335 Ga. App. 659
Ga. Ct. App.2016Background
- Wachovia (merged into Wells Fargo) loaned Executive Aero; 2006 guaranty signed by Paul D’Agnese and a 2008 promissory note for $477,377.74 were executed. Executive Aero defaulted.
- Wachovia/Wells Fargo foreclosed on collateral real property and obtained $140,000 from the sale; Wells Fargo sought a deficiency against Executive Aero and D’Agnese.
- Trial court entered a default judgment against Executive Aero for $468,645.30; Executive Aero did not appeal.
- Wells Fargo moved for summary judgment against D’Agnese; it submitted an officer’s affidavit plus a bank “screen shot” printout showing current principal, interest, and fees owed.
- D’Agnese conceded liability under the guaranty but argued the bank failed to prove damages, contending the screen shot was inadmissible hearsay and an improper summary of voluminous records.
- The trial court awarded damages to Wells Fargo; the Court of Appeals affirmed liability but reversed the damages award and remanded, holding the screen shot did not satisfy requirements for admission as a summary of voluminous records.
Issues
| Issue | Plaintiff's Argument (D'Agnese) | Defendant's Argument (Wells Fargo) | Held |
|---|---|---|---|
| Sufficiency of evidence proving damages | Bank produced only a conclusory screen shot; no underlying business records—damages unproven | Officer affidavit + screen shot from bank records suffices to show current balance | Screen shot alone insufficient; damages not proven for summary judgment |
| Admissibility: business records exception | Screen shot is hearsay and a summary, not a business-record data compilation | Screen shot is a data compilation printout admissible under business-records exception | Screen shot was a summary (not detailed transaction history) and thus not automatically admissible as business records |
| Admissibility: summary of voluminous records (OCGA §24-10-1006) | Even if a summary, bank failed to show underlying records were voluminous or unavailable for convenient court examination | Bank argued underlying records existed in its system and discovery opportunity existed | Bank did not demonstrate underlying records were too voluminous to examine; summary admission requirements unmet |
| Preservation/waiver of hearsay objection | Preserved objection in opposition to summary judgment | Argued objection waived for not moving to strike earlier | Court found D’Agnese sufficiently preserved the hearsay objection |
Key Cases Cited
- Roberts v. Community & Southern Bank, 331 Ga. App. 364 (business-records and summary-admission standards)
- Hanna v. First Citizens Bank & Trust Co., 323 Ga. App. 321 (distinguishing transaction-history reports from balance-only summaries)
- Capital City Developers, LLC v. Bank of North Ga., 316 Ga. App. 624 (screen captures listing current balances treated as summaries)
- Ware v. Multibank 2009-1 RES-ADC Venture LLC, 327 Ga. App. 245 (insufficient certainty of damages on current record does not foreclose future summary adjudication)
- Willis v. Allstate Ins. Co., 334 Ga. App. 540 (appellate burden to cite record; court may exercise discretion when record small)
- Formaro v. SunTrust Bank, 306 Ga. App. 398 (waiver principles for objections to affidavits at summary judgment)
- U-Haul Int’l Inc. v. Lumbermens Mut. Cas. Co., 576 F.3d 1040 (computer printouts may be business records in proper circumstances)
- Rosenberg v. Collins, 624 F.2d 659 (admissibility of computer-generated reports)
- WGNX, Inc. v. Gorham, 185 Ga. App. 489 (printouts from business databases may be admissible as business records)