Liberty Capital, LLC. v. First Chatham Bank

FOURTH DIVISION
ELLINGTON, P. J.,
BRANCH and MERCIER, 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 13, 2016

In the Court of Appeals of Georgia
A16A0094. LIBERTY CAPITAL, LLC. ET AL. v. FIRST JE-004
CHATHAM BANK.

ELLINGTON, Presiding Judge.

This is the second appearance in this Court of an action by First Chatham Bank

against Liberty Capital, LLC to specifically enforce an agreement by Liberty Capital

to purchase a loan related to the development of four residential lots, and for other

relief. In First Chatham Bank v. Liberty Capital, LLC, 325 Ga. App. 821 (755 SE2d

219) (2014) (physical precedent only), we affirmed the trial court’s denial of First

Chatham’s motion for summary judgment on its claim for specific performance.

Following remand, the parties agreed to equitably reform the residential lot numbers

identified in Liberty Capital’s letter to First Chatham in which Liberty Capital

committed to purchase the loan, after which First Chatham and Liberty Capital filed
cross-motions for summary judgment. The trial court granted First Chatham’s motion

for summary judgment and denied Liberty Capital’s motion for summary judgment.

On appeal, Liberty Capital contends that the trial court erred by (i) granting

summary judgment to First Chatham on its claim for specific performance, (ii)

denying summary judgment to Liberty Capital on First Chatham’s claims for fraud

and misrepresentation, (iii) failing to transfer the case to Cobb County, Georgia,

where venue was proper, and (iv) granting summary judgment to First Chatham while

there remained genuine issues of material fact. For the reasons set forth below, we

hold that the trial court erred in granting summary judgment to First Chatham on its

claim for specific performance and in denying Liberty Capital’s motion for summary

judgment on First Chatham’s claims for negligent misrepresentation and fraud. We

find Liberty Capital’s contention that the trial court erred in failing to transfer this

case to be abandoned. Accordingly, we affirm in part and reverse in part.

Under OCGA § 9-11-56 (c),

[s]ummary judgment is warranted if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law. We review the grant or denial of a motion for
summary judgment de novo, and we view the evidence, and the

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 reasonable inferences drawn therefrom, in a light most favorable
to the nonmovant.

(Punctuation and footnotes omitted.) Assaf v. Cincinnati Ins. Co., 327 Ga. App. 475,

475-476 (759 SE2d 557) (2014).

The record shows that in 2007, Best Custom Homes, LLC (“Best Homes”)

entered into an agreement to buy four lots in Hampton Island Village development

in Liberty County, Georgia, from Hampton Island, LLC, an affiliate of Liberty

Capital. To encourage First Chatham to extend a loan to Best Homes to fund the

purchase, Liberty Capital delivered a commitment letter, dated January 11, 2008, to

First Chatham. The January 11, 2008 letter provided that it was regarding: “Sale of

Lots T004, T005, T007 and TL10 (the ‘Lots’) by Hampton Island, LLC (‘Seller’) to

Best Custom Homes, LLC (‘Purchaser’), such acquisition to be financed by a loan

(the ‘Acquisition Loan’) from First Chatham Bank (‘Lender’).” The January 11, 2008

letter further provided, in pertinent part, that

This letter represents Liberty Capital’s commitment that if the
speculative residences to be constructed on the Lots by Purchaser from
the proceeds of the Acquisition Loan are for any reason not sold by the
second anniversary of the Acquisition Loan closing date, Purchaser,
within sixty (60) days following receipt of written demand by Lender

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 provided within 90 days following such second anniversary, will
purchase the Acquisition Loan from Lender.

Liberty Capital “acknowledge[d] that the provision of this letter agreement for the

benefit of Lender constitutes a material inducement to Lender’s willingness to make

the Acquisition Loan to facilitate the acquisition of the Lots by Purchaser from

Seller.”

Also on January 11, 2008, First Chatham committed, pending the receipt and

review of the “buy-back letter” from Liberty Capital, to provide a loan to Best Homes

to fund the purchase of the lots and construction of homes at Hampton Island to be

secured by “Lots V4, V7, V10, and V14.” Notwithstanding that the January 11, 2008

letter referred to Lots 4, 5, 7, and 10, and First Chatham’s commitment referred to

Lots 4, 7, 10, and 14, Best Homes purchased on January 14, 2008, with the proceeds

of the loan, four lots identified as Lots 4, 5, 9, and 10. In connection with that

transaction, Best Homes executed a Commercial Promissory Note in the principal

amount of $2,390,898 (the “Note”).

