First Bank F/D/B/A Northwest Georgia Bank v. Mountain Apartments, LLC ( 2022 )

11/16/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 1, 2022
FIRST BANK F/D/B/A NORTHWEST GEORGIA BANK v.
MOUNTAIN APARTMENTS, LLC, ET AL.
Appeal from the Circuit Court for Hamilton County
No. 16C1341 John B. Bennett, Judge
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No. E2021-01433-COA-R3-CV
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The plaintiff bank appeals the trial court’s summary dismissal of its breach of contract
action against the defendants pursuant to the law in Georgia. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which FRANK G. CLEMENT,
JR., P.J., M.S. and CARMA DENNIS MCGEE, J., joined.
Walter N. Winchester and Ryen M. Lamb, Knoxville, Tennessee, for the appellant, First
Bank f/d/b/a Northwest Georgia Bank.
Christopher T. Varner, Chattanooga, Tennessee, for the appellees, Suresh and Anita
Anandani.
OPINION
I. BACKGROUND
On February 28, 2008, Mountain Apartments, LLC, a registered company in
Tennessee, executed a promissory note to secure a loan in excess of 3 million dollars with
First Bank f/d/b/a Northwest Georgia Bank (“the Plaintiff”). As pertinent to this appeal,
the note was further secured by personal guaranties signed by Suresh and Anita Anandani
(collectively “the Defendants”). The loan documents and the guaranties contained a choice
of law provision providing that the terms of the agreements would be governed by Georgia
law. Defendants last remitted payment in December 2011.
Plaintiff filed this action on November 18, 2016, alleging, inter alia, breach of
contract. However, Plaintiff did not properly issue service of process to Defendant Anita
until April 29, 2019. Defendant Suresh was served on August 29, 2019. Defendants filed
motions to dismiss and for summary judgment, asserting that the claim was barred by the
applicable statute of limitations for failure to timely execute service of process pursuant to
the Tennessee Rules of Civil Procedure.1 Rule 3 provides as follows:
All civil actions are commenced by filing a complaint with the clerk of the
court. An action is commenced within the meaning of any statute of
limitations upon such filing of a complaint, whether process be issued or not
issued and whether process be returned served or unserved. If process
remains unissued for 90 days or is not served within 90 days from issuance,
regardless of the reason, the plaintiff cannot rely upon the original
commencement to toll the running of a statute of limitations unless the
plaintiff continues the action by obtaining issuance of new process within
one year from issuance of the previous process or, if no process is issued,
within one year of the filing of the complaint.
The statute of limitations in this action expired in December 2017. See Tennessee Code
Annotated section 28-3-109(a)(3) (providing that causes of actions based upon contract
must be commenced within six years after the cause of action accrued). Service was not
complete in this case within one year of the filing of the complaint to toll the statute of
limitations, thereby making the complaint for breach of contract untimely filed.
The parties agreed that Plaintiff failed to timely complete service of process on the
Defendants pursuant to Rule 3. However, Plaintiff argued that Defendants waived their
right to assert the statute of limitations as a defense to their liability on the note based upon
their execution of the personal guaranties, which provided, in pertinent part, as follows:
“Guarantor hereby waives. . . any and all defenses to payment as permitted by law.”
The parties further agreed that if the language in the guaranties did not operate to
waive the applicable statute of limitations, then the claim was time-barred pursuant to the
six-year statute of limitations set forth in Section 28-3-109(a)(3). Accordingly, the sole
issue before the trial court was whether the waiver language found in the personal
guaranties barred the action under Georgia law.
1
While Georgia law governs the interpretation of the agreement, Tennessee law governs procedural
matters, including service of process and the statute of limitations. See generally Charles Hampton’s A–1
Signs, Inc. v. Am. States Ins. Co., 225 S.W.3d 482, 487 (Tenn. Ct. App. 2006).
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Following extensive briefing and hearings on the issue, the court found that the
language in the guaranties waiving “any and all defenses as permitted by law” was
ambiguous and should be strictly construed. The trial court further found that, under
Georgia law, “modifications to statutes of limitation [must] be express in order for the same
to be evaluated for purposes of determining if the modification to the statute of limitation
is unreasonable or unconscionable.” Finding no such express waiver, the court held that
the action was time-barred based upon the failure to complete service of process in
accordance with Rule 3. The trial court dismissed the action as untimely filed and certified
the judgment as final. This timely appeal followed.
II. ISSUE
The sole dispositive issue on appeal is as follows: Whether the trial court erred in
dismissing the action based upon its finding that the guaranties did not operate as a waiver
of the statute of limitations.
III. STANDARD OF REVIEW
We review the trial court’s factual findings de novo upon the record, affording them
a presumption of correctness unless the evidence preponderates otherwise. See Tenn. R.
App. P. 13(d); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013). We review
questions of law de novo, affording the trial court’s decision no presumption of correctness.
Armbrister, 414 S.W.3d at 692 (citing Mills v. Fulmarque, 360 S.W.3d 362, 366 (Tenn.
2012)). The interpretation of a written agreement is a question of law and the standard of
review is de novo with no presumption of correctness. Bratton v. Bratton, 136 S.W.3d
595, 601 (Tenn. 2004); Mark VII Transp. Co. v. Responsive Trucking, Inc., 339 S.W.3d
643, 647 (Tenn. Ct. App. 2009).
IV. DISCUSSION
Plaintiff argues that the court’s interpretation of the written agreement and its
application of Georgia law is flawed. Plaintiff asserts that Georgia law does not require an
express waiver of enumerated defenses. Rather, the contract must merely be clear and
unambiguous in its meaning like the waiver presented here. Defendants respond that the
court’s ruling was in keeping with Georgia’s suretyship law. Defendants continue that the
statute of limitations is not a defense to payment as suggested by Plaintiff but that it is a
procedural defense that bars the Plaintiff’s recovery. Defendants alternatively assert that
the waiver itself is ambiguous and overbroad, inviting the court to determine what is and
is not permitted by law and permitting more than one reasonable interpretation.
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“The cardinal rule of contract construction is to ascertain the intention of the parties.
... When the terms of a contract are clear and unambiguous, the reviewing court looks only
to the contract itself to determine the parties’ intent.” Langley v. MP Spring Lake, LLC,
834 S.E.2d 800, 804 (Ga. 2019) (internal quotations and citations omitted). “[W]here there
is ambiguity, the agreement will be construed against the drafter and in favor of the non-
drafter.” Id. (citation omitted).
Plaintiff has provided a number of cases for our review in which defendants
expressly waived the statute of limitations as a bar to recovery in Georgia. However,
Plaintiff has not presented a case in which the trial court applied a broad waiver of “all
defenses” to the statute of limitations. Plaintiff conceded before the trial court that one was
not readily available. We, like the trial court, find Georgia’s suretyship law instructive,
specifically, the Official Code of Georgia Annotated section 10-7-3, which provides as
follows:
The contract of suretyship is one of strict law; and the surety’s liability will
not be extended by implication or interpretation.
In consideration of the foregoing, we likewise agree with the trial court that a modification
to the statute of limitations must be express and not by implication or interpretation. Such
a waiver has not been presented here. Accordingly, we affirm the trial court’s dismissal of
the action as untimely pursuant to the applicable statute of limitations.
V. CONCLUSION
For the reasons stated above, we affirm the decision of the trial court. The case is
remanded for such further proceedings as may be necessary. Costs of the appeal are taxed
to the appellant, First Bank f/d/b/a Northwest Georgia Bank.
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JOHN W. MCCLARTY, JUDGE
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