                                 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


                                                                  September 10, 2018




In the Court of Appeals of Georgia
 A18A0916. FLINT TIMBER, L. P. v. AGSOUTH FARM CREDIT,
     ACA.

      MCFADDEN, Presiding Judge.

      This is an appeal by a borrower from a grant of summary judgment to a lender

on the borrower’s wrongful foreclosure claim. The borrower, Flint Timber, L. P.,

asserted the claim for wrongful foreclosure as a counterclaim in a deficiency action

brought by the lender, AgSouth Farm Credit, ACA. AgSouth moved for summary

judgment on the wrongful foreclosure counterclaim, arguing that the trial court’s

earlier confirmation of the foreclosure sale precluded the claim under either the

doctrine of res judicata or the doctrine of collateral estoppel. The trial court agreed

and granted summary judgment to AgSouth on that claim. We find no error and

affirm.
      “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. We review a grant of

summary judgment de novo and the evidence, and all reasonable conclusions and

inferences drawn from it, in the light most favorable to the nonmovant.” Zhong v.

PNC Bank, N. A., 334 Ga. App. 653 (1) (780 SE2d 92) (2015) (citation omitted).

      So viewed, the evidence shows that Flint Timber conveyed an interest in

several tracts of land to AgSouth in a deed to secure debt. When Flint Timber

subsequently defaulted on the loan that was the subject of the deed to secure debt,

AgSouth foreclosed on the loan, sold the property under power of sale pursuant to the

terms of the deed to secure debt, and instituted a proceeding to confirm the

foreclosure sale. See OCGA § 44-14-161. In that proceeding, Flint Timber argued

that the trial court should not confirm the foreclosure sale because, among other

things, the legal advertisement and deed under power of sale both contained an error

in the legal description of one of the tracts of land. Rather than referring to “Plat

Book 38, Page 143” as the location of the recorded plat depicting that tract of land,

the advertisement and deed under power of sale omitted one numeral from the page

number, referring instead to “Plat Book 38, Page 14.” The trial court, however,



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confirmed the sale and we affirmed that ruling without an opinion in Flint Timber,

L. P. v. AgSouth Farm Credit, ACA, 337 Ga. App. XXIV (2016).

      After the trial court confirmed the foreclosure sale, AgSouth brought the instant

deficiency action and Flint Timber counterclaimed for wrongful foreclosure, basing

its counterclaim on the same legal-description error that it had asserted in its

opposition to confirmation in the earlier proceeding. The trial court granted

AgSouth’s motion for summary judgment on the wrongful foreclosure claim,

concluding that Flint Timber sought to re-litigate issues already adjudicated in the

confirmation proceeding. In her order, the trial court discussed both the doctrine of

res judicata and the doctrine of collateral estoppel.

      On appeal, Flint Timber enumerates the following error: “The trial court erred

in ruling that [the] wrongful foreclosure claim represents the re[-]litigation of a claim

adjudicated in the previous confirmation proceeding.” But we find that the doctrine

of collateral estoppel applies and, consequently, AgSouth was entitled to summary

judgment on the wrongful foreclosure claim.

      Collateral estoppel “precludes the re-adjudication of an issue that has

previously been litigated and adjudicated on the merits in another action between the

same parties or their privies.” Body of Christ Overcoming Church of God v. Brinson,

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287 Ga. 485, 486 (696 SE2d 667) (2010) (citation omitted). To be precluded, either

the issue “must actually have been litigated and decided in the first action . . . or

[must be an issue that] necessarily had to be decided in order for the previous

judgment to have been rendered.” Morrison v. Morrison, 284 Ga. 112, 114 (3) (663

SE2d 714) (2008) (citation and emphasis omitted).

      To recover against AgSouth for wrongful foreclosure, Flint Timber must

demonstrate, among other things, that AgSouth breached a duty to exercise fairly and

in good faith the power of sale provided for in the parties’ deed to secure debt. See

Wells Fargo Bank, N. A. v. Molina-Salas, 332 Ga. App. 641, 642 (1) (774 SE2d 712)

(2015) (claim for wrongful foreclosure arises from foreclosing party’s breach of its

duty to exercise power of sale fairly and in good faith). Flint Timber argues that

AgSouth breached this duty by using, in the advertisement and the deed under power

of sale, the legal description that incorrectly referred to “Plat Book 38, Page 14”

rather than “Plat Book 38, Page 143.” Indeed, Flint Timber asserts in its appellate

brief that the erroneous legal description is the “crux of [its] counterclaim.”

      In the earlier confirmation proceeding, the trial court adjudicated the issue of

the effect of the legal description on the fairness and validity of the foreclosure sale.

In concluding that “all conditions to confirmation of the sale ha[d] been met,” the trial

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court in the earlier proceeding expressly determined that “no error in the legal

advertisement chilled the bidding at the sale or otherwise rendered the foreclosure

wrongful or invalid.” It is true that the trial court’s order in the earlier proceeding did

not expressly address the presence of the error in the deed under power of sale. But

Flint Timber argued that issue in the confirmation proceeding, asserting at the hearing

that the error in the deed under power of sale invalidated the conveyance of the tract

in the foreclosure sale. The transfer of the tract under the deed under power of sale

must have occurred before the trial court could consider that tract to have been sold

on foreclosure. Tampa Investment Group v. Branch Banking & Trust Co., 290 Ga.

724, 727 (1) (723 SE2d 674) (2012). So the issue of whether the error in the deed

under power of sale affected that conveyance “necessarily had to be decided in order

for the previous judgment [confirming the foreclosure sale] to have been rendered.”

Morrison, 284 Ga. at 114 (3) (citation and emphasis omitted).

       “It is axiomatic that the same issue cannot be re[-]litigated ad infinitum.” Nally

v. Bartow County Grand Jurors, 280 Ga. 790, 791 (3) (633 SE2d 337) (2006)

(citation and punctuation omitted). The arguments Flint Timber asserts on appeal

from the summary judgment ruling in this case are the arguments that the trial court

rejected in the confirmation proceeding. Given that prior adjudication, the trial court

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did not err in granting summary judgment to AgSouth on the wrongful foreclosure

counterclaim.

      Judgment affirmed. Ray and Rickman, JJ., concur.




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