Two years thereafter, on January 14, 2010, First Chatham notified Liberty

Capital that it was demanding that Liberty Capital purchase the Acquisition Loan

because the preconditions of the January 11, 2008 letter had been met, including that

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the residences on the lots purchased with the Acquisition Loan had not been sold. On

February 9, 2010, Liberty Capital responded with a letter indicating that it would not

honor First Chatham’s demand.

On January 5, 2011, First Chatham sued Liberty Capital for specific

performance, breach of contract, and negligent misrepresentation. First Chatham

named Best Homes, Genesis Designer Homes, LLC, Richard E. Best, and Jill M. Alba

as co-defendants. The claims against the co-defendants included a suit on the Note

against Best Homes and a claim against Genesis Designer Homes, Best, and Alba for

breach of their personal guaranties of the Note. First Chatham later amended the

complaint to assert claims against Liberty Captial for fraud and equitable reformation

of the January 11, 2008 letter.

First Chatham moved for summary judgment on its claim for specific

performance. The trial court denied the motion for summary judgment because the

terms of the contract, as reflected in the respective commitments of Liberty Capital

and First Chatham, were inconsistent, and issues of material fact remained as to the

terms of their agreement. On interlocutory appeal, we affirmed the trial court’s

judgment as there remained a genuine issue of material fact as to the essential terms

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of the parties’ agreement. First Chatham Bank v. Liberty Capital, LLC, 325 Ga. App.

at 828 (2).

Following remand, the parties stipulated and agreed to a consent order that, “to

resolve an uncertain claim,” the January 11, 2008 letter be equitably reformed to

reference “Lots TL 04, TL 05, TL 09, and TL 10.” Liberty Capital and First Chatham

then filed cross-motions for summary judgment. The trial court granted First

Chatham’s motion for summary judgment as to its claim for specific performance,

found that its breach of contract claim was moot, and denied Liberty Capital’s motion

for summary judgment as to First Chatham’s claims for negligent misrepresentation

and fraud.

1. Liberty Capital contends that the trial court erred in granting First Chatham’s

motion for summary judgment on its claim for specific performance because First

Chatham did not establish that it did not have an adequate remedy at law through an

award of damages.1 As the movant for summary judgment, First Chatham was

required to show that there was no genuine issue of material fact and that it was

entitled to judgment as a matter of law. See OCGA § 9-11-56 (c); Lindgren v. Dowis,

1
Liberty Capital also contends that summary judgment was improper because
the parties’ agreement was (i) too vague to be enforced by specific performance and
(ii) not within their power to perform, but we do not reach these additional arguments.

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236 Ga. 278, 280-281 (3) (223 SE2d 682) (1976) (trial court did not err in denying

seller’s motion for summary judgment for specific performance of an agreement for

the purchase and sale of stock as he did not show there was no issue of fact as to

laches).

Under Georgia law, “[s]pecific performance of a contract, if within the power

of the party, will be decreed, generally, whenever the damages recoverable at law

would not be an adequate compensation for nonperformance.” OCGA § 23-2-130.

“Equitable relief is improper if the complainant has a remedy at law which is

adequate, i.e., as practical and as efficient to the ends of justice and its prompt

administration as the remedy in equity.” (Citation and punctuation omitted.) Besser

v. Rule, 270 Ga. 473, 475 (510 SE2d 530) (1999).

In arguing that specific performance is the appropriate remedy in this case,

First Chatham relies on authorities which address loan “repurchase” obligations. For

example, in Sun American Bank v. Fairfield Financial Svcs., 690 FSupp2d 1342

(M.D. Ga. 2010), an authority relied upon by First Chatham, the defendant bank sold

participation interests in a loan it had originated to other banks, including the

plaintiff’s predecessor in interest, in order to reduce its overall risk exposure. Id. at

1344. The repurchase obligation was the parties’ agreed-upon remedy for a breach of

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the underlying participation agreement. Id. at 1365 (III). While the court, applying

Georgia law, found specific performance of the repurchase obligation to be one of

several remedies available to the plaintiff, it relied on the principle that “[s]pecific

performance is generally available whenever the damages recoverable at law would

not be an adequate compensation for nonperformance.” Id. at 1368 (III) (citation and

punctuation omitted). And the damages for the underlying breach of the participation

agreement, which pertained to the originating bank’s disclosure obligations, were

impossible to calculate, such that the originating bank’s repurchase of the

participation interest was the most reasonable means of restoring the parties to the

position they would have been in absent the breach. See id. (“Precise legal damages

would be impossible to calculate because such calculation would require speculation

into what [the participating bank] would have done with the information [the

originating bank] was obligated to disclose.”). Here, there is no underlying breach for

which legal damages are impossible to calculate. Rather, Liberty Capital’s failure to

purchase the Acquisition Loan is the breach at issue and is not the parties’ agreed-

upon remedy for the breach.

