Triple T-Bar, LLC v. DDR Se. Springfield, LLC.

330 Ga.App. 847

769 S.E.2d 586

TRIPLE T–BAR, LLC et al.

v.DDR SOUTHEAST SPRINGFIELD, LLC.

No. A14A2282.

Court of Appeals of Georgia.

March 2, 2015.

Robert Carroll Newcomer, for Appellants.

Stanley, Esrey & Buckley, Marlie Anne McDonnell, Atlanta, for Appellee.

Opinion

MILLER, Judge.

DDR Southeast Springfield, LLC (“DDR”), as successor-in-interest, filed suit to recover the outstanding balance on a lease agreement executed by Triple T–Bar, LLC, and guaranteed by Todd and Barbara Blackwell. After the trial court entered a consent judgment against Triple T–Bar, DDR moved for summary judgment on the ground that the Blackwells were personally liable under the guaranty. The trial court granted DDR's motion, and the Blackwells appeal, contending that the trial court erred in granting DDR's motion for summary judgment because DDR failed to establish that the lease agreement and guaranty were admissible business records and there were questions of fact as to whether the guaranty was enforceable.¹ For the reasons set forth below, we 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 the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” (Citation and punctuation omitted.) Angel Business Catalysts, LLC v. Bank of the Ozarks, 316 Ga.App. 253, 254, 728 S.E.2d 854 (2012).

So viewed, the evidence shows that in November 2006, Triple T–Bar entered into an agreement with Inland Southeast Springfield, LLC (“Inland”), to lease a commercial property in Lawrenceville until February 2012. The lease was signed by both Blackwells as representatives of Triple T–Bar, the Blackwells were identified in the lease as the guarantors, and the Blackwells' personal guaranty was attached to the lease and incorporated therein by reference. The guaranty cross-referenced the lease agreement, again identified the Blackwells as the guarantors, and also identified Inland as the landlord and Triple T–Bar as the tenant. In February 2007, DDR acquired Inland and became the landlord of the property.

In April 2007, Triple T–Bar's rent payment check was returned for insufficient funds. Triple T–Bar then failed to pay rent for the months of April 2008 and September 2008, and it made its last rent payment in October 2008. In February 2009, Triple T–Bar closed its business operations and vacated the premises without DDR's consent, in violation of the lease agreement. When Triple T–Bar failed to re-open for business and pay past due rent as DDR requested, DDR filed suit against the Blackwells and Triple T–Bar.

1. The Blackwells contend that the trial court erred in granting summary judgment to DDR because DDR did not lay a foundation to admit the lease and the guaranty into evidence. We discern no error.

Under OCGA § 24–8–803, business records may be admissible as an exception to the hearsay rule. The statute provides that

a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness.

Shall not be excluded by the hearsay rule. OCGA § 24–8–803(6).

In support of its summary judgment motion filed on May 24, 2013, DDR submitted the affidavit of its assistant general counsel and attached to the affidavit the lease agreement and the guaranty. In her affidavit, the assistant general counsel offered no testimony establishing her familiarity with DDR's method of keeping business records, her personal knowledge about any of the transactions, or that the lease and guaranty were made in the regular course of business. As a result, DDR's assistant general counsel failed to lay a proper foundation in her initial affidavit to admit the lease and the guaranty as business records. See, e.g., Nalley Northside Chevrolet v. Herring, 215 Ga.App. 185, 186 –187(3), 450 S.E.2d 452 (1994) (records attached to affidavit should not have been admitted as business records where affiant offered no testimony establishing his knowledge with the business's method of keeping records or about the transactions, and provided no facts showing that the entries were made in the regular course of business).

Nevertheless, in a reply brief in support of its motion for summary judgment, DDR attached a second affidavit from its assistant general counsel that cured the defects in her initial affidavit. Notably, in her second affidavit, the assistant general counsel averred that she was familiar with DDR's record keeping, lease files were maintained in DDR's regular course of business, and DDR acquired the lease agreement in this case after merging with Inland. “[E]mployees of successor entities can authenticate business records of their predecessor entities that pass to them by virtue of merger.” (Citation and punctuation omitted.)

Ware v. Multibank 2009–1 RES–ADC Venture, LLC, 327 Ga.App. 245, 249(2), 758 S.E.2d 145 (2014) ; see also Angel Business Catalysts, supra, 316 Ga.App. at 255 –256(1), 728 S.E.2d 854 (holding that, when “routine, factual documents made by one business are transmitted and delivered to a second business and there entered in the regular course of business of the receiving business, such documents are admissible” as business records). This second affidavit was sufficient to lay a foundation. Therefore, the lease agreement and attached guaranty were properly admitted as business records.

The Blackwells argue that the trial court should not have considered the second affidavit because it was not timely filed.

OCGA § 9–11–56(c), which requires that a motion for summary judgment be served at least 30 days before the time fixed for a hearing, and OCGA § 9–11–6(d), which requires that when a motion is supported by affidavit, the affidavit shall be served with the motion, have been construed together to mean that an affidavit relied on in support of a motion for summary judgment must be on file for at least 30 days prior to the hearing.

(Citations and footnotes omitted.) Cordell v. Bank of North Ga., 295 Ga.App. 402, 405(1)(b), 672 S.E.2d 429 (2008). In this case, neither party requested a hearing on DDR's motion for summary judgment and no hearing was held. Consequently, the 30–day statutory period for filing the affidavit did not apply. See Shropshire v. Alostar Bank of Commerce, 314 Ga.App. 310, 313(2)(a), 724 S.E.2d 33 (2012).

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