SECOND DIVISION

ANDREWS, P. J.,

MILLER and BRANCH, 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/

July 8, 2015

In the Court of Appeals of Georgia

A15A0284. GAUSE et al. v. FIDELITY BANK.

MILLER, Judge.

This case arises from William L. Gause and Gause Construction Company,

Inc’s (collectively “Defendants”) default on a promissory note and unconditional

guaranty. Fidelity Bank, the holder of the note and guaranty, sued the Defendants for

breach of the note and guaranty. Defendants counterclaimed for, inter alia, set-off and

recoupment. The trial courtsubsequently granted summary judgment to Fidelity, and

the Defendants appeal, contending that (1) the trial court erred in granting summary

judgment to Fidelity on the guaranty and note, (2) the trial court erred in granting

summary judgment to Fidelity on the Defendants’ counterclaims for set-off and

recoupment, and (3) the trial court abused its discretion in considering and relying on
certain deposition testimony. For the reasons that follow, we affirm in part and

reverse in part.

Summary judgment is proper when there is no genuine issue of

material fact and the movant is entitled to judgment as a matter of law.

A de novo standard of review applies to an appeal from a [grant or]

denial of summary judgment, and we view the evidence, and all

reasonable conclusions and inferences drawn from it, in the light most

favorable to the nonmovant.

(Citations and footnote omitted.) GEICO Gen. Ins. Co. v. Wright, 299 Ga. App. 280,

281 (682 SE2d 369) (2009).

So viewed, the evidence shows that Gause obtained a $1.1 million loan from

Fidelity’s predecessor in interest, Securities Exchange Bank (“SEB”)1

on August 11,

2008, for the purchase of 25 lots in a subdivision.

2 The loan was evidenced by a

contemporaneous promissory note signed by Gause (hereinafter the “Note”). That

same day, as part of the security for the loan, Gause signed an unconditional guaranty

of the note on behalf of Gause Construction (hereinafter the “Guaranty”), as well as

1 After SEB failed and went into receivership, Fidelity purchased SEB’s assets

from the FDIC. 

2

In connection with the loan, Gause also signed a waiver of rightsto notice and

hearing in the event of default.

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a corporate resolution authorizing him to execute the Guaranty and a corporate W-9

form.

3 On April 28, 2010, Gause renewed the Note for a two-year term in the

principal amount of $1,100,900. Gause and Gause Construction admittedly failed to

pay the Note in full by the due date, April 28, 2012. 

1. The Defendants contend that the trial court erred in granting summary

judgment to Fidelity on the Note and Guaranty. We agree in part.

(a) Gause’s Breach of the Note

“A promissory note is an unconditional contract whereby the maker engages

that he will pay the instrument according to its tenor. . . . The note being an

unconditional promise, the contract is complete as written[.]” (Citations and

punctuation omitted.) Devin Lamplighter, Ltd. v. American Gen. Finance, 206 Ga.

App. 747, 749 (2) (426 SE2d 645) (1992).

A plaintiff seeking to enforce a promissory note establishes a

prima facie case by producing the note and showing that it was

executed. Once that prima facie case has been made, the plaintiff is

entitled to judgment as a matter of law unless the defendant can

establish a defense.

3 The loan security also included a security deed on the 25 lots and an

assignment of rents and leases. 

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(Footnote omitted) Core LaVista, LLC v. Cumming, 308 Ga. App. 791, 795 (1) (b)

(709 SE2d 336) (2011).

Defendants argue that a question of fact remainsregarding mutual assent to the

Guaranty and, therefore, the trial court erred in finding that the Note is a separate,

independent and enforceable contract. Contrary to Defendants’ argument, a

guaranty, whether entered into on the same or another instrument asthat

of the original obligation, whether executed at the same or a different

time, and whether or not purporting to be the separate obligation of the

signer . . . is a separate [and enforceable] contract[.]

(Citations omitted.) Bearden v. Ebcap Supply Co., 108 Ga. App. 375 (133 SE2d 62)

(1963); see also OCGA § 10-7-1 (defining guaranty contract and providing that

principal remains bound for its debt regardless of whether guaranty is given in

consideration for benefit flowing to guarantor or for benefit given to principal).

Fidelity established a prima facie case by producing the Note; the undisputed

evidence showed that the Note was duly executed and was admittedly in default; and

Defendantsfailed to establish a defense to enforcement of the Note. Accordingly, the

trial court properly determined that Fidelity was entitled to summary judgment on its

claim for breach of the Note.

(b) Gause Construction’s Breach of the Guaranty

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In a suit on a guaranty, production of the instrument entitles the holder to

recover on it when the signature is admitted or established and the defendant does not

establish a defense. See L. D. F. Family Farm, Inc. v. Charterbank, 326 Ga. App.

361, 363 (756 SE2d 593) (2014). 

Here, Fidelityproduced the contemporaneous Guarantywhich identifies Gause

Construction as the guarantor. The Guaranty is incorporated into the Note; the

Guaranty provides that it was given in consideration of the Note and other financial

accommodations made by Fidelity which are of direct interest and benefit to Gause

Construction as the guarantor; and the Guaranty provides that Gause Construction

“unconditionally guarantees the full and prompt payment” of the Note when due.

