SECOND DIVISION
MILLER, P. J.,
MERCIER and COOMER, 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.
Please refer to the Supreme Court of Georgia Judicial
Emergency Order of March 14, 2020 for further
information at (https://www.gaappeals.us/rules).
May 1, 2020
In the Court of Appeals of Georgia
A20A0133. BELL et al. v. FREEPORT TITLE & GUARANTY, MI-005
INC., AS TRUSTEE OF THE FLAT SHOALS
TOWNHOUSE DEVELOPMENT TRUST.
MILLER, Presiding Judge.
Habibah Bell and Grafton Rodriguez (“the appellants”) appeal from the trial
court’s order granting Freeport Title & Guaranty, Inc., as Trustee of the Flat Shoals
Townhouse Development Trust’s (“Freeport Title”) renewed motion for summary
judgment in its quiet title action. The appellants argue that the grant of summary
judgment was improper because (1) they were not provided an opportunity to conduct
additional discovery; and (2) there is a genuine issue of material fact regarding the
underlying loan agreement. For the reasons that follow, we affirm the grant of
summary judgment.
A de novo standard of review applies to an appeal from a grant of
summary judgment and we view the evidence, and all reasonable
conclusions and inferences drawn from it, in the light most favorable to
the nonmovant. If no issue of material fact exists and the moving party
is entitled to judgment as a matter of law, summary judgment is proper.
(Citation omitted.) Richards v. Wells Fargo Bank, N.A., 325 Ga. App. 722, 724 (1)
(754 SE2d 770) (2014).
So viewed, the record shows that on June 16, 2006, Maja Sly executed a
multipurpose note and security agreement (“the note”) in favor of First Georgia
Community Bank (“FGCB”) to fund the purchase of 4.93 acres of property on Flat
Shoals Road, Riverdale, Georgia (“the property”). The note matured on June 10,
2007. On June 16, 2006, Sly executed a deed to secure debt (“the security deed”) in
favor of FGCB that encumbered the property. The security deed was recorded in the
Fulton County real estate records and matured on June 16, 2007.
On June 19, 2007, Sly executed another multipurpose note and security
agreement (“the first extension”) for the property in favor of FGCB to renew the note
and to extend the financing. The first extension matured on June 6, 2008. Finally, on
June 6, 2008, Sly executed another extension and note renewal in favor of FGCB
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(“the second extension”) which matured on December 6, 2008. The first extension
and the second extension were not recorded.
Despite the extensions, Sly failed to make payments on the note, and FGCB’s
successor-in-interest, RES-GA Fourteen, LLC (“RES-GA”), executed a nonjudicial
foreclosure on July 7, 2015. Matawin Ventures Trust Series 2015-1 (“Matawin
Ventures”) purchased the property at the foreclosure sale and, on April 14, 2017, it
executed a quitclaim deed for the property to Kondaur Capital Corporation as trustee
of Matawin (“Kondaur Capital”). Kondaur Capital then executed a special warranty
deed on the property to the appellants on May 12, 2017. More than a year later,
however, on May 25, 2018, Sly executed a quitclaim deed on the property to Freeport
Title.
Freeport Title filed the instant action to quiet title, asserting that it had fee
simple title in the property. Freeport Title subsequently filed a motion for summary
judgment, claiming that RES-GA could not have foreclosed on the property because
the property reverted to Sly on June 10, 2014 under OCGA § 44-14-80 — more than
a year before RES-GA’s purported foreclosure. The trial court denied Freeport Title’s
motion, determining that Freeport Title had “put forth no evidence to establish its title
in the [p]roperty.” Freeport Title later renewed its motion for summary judgment
3
supporting it with an affidavit from Allie Jett, who averred that the extensions “are
not recorded in the Fulton County real estate records.” The trial court granted
Freeport Title’s renewed motion for summary judgment and this appeal followed.
1. First, the appellants argue that the trial court erred by granting Freeport
Title’s renewed motion for summary judgment because, although Freeport Title had
failed to disclose Jett as a witness, the trial court did not afford the appellants time to
conduct additional discovery. We disagree.
The grant or denial of a motion for continuance to allow a non-moving party
to conduct additional discovery to respond to a motion for summary judgment “lies
within the sound discretion of the trial judge, and will not be reversed absent a
showing of clear abuse of discretion.” (Citation omitted.) JarAllah v. Schoen, 243 Ga.
