author: Branch, Judge.

text:
    A14A0809.
    WRIGHT et al. v. IC ENTERPRISES, INC. et al.
    (765 SE2d 484)
   Branch, Judge.

This is a landlord-tenant dispute concerning two commercial properties in Doraville. On motions for summary judgment, the trial court ruled that the lease governing one of the properties was so riddled with errors as to be unenforceable, that undisputed facts showed that the landlord breached a post-lease agreement to improve that property for the tenant’s benefit, that the tenant was not liable for any rent or fees associated with either property, and that the landlord was not entitled to retain the tenant’s security deposits. Because these rulings were erroneous, we reverse.

In reviewing a trial court’s ruling on a motion for summary judgment, we conduct a de novo review to determine whether the undisputed facts warrant judgment as a matter of law. OCGA § 9-11-56; Vick v. Tower Place, 268 Ga. App. 108 (601 SE2d 348) (2004). “[T]he opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion.” Eckerd Corp. v. Alterman Properties, 264 Ga. App. 72, 74 (589 SE2d 660) (2003) (footnote omitted).

So viewed, the record shows the following relevant facts. The plaintiff/appellant is the landlord, Joseph Jerry Wright, individually and as trustee of the Wright IV Trust d/b/a Y & W Partnership (“Wright”), and the defendants/appellees are the tenant, IC Enterprises, Inc. (“ICE”), and its CEO, II C. Park d/b/a National Supply (“Park”). Beginning in 1999, the parties and their predecessors executed various leases and amendments thereto in connection with two parcels of property — a 14,700 square foot warehouse and a smaller commercial space on the same street. Because the amendments refer to and incorporate previous leases, a detailed description of the documents is necessary.

The larger property. In May 1999, Wright entered into a detailed three-year lease with Young Choi d/b/a National Supply for the larger property. The lease gave the property’s address (3206 and 3208 Oakcliff Industrial Street) and square footage (14,700), and it listed a base rental amount as well as a monthly common area maintenance (“CAM”) fee. The lease further provided that the tenant would pay for utilities, keep the premises “in good order, condition and repair,” and pay attorney fees “[i]f any rent owing under this Lease is collected by or through an attorney at law.”

In May 2002, Wright and Choi executed a one-page “1st Lease Amendment” which was “[t]o be attached to and made part of” the May 1999 lease and which extended the lease term for one year. In January 2003, Wright acknowledged in writing that the tenant had changed from Choi to ICE, reflecting Park’s purchase of Choi’s interest in National Supply. In May 2004 and May 2005, Wright and ICE executed two more amendments, both confusingly titled “2nd Lease Amendment,” that were “[t]o be attached to and made part of” the May 1999 lease and that further extended the lease term through May 2008.

In April 2008, Wright and ICE executed a “3rd Lease Amendment” that is the main subject of this dispute. This amendment listed the property as the 14,700 square foot warehouse space at 3206 and 3208 Oakcliff Industrial Street in Doraville, extended the lease term for three more years, raised the rent, and kept the same CAM fee listed in the original lease. As with the previous amendments, the “3rd Lease Amendment” specifically provided that “[a]ll other terms and conditions of original lease are hereby reconfirmed as being in full force and effect.” Unlike the previous amendments, however, the “3rd Lease Amendment” recited that it was “[t]o be attached to and made part of that certain lease dated the 12th day of January 2007 between [Wright] as Landlord, and, Young Choi d/b/a IC Enterprises, Inc., later amended to I. C. Park d/b/a National Supply, as Tenant.” (Emphasis supplied.)

Smaller property. In March 2005, Wright entered into a detailed agreement with Michael and Loudi Aoun to lease a small commercial parcel for three years. Like the lease pertaining to the larger property, this lease provided that the tenant would pay utilities and a CAM fee; it also provided that the prevailing party in an action brought to enforce the lease could recover reasonable attorney fees. In May 2005, the lease was amended to reflect the tenant’s relocation down the street to a similar property also owned by Wright.

On January 12, 2007, Wright and the Aouns executed a “Lease Assignment” that amended the March 2005 lease, as amended in May 2005, to reflect that ICE was the new tenant. Notably, the date of this assignment is the same date to which the “3rd Lease Amendment” for the larger property refers. And in February 2008, Wright and ICE executed a “2nd Lease Amendment” for the smaller property which was “[t]o be attached to and made part of that certain lease dated the 12th day of January 2007” and which extended the lease term through April 2011.

The dispute. At some point in 2008, Park determined that National Supply needed a new business license in the name of its new owner, ICE. In July 2008, Park learned that the county would not issue a certificate of occupancy, a prerequisite for a business license, unless a sprinkler system or fire detection system was installed at the larger property. Park’s assistant, Lisseth Morales, appealed to Wright’s property manager, Katherine Warden, who offered to hire a consultant or “expediter” to help ICE negotiate with the county. In November 2008, Warden sent Morales the following e-mail:

[Wright] had agreed to hire the expediter to facilitate getting your business license/CO, which is NOT our responsibility. I will have them contact you to set up a meeting to resolve this issue. Your lease does not expire until May, 2011. If the county forces the issue to install the sprinkler system or fire detection system with smoke and heat and removal and draft curtains, the Landlord will pay for it----We hope that you will continue to work in good faith to get your business license____Please let us know asap, end of today latest, if you are continuing to move forward to break your lease and vacate the Premises.

Morales responded:

We do not wish to deal with an expediter regarding the CO matters. Our lawyer has recommended that we not deal with an expediter because we are working to vacate the premises as we have previously told you. We will let you know the moving out date in advance.

Despite Morales’s statement that ICE would be vacating the premises, Warden offered other options that she hoped would assuage the county’s fire worries, such as installing emergency lights at Wright’s expense and having ICE upgrade its fire extinguishers, but ICE refused to pay for the extinguishers. Warden also offered to relocate ICE to a different property owned by Wright where it could obtain a certificate of occupancy without trouble, but ICE, in Park’s words, “ignore[d]” this offer.

In January 2009, Warden sent Park a letter regarding the sprinkler system:

As for the sprinkler, we still must submit and have the county come out beforehand to evaluate the situation.... If there is no other alternative to installing the sprinkler, it will be done. Please address the other items and we will move forward with the county.

Park, however, responded that “the only best way to solve the problem is to install the sprinkler.” Ultimately, Warden informed Park that the least expensive sprinkler system she could find cost more than Wright could afford. There is no evidence in the record that ICE ever tried to get a certificate of occupancy using the alternatives that Warden had suggested.

In November 2009, Park notified Warden that ICE would be vacating both properties by January 31, 2010. ICE paid the rent for both properties through that date, at which point it moved to a new location. The properties were unoccupied until June 2010, when new tenants apparently moved in.

Wright sued Park and ICE for breach of the lease agreements, seeking unpaid rent, utilities, and CAM fees from February through June 2010 for both properties, the cost of various repairs to the larger property, and attorney fees. Park and ICE answered, admitting that ICE had occupied the premises but denying the existence of any enforceable lease agreements and asserting various counterclaims seeking, among other things, the return of ICE’s security deposit.

The parties filed cross-motions for summary judgment, which the trial court resolved in favor of Park and ICE. The court ruled that due to errors in the “3rd Lease Amendment,” no enforceable lease agreement existed with respect to the larger property; ICE was thus a tenant-at-will not liable for any unpaid rent because it gave the requisite 60 days’ notice of its intent to vacate the premises. Further, the court ruled, even if the “3rd Lease Amendment” was enforceable, ICE was not liable for utilities, CAM fees, or attorney fees with respect to either property. The court also concluded that Wright had breached an enforceable promise to install a sprinkler system in the larger property, thereby foreclosing his right to seek rent for that property. Finally, the court held that Wright failed as a matter of law to prove that ICE had caused any compensable damage to the larger property and that ICE was entitled to the return of its security deposit.

1. Wright argues that the trial court erred by finding that the lease pertaining to the larger property was not an enforceable contract. In its order, the court highlighted three errors in the “3rd Lease Amendment” executed in April 2008:

1) it begins by trying to incorporate a previous lease dated January 12, 2007; despite that the record confirms that neither of the previous leases dealing with the First Property were dated January 12, 2007; 2) it states that it is being incorporated into a lease that was entered into by Young Choi d/b/a IC Enterprises; despite that the record confirms that there was no lease that was entered into by Young Choi d/b/a IC Enterprises signed on January 12, 2007; and 3) it states that it is incorporating itself into a previous lease that was signed by Yong [sic] Choi d/b/a National Supply and later amended to IC Park d/b/a [sic] National Supply, despite that the record confirms that no such described amendments were ever made.

