                             SECOND DIVISION
                               DOYLE, C. J.,
                         MILLER, P. J., and REESE, J.

                   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


                                                                      May 23, 2017




In the Court of Appeals of Georgia
 A17A0349. TISDALE v. THE WESTMOORE GROUP, LLC et al.

      MILLER, Presiding Judge.

      Adrian Tisdale sued The Westmoore Group (“Westmoore”) and two

individuals who assisted in obtaining a mortgage on her home (collectively

“Defendants”), alleging multiple violations of federal statutes and the Georgia Fair

Lending Act1 (“GFLA”), fraud in the inducement, and civil conspiracy.2 Defendants

filed a counterclaim for attorney fees under OCGA § 13-6-11. The trial court granted

summary judgment in favor of Defendants and awarded them $61,231.10 in attorney




      1
          OCGA § 7-6A-5.
      2
       Defendant Jeffrey Ganek was dismissed from the suit. The only remaining
defendants are Westmoore and Jonathan Block, who is a principal, officer, and
manager of Westmoore.
fees.3 Tisdale now appeals. After a thorough review of the record, we affirm in part

and reverse in part.

      “On appeal from a grant of summary judgment, we review the evidence de

novo to determine whether the trial court erred in concluding that no genuine issue

of fact remains and that the moving party is entitled to judgment as a matter of law.”

(Citation omitted.) Chapman v. C. C. Dickson Co., 273 Ga. App. 640, 641 (1) (616

SE2d 478) (2005).

      So viewed, the evidence shows that in 2011, Tisdale obtained a high-interest

mortgage loan (“the Loan”) through Westmoore in the amount of $49,062 to purchase

her home in Covington. The Loan was secured by a security deed, which contained

an accelerated remedies clause providing for an opportunity to cure any default prior

to foreclosure.

      Soon after Tisdale closed on the home, she made late payments and disputed

the closing costs, mortgage terms, and loan calculations. On August 28, 2012,

Westmoore agreed to a loan modification, in which it refunded certain fees to Tisdale,

and Tisdale signed a release (the “Release”) agreeing that “all aspects of the Loan


      3
       Defendants also requested fees under OCGA § 9-15-14, but the trial court did
not award fees on this basis.

                                          2
[were] proper and correct and in full compliance with all applicable state and federal

laws.” The Release further provided that Tisdale would release Westmoore and its

agents and employees from any claims she “ever had, now have, or which she

hereafter can, shall or may have” against them. Under the terms of the Release, any

violation would allow Westmoore to “declare the Loan immediately due and

payable.”

      Despite signing the Release, Tisdale continued to dispute the terms of her

mortgage. She also fell further into arrears on her payments. In July 2013, Westmoore

notified Tisdale of her default and the opportunity to cure so as to avoid the

acceleration of the Loan and the subsequent commencement of foreclosure

proceedings.

      After Tisdale again disputed the amount due, Westmoore agreed to postpone

acceleration of the Loan. In a Postponement Letter Tisdale signed and agreed to on

August 15, 2013, Westmoore advised Tisdale that the failure to comply with the

terms of the Postponement Letter could result in foreclosure proceedings. Notably,

in the Postponement Letter, Tisdale admitted that she had no defenses against

Westmoore in connection with its security interest.



                                          3
      Nevertheless, Tisdale failed to make the required payments, and Westmoore

began foreclosure proceedings. Tisdale continued to challenge the underlying

mortgage obligation by filing a complaint in Newton County Superior Court. While

that case was pending, Tisdale also sought injunctive relief to stop the foreclosure

sale in federal court. Both of these cases were later voluntarily dismissed.

      Tisdale then filed the instant suit,4 and Defendants filed a counterclam for

attorney fees under OCGA § 13-6-11. Liberally construing Tisdale’s state-law claims

in her complaint, she alleged that the Defendants committed fraud in connection with

the initiation and signing of her Loan, conspired to commit fraud in connection with

her Loan, and violated the GFLA by demanding payments that exceed the permissible

amount. In February 2014, Tisdale filed a bankruptcy petition, which stayed the

foreclosure proceeding.5

      Defendants removed this case to the federal district court, which ultimately

dismissed the federal claims and remanded Tisdale’s state-law fraud, conspiracy, and

      4
         She also sought a restraining order in state court to prevent the sale, but the
trial court denied relief. We note that no foreclosure has occurred, given the pending
bankruptcy action, and thus Tisdale cannot make a claim for wrongful foreclosure.
      5
       The bankruptcy court found Tisdale was in arrears on her mortgage and
reminded Tisdale of her obligation to make her mortgage payments in a timely
manner.