App. 402, 405 (4) (531 SE2d 778) (2000).
Georgia’s summary judgment statute allows a party opposing summary
judgment to request “a continuance to permit affidavits to be obtained or depositions
to be taken” or perform additional discovery as the court may permit. OCGA § 9-11-
56 (f). Therefore,
[i]f a respondent requires further discovery to properly respond to a
motion, [a] possible response[] may include filing a motion to extend
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time to respond to the motion, . . . or an affidavit pursuant to OCGA §
9-11-56 (f) setting forth why the respondent is unable to proceed
without further discovery.
(Citation omitted.) Govindasamy v. Wells Fargo Bank, N.A., 311 Ga. App. 452, 454
(2) (715 SE2d 737) (2011). “It [is] not, however, the trial court’s obligation to sua
sponte determine,” whether discovery is complete. Herrman v. Cohen, 252 Ga. App.
84 (1) (555 SE2d 17) (2001).
Here, while the parties filed a joint stipulation extending the time for the
appellants to respond to Freeport Title’s initial motion for summary judgment, the
record is devoid of any requests to conduct additional discovery to respond to the
renewed summary judgment motion. Additionally, after Freeport Title submitted its
renewed motion and Jett’s affidavit, the appellants had nearly two months to invoke
OCGA § 9-11-56 (f) before the trial court ruled on the renewed motion, but failed to
do so. Accordingly, the appellants have not shown that the trial court erred by
proceeding to rule on the renewed motion for summary judgment and their claim
therefore fails. See Fortson v. Brown, 302 Ga. App. 89, 90-91 (2) (690 SE2d 239)
(2010) (holding that the trial court did not err by preventing the appellant from
conducting additional discovery prior to ruling on the summary judgment motion,
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where the appellant made no attempts to alert the trial court that additional discovery
was needed to respond to the motion); Carr v. Kindred Healthcare Operation, Inc.,
293 Ga. App. 80, 82 (1) (666 SE2d 401) (2008) (holding that “[t]he trial court was
not required to allow the completion of discovery before ruling on the motion for
summary judgment” and that “if [the] [nonmovants] needed additional discovery for
their response to [the] motion, they should have invoked OCGA § 9-11-56 (f).”).
We also reject the appellants’ argument that the trial court could not consider
Jett’s affidavit and should have refrained from ruling on Freeport Title’s renewed
motion for summary judgment in light of Freeport Title’s failure to disclose Jett.1 A
similar issue was raised in Hart v. Northside Hosp. Inc., 291 Ga. App. 208 (661 SE2d
576) (2008). There, the Harts appealed from the trial court’s order granting Northside
1
To the extent that the appellants argue that the trial court failed to address the
issue of Freeport Title’s failure to disclose Jett, this claim is meritless. The appellants
filed a motion to strike Jett’s affidavit below, arguing that the affidavit should be
stricken because it contained expert testimony that was not previously disclosed as
required by OCGA § 9-11-23 (b) (4) (A) (i). See OCGA § 9-11-26 (b) (4) (A) (i) (“A
party may, through interrogatories, require any other party to identify each person
whom the other party expects to call as an expert witness at trial, to state the subject
matter on which the expert is expected to testify, and to state the substance of the
facts and opinions to which the expert is expected to testify and a summary of the
grounds for each opinion.”). In granting summary judgment, the trial court addressed
the appellants’ motion to strike and ruled that “Jett’s statement that the [extensions]
are not recorded in the Fulton County real estate records is not an expert opinion and
is not beyond the understanding of the average lay person.”
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Hospital’s motion for summary judgment and its motion in limine which barred the
Harts from presenting testimony from an expert witness who was not disclosed during
the discovery period. Id. at 208. In reversing the trial court’s grant of the motion in
limine, we held that “[t]he only appropriate remedy for the Harts’ alleged failure to
update their discovery responses was postponement of trial or a mistrial. The trial
court simply did not have authority or latitude to grant the defendants’ motion in
limine.” (Punctuation omitted.) Id. at 210 (1). We also reversed the trial court’s order
granting summary judgment because the excluded testimony created issues of fact
that precluded the grant of summary judgment. Id. at 210 (2). See also Thakkar v. St.