The court concluded that these errors rendered the “3rd Lease Amendment” so indefinite in subject matter as to be void. We disagree.

It is true, as the trial court noted, that “indefiniteness in subject matter so extreme as not to present anything upon which the contract may operate in a definite manner renders the contract void.” Burns v. Dees, 252 Ga. App. 598, 601-602 (1) (a) (557 SE2d 32) (2001) (alleged agreement to provide portion of profits and sale proceeds from complicated business venture was too indefinite to show parties’ intent). It is equally true, however, that “[t]he law does not favor destruction of contracts on grounds of uncertainty.” Kitchen v. Insur-america Corp., 296 Ga. App. 739, 743 (1) (675 SE2d 598) (2009) (footnote omitted). A contract is enforceable if it is “expressed in language sufficiently plain and explicit to convey what the parties agreed upon.” Id. (punctuation and footnote omitted).

A valid lease must identify the parties, the property, the consideration, and the “terms of payment.” Estate of Ryan v. Shuman, 288 Ga. App. 868, 871 (1) (655 SE2d 644) (2007) (citation omitted); see also OCGA § 13-3-1 (elements of valid contract include parties able to contract, consideration, mutual assent to terms, and a “subject matter upon which the contract can operate”). Here, the “3rd Lease Amendment” identified the parties, described the property, listed the rental price, and stated the lease term. It met the requirements for a valid lease and was enforceable on its own. Compare Nacoochee Corp. v. Suwanee Investment Partners, 275 Ga. App. 444, 446 (1) (620 SE2d 641) (2005) (handwritten “Lease Deal” that contained only a payment schedule and brief liquidated damages and indemnification provisions, without identifying the property or the precise tenant, was invalid).

Moreover, we hold that the “3rd Lease Amendment” incorporated the original lease that ICE’s predecessor and Wright had executed in 1999. The incorporation provision states that the “3rd Lease Amendment” is

[t]o be attached to and made part of that certain lease dated the 12th day of January 2007 between Yost & Wright, LP, as Landlord, and, Young Choi d/b/a ICE Enterprises, Inc., later amended to I. C. Park d/b/a National Supply, as Tenant, covering premises of (approximately 14,700 square feet), of Office/Warehouse space located at 3206 & 3208 Oakcliff Industrial Street, Doraville, GA 30340.

Further, the “3rd Lease Amendment” provides that “[a]ll other terms and conditions of original lease are hereby reconfirmed as being in full force and effect.” To construe this language, we first ascertain whether the language is clear and unambiguous; if so, we simply enforce it as written. Fab’rik Boutique v. Shops Around Lenox, 329 Ga. App. 21, 22 (2) (763 SE2d 492) (2014) (citation and punctuation omitted). As the trial court correctly noted, the incorporation provision contains an error precluding us from enforcing it as written: it lists the date of the lease to be incorporated as January 12, 2007, but the original lease actually was executed on May 1, 1999. This erroneous date reference creates a patent ambiguity, as it is not immediately clear which lease is meant to be incorporated.

Accordingly, we “must apply the rules of contract construction to resolve the ambiguity.” Fab’rik Boutique, 329 Ga. App. at 22-23 (2). The first of these rules, set forth at OCGA § 13-2-2 (1), allows us to consider parol evidence to prove “[a]ll the attendant and surrounding circumstances” and to explain “an ambiguity, latent or patent.” An examination of all ten documents that comprise the parties’ landlord-tenant relationship — that is, the two original leases together with their various amendments and assignments — shows that the parties meant to incorporate the original lease of the larger property, dated May 1, 1999, into the “3rd Lease Amendment.” The amendment’s reference to January 12, 2007, which is the date that ICE assumed the lease of the smaller property, is a simple date mistake or typographical error and is not so egregious as to void the incorporation provision. See Zakaria v. McElwaney, 174 Ga. App. 149, 151 (2) (329 SE2d 310) (1985) (“It is well established that any mistake in a contract, consisting of an unintentional act or omission, that is a clerical error, which in no way changes the contract or the relationship of the parties should not be permitted to defeat the clear intention of the parties.”) (citations omitted). Accordingly, the trial court should have granted Wright’s motion for summary judgment and denied ICE’s motion for summary judgment on the issue of the enforceability of the “3rd Lease Amendment.”

2. Wright also argues that the trial court erred by ruling that ICE was not obligated to pay CAM fees, utilities, or attorney fees with respect to either property. We agree.

As to the larger property, the original lease provided that ICE was responsible for CAM fees, utilities, and attorney fees, and as discussed in Division 1, the “3rd Lease Amendment” incorporated the original lease. The same is true for the smaller property: the original lease that ICE assumed expressly provided that the tenant was liable for such expenses, and the parties’ final amendment to that lease contained the same clause “reconfirming” the original lease provisions “as being in full force and effect.” Thus, the trial court should have granted Wright’s motion for summary judgment and denied ICE’s motion for summary judgment on the issue of ICE’s liability for CAM fees, utilities, and attorney fees with respect to both properties.

3. Wright contends that the trial court erred by ruling asa matter of law that he breached a “post-lease agreement” to install a sprinkler system in the larger property. As Wright points out, Section 3.1 of the original lease governing the larger property provided that the tenant had the responsibility to comply with all county ordinances and rules “at Tenant’s own cost and expense,” and Section 5 placed upon the tenant the burden to keep the nonstructural portions of the property, including all fixtures, equipment, and appurtenances, in good repair. Thus, under the plain language of the original lease, as extended by the “3rd Lease Amendment,” ICE had to pay for any nonstructural upgrades needed to obtain a business license from the county, such as the installation of a sprinkler system or other fire-retardant measures.

Wright maintains that questions of fact exist as to whether the parties departed from the terms of the lease by agreeing that Wright would install a sprinkler system.

A mutual departure from the terms of an agreement results in a quasi-new agreement suspending the original terms of the agreement until one party has given the other reasonable notice of its intent to rely on the original terms. The question whether the parties’ mutual conduct caused a waiver and effected a quasi-new agreement ordinarily is a question for the jury.

Circle K Stores v. T. O. H. Assocs., 318 Ga. App. 753, 754-755 (1) (734 SE2d 752) (2012) (punctuation andfootnote omitted); see also OCGA § 13-4-4. Although Wright’s property manager, Warden, did send ICE an e-mail and letter stating that Wright would pay for the installation of a sprinkler system “if the county forces the issue” and “there is no other alternative,” there is no evidence in the record that ICE and Park worked with Wright and Warden to explore the feasibility of cheaper alternatives, much less evidence that the county explicitly rejected lesser measures. Accordingly, a trier of fact could determine that there was no meeting of the minds to depart from the terms of the lease. The trial court erred by deciding this issue as a matter of law.

4. In his complaint, Wright sought $20,653.65 for expenses incurred in repairing ICE’s alleged damage to the larger property. To help cover these expenses, as well as unpaid rent and fees, Wright retained ICE’s security deposits (an amount totaling $5,403.55, according to ICE). The trial court ruled that Wright cannot prove that ICE damaged the property and that he therefore must return ICE’s security deposits. Wright maintains that this ruling was erroneous, and we agree.

First, Wright may retain the security deposits to cover any unpaid rent for the period after ICE vacated the premises, but before another tenant moved in. See Meek v. Mallory & Evans, 318 Ga. App. 407, 410 (3) (734 SE2d 109) (2012) (“Because Meek is liable for unpaid rent under the contract, landlord was not barred from retaining the security deposit for nonpayment of rent.”) (citation omitted). Second, the original lease for the larger property permitted Wright to use the security deposit in “such amount as may be necessary to restore [the premises] to their original condition, wear from normal usage excepted.” Wright alleged that ICE damaged the premises, necessitating substantial repairs, and Wright presented Warden’s affidavit and deposition testimony that ICE caused damage to both properties that exceeded normal wear and tear. Although the trial court ruled that Wright could not recover for these damages because this evidence failed to show with certainty the condition of the property at the beginning of the tenancy or the precise amount of the repair costs, such questions may not be resolved on summary judgment. See Abernethy v. Cates, 182 Ga. App. 456-458 (1) (356 SE2d 62) (1987) (question of whether tenant breached lease provision to return premises in good repair was properly submitted to jury).

Decided November 21, 2014

Reconsideration denied December 11, 2014

O’Kelley & Sorohan, Lawrence L. Washburn IV, for appellants.

O’Dell & O’Neal, Leslie D. O’Neal, for appellees.

Judgment reversed.

Barnes, P. J., and Boggs, J., concur.

       This amendment incorrectly referred to the date of the original lease for the smaller property as “May 1, 2005,” rather than March 2005.