                                           4
GFLA claims, as well as Defendants’ counterclaim, to the trial court. On remand, the

trial court granted Defendants’ motion for summary judgment, finding (1) the Release

was a valid agreement, and, therefore, any claims relating to the Loan prior to the

August 28, 2012 date of the Release were barred by the terms of the Release; (2)

claims relating to conduct that occurred between the date of the Release and the

August 15, 2013 Postponement Letter were barred by the terms of the Postponement

Letter; and (3) Defendants were entitled to OCGA § 13-6-11 attorney fees in the

amount of $61,231.10.

      1. Before we reach the merits of the appeal, we note that Tisdale’s brief fails

to comply with this Court’s rules because it does not contain numbered and distinct

enumerations of error with supporting arguments. See Court of Appeals Rule 25 (c)

(1). Tisdale’s pro se status does not relieve her of her obligation to comply with the

rules of this Court. See Floyd v. Brown, 338 Ga. App. 520, 521 (1) (790 SE2d 307)

(2016). “Our requirements as to the form of appellate briefs were created, not to

provide an obstacle, but to aid parties in presenting their arguments in a manner most

likely to be fully and efficiently comprehended by this Court.” (Citation and

punctuation omitted.) Id.



                                          5
      Our rules are more than a mere formality. Barnett v. Fullard, 306 Ga. App. 148,

149 (1) (701 SE2d 608) (2010). Rather, they are designed to ensure that all

enumerations of error are addressed and to aid our review of each enumeration. Id.

By failing to comply with Court of Appeals Rule 25, Tisdale has hindered our review

of her arguments and has risked the possibility that certain enumerations will not be

addressed. See id. at 149-150 (1). Nevertheless, we will address claims of error to the

extent we are able to discern them, and we deny Defendants’ motion to dismiss the

appeal on this basis. See id. at 150 (1).

      Reviewing Tisdale’s brief, we interpret her claims to challenge the grant of

summary judgment to Defendants on the grounds that (a) her claims arising prior to

August 15, 2013 were not barred; (b) Defendants were in breach by refusing to allow

her to cure the default; and (c) the Release and Postponement Letter are void. Tisdale

also contends that the trial court erred in awarding fees to Defendants under OCGA

§ 13-6-11.

      2. Tisdale first argues that the trial court erred in granting summary judgment

to Defendants because (a) her claims are not barred by the Release and Postponement

Letter, and (b) Defendants thwarted her attempts to cure the default. Importantly,

although Tisdale argues that her federal claims were properly before the trial court,

                                            6
the federal court dismissed those claims and remanded only the state-law claims.

Therefore, only the GFLA, conspiracy, and fraud claims were properly before the trial

court.

         (a) Claims barred by the Release

         Having reviewed the record, we conclude that the trial court properly found

that Tisdale’s state-law claims relating to conduct that occurred before the date of the

Release were barred by that agreement.

               A release or settlement agreement is a contract subject to
         construction by the court. It is governed by state law applicable to
         contracts in general. The cardinal rule of construction is to determine the
         intention of the parties. Where the terms of a written contract are clear
         and unambiguous, the court will look to the contract alone to find the
         intention of the parties. Such a contract is the only evidence of what the
         parties intended and understood by it.


(Punctuation and footnotes omitted). UniFund Financial Corp. v. Donaghue, 288 Ga.

App. 81, 82 (653 SE2d 513) (2007).

         As noted, Tisdale’s state-law claims alleged fraud in connection with the

origination of her Loan, conspiracy in connection with that fraud, and violations of

the GFLA based on the amount of payment required under the Loan. The trial court

properly found that Tisdale’s state-law claims were barred because the Release

                                             7
provided that “all aspects of the Loan [were] proper and correct and in full

compliance with all applicable state and federal laws.” Moreover, in signing the

Release, Tisdale agreed that she would release Westmoore and its agents and

employees from any claims she “ever had, now have or which she hereafter can, shall

or may have” against them. This document indisputably covers all of Tisdale’s fraud,

conspiracy, and GFLA claims relating to the Loan, the closing documents, and the

arrearage in her mortgage payments prior to the August 28, 2012 execution date.

      Moreover, there is no merit to Tisdale’s argument that the Release and

Postponement Letter were void because she signed them under threat of foreclosure.

The threat of foreclosure, which was within Westmoore’s right due to Tisdale’s

failure to pay the Loan, does not amount to duress. Savannah Sav. Bank v. Logan, 99

Ga. 291 (25 SE 692) (1896); see also Cannon v. Kitchens, 240 Ga. 239, 240 (240

SE2d 78) (1977).

