on account and money had and received time-barred? | N/A | Statute of limitations 4 years; accrual by Sept 2005 | Four-year statute applied; claims time-barred. |
| Is DS’s recoupment properly treated under a six-year limitation? | Recoupment arises from CTIC’s breach; within six years | Counts limited by four-year period | Recoupment is within six years; summary judgment on this counterclaim reversed. |
Key Cases Cited
- Georgia-Pacific, LLC v. Fields, 293 Ga. 499 (Ga. 2013) (statutory-related summary judgment standards and fairness considerations)
- Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631 (Ga. 1981) (summary judgment applicability and due process)
- Canton Plaza v. Regions Bank, 315 Ga. App. 303 (Ga. App. 2012) (contract interpretation; plain language governs)
- Richard Bowers & Co. v. Creel, 280 Ga. App. 199 (Ga. App. 2006) (contract interpretation; severability when part is illegal)
- Gamlins v. A. E. Roberts & Assoc., 254 Ga. App. 763 (Ga. App. 2002) (statute of limitations for suit on account)