       Although the trial court purported to find three separate errors in the “3rd Lease Amendment,” there is really one error that the court described three different ways.

       Even if the trial court had been correct in ruling that the “3rd Lease Amendment” failed to incorporate the original lease of the larger property, ICE would still be responsible for paying the CAM fee, as that fee was specifically mentioned in the amendment.

       Black’s defines a “structural alteration” as “[a] significant change to a building or other structure, essentially creating a different building or structure.” Black’s Law Dictionary (9th ed. 2009).

       OCGA § 13-4-4 provides as follows:
      Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given to the other of intention to rely on the exact terms of the agreement. The contract will be suspended by the departure until such notice.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A14A0960.
    WILANN PROPERTIES I, LLC v. GEORGIA POWER COMPANY.
    (765 SE2d 463)
   Boggs, Judge.

This is the fourth appearance before us of this long-running dispute between a landowner, Wilann Properties I, LLC (“Wilann”), and Georgia Power Company (“Georgia Power”) over a utility easement across Wilann’s property. Wilann appeals from the trial court’s denial of its motion to add a party. We conclude that the trial court did not abuse its discretion, and we therefore affirm.

The facts of the case, as well as the earlier appeals, are noted in its most recent appearance, Wilann Properties I v. Georgia Power Co., 321 Ga. App. 297 (740 SE2d 386) (2013). There, we affirmed the trial court’s grant of summary judgment in favor of Georgia Power Company. Id. Our Supreme Court denied Wilann’s petition for certiorari, and the remittitur issued on March. 25, 2013. On October 31, 2013, the trial court entered a “Final Judgment on Remittitur.”

On December 2, 2013, Wilann filed a “Motion to Add Caffrey Construction Company as Counterclaim Defendant.” With that motion, it filed a proposed second amended counterclaim, continuing to name Georgia Power as a defendant-in-counterclaim, making allegations against Georgia Power, as well as Caffrey Construction, and seeking relief against both. The trial court denied the motion, observing:

First, the Court is aware of no authority that provides that a party may be added to an action after the completion of the case. Furthermore, the Court finds that Wilann has not satisfied its burden of establishing lack of prejudice and excusable delay. Accordingly, Wilann’s Motion to Add Caf-frey [Construction] Company as Counterclaim Defendant is hereby DENIED.

“The determination of whether a party should be added to a lawsuit lies within the discretion of the trial court, and that determination will not be disturbed on appeal absent a showing of abuse.” (Citation, punctuation and footnote omitted.) Ellison v. Hill, 288 Ga. App. 415, 418 (2) (654 SE2d 158) (2007). Moreover, the burden is on the movant to show “whether the new part[y] will be prejudiced thereby and whether the movant has some excuse or justification for having failed to name and serve the new part[y] previously.” (Citations, punctuation and footnote omitted.) Id. The trial court did not abuse its discretion here.

First, the trial court correctly observed that the action below had already terminated. Georgia Power did not move for summary judgment on fewer than all the issues in the case: its motion is styled “Georgia Power’s Motion for Summary Judgment as to Plaintiff’s Complaint and Defendant’s Counterclaim,” and it explicitly moved “for summary judgment as to the claims in its complaint and as to defendant’s counterclaims.” In its response, Wilann never asserted that any of its claims were not subject to Georgia Power’s motion, nor did it contend that the motion was only for partial summary judgment or for fewer than all issues in the case. Moreover, it acknowledged that “summary judgment is a peremptory method of disposing of a case on its merits” and that Georgia Power was required to “establish^ ] the absence of any issue for trial.” Finally, Wilann made allegations of nuisance in its amended counterclaim six months before Georgia Power filed its motion for summary judgment.

In Kennedy Dev. Co. v. Newton’s Crest Homeowners’ Assn., 322 Ga. App. 39 (743 SE2d 600) (2013), we addressed a similar situation. The trial court denied summary judgment to a third-party defendant on a claim for contractual indemnity. See id. at 40-41. This court reversed, directing the entry of summary judgment for the third-party defendant, id. at 41, and the Supreme Court affirmed. After entry of judgment on the remittitur, the defendant attempted to amend its third-party complaint to assert a “common law indemnity” claim, contending that this claim had survived despite its consistent treatment of the summary judgment motion as addressing all claims in the third-party action. Id. The trial court granted summary judgment on the basis of res judicata, and we affirmed after examining the parties’ pleadings, holding that the claim was “both ascertainable in [the] original third-party complaint and ruled on in the grant of summary judgment, and it is therefore barred by res judi-cata.” Id. at 44.

Similarly, Wilann’s claims against Georgia Power in the proposed amended complaint are barred on res judicata grounds, and in the absence of any other parties (compare Kennedy, supra), the action terminated upon entry of the remittitur. Compare Crisler v. Hauga-book, 290 Ga. 863, n. 1 (725 SE2d 318) (2012) (summary judgment not “final judgment” and did not terminate action because trial court did not rule on all claims).

Wilann argues that it had claims in nuisance that were not adjudicated on summary judgment. But Wilann’s pleadings prior to summary judgment, including its original counterclaim, its amended counterclaim, and its brief on summary judgment, asserted numerous claims that could be construed as sounding in nuisance. It claimed, inter alia, invasion of its property, “continued trespasses,” “damages to [its] dam, possible water runoff in the graded areas, disturbance of an Indian burial ground, and disturbance of wetlands and Clean Water Act violations.” Finally, it explicitly made claims of nuisance in its amended counterclaim, as we expressly noted in the first appeal of this case. 321 Ga. App. at 300.

OCGA § 9-11-56 (e) provides that in the face of a properly supported motion for summary judgment, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. Consequently, in responding to a motion for summary judgment, plaintiffs have a statutory duty to produce whatever viable theory of recovery they might have or run the risk of an adjudication on the merits of their case.

(Citations and punctuation omitted.) Smith v. Lockridge, 288 Ga. 180, 186 (4) (702 SE2d 858) (2010); see also Kennedy, supra, at 43-44.

Wilann’s cause of action in nuisance was expressly pleaded in its counterclaim as amended prior to summary judgment. Any nuisance claim therefore is barred by res judicata, and the action against Georgia Power terminated with the entry of final judgment on the remittitur, before Wilann attempted to add a party or file its second amended counterclaim. It therefore could not amend or add a party to an action that had already terminated.

Decided November 19, 2014

Reconsideration denied December 11, 2014

Chamberlain, Hrdlicka, White, Williams &Aughtry, Richard N. Hubert, for appellant.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert M. Brinson, J. Anderson Davis, for appellee.

In addition, even assuming that the case survived summary judgment, the trial court did not abuse its discretion in finding that Wilann failed to meet its burden of demonstrating why it did not seek to add Caffrey Construction as a party at an earlier time. At the time of Georgia Power’s Motion for Summary Judgment, filed on December 2, 2011, Wilann was aware that the clearing activities on its property were performed by Caffrey Construction and that Georgia Power was asserting Caffrey Construction’s status as an independent contractor. Indeed, in its answer and counterclaim, filed on March 18, 2010, Wilann referred to “Georgia Power’s contractors.” But it never sought to add Caffrey Construction as a party, and it has articulated no reason why it failed to do so in light of the facts of this case.

“In determining whether to allow an amendment to add a party, the trial court may consider whether the new parties will be prejudiced thereby and whether the movant has some excuse or justification for having failed to name and serve the new parties previously.” (Citation, punctuation and footnote omitted.) Riding v. Ellis, 297 Ga. App. 740, 742-743 (1) (678 SE2d 178) (2009); see also Ellison, supra, 288 Ga. App. at 418 (2). The trial court did not err in denying Wilann’s motion for this additional reason.

Judgment affirmed.

Barnes, R J., and Branch, J., concur.


text:
    A14A1276.
    GILES v. STATE FARM MUTUAL INSURANCE COMPANY.
    (765 SE2d 413)
   Boggs, Judge.

James Giles appeals from the trial court’s order granting State Farm Mutual Insurance Company’s (“State Farm”) motion to dismiss based upon Giles’ failure to diligently serve his renewal action upon State Farm, his uninsured motorist carrier. For the reasons explained below, we overrule Georgia Court of Appeals cases that incorrectly state how the grace period for service provided by OCGA § 9-11-4 (c) should be calculated. Application of the correct law, as clarified by this opinion, requires us to reverse the trial court’s order of dismissal.

The record shows that this case arises out of an automobile accident that occurred on June 3, 2005. On May 30, 2007, James Giles filed suit in Fulton County Superior Court against John Doe, the operator of a stolen vehicle that collided with Giles’ vehicle. The same day, the Fulton County clerk issued a summons for State Farm. State Farm’s registered agent was located in Cobb County. The Cobb County sheriff’s office received the second original complaint and summons on May 31, 2007, and served State Farm on June 4, 2007. On November 7, 2011, Giles voluntarily dismissed his complaint without prejudice.

