Williams Bros. Lumber Co. v. Malloy

322 Ga.App. 671

745 S.E.2d 856

WILLIAMS BROS. LUMBER COMPANY, LLC d/b/a HD Supply Lumber and Building Materials

v.Patrick MALLOY, Jr.

No. A13A0743.

Court of Appeals of Georgia.

July 3, 2013.

James Christie Busch, Jeffrey Stephen Leeper, for Appellant.

Randall Cade Parian, Carrollton, Charles Samuel Conerly, for Appellee.

McMILLIAN, Judge.

Defendant Patrick Malloy, Jr. was a homebuilder and real estate developer, who operated his business through a number of entities including Patrick Malloy Communities, LLC (“PMC”). For a number of years, PMC had purchased substantial quantities of lumber and building supplies from plaintiff Williams Bros. Lumber Company, LLC (“Williams Bros.”).¹ As economic conditions and the housing market declined during 2007 and 2008, Williams Bros. became concerned about the security of the debt owed by PMC and initiated negotiations to obtain the personal guarantee of Malloy on PMC's debt. The negotiations culminated in the execution by Malloy of the promissory note at issue, and in exchange, Williams Bros. wrote down PMC's debt from approximately $700,000 or $800,000 to $350,000. The note, which was executed on May 28, 2008, provided that Malloy would make a payment of $150,000 on or before May 31, 2008, and make monthly payments of $5000, starting in May 2008, with payment of all remaining principal and interest on or before December 31, 2010.

Instead of making payments as set out in the note, Malloy made three payments of $25,000 on June 13, June 27, and July 31 of 2008, and Williams Bros. brought suit, seeking the balance alleged to be due under the note after these partial payments. After a jury trial, judgment was entered on the verdict in favor of Malloy, that is, with Williams Bros. taking nothing. Williams Bros. moved for judgment notwithstanding the verdict, or in the alternative for a new trial. These motions were denied, and Williams Bros. appeals.

A judgment n.o.v. is proper only where “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” (Citation omitted.) McIntee v. Deramus, 313 Ga.App. 653, 654, 722 S.E.2d 377 (2012); Yamaha Motor Corp., U.S.A. v. McTaggart, 313 Ga.App. 103, 104, 720 S.E.2d 217 (2011). “In a suit on a note, when signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” (Citation and punctuation omitted.) Heath v. Boston Capital Corporate Tax Credit Fund VIII, 253 Ga.App. 537, 538(1), 559 S.E.2d 743 (2002). See also Nash v. Township Investments, LLC, 320 Ga.App. 494, 495, 740 S.E.2d 236 (2013).

Upon review of the record and construing it in favor of the verdict, we find that Williams Bros. made the required prima facie showing to recover on the note, and there was no evidence supporting a defense. While Malloy testified that there were talks between the parties about renegotiating or superseding the note, there is no evidence of any actual agreement—either contemporaneous and collateral to the note, or subsequently agreed upon. And, in fact, Malloy admitted that no new payment schedule was established and that the parties did not renegotiate the terms of the note. Thus, any plan to renegotiate the note was merely an agreement to agree in the future and not a binding contract to cancel or...