These companion appeals arise out of a lawsuit filed by Fairfield Financial Services, Inc. the “Bank” against appellants Nathan Baxter, Tim Burgess, and Zach W. McLeroy the “Guarantors”, seeking to recover the outstanding balances owed on notes upon which appellants served as guarantors. The parties filed motions for summary judgment. The Bank argued that it was entitled to judgment as a matter of law on its breach of contract claims and to attorney fees. The Guarantors argued that the Bank’s lawsuit was barred by res judicata as a result of a final judgment entered in a related case in Alabama. The trial court denied both motions and granted certificates of immediate review to both parties. We granted the Bank’s and the Guarantors’ applications for interlocutory review. In Case No. A10A1107, the Guarantors appeal the denial of their motion, and in Case No. A10A1108, the Bank appeals the denial of its motion. We affirm the denial of the Guarantors’ motion for summary judgment in Case No. A10A1107 and reverse the denial of the Bank’s motion for summary judgment in Case No. A10A1108. 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. OCGA § 9-11-56 c. 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.1 The record shows that the Bank, a collateral agent for a syndicated loan, provided financing to Sapphire Beach West Development, LLC “Sapphire”, to purchase and redevelop hurricane-damaged condominiums in Alabama. Sapphire executed several promissory notes in the aggregate principal amount of $23,360,000 “First Priority Notes” on or about June 3, 2005, and each of the Guarantors executed an Unconditional Guaranty of Payment and Performance the “Guaranties”, which provided that they unconditionally and irrevocably guaranteed the payment of the notes extended to Sapphire. The Guarantors each held a membership interest in Sapphire. On March 9, 2007, Sapphire executed another promissory note in the amount of $2,420,000 “Second Priority Note”, and each of the Guarantors executed Guarantees pertaining to the Second Priority Note as well. The project failed, and litigation ensued, first in Alabama, then in Georgia. On or about June 11, 2007, some of the owners of the damaged condominium units the “Participating Owners” filed a declaratory judgment action in Alabama against Sapphire, the Bank, and other defendants, requesting that the court declare their liens to be superior to any other encumbrances on the property and seeking the foreclosure of their vendor’s and equitable liens on the property the “Alabama action”. The Participating Owners had a stake in Sapphire’s project because they had opted to receive new units in the redeveloped condominiums in return for their conveyance of the interest in their damaged units to Riverbrooke Capital Partners, LLC “Riverbrooke”.2
On or about January 28, 2008, the Bank filed the instant action against the Guarantors seeking to recover the outstanding balance of the Notes totaling $25,780,000 the “Georgia action”. On March 26, 2008, the Guarantors moved to stay the Georgia action pending the outcome of a court-ordered mediation in the Alabama action. In their motion, the Guarantors indicated that because of the overlap between the actions, they had agreed to participate in the mediation in Alabama, with the hope that the entire matter could be successfully resolved. The trial court granted the motion to stay in part, staying the case for 90 days, subject to the right of any party to conduct discovery related to filing a summary judgment motion.