This Court has found that the failure to honor a loan repurchase obligation

triggered by a breach of the parties’ agreement to be, in itself, a breach of the

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contract. See 2010-1 SFG Venture LLC v. Lee Bank & Trust Co., 332 Ga. App. 894,

907 (3) (b) (775 SE2d 243) (2015); Cleveland Motor Cars, Inc. v. Bank of America,

295 Ga. App. 100, 103 (670 SE2d 892) (2008); Rod’s Auto Finance, Inc. v. Finance

Co., 211 Ga. App. 63, 64-65 (438 SE2d 175) (1993). Thus, a failure to timely

repurchase a participation interest in a loan upon proof of a material default is “an

independent breach of the participation agreement that, if proven, would entitle [the

participating bank] to pursue money damages for the alleged failure to repurchase.”

2010-1 SFG Venture LLC v. Lee Bank & Trust Co., 332 Ga. App. 894, 907 (3) (b)

(775 SE2d 243) (2015) (citations and punctuation omitted). In reaching this

conclusion in 2010-1 SFG Venture LLC, we noted the observation of a federal district

court that “[t]he payment of the liquidation price of a loan is payment of an amount

of money, which is completely fungible . . . . There is [thus] no practical difference

between this ‘repurchase’ remedy and compensatory damages.” Id. at 907 (3) (b)

(quoting ORIX Real Estate Capital Markets, LLC v. Superior Bank, FSB, 127

FSupp2d 981, 983 (II) (A) (N.D. Ill. 2000)). First Chatham’s reliance on the

jurisprudence of “repurchase” agreements does not establish that it is entitled to the

remedy of specific performance. Indeed, our holding in 2010-1 SFG Venture LLC

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suggests that an award of damages may be an adequate remedy for the failure to

honor a repurchase obligation.

Nevertheless, First Chatham also argues that specific performance is the

appropriate remedy here because the measure of damages resulting from Liberty

Capital’s non-performance is uncertain or difficult to ascertain. See Gabrell v. Byers,

178 Ga. 16, 21 (172 SE2d 227) (1933) (noting that, notwithstanding the general rule

that specific performance of contracts in relation to personal property will not be

enforced, specific performance is available where “the measure of damages resulting

from the non-performance of the contract is uncertain or difficult of ascertainment.”).

Compare Duval & Co. v. Malcom, 233 Ga. 784, 788 (214 SE2d 356) (1975) (“The

general rule is that specific performance of contracts in relation to personal property

will not be enforced, for the reason that ordinarily compensation for breach of

contract may be had by way of an action at law for damages.”) (citation and

punctuation omitted). First Chatham presented this argument more fully in its briefing

below, wherein it contended that it was injured by not being paid the agreed-upon

purchase price of the Acquisition Loan, but also in “that it has had to carry the risk

of carrying a non-performing loan beyond the two years that it bargained for.” First

Chatham asserted that this “injury was difficult to calculate” and therefore “the best,

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and fairest, remedy” was to require Liberty Capital to specifically perform its loan

purchase obligation.

In a breach of contract case, the measure of damages “is the amount which will

compensate the injured person for the loss which a fulfillment of the contract would

have prevented or the breach of it entailed. In other words, the person injured is so

far as it is possible to do so by a monetary award, to be placed in the position he

would have been in had the contract been performed.” (Citations and punctuation

omitted.) Bennett v. Associated Food Stores, 118 Ga. App. 711, 715 (2) (165 SE2d

581) (1968). Here, if the parties’ contract had been performed, First Chatham would

have received the purchase price of the Acquisition Loan but would no longer hold

the Acquisition Loan. An award of money damages could adequately compensate

First Chatham insofar as Liberty Capital’s failure to pay the purchase price of the

Acquisition Loan, and thus place it in the same position as had the parties’ contract

been performed. First Chatham contends that holding the Acquisition Loan will result

in economic injury by exposing it to unforeseen expenses. However, to the extent that

First Chatham incurs out-of-pocket costs during the course of the litigation on

account of having to service the Acquisition Loan, it does not show that these

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amounts are difficult to calculate.2 Accordingly, we conclude that First Chatham did

not show that there was no genuine issue of material fact as to the adequacy of

damages as the legal remedy for nonperformance. Consequently, the trial court erred

in awarding summary judgment on its claim for specific performance.