Ives Country Club, 250 Ga. App. 893 (1) (a) (553 SE2d 181) (2001) (“[The]
exclusion of probative trial evidence is not an appropriate remedy for curing an
alleged discovery omission.”) (citation omitted). Thus, the appropriate remedy was
for the appellants to request a continuance under OCGA § 9-11-56 (f),2 and, in the
2
For the same reason, the appellants’ reliance on our decisions in Elliot v.
Resurgens, P. C., 336 Ga. App. 217 (782 SE2d 867) (2016), rev’d by 301 Ga. 589
(800 SE2d 580) (2017), City of Atlanta v. Bennett, 322 Ga. App. 726 (746 SE2d 198)
(2013), and Infinite Energy, Inc. v. Cottrell, 295 Ga. App. 306 (671 SE2d 294) (2008)
is greatly misplaced and none of these decisions compel a different result in this case.
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absence of that request, the trial court did not err by considering Jett’s affidavit in its
grant of Freeport Title’s renewed motion for summary judgment.3
2. Next, the appellants argue that the grant of summary judgment was improper
because genuine issues of material fact still remain regarding the underlying loan
agreement. We conclude that no genuine issues of material fact remain.
(a) As an initial matter, the appellants argue that there is a genuine factual issue
as to whether the extensions prevented the property from reverting to Sly in 2014,
such that RES-GA could foreclose on the property. This argument, however, lacks
merit.
“Deeds are contracts, the interpretation of which is a matter of law for the court
unless an ambiguity remains after the court applies the rules of construction.” United
Bank v. West Central Ga. Bank, 275 Ga. App. 418, 420 (620 SE2d 654) (2005).
Georgia’s reversion statute provides that title to property used to secure a debt reverts
to the grantor
3
We note that the appellants did not argue below, nor do they argue on appeal,
that Freeport Title provided intentionally misleading answers to their written
interrogatories or that Freeport Title deliberately suppressed Jett’s identity. Thus, the
Supreme Court of Georgia’s decision in Resurgens does not compel a different result
in this case. See Resurgens, P. C. v. Elliot, 301 Ga. 589, 594-599 (800 SE2d 580)
(2017) (holding that the exclusion of an undisclosed material witness’ testimony was
a proper sanction where the identity of the witness was deliberately suppressed).
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at the expiration of seven years from the maturity of the debt . . .
provided, however, that where the parties by affirmative statement
contained in the record of conveyance intend to establish a perpetual or
indefinite security interest in the real property conveyed to secure a debt
or debts, the title shall revert at the expiration of the later of (A) seven
years from the maturity of the debt . . . or (B) 20 years from the date of
the conveyance as stated in the record[.]
OCGA § 44-14-80 (a) (1). Therefore, “[i]f title has reverted to the grantor under this
statute, all actions to foreclose upon and to recover the property are barred.”
(Citations omitted.) Mike’s Furniture Barn, Inc. v. Smith, 342 Ga. App. 558, 560 (2)
(803 SE2d 800) (2017). However, where the initial security deed was recorded and
the debt’s maturity date has been extended and recorded in the public record before
the title reverts, the reversion date is extended “for an additional period of seven years
or 20 years according to the appropriate reversion period stated in [OCGA § 44-14-80
(a)] from the date of the renewal[.]” OCGA § 44-14-80 (b).
Here, Sly’s original note had a maturity date of June 10, 2007 and was
extended twice with a final maturity date of December 6, 2008. Notably, although
FGCB recorded the security deed in the Fulton County real estate records, the
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extensions, however, were not recorded.4 Consequently, RES-GA’s nonjudicial
foreclosure on July 7, 2015 occurred more than seven years after the note’s 2007
maturity date. Therefore, the automatic 20-year extension provided for in OCGA §
44-14-80 (b) was not triggered, and the trial court properly granted summary
judgment. See Minor v. Neely, 247 Ga. 147 (273 SE2d 853) (1981) (extension of a
previously-executed security deed was required to be entered of record to prevent title
from reverting to the grantor by operation of law at the expiration of the statutory
period from maturity of the original debt). Compare Matson v. Bayview Loan
Servicing, LLC, 339 Ga. App. 890, 893 (2) (795 SE2d 195) (2016) (“In the absence
of evidence that these renewals were not placed in the public record in the manner
required by OCGA § 44-14-80 (b), [plaintiff] has not yet made a prima facie showing
of reversion of title and an issue of fact therefore remains with regard to [defendant’s]
alleged wrongful foreclosure.”) (emphasis in original).
