                                 FIFTH DIVISION
                                MCFADDEN, P. J.,
                              RAY and RICKMAN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    October 24, 2018




In the Court of Appeals of Georgia
 A18A0992. WHITE et al. v. GENS.

      RAY, Judge.

      Nicholle Jeanette Gens, as Administrator of the Estate of April Gens, brought

this quiet title action against John Keith White and others (hereinafter collectively

referred to as “White”) asserting a claim of ownership regarding a certain residential

lot located in Forsyth County. In response to the petition, White counterclaimed for

reformation of the deeds in the chain of title to the property. After the trial court

found that Gens was equitably estopped from asserting an ownership interest in the

property, the trial court granted summary judgment to White and quieted title in his

favor. However, in Gens v. White, 299 Ga. 637 (791 SE2d 48) (2016), our Supreme

Court reversed the judgment of the trial court, holding that Gens was not equitably

estopped from asserting title to the property because she took no affirmative action
to mislead White into believing that he was entitled to the property. The Supreme

Court then remanded the case with direction that the trial court address the merits of

White’s reformation counterclaim. Id. at 638-639. Thereafter, on the parties’ cross-

motions for summary judgment with regard to reformation, the trial court denied

White’s motion for summary judgment and granted summary judgment to Gens. This

subsequent appeal ensued. For the reasons that follow, we reverse and remand with

direction.

      1. White contends that the trial court erred in denying his motion for summary

judgment, and in granting summary judgment to Gens, on his counterclaim for

reformation of the deeds in the chain of title. Specifically, he argues that the trial

court erred in concluding that his failure to provide evidence as to “how or why the

alleged mistake occurred” was fatal to his counterclaim for reformation. We agree.

      On appeal from the grant of summary judgment, the appellate court
      conducts a de novo review of the evidence to determine whether there
      is a genuine issue of material fact and whether the undisputed facts,
      viewed in the light most favorable to the nonmoving party, warrant
      judgment as a matter of law.


(Citation and punctuation omitted.) Bank of America v. Cuneo, 332 Ga. App. 73, 74

(770 SE2d 48) (2015). “On cross-motions for summary judgment, each party must

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show there is no genuine issue of material fact and that each, respectively, is entitled

to summary judgment as a matter of law; either party, to prevail by summary

judgment, must bear its burden of proof. (Citations and punctuation omitted.) Heiskell

v. Roberts, 342 Ga. App. 109, 112 (2) (a) (802 SE2d 385) (2017).

      The evidence shows that April Gens obtained a loan from the Bank in 1999

which was secured by a security deed (the “1999 Security Deed”) which encumbered

4.3 acres of land, including all of what was later designated as Lot 7. April Gens later

obtained a second loan from the Bank in 2001 which was secured by another security

deed (the “2001 Security Deed”) which encumbered certain residential lots, including

Lot 7, that had been divided out of the original 4.3 acre tract of land. However, the

legal description for Lot 7 that was attached to the 2001 Security Deed mistakenly

provided a description for only part of Lot 7, which consisted of a 150-square foot

access strip used for boat-docking privileges.

      April Gens later filed for bankruptcy and listed properties that were secured by

the 1999 and 2001 Security Deeds as property to be surrendered to the Bank, thereby

surrendering all of her ownership interest in Lot 7 to her creditor in the bankruptcy

proceedings. Additionally, April Gens specifically listed only her vehicle and her

personal residence located on another property not involved in this case as the

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“property to be retained” under her bankruptcy plan. After the bankruptcy court

specifically found that April Gens had no equity in Lot 7, it lifted the bankruptcy stay

with regard to the property and permitted the Bank to foreclose on it.

       Following the foreclosure sale, however, the Bank recorded a cancellation of

the 1999 Security Deed, which had encumbered all of Lot 7, and conveyed Lot 7 to

White’s predecessor in title by a general warranty deed which incorporated the same

erroneous legal description of Lot 7 that was mistakenly provided in the 2001

Security Deed.

       Under Georgia law, “[i]f the form of conveyance is, by accident or mistake,

contrary to the intention of the parties in their contract, equity shall interfere to make

it conform thereto.” OCGA § 23-2-25. “This statute applies when the form of

conveyance is a security deed.” (Citation and punctuation omitted.) Vibert v. Bank of

America, N.A., 327 Ga. App. 782, 783 (761 SE2d 162) (2014). “Where reformation

is sought on the ground of mutual mistake, it must, of course, be proved to be the

mistake of both parties.” (Citation and punctuation omitted.) Bank of America, supra

at 78 (2).