      Finally, the Release and Postponement Letter are not void for violating the

GFLA because, contrary to Tisdale’s argument, the payments required there did not

exceed the amount that could be charged either as interest or as a payment. See

OCGA § 7-6A-5 (2), (4), (13) (A).



                                         8
      Tisdale has not shown any genuine issue of material fact to preclude summary

judgment, and the trial court properly concluded as a matter of law that the Release

and Postponement Letter were binding and barred all of Tisdale’s state-law claims

relating to the formation of the Loan that occurred prior to August 15, 2013.

Accordingly, we conclude that Defendants were entitled to summary judgment on

Tisdale’s claims for fraud, conspiracy, and GFLA violations that allegedly occurred

prior to the date of the Release.

      (b) Failure to allow Tisdale to cure the default

      The only state-law claim that Tisdale alleged occurred after the date of the

Release and Postponement Letter is that Westmoore breached the terms of the Loan

when it did not allow her to cure her default before initiating foreclosure

proceedings.6 We disagree.

      Under the terms of the Postponement Letter, the parties agreed that Westmoore

would postpone foreclosure provided that Tisdale made the necessary payments. The


      6
         Tisdale appears to allege that Westmoore failed to make the insurance
payments collected from her escrow account. The record shows that escrow was part
of the original Loan, but as part of the Release, Westmoore removed the escrow
payment, and Tisdale agreed to be responsible for her own taxes and insurance. Thus,
there can be no claim against the Defendants regarding insurance payments after the
date of the Release.

                                         9
Postponement Letter further provided that if Tisdale failed to comply, Westmoore

would go forward with foreclosure proceedings. The letter also stated that Tisdale

understood that the failure to make payments as required gave Westmoore the right

to immediately pursue foreclosure. The Postponement Letter clearly gave Defendants

the right to immediately accelerate the Loan and commence foreclosure proceedings

in the event of another untimely payment.

      Although Tisdale argued before the trial court that she made the payments and

Westmoore refused to accept them, she points to no evidence in the record to support

this claim. Therefore, Tisdale has not met her burden to show a genuine issue of fact

with respect to any attempt to cure. Chapman, supra, 273 Ga. App. at 642 (summary

judgment is proper where no genuine issue of material fact remains). Accordingly, the

trial court correctly found that Defendants were entitled to summary judgment on the

claims occurring after August 15, 2013.

      3. Tisdale next argues that the trial court erred in awarding fees under OCGA

§ 13-6-11. Because the trial court lacked authority to award attorney fees on summary

judgment, we agree.

      OCGA § 13-6-11 provides that:



                                          10
      [t]he expenses of litigation generally shall not be allowed as a part of the
      damages; but where the plaintiff has specially pleaded and has made
      prayer therefor and where the defendant has acted in bad faith, has been
      stubbornly litigious, or has caused the plaintiff unnecessary trouble and
      expense, the jury may allow them.


(Emphasis added).7 Thus, as our Supreme Court has explained, “both the liability for

and amount of attorney fees pursuant to OCGA § 13-6-11 are solely for the jury’s

determination, [and] a trial court is not authorized to grant summary judgment in

favor of a claimant therefor.” (Citations omitted.) Covington Square Assoc., LLC v.

Ingles Markets, Inc., 287 Ga. 445, 446 (696 SE2d 649) (2010). This is because “the

very language of the statute prevents a trial court from ever determining that a

claimant is entitled to attorney fees as a matter of law.” (Footnotes and punctuation

omitted.) Sherman v. Dickey, 322 Ga. App. 228, 233-234 (2) (744 SE2d 408) (2013).

Moreover, “although a trial court is permitted to grant such fees when it sits as a trier

of fact, it is not a trier of fact on a motion for summary judgment.” Id. (Footnotes and

punctuation omitted).




      7
        Tisdale has not waived this argument by failing to raise it before the trial
court because the trial court lacked authority to award fees as a matter of law. See
Sherman v. Dickey, 322 Ga. App. 228, 233 (2) & n. 20 (744 SE2d 408) (2013).

                                           11
      Accordingly, the trial court here was without authority to award fees under

OCGA § 13-6-11 on summary judgment, and we reverse the trial court’s award. In

light of our determination that the award must be reversed, we need not address

Tisdale’s claim that the amount included monies for claims litigated in the federal

action.

      For the foregoing reasons, we affirm the trial court’s order granting summary

judgment, but reverse the order awarding attorney fees.

      Judgment affirmed in part and reversed in part. Doyle, C. J., and Reese, J.,

concur.




                                        12
