MCCARTER v. BANKERS TRUST COMPANY et al.
A00A1370
Court of Appeals of Georgia
DECIDED DECEMBER 1, 2000
543 SE2d 755
ELDRIDGE, Judge.
that the record fails to demonstrate that Drummond or Carlisle violated or was threatening violation of the nondisclosure covenant.13 LGI‘s claims that Drummond and Carlisle contacted customers and a supplier do not raise matters which would be covered by the nondisclosure provisions. LGI does not assert that these contacts were a result of Drummond or Carlisle disclosing confidential information to SLG.
Moreover, the record does not substantiate LGI‘s claim that Drummond or Carlisle disclosed confidential pricing information to SLG. LGI points to a correlation in price markups employed by LGI and SLG. But the President of LGI conceded in his deposition that he had no evidence that Drummond and Carlisle had shared any confidential pricing information with SLG.
We find no error in the trial court‘s denial of LGI‘s motion for a temporary injunction to enforce the nondisclosure covenant.
Judgment affirmed in part and reversed in part. Johnson, C. J., and Smith, P. J., concur.
DECIDED DECEMBER 1, 2000.
Jay M. Sawilowsky, for appellant.
Nimmons & Malchow, Leland M. Malchow, Kilpatrick Stockton, Robert P. Sentell III, Johnson, Wilkin & Williams, William J. Williams, Wendell
ELDRIDGE, Judge.
Jeannette McCarter appeals the trial court‘s order granting summary judgment to Morris, Schneider & Prior, LLC (“the law firm“), in her action for wrongful foreclosure. This appeal concerns only the law firm and McCarter; her claims against the other defendants remain pending, and those defendants are not parties to this appeal. Bankers Trust Company of California, the lender on the deed to secure debt, after the foreclosure and sale of the property, set aside the sale and reinstated the loan with McCarter‘s equity of redemption restored as well. McCarter had repeatedly been late in her monthly payments on her deed to secure debt; Bankers Trust Company had the loan principal accelerated after the most current payment was more than a month due and gave timely notice of foreclosure of the deed to secure debt under the powers contained in the note and deed to secure debt. The law firm commenced the foreclosure notice by publication and sale procedure; however, Bankers Trust Company, without notice to the law firm, agreed with McCarter to reinstate her loan, despite it being in default, and failed to instruct the law firm to stop the foreclosure proceedings. The law firm completed the foreclosure and sale.
Despite having recovered her property without suit, McCarter sued Bankers Trust Company, Option One Mortgage Corporation, the mortgage servicer, and the law firm for wrongfully and intentionally foreclosing on her property and wrongfully and intentionally publishing false information about her.
The law firm, in response to plaintiff‘s verified complaint, filed a verified answer and contended that, based on McCalla, Raymer &c. v. C.I.T. Financial Svcs., 235 Ga. App. 95 (508 SE2d 471) (1998), it was not a proper party to the action because it merely acted as an agent for the lender and servicer and was unaware that McCarter had been successful in having her loan reinstated from a default status. These contentions were supported by an affidavit from the law firm partner who handled the foreclosure.
McCarter responded that under
1. We find that the statements in McCalla, Raymer, supra at 95, on which the law firm and trial court relied were not controlling precedent. Whether a law firm could be a proper defendant in a wrongful foreclosure action was not an issue in that appeal. Nevertheless, the statement that “the proper party to any
McCarter contends that
All agents, by an express undertaking to that effect, may render themselves individually liable. Every agent exceeding the scope of his authority shall be individually liable to the person with whom he deals; so, also, for his own tortious act, whether acting by command of his principal or not, he shall be responsible; for the negligence of his underservant, employed by him in behalf of his principal, he shall not be responsible.
See also Oglethorpe Realty Co. v. Hazzard, 172 Ga. App. 98, 99 (3) (321 SE2d 820) (1984).
McCarter, further, urges that Miller & Miller v. Wilson, 98 Ga. 567, 569 (25 SE 578) (1896); Graham v. Frazier, 82 Ga. App. 185, 195-196 (4) (60 SE2d 833) (1950); and Haas & Howell v. Godby, 33 Ga. App. 218, 222-223 (125 SE 897) (1925), control where the lawyer or other agent for a creditor erroneously levies or seizes personal property owned, not by the debtor, but by a third party and is liable for conversion and trover to the property owner. In Miller & Miller v. Wilson, supra at 569, the Supreme Court held:
[w]hoever meddles with another‘s property, whether as principal or agent, does so at his peril, and it makes no difference that in doing so he acts in good faith, nor, in the case of an agent, that he delivers the property to his principal before receiving notice of the claim of the owner.
While such opinions are correct statements of abstract law regarding an action in conversion and trover,
First, these cited cases dealt with the seizing or delivering of personal property owned by another when the creditor, lawyer, or agent had no legal or equitable right to the property to satisfy a debt.
Second, under the facts of this case, Bankers Trust Company had legal title to the property under a deed to secure debt which was in default, thereby giving it a right to foreclose McCarter‘s equity of redemption and acquiring complete title to the property. Third, the evidence does not show that there was any impropriety in the notice, advertisement, or sale at foreclosure under a deed to secure debt so as to constitute a wrongful foreclosure.
Finally, McCarter contends that the law firm “wrongfully and intentionally” foreclosed upon her property and published false information about her, i.e., that she was in default on the deed to secure debt, which she was at the time of publication; thus, McCarter placed in issue her title to the property with no right in the law firm to fore-close and the intent of the law firm to commit an intentional tort as an essential element of such causes of action.
