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Gause v. Fidelity Bank

Notwithstanding considerable evidence to the contrary, the defendant's affidavit testimony stating that he did not execute the guaranty at issue was sufficient to create a genuine issue of fact with regard to the enforceability of that instrument, and the trial court erred in granting summary judgment to the plaintiff on its claim for breach of the guaranty.

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This case arises from William L. Gause and Gause Construction Company, Inc’s collectively Defendants default on a promissory note and unconditional guaranty. Fidelity Bank, the holder of the note and guaranty, sued the Defendants for breach of the note and guaranty. Defendants counterclaimed for, inter alia, set-off and recoupment. The trial court subsequently granted summary judgment to Fidelity, and the Defendants appeal, contending that 1 the trial court erred in granting summary judgment to Fidelity on the guaranty and note, 2 the trial court erred in granting summary judgment to Fidelity on the Defendants’ counterclaims for set-off and recoupment, and 3 the trial court abused its discretion in considering and relying on certain deposition testimony. For the reasons that follow, we affirm in part and reverse in part.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant or denial 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.

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