Senske v. Harris Trust & Savings Bank

504 S.E.2d 272, 233 Ga. App. 407, 98 Fulton County D. Rep. 2694, 1998 Ga. App. LEXIS 991
CourtCourt of Appeals of Georgia
DecidedJuly 14, 1998
DocketA98A1664; A98A1665
StatusPublished
Cited by3 cases

This text of 504 S.E.2d 272 (Senske v. Harris Trust & Savings Bank) 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
Senske v. Harris Trust & Savings Bank, 504 S.E.2d 272, 233 Ga. App. 407, 98 Fulton County D. Rep. 2694, 1998 Ga. App. LEXIS 991 (Ga. Ct. App. 1998).

Opinion

Eldridge, Judge.

Appellants/defendants Bruce H. Senske and Loren C. Rozeboom appeal the trial court’s order finding appellants personally liable as guarantors on a promissory note to secure debt and granting summary judgment to appellee/plaintiff Harris Trust & Savings Bank in its action against appellants to recover the deficiency remaining after the sale of the property which secured the debt.

As determined by the trial court and supported by the record, appellants and Glenn W. Boyce were, general partners of Alliance Partners (“Alliance”), a Georgia general partnership. On December 5, 1989, Allstate Life Insurance Company loaned Alliance $2,535,000 in order to purchase a commercial office building located at 2900 Jones Mill Road, Norcross, Gwinnett County (“property”).1 In exchange for the loan, Alliance signed a Promissory Note (“Note”) and delivered a security deed on the property which contained an acceleration clause and a power of sale which authorized the lender to foreclose and sell the property in the event of a default. In addition, paragraph 17 of the Note contained a nonrecourse clause wherein liability was to be limited and satisfied from the property.

However, also in exchange for the loan, the three Alliance partners, appellants and Boyce, executed and delivered to Allstate Life Insurance Company a personal Guaranty Agreement (“Guaranty”) [408]*408for the loan amount. Thereunder, each unconditionally guaranteed the full and prompt payment of all principal and interest due and owing on the Note when it matured, “[notwithstanding the provisions of paragraph 17 [the nonrecourse clause] of the Note.” In addition, the Guaranty specified that “[t]he obligations of the Guarantor hereunder are direct and immediate and not conditional upon pursuit by Lender [Allstate] of any remedies Lender may have against Borrower [Alliance]” or “any security for the Liabilities,” i.e., the property which secured the Note. The Guaranty was executed on the same day as the Note, December 5, 1989.

Approximately four years later, Boyce withdrew as a partner of Alliance. Allstate consented to excuse Boyce from his obligations under the Guaranty, but required appellants, as the remaining Alliance partners, to re-affirm their personal guaranty of the loan amount. Consequently, appellants signed an Amended Guaranty Agreement (“Amended Guaranty”) re-affirming their financial obligations to Allstate. The Amended Guaranty tracked precisely the language of the initial Guaranty, with the addition of a single paragraph, which stated:

“This amended guaranty agreement serves to modify the initial guaranty agreement entered into between the parties hereto and Glenn W. Boyce on or about December 5, 1989. All parties to this agreement acknowledge that Glenn W. Boyce is no longer a guarantor in favor of the Lender under said previous agreement. Further, the parties to this agreement further acknowledge that Glenn W. Boyce is no longer a member or partner of Borrower. The remaining terms of said previous agreement shall remain in full effect.” (Emphasis supplied.) The Amended Guaranty was dated April 1, 1993.

On October 25, 1993, Allstate assigned the loan to Harris Trust & Savings Bank (“Harris Trust”), which assignment included the initial Guaranty and the Amended Guaranty. Alliance defaulted on the Note in February 1994. Harris Trust made demand for payment upon Alliance in a letter dated April 4, 1994. The letter also contained notice of Harris Trust’s intent to accelerate the debt and exercise its power of sale at public auction, if payment was not received within ten days from receipt of the letter.

Alliance failed to pay. Appellants, as guarantors, also failed to pay the amounts due and owing under the Note. Harris Trust foreclosed on the property and sold it at public auction on May 3, 1994. The Superior Court of Gwinnett County confirmed the sale. The confirmation was subsequently affirmed by the Supreme Court of Georgia. Alliance Partners v. Harris Trust & Sav. Bank, 266 Ga. 514 (467 SE2d 531) (1996). Based upon the Guaranties, Harris Trust filed suit against appellants for the deficiency between the loan amount and sale price of the property, including interest and penalties.

[409]*409On motion for summary judgment, the trial court found as a matter of fact that as of May 3, 1994, the amount owed on the Note, including penalties and interest (except attorney fees) was $2,805,195.42. The property sold at foreclosure for $2,017,000, leaving a deficiency of $788,195.42. The interest on the deficiency accrued at the daily rate of $320.20. As of February 17,1998, accrued prejudgment interest totaled $443,797.20 (1,386 days x $320.20). The entire amount of the deficiency and prejudgment interest as of February 17, 1998, was $1,231,992.60. In addition, the trial court found that Harris Trust made out a prima facie right to judgment and that appellants failed to establish any affirmative defense thereto. The trial court awarded the above amount reflecting the deficiency and interest, and the court also awarded attorney fees pursuant to OCGA § 13-1-11 in the amount of $123,224.26. Held:

“It is ordinarily the duty of the court to interpret a contract as a matter of law and, where necessary, to construe it by applying the rules of construction set forth in OCGA § 13-2-2. The cardinal rule for construing a contract is to ascertain the intent of the parties. Where the language of an instrument may fairly be understood in more than one way, it should be interpreted to reflect the sense in which the parties understood it at the time of execution, and extrinsic evidence is admissible to establish what that original understanding was. That meaning is to be preferred which will give effect to the contract as a whole.

“If, after application of the rules of construction, there remains an ambiguity, then it becomes the duty of the jury, as finder of fact, to construe the instrument so as to resolve that ambiguity. It is the court who decides whether or not, after application of the rules of construction, an ambiguity exists.” (Citations omitted.) Gans v. Ga. Fed. Sav. & Loan Assn., 179 Ga. App. 660, 662-663 (1) (347 SE2d 615) (1986).

Here, there is no ambiguity, and the trial court correctly found the intent of the parties was manifest in the language of the loan documents, including the initial Guaranty and the Amended Guaranty. Obviously, appellants wanted the loan from Allstate and were willing to personally guarantee its payment in order to get it. Later, when their partner Boyce wanted out of the Alliance partnership, appellants necessarily re-affirmed their personal financial commitment to the loan as the remaining partners of Alliance. Clearly, the entire purpose of the Amended Guaranty was the removal of Boyce, and in that regard, the “remaining terms of said previous agreement [Guaranty] shall remain in full effect.” (Emphasis supplied.)

However, without ever addressing the clear intent of the parties when executing both Guaranties, appellants seek to avoid the contract.

[410]*4101.

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Bluebook (online)
504 S.E.2d 272, 233 Ga. App. 407, 98 Fulton County D. Rep. 2694, 1998 Ga. App. LEXIS 991, Counsel Stack Legal Research, https://law.counselstack.com/opinion/senske-v-harris-trust-savings-bank-gactapp-1998.