2. “Under Georgia law, it is clear that a security deed which includes a power of sale is a contract and its provisions are controlling as to the rights of the parties thereto and their privies.” (Citations and punctuation omitted.) Gordon v. South Central Farm Credit, ACA, 213 Ga. App. 816, 817 (446 SE2d 514) (1994). Legal title passed to the lender from McCarter when the deed to secure debt was created, and the owner, McCarter, has a mere equity of redemption and right of possession of the realty until the secured debt has been satisfied in full.
The law firm breached no tort duties owed to McCarter, and it did not wrongfully foreclose the property. McCarter admits in judicio that the foreclosure was conducted according to the foreclosure statute, and a violation of the statute is necessary to constitute a wrongful foreclosure. See
Further, where emotional damages are sought for an action for intentional wrongful foreclosure, such are recoverable as tort damages. Curl v. First Fed. Sav. &c. Assn. of Gainesville, 243 Ga. 842, 843-844 (2) (257 SE2d 264) (1979). However, such action for damages for emotional distress is treated as an action for intentional infliction of emotional distress, and the burden that plaintiff must meet is a stringent one in order to prevail. Clark v. West, supra at 458; see also Ingram v. JIK Realty Co., 199 Ga. App. 335, 336 (1) (404 SE2d 802) (1991). Thus, intentional conduct to cause harm is an essential element of such action. Clark v. West, supra at 458; Ingram v. JIK Realty Co., supra at 336. Where the defendant on summary judgment has shown an absence of intent to harm McCarter and has shown the foreclosure occurred from error, the burden shifted to McCarter to come forward with some evidence to create a jury issue, which she failed to do. See Clark v. West, supra at 458; Ingram v. JIK Realty Co., supra at 336.
McCarter failed to rebut defendants’ evidence showing that there was no tortious act in violation of the statute requiring good faith and fair dealing. Gordon v. South Central Farm Credit, supra at 817-818. Further, McCarter failed to rebut defendants’ evidence regarding the absence of severe emotional distress which is a necessary element of such action. See Ingram v. JIK Realty Co., supra at 338. The summary judgment is affirmed. See Lau‘s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).
Judgment affirmed. Johnson, C. J., Pope, P. J., Andrews, P. J., Blackburn, P. J., Ruffin, Ellington, Phipps and Mikell, JJ., concur. Smith, P. J., Barnes and Miller, JJ., dissent.
BARNES, Judge, dissenting.
Because I believe the trial court erred in granting summary judgment to Morris, Schneider & Prior, LLC, I respectfully dissent from the majority opinion.
All agents, by an express undertaking to that effect, may render themselves individually liable. Every agent exceed-ing the scope of his authority shall be individually liable to the person with whom he deals; so, also, for his own tortious act, whether acting by command of his principal or not, he shall be responsible; for the negligence of his underservant, employed by him in behalf of his principal, he shall not be responsible.
(Emphasis supplied.)
[w]hoever meddles with another‘s property, whether as principal or agent, does so at his peril, and it makes no difference that in doing so he acts in good faith, nor in case of an agent, that he delivers the property to his principal before receiving notice of the claim of the owner. If an agent takes the property of another without his consent and delivers it to the principal, it is a conversion, and trover will lie for the recovery of the property or for damages, as the plaintiff may elect. An agent, who for and in behalf of his principal takes the property of another without the latter‘s consent, is as to him guilty of a conversion, although being ignorant of the true owner‘s title, the agent may have acted in perfect good faith; and such agent may be sued in trover for the property, even after his delivery of it to his principal. Also such an agent may be sued jointly with his principal for such conversion.
(Citations and punctuation omitted.) Graham v. Frazier, 82 Ga. App. 185, 195-196 (4) (60 SE2d 833) (1950).
The law firm is not absolved of liability merely because it acted as attorney for the lender and server, and, accordingly, the grant of summary judgment should be reversed.
2. Although the points raised by the majority in Division 2 ultimately may be correct, those issues were not asserted in the law firm‘s motion for summary judgment. Consequently, McCarter was given no opportunity to address them, and, of course, the trial court never ruled on them.
Under this record, we should not rule on these issues. A plaintiff is not required to respond to issues which are not raised in the motion for summary judgment or to present its entire case on all alle-gations in the complaint - even on issues not raised in the defendants’ motion. Indeed, until appellees pierced the allegations of [McCarter‘s] complaint on a particular issue, [she] was neither required to respond to the motion on that issue, nor required to produce evidence in support of [her] complaint on that issue. See also Bales v. Central Bank &c. Co., 204 Ga. App. 675, 676 (420 SE2d 358) (1992): The issues that must be rebutted on motion for summary judgment are those raised by the motion. Consequently, [McCarter] was not required to present proof on all matters raised in [her] complaint until [the law firm] pierced [her] complaint on those issues.
(Citation and punctuation omitted.) Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995). Additionally,
due process requires that a party be given reasonable opportunity to contest a claim that there are no genuine issues of material fact. There having been no notice to [McCarter that this court] might consider the merits of the issue of [her claim], a holding that [she could not recover], tantamount to an award of summary judgment against [her], would deny [her] due process.
Coweta County v. Simmons, 269 Ga. 694 (507 SE2d 440) (1998). “Accordingly, we may not consider whether summary judgment would have been proper for any other reason. [Cit.]” Fedeli v. UAP/Ga. Ag. Chem., 237 Ga. App. 337, 339 (1) (514 SE2d 684) (1999).
For these reasons, I respectfully dissent to the majority opinion. I am authorized to state that Presiding Judge Smith and Judge Miller join in this dissent.
DECIDED DECEMBER 1, 2000.
Mark D. Welsh, for appellant.
Morris, Schneider & Prior, Larry W. Johnson, Brian S. Tatum, for appellees.