Moreover, the closing attorney, who prepared the loan documents, including the Note

and Guaranty, testified in his deposition that the Guaranty was prepared under his

supervision at SEB’s direction and that Gause signed the Guaranty at the loan closing. 

Defendants nevertheless argue that a question offactremainsregardingmutual

assent to the Guaranty. Specifically, Defendants argue that they have disputed the

authenticity and validity of the Guaranty from the beginning of this case, and argue

that the page bearing Gause’s genuine signature on the Guaranty was attached

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without his knowledge or consent. In their defense, Defendants point to Gause’s

testimony.

Gause initially deposed that he did not recall executing that instrument. In his

subsequent affidavit, Gause averred that,

Since my deposition, I have carefully examined the copy of the

purported August 11, 2008 Guaranty Agreement handed to me and

attached to Fidelity Bank’s Complaint. I am certain that I did not

execute the Guaranty. While it does appear to bear my signature on the

last page, I believe the signature page may have [sic] come fromanother

document and [was] attached to give the appearance that I signed it. 

As the nonmoving party to Fidelity’s summary judgment motion, the

Defendants were not required to present conclusive proof that Gause’s signature was

invalid. Lee v. Suntrust Bank, 314 Ga. App. 63, 65 (722 SE2d 470) (2012). Rather,

Defendants only had to point to evidence giving rise to a triable issue of material fact,

which they did by submitting Gause’s affidavit averring that he did not sign the

Guaranty. Id.

Notwithstanding considerable evidence in the record to the contrary, including

the closing attorney’s testimony, we are constrained to conclude that Gause’s

affidavit testimony stating that he did not execute the Guaranty is sufficient to create

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a genuine issue of fact with regard to the enforceability of that instrument. See Virgil

v. Kapplin, 187 Ga. App. 206, 207 (1) (369 SE2d 808) (1988) (guarantor’s affidavit

stating that he did not sign guarantees at issue raised genuine issue of fact); Lee,

supra, 314 Ga. App. at 65 (affidavit denying validity of signature created factual

dispute for trial).4 Accordingly, we reverse the grant of summary judgment to Fidelity

on its claim for breach of the Guaranty.

2. Defendants contend that the trial court erred in granting summary judgment

on the Defendants’s counterclaims for setoff and recoupment. We do not agree.

Under Georgia law, a set-off . . . allows the defendant to set off a

debt owed him by the plaintiff against the claim of the plaintiff. A

recoupment is a right of the defendant to have a deduction from the

amount of the plaintiff’s damages because the plaintiff has not complied

with the cross-obligations or independent covenants arising under the

contract being sued upon. 

4 Since Gause initially deposed that he did notremembersigning the Guaranty,

his affidavit testimony stating that he certainly did not sign the Guaranty cannot be

construed as contradictory, and we must construe his affidavit testimony in the light

most favorable to him as the non-movant. See Prophecy Corp. v. Charles Rossignol,

Inc., 256 Ga. 27, 28-30 (1) (343 SE2d 680) (1986); Virgil, supra, 187 Ga. App. at 207

(1).

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(Footnotes omitted.) Automated Print v. Edgar, 288 Ga. App. 326, 330 (2) (654 SE2d

413) (2007). The Defendants argue that they are entitled to setoff and recoupment

based on $200,000 in loans to SEB which Gause made between December 30, 2008

and January 2, 2009. Gause’s own deposition testimony, however, shows that the

loans in question were made to a separate and distinct entity, SEB Bancorp, Inc., and

not to Fidelity’s predecessor in interest, SEB. Accordingly, the trial court did not err

in granting summary judgment to Fidelity on the Defendants’s counterclaimsfor setoff and recoupment.

3. Defendants contend that the trial court erred in considering the closing

attorney’s deposition testimony. We discern no error.

The record belies Defendants’ argument that they were unaware that Fidelity

intended to take the closing attorney’s deposition. Notably, the record shows that,

more than a week prior to taking the deposition, Fidelity served Defendants with a

copy of the subpoena requiring the closing attorney to appear for his deposition, as

well as the notice of the deposition, and Fidelity filed these documents with the trial

court the day after such service. Moreover, Defendants admitted at the hearing in this

case that they had notice of the closing attorney’s deposition, but did not participate

in or attend the deposition. 

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Defendants also argue that the trial court erred in failing to strike the closing

attorney’s deposition from the record because it was taken after the close of formal

discovery in this case. “A trial court has wide discretion to shorten, extend, or reopen

the time for discovery, and its decision will not be reversed unless a clear abuse of

that discretion isshown.” (Citations omitted.) Woelper v. Piedmont Cotton Mills, 266

Ga. 472, 473 (1) (467 SE2d 517) (1996). Defendants have not shown that the trial

court abused its discretion in failing to strike the closing attorney’s deposition

testimony.

Judgment affirmed in part and reversed in part. Andrews, P. J., concurs.

Branch, J., concurs in judgment only as to Division 1 (b) and concurs fully as to

Divisions 1 (a), 2 and 3.

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