On Monday April 30, 2012, Giles filed a renewed complaint pursuant to OCGA § 9-2-61 (c). The clerk issued a summons the same day, and the Cobb County sheriff’s office file-stamped receipt of an entry of service form on May 7, 2012. This form states that the sheriff’s office served “a copy of the within action and summons” on May 9, 2012.

State Farm moved to dismiss the renewed action on the ground that it was served “after the expiration of the statute of limitations and beyond the six (6) month renewal period.” Following a hearing, the trial court granted the motion based upon its conclusion that the five-day grace period for service “runs from the date a plaintiff files an action and receives the summons and complaint from the clerk.” As the complaint was served more than five days after the renewal action was filed, the trial court concluded that Giles had the burden of showing due diligence to perfect service as quickly as possible. The trial court also found that the plaintiff is responsible for delivery of the complaint and summons to the sheriff after receipt of the complaint and summons. Based upon Giles’ failure to offer an explanation for the delay in delivery of the complaint and summons to the Cobb County Sheriff’s Office, the trial court determined that he had failed to meet his burden of showing diligence and granted State Farm’s motion to dismiss.

The trial court’s decision is premised upon the following legal conclusions: (1) that the person making service refers to the party filing the action, and (2) that the five-day grace period begins to run from the time the complaint is filed and the summons is issued. We must therefore examine each of these issues in turn.

1. The starting point for our analysis is the origin of the five-day grace period for service. In Hilton v. Maddox, Bishop, Hayton Frame & Trim Contractors, 125 Ga. App. 423 (188 SE2d 167) (1972), we noted that before the enactment of the Civil Practice Act, Georgia courts held: “If the filing of the petition is followed by timely service perfected as required by law, although the statute of limitation runs between the date of the filing of the petition and the date of service, the service will relate back to the time of filing so as to avoid the limitation.” (Citations and punctuation omitted.) Id. at 425 (1). See also Ga. Farm Bureau Mut. Ins. Co. v. Kilgore, 265 Ga. 836, 837 (462 SE2d 713) (1995) (citing Hilton for same proposition). We then concluded

that this rule continues under the Civil Practice Act. It is provided by [Ga. Code Ann.] § 81A-103 that a civil action is commenced by the filing of a complaint, and under [Ga. Code Ann.] § 81A-104 provision is made for the issuance and service of process — the service to be made within five days from the time of receiving the summons and complaint, although failure to make it within the five days will not invalidate a later service.

Hilton, supra, 125 Ga. App. at 426 (1).

The current version of former Ga. Code Ann. § 81A-104 can be found in OCGA § 9-11-4 (c), which provides: “When service is to be made within this state, the person making such service shall make the service within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service.” In this case, the trial court concluded that “the reference in [OCGA §] 9-11-4 (c) to ‘the person making such service’ refers to the party filing the action — not the person or entity who performs the physical act of serving the pleadings on a plaintiff’s behalf.” It reasoned that the sheriff is merely acting as the plaintiff’s agent in performing the plaintiff’s duty to timely serve an action.

We disagree with this interpretation. In Kilgore, supra, the Supreme Court held that “OCGA § 9-11-4 (c) provides a time frame for performance by the process server once service is sought, but does not provide a time limit within which service must be initiated by the plaintiff.” (Emphasis supplied.) Id. at 837. See also Callaway v. Goodwin, 327 Ga. App. 875 (761 SE2d 407) (2014). Additionally, in Scoggins v. State Farm Mut. Auto. Ins. Co., 156 Ga. App. 408 (274 SE2d 775) (1980), we noted that “the pertinent process statutes place sole responsibility on the clerk to issue the necessary copies of the complaint and summons to the sheriff or marshal to accomplish service” and that “[t]he Fulton County clerk was also authorized [by statute] to issue and transmit a second original and copy of the complaint and summons to the DeKalb County sheriff for service of process.” Id. at 410. We then concluded in Scoggins that the clerk’s conduct in providing the summons and complaint to the sheriff one day after the complaint was filed “indicates no lack of diligence on the part of the plaintiffs.”

The current process statutes continue to place responsibility on the clerk to transmit the summons and complaint for service. OCGA § 9-11-4 (a) states: “Upon the filing of the complaint, the clerk shall forthwith issue a summons and deliver it for service.” (Emphasis supplied.) OCGA § 9-10-72 provides:

If the defendant or any of the defendants reside outside the county where the action is filed, the clerk shall issue a second original and copy for such other county or counties and forward the same to the sheriff, who shall serve the copy and return the second original, with his entry thereon, to the clerk of the court from which the same issued.

(Emphasis supplied.)

Based on these statutes governing service and the Supreme Court’s decision in Kilgore, “the person making such service” in OCGA § 9-11-4 (c) should not, as a matter of law, be deemed to be the party filing the action. If the General Assembly had intended the five-day period to begin running from the time the complaint and summons are issued, rather than the time of receipt by the person making service, it could have so stated. Instead, it created a rule obligating “the person making such service” to do so “within five days from the time of receiving the summons and complaint.”

2. With this understanding of the person making service under OCGA § 9-11-4, we turn to our law governing calculation of the five-day grace period to effect service.

As outlined above, the general rule should be properly stated as follows: “If the filing of the petition is followed by timely service perfected as required by law, although the statute of limitation runs between the date of the filing of the petition and the date of service, the service will relate back to the time of filing so as to avoid the limitation.” Hilton, supra, 125 Ga. App. at 425 (1). See also Kilgore, supra, 265 Ga. at 837; Humble Oil & Refining Co. v. Fulcher, 128 Ga. App. 606, 609 (3) (197 SE2d 416) (1973); Webb v. Murphy, 142 Ga. App. 649, 650 (236 SE2d 840) (1977). Therefore, if service is made within the five-day grace period allowed by OCGA § 9-11-4 (c), it relates back to the date the complaint was filed as a matter of law. See Williams v. Colonial Ins. Co. of California, 199 Ga. App. 760 (406 SE2d 99) (1991). See also Milton v. Goins, 309 Ga. App. 865, 866 (1) (711 SE2d 415) (2011) (plaintiff bears burden of proving lack of fault when service is not timely perfected as required by law). And

[w]here a complaint is filed near the statute of limitation and service is made after the statute expires and after the five-day safe harbor provision contained within OCGA § 9-11-4 (c), the relation back of the service to the date of filing is dependent upon the diligence exercised by the plaintiff in perfecting service.

(Citation and punctuation omitted.) Moody v. Gilliam, 281 Ga. App. 819, 820 (637 SE2d 759) (2006). See also Parker v. Silviano, 284 Ga. App. 278, 279 (643 SE2d 819) (2007).

Over time, however, this court has issued decisions unintentionally changing the meaning of the general rule with regard to how the grace period should be calculated. While we reached the proper result based upon the particular facts before us in those decisions, our alteration of the rule could cause error in a case like this where the time frame between filing, receipt of the summons and complaint by the person making service, the expiration of the statute of limitation, and the date of service is very short.

In Bible v. Hughes, 146 Ga. App. 769 (247 SE2d 584) (1978), we paraphrased the general rule and unwittingly changed it as follows: “Where the statute of limitation accrues between the date of filing and the date of service, whether or not it relates back (if the service is more than five days after the filing) depends on the length of time and the diligence used by the plaintiff.” (Emphasis supplied.) Id. at 770 (2). In Bowman v. United States Life Ins. Co., 167 Ga. App. 673 (307 SE2d 134) (1983), we inadvertently made the following similar change:

The statute of limitation is tolled by the commencement of a civil action at law. OCGA § 9-11-4 (c) (Code Ann. § 81A-104) requires that service of a complaint shall be made within five days of the filing of the complaint. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible.

(Emphasis supplied.) Id. at 676 (3).

After these decisions, numerous others have incorrectly stated that the plaintiff must serve the defendant within five days of the filing of the complaint rather than receipt of the summons and complaint by the person making service. While theoretically, the five-day grace period could begin running on the same day the complaint is filed when the clerk provides the summons and complaint to the person making service on the same day, the date of filing is not always the start date for the five-day grace period.

In Parker v. Shreve, 244 Ga. App. 350 (535 SE2d 332) (2000) (physical precedent only), the rule was restated in yet another way.

When a complaint is filed within the applicable statute of limitation but service is perfected more than five days after the statute [of limitation] expires, the service relates back to the original filing only if the plaintiff shows that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible.

