Freund v. Warren

740 S.E.2d 727, 320 Ga. App. 765, 2013 Fulton County D. Rep. 1068, 2013 WL 1197930, 2013 Ga. App. LEXIS 273
CourtCourt of Appeals of Georgia
DecidedMarch 26, 2013
DocketA12A1771
StatusPublished
Cited by22 cases

This text of 740 S.E.2d 727 (Freund v. Warren) 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
Freund v. Warren, 740 S.E.2d 727, 320 Ga. App. 765, 2013 Fulton County D. Rep. 1068, 2013 WL 1197930, 2013 Ga. App. LEXIS 273 (Ga. Ct. App. 2013).

Opinion

Andrews, Presiding Judge.

Chris Freund and Freund, Ltd. (collectively “Freund”) appeal the grant of summary judgment to All Cobb Bail Bonds, Inc. (“ACBB”). This action arises from an Interpleader1 filed by the Sheriff of Cobb County to determine who should receive two certificates of deposit (“CDs”) held by the Sheriff as collateral. Freund contends the trial court erred by denying its motion for summary judgment asserting his entitlement to the CDs, erred by granting ACBB’s motion and awarding ACBB the CDs, and erred by granting attorney fees to ACBB. As we find that the trial court misinterpreted the relationships of the parties as defined in the controlling documents, we must reverse the trial court.

1. The record shows that Freund, Ltd. operated a bail bonding business under the trade name of All Cobb Bail Bonds. All Cobb Bail Bonds was not a corporation; it was merely a trade name under which Freund, Ltd. operated its bail bond business.

[766]*766In April 2007, Freund, David Eugene Smith, and Robert Scott Hall entered into a Purchase and Sales Agreement (“the Agreement”). According to the Agreement, Hall and Smith in their individual capacities would purchase and Chris Freund would sell certain assets of All Cobb Bail Bonds as defined in the Agreement. The assets included “[a] 11 interest in remaining Certificates of Deposit being held in Trust by the Cobb County Sheriff.” The agreement identified Hall and Smith “collectively and individually” as the Purchaser, and Hall and Smith both signed the Agreement in their individual capacities without any corporate designation2 on May 1, 2007. Chris Freund, however, signed as the president of “Freund Limited DBA All Cobb Bail Bonds,” identified as the Seller. In the Agreement Hall and Smith, as the Purchaser, represented and warranted that

[t] his Agreement has been duly executed by the Purchaser and constitutes a legal and binding obligation of the Purchaser, enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy and insolvency, by other laws affecting the rights of creditors generally, and by equitable remedies granted by a court of competent jurisdiction.

The record contains a note between Sheriff’s office personnel stating:

Attached are documents to be signed that are related to the sale of All Cobb Bail Bonds. The CD’s do not need to be amended. Changes do not need to be made to the escrow account. Enclosed are the new agreements and the power of attorney for R. Scott Hall to allow David Smith to be held as contact person. Sheriff Warren’s signature is needed.

Although the note is not dated, the note is initialed by the recipient on July 23, 2007.

All Cobb Bail Bonds is defined in the agreement (“the Deposit Agreement”) between All Cobb Bail Bonds3 and the Sheriff of Cobb County as a “professional bonding business.” The Deposit Agreement with the Sheriff allowed All Cobb Bail Bonds to operate a professional [767]*767bonding business. The Deposit Agreement required All Cobb Bail Bonds to establish a “cash reserve or deposit account to be utilized to underwrite said appearance bonds” by depositing $150,000 with the Sheriff. The Deposit Agreement provided the working arrangement between the Sheriff and All Cobb Bail Bonds. One of the provisions in the Deposit Agreement covered the actions to be taken upon termination of the Deposit Agreement. In such event, “the principal amount of said savings account shall be withdrawn from said account by check or other withdrawal instrument required by said Bank, signed by the Sheriff. . . and the proceeds shall be paid over to the professional bonding business. . . .”

The Deposit Agreement required the professional bonding business to “provide [ ] to the Sheriff the names and percentage of interest of all partners, officers, stockholders, and any other person or corporation having an interest in the ownership and/or direction of the business of the professional bonding business.” The Deposit Agreement also required the professional bonding business to notify the Sheriff of any changes in the ownership or direction of the business.

The Deposit Agreement is signed by the Sheriff of Cobb County and by Robert Scott Hall and David E. Smith. Following Hall and Smith’s signatures are their typed names and the notation “Individually” and on the next lines “All Cobb Bail Bonds.” The Deposit Agreement is dated July 17, 2007.

The record also contains a fax cover sheet from R. Scott Hall to the Sheriff’s Bond Administrations Office forwarding the Articles of Incorporation for “All Cobb Bail Bonds, Inc.” The cover sheet informed the Sheriff’s office that the “stockholders of All Cobb Bail Bonds [,] Inc[.,] are R. Scott Hall and David E[.] Smith with each owning 500 shares of stock.”

In his deposition, Hall asserted that the CDs were the property of ACBB. He testified:

From the day we started the transaction, we operated under All Cobb Bail Bonds, Incorporated, from day one and with that intention. We never done business as individuals; we always done business as a corporation. When the transaction was completed, it was done as All Cobb Bail Bonds, Incorporated. And the County was actually informed of that fact, and we were advised by the County to do business as All Cobb Bail Bonds, Incorporated. The CDs were also supposed to be listed in the name of All Cobb Bail Bonds, Incorporated. If they didn’t, that’s the County [’s] mistake, not our mistake. [768]*768But from day one, everything we did from the beginning was supposed to be done in All Cobb Bail Bonds, Incorporated, assets and all.

Hall admitted, however, that he and Smith had not signed anything that transferred ownership from them personally to the corporation, that they were not paid by the corporation for the assets, and that no documentation showed any “kind of change of ownership.”

In Georgia,

[t]he standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). When a trial court rules on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. On appeal of the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.

(Citation and punctuation omitted.) Overton Apparel v. Russell Corp., 264 Ga. App. 306,307 (1) (590 SE2d 260) (2003). Summary judgments enjoy no presumption of correctness on appeal, and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met. See Chester v. Smith, 285 Ga. 401, 401 (677 SE2d 128) (2009); Merlino v. City of Atlanta, 283 Ga. 186, 186 (657 SE2d 859) (2008). Further, contract disputes are particularly well suited for adjudication by summary judgment because construction of contracts is ordinarily a matter of law for the court. Burns v. Reves, 217 Ga. App. 316, 318 (1) (457 SE2d 178) (1995).

Although several facts are disputed in this appeal, these disputes do not concern facts material to the disposition of the case.

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Cite This Page — Counsel Stack

Bluebook (online)
740 S.E.2d 727, 320 Ga. App. 765, 2013 Fulton County D. Rep. 1068, 2013 WL 1197930, 2013 Ga. App. LEXIS 273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/freund-v-warren-gactapp-2013.