       On motion for summary judgment, White presented the scriveners affidavit of

John D. Feagan, the attorney who had represented the Bank during April Gens’s 1999

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and 2001 loan closings. In his affidavit, Feagan attested that he was the one who had

prepared the 2001 Security Deed, that the 2001 Security Deed contained a scriveners

error in the legal description of Lot 7, and that both the Bank and April Gens intended

to secure the 2001 loan with all of Lot 7, not just the part of Lot 7 that was described

in the 2001 Security Deed.       Thus, White has satisfied his burden on summary

judgment of establishing the existence and the mutuality of the mistake in the legal

description of Lot 7 that was provided in the 2001 Security Deed.

      Conversely, Gens presented no evidence to rebut Feagan’s affidavit. In fact,

Feagan’s attestation as to the existence and the mutuality of the error in the 2001

Security Deed is actually supported by the deposition testimony of Nicholle Gens,

who testified that April Gens believed that all of her interest in Lot 7 had been lost

as a result of the bankruptcy and foreclosure proceedings. Furthermore, the mutuality

of the mistake is also supported by the evidence that White’s predecessor in title

purchased Lot 7 from the Bank and constructed a house on it for $360,000, a sum

which is only consistent with the Bank’s intended conveyance of the entirety of Lot

7; it is wholly inconsistent with a conveyance of “part of Lot 7” consisting of

approximately 150 square feet. White purchased Lot 7 and the house thereon from his

predecessor in title for $585,000, and White and his family have been continuously

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occupying the property for six and half years. April Gen’s conduct during this time

further supports the mutuality of the mistake in the 2001 Security Deed because she

took no action for years to stop the sale of the land, the construction of the house, and

White’s occupation of the property. In sum, the undisputed evidence in the record

leads to only one conclusion — that there was a mutual mistake in the legal

description of Lot 7 in the 2001 Security Deed that was foreclosed on by the Bank,

which created errors in the chain of title.

      In denying White’s motion for summary judgment, and in granting summary

judgment to Gens, the trial court concluded that the lack of evidence as to how or why

the mistake was made in the 2001 Security Deed was fatal to White’s counterclaim

for reformation. This conclusion is incorrect. In reformation cases where the

mutuality of the mistake was sufficient or was undisputed by the evidence, we have

consistently held that the cause of the mistake is immaterial so long as the mistake is

common to both parties to the transaction and the non-complaining party will not be

prejudiced by the reformation. See Bank of America, supra at 78-80 (2) (sufficient

evidence established the mutuality of the mistake); DeGolyer v. Green Tree

Servicing, LLC, 291 Ga. App. 444, 447 (1) (662 SE2d 141) (2008) (affirming grant

of equitable reformation of security deed when evidence undisputed that both

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borrower and lender intended to secure loan with property). Accord Zaimis v. Sharis,

275 Ga. 532, 533 (1) (570 SE2d 313) (2002). Here, although Gens now contends that

the mistake in the 2001 Security Deed was not mutual, she has pointed to no evidence

to support her assertion. April Gens’s alleged expression of a previous desire to retain

Lot 7 for herself has no bearing on her subsequent decision to encumber the property

in exchange for the loans from the Bank. Had she not defaulted on the loans and

surrendered the property to her creditor in her bankruptcy proceedings, she might

have been able to retain Lot 7. Furthermore, we fail to see how Gens could be

prejudiced by the reformation of the deeds in the chain of title to the very property

that she voluntarily surrendered to her creditors during the bankruptcy years ago.

      As Feagin’s undisputed scrivener’s affidavit, along with the other undisputed

evidence set forth above, establishes that there was a mutual mistake in the legal

description of Lot 7 in the 2001 Security Deed and that the true intention of the

parties was for the Bank to loan funds to April Gens and to take a security interest in

the entirety of Lot 7, the cause of the mutual mistake is immaterial.

      Thus, the trial court erred in granting summary judgment to Gens and in

denying White’s motion for summary judgment on White’s reformation counterclaim.

Therefore, we reverse the judgment of the trial court and remand the case with

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direction that the trial court enter summary judgment in favor of White on his

counterclaim for reformation of the deeds in the chain of title.

      2. Based on our holding in Division 1, we need not address White’s remaining

arguments.

      Judgment reversed and case remanded with direction. McFadden, P. J., and

Rickman, J., concur.




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