(Citation and punctuation omitted; emphasis supplied.) Id. at 351. Because service in Parker was made 12 days after the statute of limitation expired, we did not apply the newly stated rule that diligence need not be shown if service is made within five days of the expiration of the statute of limitation. Instead, we concluded that the trial court erred in dismissing the complaint because the record showed that the plaintiff was diligent in perfecting service. Our decision in that case appears to have resulted in additional decisions misstating the general rule, but reaching the correct result because service took place more than five days after the expiration of the limitation period and receipt of the summons and complaint.

In order to clarify this area of the law, we hereby overrule Bible, supra, Bowman, supra, Parker v. Shreve, supra, and each of the cases listed in footnotes two and four of this opinion, to the extent they misstate the rule governing the calculation of the five-day grace period embodied in OCGA § 9-11-4 (c). While in many cases the calculation may, as a matter of fact, run from the date the complaint was filed (because the person making service received the summons and complaint on the same day) or run from expiration of the statute of limitation (because the complaint was filed on the last day of the limitation period and the complaint and summons was received by the person making service on the same day), to the extent these cases misstate the proper rule to be applied generally, they must be overruled.

3. Having clarified the appropriate rule to calculate the five-day grace period embodied in OCGA § 9-11-4 (c), we turn now to the case before us. The record shows that Giles filed his renewal action a week before the six-month period for renewal expired and that the Cobb County sheriff’s office received the complaint and summons on the last day of the six-month renewal period and served it two days later.

It is well settled that “[a] renewed lawsuit under OCGA § 9-2-61 (a) is an action de novo; therefore, the procedural requirements of filing a new complaint and perfecting service must be met anew.” (Citation, punctuation and footnote omitted.) Davis v. Bushnell, 245 Ga. App. 221, 222 (537 SE2d 477) (2000). See also Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994). The five-day grace period for service of a complaint also applies to renewal actions. See generally Cleveland v. Katz, 311 Ga. App. 880, 883 (1) (717 SE2d 500) (2011); Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348, 349 (1) (408 SE2d 111) (1991). And

[u]nder Georgia law, the general rule is that a plaintiff making a claim against a UM carrier must serve process upon the UM carrier within the same statute of limitation applicable to the uninsured motorist. This requirement is met where the UM carrier is timely served in a renewal action despite not having been served in the original action.

(Citations and punctuation omitted.) King v. Peeples, 328 Ga. App. 814, 816 (3) (762 SE2d 817) (2014). In this case, the renewal action was served within the time allowed by law, the five-day grace period, and the service therefore related back as a matter of law. We therefore must reverse the trial court’s order dismissing Giles’ renewal action.

Decided November 5, 2014

Reconsideration denied December 11, 2014

Eric R. Johnson II, for appellant.

Waldon Adelman Castilla Hiestand & Prout, Jonathan M. Adel-man, for appellee.

Judgment reversed.

Phipps, C. J., Andrews, P. J., Barnes, P. J., Ellington, P. J., Doyle, P. J., Miller, Dillard, McFadden, Ray, Branch and McMillian, JJ., concur.

       We note that OCGA § 1-3-1 (d) (3), which provides that weekends and holidays are not counted when an action must be taken in less than seven days, applies to this five-day grace period. See Cleveland v. Katz, 311 Ga. App. 880, 883 (1) (717 SE2d 500) (2011); Williams v. Colonial Ins. Co. of California, 199 Ga. App. 760 (406 SE2d 99) (1991).

       See Callaway, supra; Harlem v. Williams, 326 Ga. App. 526, 527-528 (757 SE2d 149) (2014); Walker v. Culpepper, 321 Ga. App. 629, 630 (742 SE2d 144) (2013); Cleveland, supra, 311 Ga. App. at 884 (2) (while correctly stating rule in one place in opinion, other portion misstates the rule); Milton, supra, 309 Ga. App. at 866-867 (2); Moreno v. Naylor, 305 Ga. App. 504, 505 (1) (699 SE2d 838) (2010), overruled in part on other grounds, Ragan v. Mallow, 319 Ga. App. 443, 447 (2) (744 SE2d 337) (2012); Scanlan v. Tate Supply Co., 303 Ga. App. 9, 11 (b) (692 SE2d 684) (2010); Akuoko v. Martin, 298 Ga. App. 364 (1) (680 SE2d 471) (2009); Atcheson v. Cochran, 297 Ga. App. 568, 569 (677 SE2d 749) (2009); Abimbola v. Pate, 291 Ga. App. 769, 771 (2) (662 SE2d 840) (2008); Montague v. Godfrey, 289 Ga. App. 552, 554 (1) (657 SE2d 630) (2008) (physical precedent only); Green v. Cimafranca, 288 Ga. App. 16, 17 (1) (653 SE2d 782) (2007); B&B Quick Lube v. G&K Svcs. Co., 283 Ga. App. 299, 301 (641 SE2d 198) (2007); Duffy v. Lyles, 281 Ga. App. 377 (636 SE2d 91) (2006); Patterson v. Lopez, 279 Ga. App. 840, 842 (2) (632 SE2d 736) (2006); In the Interest of A. H., 279 Ga. App. 77, 81 (2) (630 SE2d 587) (2006); Tenet Healthcare Corp. v. Gilbert, 277 Ga. App. 895, 903 (5) (627 SE2d 821) (2006); Lee v. Kim, 275 Ga. App. 891, 892 (622 SE2d 99) (2005); Wells v. The Drain Doctor, Inc., 274 Ga. App. 127, 128 (616 SE2d 880) (2005); Neely v. Jones, 271 Ga. App. 487, 488 (1) (610 SE2d 133) (2005); Feinour v. Richer Co., 269 Ga. App. 508, 510 (604 SE2d 588) (2004); Poteate v. Rally Mfg., 260 Ga. App. 34, 36 (4) (579 SE2d 44) (2003); Carmody v. Hill, 248 Ga. App. 437, 438 (546 SE2d 545) (2001); Busby v. Webb, 247 Ga. App. 781, 782 (545 SE2d 132) (2001); Heard v. Hart, 241 Ga. App. 441, 443 (526 SE2d 908) (1999); Pringle v. Jaganauth, 240 Ga.App. 65, 66 (2) (522 SE2d 560) (1999), overruled in part on other grounds, Farrie v. McCall, 256 Ga. App. 446 (568 SE2d 603) (2002); Bailey v. Lawrence, 235 Ga. App. 73, 77-78 (2) (508 SE2d 450) (1998), overruled in part on other grounds, Ragan, supra; Wade v. Whalen, 232 Ga. App. 765 (1) (504 SE2d 456) (1998); Wilson v. Ortiz, 232 Ga. App. 191, 192 (1) (a) (501 SE2d 247) (1998); Waits v. Gil, 232 Ga. App. 186, 187 (501 SE2d 303) (1998); Flemister v. Hopko, 230 Ga. App. 93, 94 (2) (495 SE2d 342) (1998); Heis v. Young, 226 Ga. App. 739, 741 (5) (487 SE2d 403) (1997); Patterson v. Johnson, 226 Ga. App. 396, 397 (486 SE2d 660) (1997); Jackson v. Nguyen, 225 Ga. App. 599, 600 (484 SE2d 337) (1997); Walker v. Bord, 225 Ga. App. 242, 243 (483 SE2d 675) (1997); Jones v. Isom, 223 Ga. App. 7, 8 (1) (477 SE2d 139) (1996); Mann v. Atlanta Cas. Co., 215 Ga. App. 747, 749 (452 SE2d 130) (1994); Peoples v. State Farm Mut. Auto. Ins. Co., 211 Ga. App. 55, 56 (438 SE2d 167) (1993); Trover v. McKnight, 208 Ga. App. 278, 279 (430 SE2d 164) (1993); Douglas v. Woon, 205 Ga. App. 355, 356 (1) (422 SE2d 61) (1992), overruled in part on other grounds, Ragan, supra; Babb v. Cook, 203 Ga. App. 437, 439-440 (2) (417 SE2d 63) (1992), overruled in part on other grounds, Farrie, supra; Collier v. Marsh, 203 Ga. App. 322, 323 (2) (416 SE2d 849) (1992); Starr v. Wimbush, 201 Ga. App. 280, 281 (2) (410 SE2d 776) (1991), overruled in part on other grounds, Ragan, supra; Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348, 349 (1) (408 SE2d 111) (1991); Capra v. Rogers, 200 Ga. App. 131, 134 (3) (407 SE2d 101) (1991); Williams v. Colonial Ins. Co., supra; Dunson v. Golden, 199 Ga. App. 513 (405 SE2d 332) (1991); Day v. Burnett, 199 Ga. App, 494, 495 (1) (405 SE2d 316) (1991); Smith v. Winn, 198 Ga. App. 459 (1) (402 SE2d 79) (1991); Ennis v. Bradshaw, 197 Ga. App. 744, 745 (399 SE2d 493) (1990); Pickens v. Nationwide Mut. Ins. Co., 197 Ga. App. 550, 551 (398 SE2d 792) (1990); Green v. Young, 197 Ga. App. 101 (397 SE2d 509) (1990); Anderson v. Hughes, 196 Ga. App. 186, 187 (1) (395 SE2d 623) (1990); Shears v. Harris, 196 Ga. App. 61 (395 SE2d 300) (1990); Land v. Casteel, 195 Ga. App. 455, 456 (393 SE2d 710) (1990); Robinson v. Stuck, 194 Ga. App. 311, 312 (1) (390 SE2d 603) (1990); Davis v. Johnson, 193 Ga. App. 19, 21 (1) (386 SE2d 900) (1989); Day v. Burnett, 189 Ga. App. 905, 906 (377 SE2d 734) (1989); Garrett v. Godby, 189 Ga. App. 183, 185 (3) (375 SE2d 103) (1988); Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 830 (2) (b) (360 SE2d 280) (1987); Brumbalow v. Fritz, 183 Ga. App. 231, 232 (2) (358 SE2d 872) (1987); Brim v. Pruitt, 178 Ga. App. 321, 323 (342 SE2d 690) (1986) (physical precedent only); Siler v. Johns, 173 Ga. App. 692 (327 SE2d 810) (1985) (physical precedent only); Brumit v. Mull, 165 Ga.App. 663, 665 (3) (302 SE2d 408) (1983), overruled on other grounds, Brent v. Hin, 254 Ga. App. 77 (561 SE2d 212) (2002); Scoggins, supra, 156 Ga. App. at 410.

