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Whooping Creek Construction LLC v. Bartow County Bank

Factual issues remained as to whether a bank had actual knowledge that funds in question were being held for purpose of discharging a debt owed to the plaintiff.

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Appellant Whooping Creek Construction, LLC “WCC” brought suit against appellee Bartow County Bank the “Bank” and others after a check it received for payment of grading services was dishonored. The trial court granted summary judgment to the Bank, and WCC filed the present appeal. As more fully set forth below, we agree with WCC that the trial court erred by granting summary judgment to the Bank, and reverse. WCC, a grading subcontractor, was hired by DDH Construction, Inc. to perform grading work for the construction of a daycare facility in Acworth, Georgia. DDH had been hired by Gavin Garrett, LLC, who had been hired by the general contractor on the project. Gavin Garrett and DDH both held checking accounts at the Bank. David Geros, Jr., a managing member of Gavin Garrett, was also the principal in another company named Missions Estate, LLC, and was a guarantor on a loan that Missions Estate had obtained from the Bank. On June 17, 2009 the guarantors of that loan notified the Bank they could not pay the approximately $199,363 in interest that had accrued on the debt.

Also in June 2009, WCC requested payment for grading work done at the construction site, submitting that request in the usual manner on the form required by the general contractor and including a waiver of liens. In turn, the general contractor issued a payment to Gavin Garrett which included the money owed to WCC, and Gavin Garrett transferred the money to DDH; WCC received a check for $60,452.00 the “Check” drawn on DDH’s account at the Bank on June 17, 2009.

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