Williams v. United Cmty. Bank

12 FCDR 265

313 Ga.App. 706

722 S.E.2d 440

WILLIAMS

v.UNITED COMMUNITY BANK.

No. A11A2096.

Court of Appeals of Georgia.

Jan. 26, 2012.

Berman, Fink & Van Horn, Charles Hale Van Horn, Atlanta, Kristin Noelle Zielmanski, for appellant.

Stites & Harbison, Melinda Agee, Catherine Myra Banich, Atlanta, for appellee.

McFADDEN, Judge.

Kevin A. Williams appeals from the trial court's grant of summary judgment to United Community Bank (the Bank) in the Bank's action against Williams and others to enforce a promissory note that Williams, among others, had guaranteed. Williams argues that the trial court erred in granting summary judgment to the Bank because the Bank was no longer a party in interest at the time of the ruling, having transferred its interest in the underlying indebtedness. Because Williams had not raised this argument at the time the trial court granted summary judgment, the trial court did not address it. Consequently, this appeal presents nothing for our review, and we must affirm.

The evidence of record on appeal shows the following. On May 26, 2009, Bella Montagna LLC executed a promissory note in favor of the Bank, and Williams executed a guaranty in which he unconditionally guaranteed payment of Bella Montagna's indebtedness to the Bank under the note. Other persons and entities executed similar guaranties. Bella Montagna defaulted on the loan, and the Bank demanded payment from the guarantors, including Williams. The guarantors did not make the demanded payment to the Bank.

On July 12, 2010, the Bank filed an action on the note against Bella Montagna and the various guarantors, including Williams, and it subsequently moved for summary judgment. In January 2011, the trial court entered judgment against the defendants other than Williams. On April 19, 2011, the trial court entered summary judgment against Williams in the order on appeal in this case.

On May 3, 2011, Williams moved the trial court to set aside its summary judgment order, asserting that on April 18, 2011, one day before the court entered its order, the Bank transferred its interest in the indebtedness underlying the promissory note to another entity. On May 19, 2011, however, Williams filed a notice of appeal to this court, divesting the trial court of jurisdiction to consider his motion to set aside pending the appeal. See McConnell v. Wright, 280 Ga.App. 546, 547, 634 S.E.2d 495 (2006) (filing of notice of appeal divests trial court of jurisdiction to rule on outstanding motion to set aside), rev'd on other grounds, 281 Ga. 868, 644 S.E.2d 111 (2007). See also OCGA § 5–6–39(a)(1), (c) (allowing the trial court to grant one extension of time for the filing of a notice of appeal).

The sole error enumerated by Williams is that summary judgment was improperly issued in favor of the Bank because the Bank was not the real party in interest at the time the summary judgment was entered. Williams does not question the substantive merits of the trial court's decision to grant summary judgment. See generally Nelson v. Bd. of Regents etc., 307 Ga.App. 220, 226(2), n. 22, 704 S.E.2d 868 (2010) (claims of error relating to substantive merits of order granting summary judgment are deemed abandoned on appeal where appellant fails to address them).

But we are not in a position to review whether Williams's real-party-in-interest argument precludes the grant of summary judgment to the Bank....