Dexter Swanstrom, Jr. v. Wells Fargo Bank

• Court: Court of Appeals of Georgia
• Decided: February 18, 2014
• Docket: A13A1836
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., MCFADDEN and BOGGS, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/

February 18, 2014

In the Court of Appeals of Georgia A13A1836. SWANSTROM, et al. v. WELLS FARGO BANK.

BOGGS, Judge.

Dexter Swanstrom, Jr. and D&S Auto Air & Transmission, Inc. f/n/a D&S

Auto Air & Radiators, Inc. appeal from the trial court’s grant of summary judgment

in favor of Wells Fargo Bank on a business line of credit. They assert that genuine

issues of fact exist as to whether (1) D&S Auto Air & Transmission, Inc. may be held

liable for the debt of D&S Auto Air & Radiators, Inc. and (2) Swanstrom is

individually liable for the business debt. For the reasons explained below, we affirm

the trial court’s grant of summary judgment with regard to the D&S Auto Air &

Transmission, Inc., but reverse with regard to Swanstrom’s personal liability.

Summary judgment is proper when the record reveals no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “We review the trial court’s grant of summary judgment de novo,

construing the evidence and all reasonable inferences in favor of the nonmoving

party.” (Footnote omitted.) Melman v. FIA Card Svcs., 312 Ga. App. 270 (718 SE2d

107) (2011). So viewed, the record shows that Dexter Swanstrom signed a “Wells

Fargo Business Platinum Acceptance Certificate” on January 8, 2008 above a line

labeled “Owner #1 Signature” on behalf of D&S Auto Air & Radiators, Inc.” He

listed his title as “Pres.” beside his signature. Immediately above his signature, the

certificate stated: “I certify that I have read and agree with the Terms and Conditions

on the reverse side, including the personal guaranty.” The documents in the record,

however, do not contain a legible copy of the portion of the Terms and Conditions

governing the personal guaranty. The record does contain a Wells Fargo Business

Card Visa statement of account prepared for Swanstrom and addressed to both D&S

Auto Air & Radiator and Swanstrom.

In 2012, after the business fell behind on its payments, Wells Fargo filed suit

against Swanstrom and D&S Auto Air & Transmission, Inc. f/k/a D&S Auto Air &

Radiators, Inc. In a joint answer, the defendants admitted an allegation in the

complaint that D&S Auto Air & Transmission, Inc. was formerly known as D&S

Auto Air & Radiators, Inc.

2 Wells Fargo conducted no discovery and moved for summary judgment in its

favor, relying upon the affidavit of a Wells Fargo collections manager. The manager

averred that he was personally familiar with the transactions between Wells Fargo

and the defendants and asserted that the defendants owed over $23,000 based upon

account statements attached to the affidavit. Swanstrom submitted an affidavit in

opposition in which he averred that the documents submitted by Wells Fargo were not

legible, denied that he personally guaranteed the loan, and contended that the debt

“was the debt of D&S only.” The trial court granted summary judgment in Wells

Fargo’s favor and ordered that it could recover from the defendants “jointly and

severally.”

1. We find no merit in appellants’ contention that Wells Fargo failed to prove

the existence of a contract between itself and D&S Auto Air & Transmission, Inc.

Appellants admitted in their answer that D&S Auto Air & Transmission, Inc. was

formerly known as D&S Auto Air & Radiator, Inc., as asserted by Wells Fargo, and

Swanstrom acknowledged in an affidavit given on behalf of D&S Auto Air &

Transmission, Inc. that the debt at issue belonged to D&S Auto Air & Transmission,

Inc.

3 2. In related enumerations of error, Swanstrom asserts that Wells Fargo’s

claims against him individually fail, because the record does not contain the terms of

his personal guaranty. We agree.

Wells Fargo, “as the party alleging that a contract exists, has the burden of

proving its existence and its terms.” (Citation and punctuation omitted.) Terry Hunt

Constr. v. AON Risk Svcs., 272 Ga. App. 547, 552 (3) (613 SE2d 165) (2005). In

support of its claim on the personal guaranty, Wells Fargo submitted an illegible copy

of the terms and conditions governing the guaranty, which is “not entitled to

evidentiary consideration. [Cits.]” Black v. Floyd, 280 Ga. 525, 526 (1) (630 SE2d

382) (2006). “The true nature of the guarantor’s liability is established by the terms

of the guaranty, which may render the guarantor only secondarily liable on the

principal’s inability to pay, or otherwise condition or limit liability in any number of

ways. [Cit.]” Holland v. Holland Heating & Air Conditioning, Inc., 208 Ga. App.

794, 796 (1) (432 SE2d 238) (1993). Without evidence of these terms, Wells Fargo

cannot establish the nature and extent of Swanstrom’s liability. We must therefore

reverse the trial court’s grant of summary judgment in favor of Wells Fargo with

regard to Swanstrom.

4 Judgment affirmed in part, reversed in part. Doyle, P. J., and McFadden, J.,

concur.