       In support of this statement in Parker, we cited Childs v. Catlin, 134 Ga. App. 778 (216 SE2d 360) (1975). In Childs, we cited Hilton, supra, and properly stated the rule as follows: “If the filing of the petition is followed by timely service perfected as required by law, although the statute of limitation runs between the date of the filing of the petition and the date of service, the service will relate back to the time of filing so as to avoid the limitation.” Childs, supra, 134 Ga. App. at 780.

       See Douglas v. Seidl, 251 Ga. App. 147, 148 (553 SE2d 829) (2001); Zeigler v. Hambrick, 257 Ga. App. 356, 357 (1) (571 SE2d 418) (2002); Carter v. McKnight, 260 Ga. App. 105, 106 (2) (578 SE2d 901) (2003); Carver v. Tift County Hosp. Auth., 268 Ga.App. 153, 154 (601 SE2d 475) (2004); Dickson v. Amick, 291 Ga.App. 557, 559 (1) (662 SE2d 333) (2008); McCullers v. Harrell, 298 Ga. App. 798, 799 (1) (681 SE2d 237) (2009); Jones v. Brown, 299 Ga. App. 418, 419 (683 SE2d 76) (2009).

       While we have endeavored to list all of the cases misstating the rule, any other precedent not identified in this opinion that does so should also he considered overruled to the extent the rule is misstated.


text:
    A14A1469.
    JAYCEE ATLANTA DEVELOPMENT, LLC et al. v. PROVIDENCE BANK.
    (765 SE2d 536)
   Branch, Judge.

Jaycee Atlanta Development, LLC (“Jaycee”) obtained a $15 million line of credit from a bank that later failed and had its assets transferred to Providence Bank. When Jaycee defaulted on the loan, Providence sued Jaycee and its members, Charles Woodson and James Crawford, to recover the remaining principal balance, plus interest. On cross-motions for summary judgment, the trial court ruled in favor of Providence, and Jaycee, Woodson, and Crawford now appeal. For reasons that follow, we affirm.

Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue of material fact and that the undisputed facts warrant judgment as a matter of law. Nixon v. Pierce County School Dist., 322 Ga. App. 745, 747 (746 SE2d 225) (2013). In reviewing the trial court’s ruling on a motion for summary judgment, we apply a de novo standard of review and view the evidence in a light most favorable to the nonmoving party. Graham v. HHC St. Simons, 322 Ga. App. 693, 694 (2) (746 SE2d 157) (2013). We will affirm the grant of summary judgment if it is right for any reason. Stephen A. Wheat Trust v. Sparks, 325 Ga. App. 673, 679 (4), n. 8 (754 SE2d 640) (2014).

The record shows that Woodson and Crawford formed Jaycee with the goal of acquiring separate parcels of property near the Georgia Dome and assembling them into a multi-use development. Woodson and Crawford negotiated with Premier Bank, a financial institution based in Missouri, for a line of credit that would help them purchase the necessary parcels. At the closing, which occurred in September 2007, Premier and Jaycee executed a loan agreement and promissory note for $ 15 million, and Woodson and Crawford executed personal guaranties on the note.

In October 2010, the Missouri Division of Finance declared Premier to be insolvent, closed it down, and appointed the Federal Deposit Insurance Corporation (“FDIC”) as receiver of its assets. The FDIC then transferred Premier’s assets to Providence Bank.

In February 2011, Providence notified Jaycee that it was in default on the loan and demanded repayment. When Jaycee failed to pay, Providence sued Jaycee, Woodson, and Crawford for breach of the loan agreement, promissory note, and guaranties, seeking the remaining principal balance of more than $5 million, plus interest and attorney fees. Providence attached copies of the relevant loan documents to the complaint. The defendants answered, denying liability, and Jaycee counterclaimed for breach of contract, alleging that Premier had broken certain oral promises.

Providence moved for summary judgment on its own claims, arguing that Jaycee borrowed money from Premier which it failed to repay in full, and that Woodson and Crawford were personally responsible for Jaycee’s debt. Providence also sought summary judgment on Jaycee’s counterclaims. The defendants filed a cross-motion for summary judgment on Providence’s claims, asserting a variety of defenses. In a lengthy, thorough order, the trial court granted Providence’s motions and denied the defendants’ motion. The defendants filed a timely notice of appeal. At Providence’s request, the trial court entered an order requiring the defendants to post $1 million, as well as the subject property, “to secure the judgment pending appeal.”

On appeal, the defendants argue that Providence is not the real party in interest on the loan documents, that it failed to properly authenticate the loan documents, that the loan documents Providence produced are not the ones they signed, that the guaranties violate the Statute of Frauds, that Providence breached anti-assignment provisions in the loan documents, and that no super-sedeas bond was authorized here. These arguments lack merit.

1. Pointing out that only “current holders of an interest in the contract” may sue on it, Sawgrass Builders v. Key, 212 Ga. App. 138 (1) (441 SE2d 99) (1994), the defendants assert that Providence failed to show that it has an interest in the loan agreements. But there was ample undisputed evidence that Providence was Premier’s successor-in-interest in those agreements.

William Mitchell, a vice president at Providence and its OCGA § 9-11-30 (b) (6) witness, testified that after Premier failed and the FDIC stepped in, Providence “bought the assets” of Premier. Mitchell also identified a document titled “Transfer of Liens” showing that the FDIC “has sold, transferred, assigned and conveyed” to Providence the Jaycee loan “and all other documents evidencing, securing or relating to the Loan.” Finally, Mitchell identified a list that the FDIC supplied of all loans included in the asset purchase, and that list contains the Jaycee loan. The defendants, on the other hand, have pointed to no evidence suggesting that Providence is not Premier’s successor-in-interest on the Jaycee loan documents. Thus, the trial court properly rejected the defendants’ real-party-in-interest defense. See HWA Properties v. Community & Southern Bank, 322 Ga. App. 877, 883 (1) (c) (746 SE2d 609) (2013) (given “affirmative and uncon-tradicted evidence” that bank’s acquisition of other bank’s assets after FDIC receivership included the subject loan, “unsupported assertion” that acquisition may not have included subject loan “constitutes mere speculation or conjecture that is insufficient to defeat... summary judgment”) (citation omitted).