2. Liberty Capital further contends that the trial court erred in denying its

motion for summary judgment on First Chatham’s claims for negligent

misrepresentation and fraud. We agree. Because, as set out more fully below, First

Chatham failed to exercise its requisite due diligence, these claims fail as a matter of

law.

(a) Negligent Misrepresentation. As to its claim for negligent

misrepresentation, First Chatham contends that Liberty Capital’s representation in the

Letter Agreement that it would purchase the Acquisition Loan from First Chatham

used to finance the sale of “Lots T004, T005, T007 and TL10” from Hampton Island

LLC to Best Homes was either false or mistaken in that the lots actually being sold

2
We note that, although First Chatham describes the Acquisition Loan in terms
of its costs and risk to First Chatham, the Acquisition Loan is also an asset and, as
such, might have residual value to the holder. However, First Chatham does not
contend that the measure of damages should account for the fair market value of the
Acquisition Loan, nor did it come forward with any evidence as to the Acquisition
Loan’s value or lack thereof, or as to whether any such value is impossible or difficult
to calculate.

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by Hampton Island LLC to Best Homes were lots TL 04, TL 05, TL 09, and TL 10.

First Chatham alleges that Liberty Capital was negligent in describing the wrong lots

and in failing to correct the error. And, First Chatham, maintains, Liberty Capital

knew that First Chatham was relying on the Letter Agreement in finalizing the

Acquisition Loan for the sale of lots TL 04, TL 05, TL 09, and TL 10; that First

Capital was justified in relying upon Liberty Capital’s representations in making the

Acquisition Loan; and that it was damaged as a proximate result.

The elements of a claim for negligent misrepresentation are: “(1) the

defendant’s negligent supply of false information to foreseeable persons, known or

unknown; (2) such persons’ reasonable reliance upon that false information; and (3)

economic injury proximately resulting from such reliance.” (Footnote omitted.)

Hardaway Co. v. Parsons, Brinckerhoff, Quade & Douglas, Inc., 267 Ga. 424, 426

(1) (479 SE2d 727) (1997). “[J]ustifiable reliance is an essential element of a claim

asserting negligent misrepresentation.” (Footnote omitted.) Anderson v. Atlanta

Committee for the Olympic Games, Inc., 261 Ga. App. 895, 900 (2) (584 SE2d 16)

(2003). And “[t]o show justifiable reliance, the plaintiff must establish that he

exercised his duty of due diligence.” (Citations omitted) Nebo Ventures, LLC v.

NovaPro Risk Solutions, L.P., 324 Ga. App. at 840 (1) (d). See Artzner v. A & A

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Exterminators, Inc., 242 Ga. App. 766, 771-772 (2) (531 SE2d 200) (2000)

(justifiable reliance is an essential element of a claim for negligent misrepresentation,

and a plaintiff’s failure to exercise due diligence will bar a claim for negligent

misrepresentation). Whether a plaintiff could have protected itself by the exercise of

due diligence is generally a question for the jury; however, “an exception occurs

when a plaintiff cannot offer evidence that he exercised his duty of due diligence to

ascertain the truth and to avoid damage.” (Citation omitted.) Walden v. Smith, 249

Ga. App. 32, 35 (1) (546 SE2d 808) (2001).

To the extent that Liberty Capital was negligent in failing to accurately state

the lot numbers in the January 11, 2008 letter, or in failing to correct that mistake,

that misrepresentation was apparent on the face of the document. First Chatham was

also aware of the correct lot numbers when it extended the Acquisition Loan to Best

Homes, as those numbers were set forth in the loan documentation. Thus, First

Chatham could have discovered that it was not extending a loan for the purchase of

the lot numbers set forth in the January 11, 2008 letter by reading that document,

which, in the exercise of reasonable diligence, it was required to do. See, e.g., Terry

Brantley Greenbriar Rental & Sales, Inc. v. Davis, 172 Ga. App. 107, 108 (321 SE2d

829) (1984) (“A party to a contract who can read must read or show a legal excuse

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for not doing so.”) (citation and punctuation omitted). Further, “[i]n the absence of

special circumstances, one must exercise ordinary diligence in making an independent

verification of contractual terms and representations.” (Citation and punctuation

omitted.) Rainey v. GAFVT Motors, Inc., 269 Ga. App. 479, 481 (1) (a) (604 SE2d

840) (2004). As First Chatham failed to exercise ordinary diligence in protecting

itself from the alleged misrepresentation in the January 11, 2008 letter, it cannot

establish the element of justifiable reliance, and its claim for negligence

misrepresentation fails as a matter of law. See, e.g., Gospel Tabernacle Deliverance

Church, Inc. v. From the Heart Church Ministries, Inc., 312 Ga. App. 355, 359 (718

SE2d 575) (2011) (where the falsity of the alleged negligent misrepresentation would

have been revealed by examination of documents in plaintiffs’ possession, the

plaintiffs, as a matter of law, failed to exercise due diligence).