(b) The appellants further contend that the extensions raise a genuine factual
issue as to whether Sly and FGCB intended to create a perpetual or indefinite security
interest in the property such that the 20-year reversion period under OCGA § 44-14-
4
“It is . . . the plain duty of a grantee to record his deed[.]” (Citation omitted.)
Reidling v. Holcomb, 225 Ga. App. 229, 230-231 (1) (483 SE2d 624) (1997).
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80 (a) (1) may apply. We disagree and determine that no factual issues exist as to
whether Sly and FGCB intended to create a perpetual security interest in the property
and therefore the 20-year reversion period under OCGA § 44-14-80 (a) (1) did not
apply.
As previously stated, Georgia’s default reversion period for real property
conveyed to secure a debt is seven years from the debt’s maturity date unless “the
parties by affirmative statement contained in the record of conveyance intend to
establish a perpetual or indefinite security interest in the real property conveyed to
secure a debt or debts. . . .” OCGA § 44-14-80 (a) (1). Therefore, “[u]nder the plain
language of this statute, any intent to create a perpetual and indefinite security interest
must appear by an ‘affirmative statement’ in the deed.” (Citations omitted; emphasis
in original). Mike’s Furniture Barn, Inc., supra, 342 Ga. App. at 560 (2).
Here, the security deed contains a fixed maturity date for a loan of a specific
sum. Additionally, both of Sly’s extensions also contain fixed maturity dates.
Accordingly, we conclude that there is no genuine factual issue as to whether Sly and
FGCB intended to create a perpetual or indefinite security interest in the Property.
See Mike’s Furniture Barn, Inc., supra, 342 Ga. App. at 563 (2) (“Given the fixed
maturity date in the Deed, with a loan for a sum certain rather than a revolving line
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of credit, we conclude that the Deed lacks an affirmative statement of intent to create
a perpetual and indefinite security interest in the property.”); Matson, supra, 339 Ga.
App. at 892-893 (1) (no intent to establish a perpetual or indefinite security interest
in the real property where “the security deed stated it secured ‘all renewals,
extensions and modifications of the Note,’ it also referenced a date certain for the
maturity of the Note”). Although the appellants further argue that the existence of an
“open-end” or “dragnet” clause5 in the security deed creates a factual issue as to the
parties’ intent to create a perpetual or indefinite security interest, this Court has been
clear that the existence of an open-end clause in conjunction with a fixed maturity
date, by itself, does not constitute an affirmative statement of a perpetual or indefinite
security interest that would dictate the Code’s 20-year reversion period. Mike’s
Furniture Barn, supra, 342 Ga. App. at 563 (2).
Our decision in Stearns Bank, N.A. v. Mullins, 333 Ga. App. 369 (776 SE2d
485) (2015), does not compel a different result. There, the security deed showed, on
its face, the parties’ intent to create a revolving line of credit which would remain in
effect until released. Id. at 371. Specifically, the deed in that case contained the
5
An “open end” or “dragnet” clause is a clause in a security deed that provides
that the deed “shall also secure any other debt or obligation that may be or become
owning by the mortgagor or grantor[.]” OCGA § 44-14-1 (b).
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following clause: “The Secured Debt includes a revolving line of credit provision.
Although the Secured Debt may be reduced to a zero balance, the Security Instrument
will remain in effect until released.” (Emphasis supplied.) Id. at 371.6 Because the
parties affirmatively expressed their intent in the deed, we found that the 20-year
reversion period applied. Id. at 373 (1). Therefore, Stearns Bank is distinguishable
from the instant case and does not provide a basis for reversal of the trial court’s grant
of Freeport Title’s renewed motion for summary judgment.
In sum, we conclude that the trial court did not err by ruling on the renewed
motion for summary judgment without affording the appellants time to conduct
additional discovery. We also conclude that no genuine issues of material fact remain
regarding the underlying loan agreement, and we therefore affirm the trial court’s
order granting Freeport Title’s renewed motion for summary judgment.
Judgment affirmed. Mercier and Coomer, JJ., concur.
6
Though the security deed here includes an identical provision, the provision
was left unchecked. See OCGA § 44-14-3 (a) (6) (defining a “revolving loan
account”).
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