2. The defendants also argue that Providence failed to properly authenticate the loan documents. We disagree.

In general, “a writing will not be admitted into evidence unless the offering party tenders proof of the authenticity or genuineness of the writing.” Nyankojo v. North Star Capital Acquisition, 298 Ga. App. 6, 7 (679 SE2d 57) (2009) (punctuation and footnote omitted). The requirement of authentication “shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” OCGA § 24-9-901 (a). But the new Georgia Evidence Code specifies a number of documents that are self-authenticating and do not require “[e]xtrinsic evidence of authenticity as a condition precedent to admissibility,” including “[c]ommercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.” OCGA § 24-9-902 (9). Although the defendants concede that this statute encompasses the loan agreement and promissory note, as well as the amendments thereto, they insist that the guaranties are not self-authenticating. This argument lacks merit, as the statute applies not only to commercial paper, but also to “documents relating thereto,” such as guaranty agreements. See United States v. Varner, 13 F3d 1503, 1509-1510 (III) (C) (11th Cir. 1994) (assumption agreements showing transfer of promissory notes were self-authenticating under federal counterpart to OCGA § 24-9-902 (2)); see also Gunter v. True, 203 Ga. App. 330, 334 (3) (416 SE2d 768) (1992) (guaranty agreement was “part and parcel of the note itself”).

3. The defendants argue that even if the loan documents are admissible, there are disputes of fact as to whether they were the same documents that Woodson and Crawford signed, or intended to sign, at the closing. The defendants point out that some pages of the loan documents contain footers, while others do not, and that the content of the footers is not consistent from page to page. They also insist that the terms of the documents attached to Providence’s complaint are different from what they negotiated. But the defendants have failed to present any evidence, beyond speculation, to support these claims.

Mark Burr, Premier’s closing attorney, testified that he prepared the loan documents, which reflected the loan amount that Jaycee and Premier had initially agreed upon — $20 million. Burr brought the unsigned loan documents to the closing, which occurred at the law offices of Jaycee’s local Atlanta counsel. The closing was attended by Burr, Crawford, and Steven Buckman, the defendants’ lawyer, as well as a few nonparties. When Burr arrived, he learned that the parties had renegotiated the amount of the loan to $ 15 million, and he had to change and reprint pertinent pages of the loan documents, including the guaranties, to reflect the new loan amount. Although Burr did not have a clear memory of how, exactly, he accomplished this task (the closing occurred five years before his deposition), he testified that he probably used a printer at local counsel’s office to print corrected pages from his laptop. With regard to the footer inconsistencies, Burr testified that in his experience, when printing a document from a system that is different from the one on which it was created, “these footers don’t always transfer properly.”

Burr testified that he personally observed Crawford sign the loan documents (except for Woodson’s guaranty) at the closing table, and that Buckman gave him a signature page that Woodson had previously signed to be attached to Woodson’s guaranty. Burr further testified that Buckman actively participated in the closing negotiations and that he reviewed the loan documents, including Woodson’s guaranty, before they were executed. After the documents were executed and copies made, Burr boxed up the originals and sent them to Premier, keeping copies for himself and the defendants. During his deposition, Burr identified the loan documents attached to Providence’s complaint as the ones executed at the closing.

As to the defendants’ evidence, Crawford admits that he personally signed a loan agreement, promissory note, and guaranty at the closing. During his deposition, however, he expressed doubt that the documents he signed were the ones Providence produced in this litigation because Providence’s documents had footers on all pages except his signature pages. But Crawford was unable to identify any discrepancies in content between the documents he thought he signed and those produced by Providence. Later, he submitted an affidavit stating that to the best of his memory, “the loan documents that [he] guaranteed, and the guaranty that [he] signed, reflected a loan or line of credit in the amount of $20 million” rather than the $15 million shown in Providence’s loan documents. But this assertion is flatly contradicted by his deposition testimony that he “never signed an agreement for $20 million.”

Woodson, for his part, did not recognize any of the loan documents at his deposition, could not recall the amount of the loan, and did not remember agreeing to guarantee the loan. He admitted, however, that the signature on the signature page of his guaranty agreement is, indeed, his. After his deposition, Woodson executed an affidavit stating that he was asked to sign a guaranty, but professing doubt that the guaranty produced by Providence is the one he meant to sign because the signature page on Providence’s document did not contain a footer. Like Crawford, the only discrepancy in content that Woodson identified is that he thought he was guaranteeing a loan of $20 million, not $15 million.

Neither Crawford nor Woodson kept copies of the closing documents, trusting instead that Buckman would have them. But Buck-man testified that his copies of the documents were destroyed during a sewage backup at his office. Thus, the only copies of the final loan documents in the record are the ones supplied by Providence.

During his deposition, Buckman was not asked — and did not volunteer — any details about the closing. He did testify that Premier changed the terms of the deal in a manner unfavorable to his clients before closing, that he tried unsuccessfully to negotiate more favorable terms, and that his clients proceeded with the unfavorable deal anyway. Buckman later executed an affidavit stating that Burr prepared the loan documents before closing and sent copies to his clients, who “signed signatures pages to be presented at the closing and attached or collated with signature pages signed by Premier.” According to Buckman, Burr arrived at the closing “with a set of Loan Documents which were presumably the same documents for which he had previously requested signature pages,” but the documents were modified at the closing to reflect a reduced loan amount. “As a result,” Buckman averred, “the signature pages which had previously been signed did not correlate with the revised Loan Documents.”

Months after executing their original affidavits, and days before the trial court ruled on the pending summary judgment motions, Anthony Delfre, Woodson and Buckman submitted supplemental affidavits identifying an additional alleged discrepancy between the Woodson guaranty that Providence produced and the guaranty that the defendants meant for him to sign. According to these supplemental affidavits, Buckman negotiated a guaranty that protected Wood-son’s assets by requiring Premier, in the event of default, first to pursue Jaycee, then foreclose on the collateral, before seeking payment from Woodson personally. The final Woodson guaranty does not contain these protections.

This evidence, taken together, shows the following undisputed facts: (1) Burr provided copies of the loan documents ahead of time to Woodson and Crawford; (2) Burr brought those same documents to the closing; (3) at the closing, Burr modified the documents to reflect a lower loan amount; (4) Crawford either personally signed the revised loan documents at the closing or provided signature pages that he had signed earlier; (5) Woodson was not present at the closing, but he was represented there by Buckman; (6) Buckman reviewed Woodson’s revised guaranty before providing Burr with Woodson’s pre-signed signature page to attach to it; (7) Burr gave copies of the executed loan documents to Buckman, who later lost them in a sewage accident; (8) Burr sent the originals to Premier; and (9) Burr later identified the loan documents produced by Providence as the ones executed at the closing. These facts do not support the defendants’ contention that the loan documents that Providence produced are not the loan documents they signed.

First, to the extent that the defendants complain that the loan documents produced by Providence do not include terms they remember negotiating, the law is clear that parties to a contract “must exercise ordinary diligence in making an independent verification of contractual terms and representations” and ensure that they understand the contract’s contents before signing it. Megel v. Donaldson, 288 Ga. App. 510, 514 (2) (654 SE2d 656) (2007) (citation and punctuation omitted) (party’s assertions that she signed blank signature pages and did not know what she was signing were insufficient to create a fact question). Accordingly, “[t]he rule [is] that one who signs a contract is presumed to know its contents.” Brewer v. Royal Ins. Co. of America, 283 Ga. App. 312, 315 (1) (641 SE2d 291) (2007) (citation and punctuation omitted); see also Primary Investments, LLC v. Wee Tender Care III, 323 Ga. App. 196, 201 (2) (746 SE2d 823) (2013) (parties who had opportunity to read revised contract and discover changes from original draft are bound by what they signed). The defendants cannot create an issue of fact by belatedly recalling terms they believe should have appeared in a document that they reviewed and executed at closing.

Second, despite the defendants’ suggestions to the contrary, there is no evidence that the documents they executed at closing were later switched or substituted, in whole or in part, erroneously or otherwise. Although the defendants hypothesize that some sort of document shuffling must have occurred because the footers in the loan documents are inconsistent, both Burr and Buckman explained these inconsistencies as likely consequences of the last-minute change in the loan amount. Moreover, Burr’s undisputed testimony establishes that he shipped the original loan documents to Premier, and there is no evidence that anyone altered or substituted them thereafter. The defendants failed to preserve their copies of the loan documents, and they have produced no alternate version. See OCGA § 24-10-1002 (“To prove the contents of a writing . . . the original writing . . . shall be required.”). Under these circumstances, the defendants’ claim that Premier produced the wrong documents is mere speculation. Speculation, however, will not defeat summary judgment. See HWA Properties, 322 Ga. App. at 883 (1) (c).

4. The defendants contend that Providence’s claims on the guaranties are barred by the Statute of Frauds, which requires that “[a] promise to answer for the debt, default, or miscarriage of another” must be in writing and signed by the guarantor. OCGA § 13-5-30 (2). The defendants cite Dabbs v. Key Equipment Finance, 303 Ga. App. 570 (694 SE2d 161) (2010), for the proposition that a guaranty is unenforceable if it fails to identify the debt, the principal debtor, the promisor, and the promisee. See id. at 572. Butthe guaranties at issue here plainly identify all four elements. The defendants appear to argue that these elements must appear on the same page as the guarantor’s signature, but neither the statute nor Dabbs imposes such a requirement. Thus, the Statute of Frauds does not bar Providence’s claims on the guaranties.