(b) Fraud. First Chatham contends that Liberty Capital committed fraud in that

it intentionally misrepresented the lot numbers set forth in the January 11, 2008 letter

with the goal of avoiding future performance. To show fraud, a plaintiff must

establish “(1) false representation by defendant; (2) scienter [or knowledge of the

alleged falsehood]; (3) intent to induce the plaintiff to act or refrain from acting; (4)

justifiable reliance by the plaintiff; and (5) damage to the plaintiff.” (Citation and

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punctuation omitted.) Nebo Ventures, LLC v. NovaPro Risk Solutions, L.P., 324 Ga.

App. 836, 838-839 (1) (752 SE2d 18) (2013).

As in the case of its claim for negligent misrepresentation, the alleged deceit

was apparent on the face of the January 11, 2008 letter, and First Chatham’s failure

to exercise due diligence precluded it from establishing the element of justifiable

reliance. “Fraud cannot be the basis of an action if it appears that the party alleging

the fraud had equal and ample opportunity to prevent it and yet made it possible

through the failure to exercise due diligence.” (Citation and punctuation omitted.)

Isbell v. Credit Nation Lending Serv., LLC, 319 Ga. App. 19, 26 (2) (b) (735 SE2d

46) (2012).

3. Liberty Capital contends that the trial court erred in exercising jurisdiction

over it and denying its motion to transfer the case to the Superior Court of Cobb

County, where it alleges venue lies. Generally, venue in civil proceedings against

domestic and foreign corporations lies “in the county of this state where the

corporation maintains its registered office.” OCGA § 14-2-510 (b) (1). See Ga. Const.

of 1983, Art. VI, Sec. II, Par. VI. (“[V]enue as to corporations, foreign and domestic,

shall be as provided by law.”). It is undisputed that Liberty Capital maintains its

registered office in Cobb County. However, First Chatham contended below, and the

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trial court found, that venue as to the tort claims against Liberty Capital lay in

Chatham County under OCGA § 14-2-510 (b) (4), which provides, in pertinent part,

that domestic corporations and foreign corporations authorized to transact business

in Georgia “shall be deemed to reside and to be subject to venue as follows: [i]n

actions for damages because of torts, wrong, or injury done, in the county where the

cause of action originated.” First Chatham also contended below that the trial court

had the discretion to consider its claims for breach of contract and specific

performance under the principle of pendent venue because those claims arose from

the same transaction as the tort claims. See Natpar Corp. v. E. T. Kassinger, 258 Ga.

102, 104 (1) (365 SE2d 442) (1988) (“Where a plaintiff brings suit in the same county

on two claims arising from the same transaction and the Georgia Constitution

designates that county as the venue for one of those claims, the trial court has the

discretion to entertain both claims.”); C.W. Matthews Contractor Co. v. Barnett, 219

Ga. App. 763, 765 (3) (466 SE2d 657) (1996) (accord).

Liberty Capital maintains that the trial court erred in failing to transfer the case

because it was not jointly liable with the resident co-defendants, either as joint

tortfeasors or as joint obligors. But Liberty Capital does not address whether venue

as to the tort claims was proper in Chatham County under OCGA § 14-2-510 (b) (4),

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as the trial court found. Liberty Capital also suggests that, inasmuch as it is entitled

to summary judgment on the tort claims, venue will become improper as to the

remaining contract claims once partial summary judgment is entered its favor, and

that this Court should therefore instruct the trial court to transfer the case to Cobb

County. However, Liberty Capital does not support this assertion by either argument

or citation to authority. See Court of Appeals Rule 25 (c) (“Any enumeration of error

which is not supported in the brief by citation of authority or argument may be

deemed abandoned.”). For the foregoing reasons, we deem this claim of error to be

abandoned.

4. Lastly, Liberty Capital contends that issues of material fact precluded

summary judgment. We find this claim of error to be moot in light of our findings in

Division 1, supra.

Judgment affirmed in part and reversed in part. Mercier, J., concurs. Branch,

J., concurs in Divisions 2, 3, and 4, and concurs in judgment only as to Division 1.

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