Canton Plaza, Inc. v. Regions Bank, Inc.

732 S.E.2d 449, 315 Ga. App. 303, 2012 Fulton County D. Rep. 1317, 2012 WL 1034465, 2012 Ga. App. LEXIS 368
CourtCourt of Appeals of Georgia
DecidedMarch 29, 2012
DocketA11A2186, A11A2187
StatusPublished
Cited by40 cases

This text of 732 S.E.2d 449 (Canton Plaza, Inc. v. Regions Bank, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Canton Plaza, Inc. v. Regions Bank, Inc., 732 S.E.2d 449, 315 Ga. App. 303, 2012 Fulton County D. Rep. 1317, 2012 WL 1034465, 2012 Ga. App. LEXIS 368 (Ga. Ct. App. 2012).

Opinion

Miller, Judge.

Canton Plaza, Inc. (“CPI”) and Chaim Oami (collectively, “Plaintiffs”) filed suit against Regions Bank, Inc. (“Regions”), asserting claims for breach of contract and wrongful foreclosure. In its answers to the complaint, Regions asserted two counterclaims seeking attorney fees against both CPI and Oami. At trial, Regions moved for a directed verdict on Plaintiffs’ breach of contract and wrongful foreclosure claims. The trial court granted Regions’s motion. Plaintiffs moved for a directed verdict on Regions’s counterclaims for attorney fees, which the trial court also granted. These cross-appeals then ensued.

In Case No. A11A2186, Plaintiffs contend that the trial court erred in directing the verdict against them as to their breach of contract and wrongful foreclosure claims. Since Oami’s other companies, namely H&I Real Estate, Inc. (“H&I”) and NCO, Inc. (“NCO”), were the parties who suffered damages from the alleged misconduct, and these entities were not parties to this suit, the trial court properly determined that Plaintiffs were not entitled to recover damages belonging to H&I and NCO. Therefore, we affirm the trial court’s judgment in Case No. A11A2186.

In Case No. A11A2187, Regions contends that the trial court erred in directing the verdict against Regions as to its counterclaims. The trial court did not err in directing a verdict against Regions on its counterclaims for attorney fees because Regions was precluded from recovering damages for merely having been sued by Plaintiffs. We affirm the trial court’s judgment in Case No. A11A2187.

A motion for directed verdict should not be granted where there exists even slight material issues of fact, because the trial court is substituting its judgment for the jury’s; only when there is an absence of evidence or when no evidence supports an essential element of the case should a directed verdict be granted, because the trial judge takes the determination of the facts from the jury. The appellate review of directed verdicts is based upon the “any evidence” rule to support the case of the nonmoving party; when there is “any evidence,” a directed verdict must be reversed. The direction of a verdict is proper only where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand [304]*304a particular verdict. When there is opinion evidence, circumstantial evidence, presumptions of fact, or evidence subject to more than one reasonable construction, the appellate courts shall carefully scrutinize the grant of a directed verdict, because such evidence may be construed as providing the “any evidence” creating a jury question.

(Citation and punctuation omitted.) Teklewold, v. Taylor, 271 Ga. App. 664, 665 (610 SE2d 617) (2005); see also OCGA§ 9-11-50 (a).

So construed, the trial evidence shows that in December 2002, CPI, a corporation solely owned by Oami, purchased a commercial shopping center from Regions known as Canton Plaza. CPI financed the purchase of Canton Plaza with a $976,000 commercial loan from Regions and pledged Canton Plaza as collateral. In connection with the loan, CPI executed a promissory note, a business loan agreement, and a deed to secure debt. Oami also executed a commercial guaranty in favor of Regions which named CPI as the borrower.

The original loan was for a one-year period. When the promissory note matured in January 2004, CPI and Regions renewed the note for the same amount as the original loan and with a new maturity date of January 10, 2006. In conjunction with renewing the promissory note, CPI executed another business loan agreement, and Oami executed another commercial guaranty. Thereafter, CPI made monthly payments to Regions.

During the course of the renewed loan period, CPI was involved in litigation with one of its Canton Plaza tenants, as a result of which the tenant was awarded a judgment against CPI. One week prior to entry of that judgment, however, CPI executed a bill of sale and quitclaim deed transferring all of its assets, including Canton Plaza, to H&I, another corporation completely owned by Oami. Shortly after the sale, CPI directed Canton Plaza’s tenants to make payments to H&I rather than to CPI. Following the execution of the bill of sale and quitclaim deed, CPI became a shell entity with no assets.

When the renewed loan matured in January 2006, Regions extended the loan for another 90 days — until April 10, 2006 — in order to allow CPI to pay the entire debt or otherwise obtain substitute financing. CPI continued to make monthly payments to Regions during the 90-day extension period. After April 10,2006, Regions sent CPI several “Past Due” and “Post Maturity” notices demanding payment of the entire loan amount.

When CPI failed to pay the entire loan amount, Regions began non-judicial foreclosure proceedings with respect to Canton Plaza. Oami testified that he was surprised to discover that Canton Plaza was scheduled for a foreclosure sale, because he had not received [305]*305timely notice of default and believed Regions would renew the loan. CPI subsequently filed a bankruptcy petition to stop Regions from completing a foreclosure sale.

During CPI’s bankruptcy proceeding,1 the bankruptcy trustee informed Oami that he was considering filing a lawsuit against Oami and H&I for the fraudulent transfer of CPI’s assets to H&I. The lawsuit was never filed, however, because Oami and H&I negotiated a settlement with the trustee, which included a payoff of the Regions’s loan and a $13,500 payment to the estate. H&I issued two checks to make this $13,500 settlement payment. H&I also issued three other checks to pay for CPI’s legal fees and expenses associated with the bankruptcy proceedings. When asked how one of his companies could write a check on behalf of another one of his companies, Oami testified only that his “accountant [got] things straightened out afterwards.”

NCO, another corporate entity owned by Oami, obtained financing to pay off the Regions loan, as contemplated by the settlement; the loan was paid off in November 2006.

After completion of the bankruptcy proceedings in August 2008, Plaintiffs filed suit against Regions. Plaintiffs alleged that Regions breached the terms of the promissory note by not extending a new loan to CPI, and that it wrongfully initiated foreclosure proceedings against Canton Plaza when CPI was not in default and was not given notice of the foreclosure proceedings. Plaintiffs sought to recover damages and attorney fees for the filing of CPI’s bankruptcy petition; expenses incurred during the bankruptcy proceeding, including monies paid to the bankruptcy trustee; and expenses and interest paid on the NCO loan that was used to pay off CPI’s debt to Regions. Plaintiffs also sought punitive damages. In its answer, Regions asserted counterclaims against CPI and Oami for attorney fees as provided for in both the business loan agreement, as well as the guaranty.

At trial, Plaintiffs called as witnesses Oami and an attorney who assisted Oami during CPI’s bankruptcy proceedings. At the close of Plaintiffs’ case-in-chief, Regions moved for a directed verdict, arguing that Plaintiffs failed to establish damages, because the evidence showed that the expenses Plaintiffs sought to recover were not incurred by CPI or Oami, but rather other entities, namely H&I and NCO.

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Cite This Page — Counsel Stack

Bluebook (online)
732 S.E.2d 449, 315 Ga. App. 303, 2012 Fulton County D. Rep. 1317, 2012 WL 1034465, 2012 Ga. App. LEXIS 368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/canton-plaza-inc-v-regions-bank-inc-gactapp-2012.