The Court of Appeals reversed the denial of Finley Merry’s second motion to set aside a default judgment for Suzanne Robinson in excess of $1M, arising after Merry failed to timely answer Robinson’s complaint alleging faulty design and construction of her home, holding that the trial court erred in refusing to set aside the judgment as to Merry after it set aside the judgment as to his co-defendant, James Crosby. In so holding, the Court noted that the trial court entered a single judgment against both defendants jointly and without apportioning the damages awarded between them, and the trial court set aside the judgment as to Crosby for reasons other than the merits, i.e., because he filed a bankruptcy petition. The Court rejected Merry’s contention that the trial court lacked jurisdiction over his person for Robinson’s failure to properly serve him, since Merry waived this objection when he appeared and filed an untimely responsive pleading and motion without raising it. Adams, J., concurred in the judgment and in Division 1.
Merry v. Robinson, A11A1099, (11/29/11)
Fulton County Daily Reports, December 16, 2011
Dismissal of attorney’s foreclosure petition filed under OCGA § 15-19-14 after client failed to pay legal fees for representation of client in custody dispute with ex-wife, affirmed; court held that lien did not comply with statute because it involved property that client did not recover in custody proceedings in which attorney represented him, and statute clearly and unambiguously allows lawyer to assert statutory lien only against property recovered by lawyer for client; here, it was undisputed that attorney represented client in custody dispute, not divorce, and thus half interest in property that client secured in settlement of divorce cannot be attributed to labor and skill of attorney; statute cannot be amended by contract between private parties, because it would confer power on court that statute itself does not confer.
Outlaw v. Rye, A11A1419 (11/15/11)
Fulton County Daily Report, December 9, 2011
Denial of plaintiff’s motion for partial summary judgment on her claims against buyers of her chiropractic practice, reversed, as plaintiff established prima facie case for enforcement of parties’ $50K promissory note and buyers’ defense of lack of consideration was meritless; despite any quarrels that arose after parties signed purchase agreement, adequate consideration supported note at time of its execution because buyers took immediate possession of business and began operating it as their own; trial court also erred in concluding that buyers were entitled to summary judgment on plaintiff’s claim under note based on her failure to deliver stock in professional corporation, as parties’ purchase agreement constituted asset sale, not sale of stock; trial court erred in granting partial summary judgment to buyers on plaintiff’s claim for $10K shortfall in cash tendered by buyers, as plaintiff’s conveyance of DRX unit to third party prior to execution of agreement did not breach her obligations thereunder; similarly, trial court erred in granting summary judgment to buyers on their counterclaim against plaintiff concerning DRX; trial court erred in failing to enter judgment sua sponte in favor of plaintiff on buyers’ claim that plaintiff breached agreement to create smooth transition, as purchase agreement only contained plaintiff’s promise to assist in orderly transition; grant of summary judgment to buyers on plaintiff’s fraud claims regarding use of tax identification numbers and approved provider status associated with business, affirmed; denial of partial summary judgment to buyers on their counterclaims against plaintiff for defamation and tortious interference with business relations, affirmed; because trial court erred in part in its rulings on parties’ motions for partial summary judgment, jury instructions and verdict form at trial also constituted legal error.
West v. Diduro, A11A1059 (10/18/11)
Fulton County Daily Report, November 4, 2011
Denial of summary judgment to plaintiff bank in its action to collect on promissory note, reversed, as defendants’ admissions that they entered into note and guaranty at issue and failed to pay their respective financial obligations established plaintiff’s prima facie right to repayment; plaintiff loaned approximately $250K to individual defendant to finance purchase of stock in bank where she served as member of Board of Directors, and she refinanced loan in name of her company; when bank closed, plaintiff accelerated debt after determining that stock collateral was worthless and thus default had occurred pursuant to terms of note; defendants asserted estoppel defense based on alleged misrepresentation of bank consultant that bank would be sold, but integration clauses in note and guaranty barred defendants from claiming reliance on any misrepresentations not contained in agreements, plaintiff had no duty to advise defendants regarding viability of business venture financed by loan, defendants failed to show that plaintiff intended to deceive them in making loan, plaintiff honored terms of note, and any purported promise to continue to renew note was inactionable because it was vague and indefinite; evidence did not support defense of breach of implied duty of good faith and fair dealing, as express terms of note authorized plaintiff to accelerate note upon occurrence of default, which included devaluation of collateral; grant of summary judgment to plaintiff on defendants’ counterclaim for fraudulent inducement and securities fraud, affirmed, as, even if consultant’s alleged misrepresentation about sale of bank could be attributed to plaintiff, it was inactionable because it related to future event and was not made with knowledge that it was false, it did not constitute false representation as to bank’s financial condition, and defendants did not show justifiable reliance on representation, especially given that individual defendant was member of bank’s Board of Directors with access to all information necessary to make stock investment decision.
Griffin v. State Bank of Cochran, A11A1466; A11A1467 (10/17/11)
Fulton County Daily Report, November 4, 2011
Order finding unenforceable personal guaranty, which defendant signed agreeing to pay Landlord rent in event that Tenant defaulted on Lease without further identifying Landlord, Tenant or Lease, reversed; trial court erred in ruling personal guaranty unenforceable for failing to identify principal debtor or to sufficiently identify party whose debt was being guaranteed, since same notary witnessed both guaranty and lease, which defendant signed only one day prior, listing plaintiff as landlord and defendant’s restaurant as tenant; though neither lease nor guaranty made reference to other, evidence showed that they were sufficiently contemporaneously made within course of same transaction.
Hong Investments LLC v. Sarsfield, A11A1460 (10/14/11)
Fulton County Daily Report, November 4, 2011
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