5. The defendants claim that Premier breached anti-assignment provisions in the loan documents by assigning the loan to Providence. The defendants point to two provisions in the loan agreement, the first of which, found in Paragraph 8.1, is entitled “Exclusiveness”:

Lender agrees that in connection with any assignment by Lender, Lender will retain all of Lender’s rights and obligations hereunder and under the Loan Documents and Borrower shall not be required to deal with any other person or entity other than Lender with respect to the Loan.

The second provision, found in Paragraph 8.14 and titled “Participation,” states that while the lender may sell participation interests in the loan to other lenders,

[I] ender shall at all times remain the lead lender and during the Loan Term, shall retain sole authority to make disbursements or to exercise remedies hereunder.... Lender agrees that it will at all times retain the majority participation interest in the Loan.

The defendants maintain that Premier’s breach of these anti-assignment provisions prevents Providence from enforcing the loan agreements. We disagree.

To begin, the loan transfer is permitted by the terms of the loan agreement. Paragraph 8.9 — which the defendants tellingly do not cite — provides that although the borrower may not assign its rights and obligations under the agreement, “[t]he rights of Lender under this Agreement are assignable in part or in full, and any assignee of Lender shall succeed to and be possessed of the rights of Lender hereunder to the extent of the assignment made . . . .” Moreover, Paragraph 8.1 expressly contemplates that the lender may assign its rights, and Paragraph 8.14 authorizes the lender to sell participation interests to other banks. Thus, although the loan agreement provided that Jaycee would not have to deal with other lenders, it also expressly stated that Premier could assign its rights and obligations. “[W]e are not at liberty to ignore the specific terms of the parties’ written agreement.” Miller v. GGNSC Atlanta, LLC, 323 Ga. App. 114, 123 (2) (746 SE2d 680) (2013).

But even if the loan agreement did contain an anti-assignment clause, that clause is not enforceable against Providence. When the FDIC was appointed as the receiver of Premier’s assets, federal law specifically authorized it to transfer those assets to another bank, such as Providence. See 12 USCS § 1821 (d) (2) (G) (i). That statutory authorization cannot be thwarted by an anti-assignment clause in a contract that Premier entered into before it failed. See First Nationwide Bank v. Fla. Software Svcs., 770 FSupp. 1537, 1541 (II) (M.D. Fla. 1991) (allegations that bank’s acquisition of failed bank’s assets after government receivership “violated the anti-assignment clauses of the contracts are without merit”); see also Iberiabank v. Beneva 41-1, LLC, 701 F3d 916 (11th Cir. 2012) (contractual terms purporting to limit receiver’s power to enforce contract if bank’s assets were transferred were not enforceable).

Decided November 21, 2014

Reconsideration denied December 11, 2014

Johnson & Ward, Stanley E. Kreimer, Jr., for appellants.

DLA Piper, Ann M. Byrd, Scott Lange, McGee & Oxford, James J. Brissette, for appellee.

6. The defendants complain that the trial court erred by ordering them to post a supersedeas bond and refusing to grant their motion for new trial as to the amount of the bond. But as Premier points out, we lack jurisdiction to consider these enumerations of error because the supersedeas order was entered after the defendants appealed the summary judgment order, yet they did not file a second notice of appeal. On appeal, we may consider orders that were entered prior to or contemporaneously with thejudgmentbeingappealed, seeOCGA § 5-6-34 (d), but “[jjudgments cannot be considered on appeal if rendered subsequent to the judgment appealed from.” Norman v. Ault, 287 Ga. 324, 331 (6) (695 SE2d 633) (2010) (citation and punctuation omitted).

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       The loan agreement and promissory note were subsequently amended many times, and in connection with these amendments, Woodson and Crawford executed reaffirmations of their guaranty agreements.

       Providence also asserted a claim for fraudulent conveyance against Jaycee, Woodson, Crawford, and a fourth defendant, hut later voluntarily dismissed that claim.

       The trial court also denied the defendants’ motions for reconsideration and new trial following entry of the supersedeas bond order.

       This information is also publicly available on the FDIC’s website at https://www.fdic. gov/bank/individual/failed/premier_mo.html. The trial court was entitled to — and did — take judicial notice of this information. See OCGA § 24-2-201 (b) (2) (allowing court to take judicial notice of adjudicative facts that are “[cjapable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”); R. S. B. Ventures v. Fed. Deposit Ins. Corp., 514 Fed. Appx. 853, 856 (II) (A) (1), n. 2 (11th Cir. 2013) (taking judicial notice of information on FDIC’s website). The defendants argue that the trial court could not take judicial notice of the website because it failed to first inform the parties of its intention to do so and give them an opportunity to be heard. But this argument is based on case law decided under former OCGA § 24-1-4. See Graves v. State, 269 Ga. 772, 775 (4) (a) (504 SE2d 679) (1998), rev’d in part on other grounds, Jones v. State, 272 Ga. 900, 903 (2), n. 13 (537 SE2d 80) (2000). Under Georgia’s new Evidence Code, a party is entitled to an opportunity to be heard on the propriety of taking judicial notice only “upon timely request,” which may be made “after judicial notice has been taken.” OCGA § 24-2-201 (e). The defendants have not shown that they made such a request. In any event, they do not argue that the information on the FDIC website is wrong.

       Mitchell also identified an FDIC-provided list of Premier assets that were excluded from the takeover. That list was completely redacted for privacy reasons, and Mitchell testified that he did not know what was on it. The defendants tout Mitchell’s deposition concession that “I suppose it’s possible” that the Jaycee loan is one of the blacked-out items on the “excluded” list, but as Providence points out, this statement is both speculative and inconsistent with the Jaycee loan’s unmistakable appearance on the “included” list. Thus, the statement does not create an issue of fact as to whether Premier purchased the Jaycee loan.

       As part of its effort to establish ownership of the loan documents, Providence submitted the affidavit of Ted Henke, another of its vice presidents. The defendants moved to strike the affidavit, arguing that Henke lacked personal knowledge and that his statements were hearsay. The trial court denied the motion, and the defendants enumerate that denial as error on appeal. Because consideration of the Henke affidavit is not necessary to determine that Providence presented undisputed evidence that it owns the loan, we do not reach the question of the affidavit’s admissibility.

       Aside from the loan amount adjustment, Burr did not testify to any other document changes that occurred at the closing table.

       During his deposition, Crawford testified that Premier agreed to reduce the loan amount at the defendants’ request because they did not want to pay the higher closing costs associated with a larger loan. “On motion for summary judgment a party’s self-conflicting testimony is to be construed against him unless a reasonable explanation for the contradiction is offered.” Freund v. Warren, 320 Ga. App. 765, 769 (1) (740 SE2d 727) (2013) (citations omitted).

       The trial court concluded that these affidavits were not timely filed and therefore did not consider them, a ruling that the defendants enumerate as error. Because we conclude, as explained infra, that the affidavits do not help the defendants, we need not decide whether the trial court erred by refusing to consider them.

       Because Woodson explicitly authorized his attorney to attach his executed signature page to his guaranty at closing, he is bound by Buckman’s actions in so doing, and Buckman’s knowledge of the contents of the guaranty is imputed to him. See OCGA § 10-6-58 (notice to agent of a matter connected with his agency is notice to the principal); Casey v. Wachovia Bank, N.A., 273 Ga. 140 (539 SE2d 503) (2000) (applying this principle in lawyer-client relationship).

       For this reason, we find that the loan transfer did not impermissibly increase the risk of the guarantors pursuant to OCGA § 10-7-22.

       In light of this ruling, we need not reach the question of whether the alleged anti-assignment clauses are also barred by the D’Oench doctrine, under which “oral agreements not recorded in bank documents between debtors and failed banks will not be enforced against the FDIC or its successors.” Kessler v. Multibank 2009-1 CRE Venture, LLC, 324 Ga. App. 474, 475 (751 SE2d 121) (2013) (punctuation and footnote omitted); see also D’Oench, Duhme & Co. v. Fed. Deposit Ins. Corp., 315 U. S. 447 (62 SCt 676, 86 LE 956) (1942).

       The defendants cite Ruskin v. AAF-McQuay, 284 Ga. App. 49 (643 SE2d 333) (2007), for the proposition that we have “routinely decided issues regarding supersedeas bonds without the requirement of a separate appeal,” but in that case the appellant “filed a separate notice of appeal as to [the supersedeas] bond.” Id. at 51.