TRIPLE T-BAR, LLC Et Al. v. DDR SOUTHEAST SPRINGFIELD, LLC
330 Ga. App. 847
Ga. Ct. App.2015Background
- Triple T-Bar leased commercial premises in Nov. 2006; Todd and Barbara Blackwell signed the lease as Triple T-Bar representatives and executed a separate personal guaranty incorporated into the lease.
- Inland Southeast Springfield, LLC was the original landlord; DDR acquired Inland in Feb. 2007 and became landlord/successor in interest.
- Triple T-Bar stopped paying rent (checks returned Apr. 2007; missed rent in 2008; last payment Oct. 2008) and vacated the premises in Feb. 2009 in breach of the lease.
- DDR obtained a consent judgment against Triple T-Bar, then sued the Blackwells on the guaranty and moved for summary judgment against them.
- DDR initially submitted an affidavit that failed to establish business-records foundation, then filed a second affidavit from its assistant general counsel curing the foundation defects; the trial court granted summary judgment and the Blackwells appealed.
Issues
| Issue | Plaintiff's Argument (Blackwells) | Defendant's Argument (DDR) | Held |
|---|---|---|---|
| Admissibility of lease and guaranty as business records | Second affidavit was untimely; initial affidavit insufficient to authenticate records | Second affidavit established record-keeping familiarity and successor-authentication; records admissible | Court: Second affidavit cured foundation; trial court properly considered it; records admitted |
| Applicability of OCGA timing rules for affidavits | Affidavit must be served with motion and on file 30 days before hearing | No hearing was requested; affidavit was filed months before judgment; no surprise to defendants | Court: Timing rule did not bar consideration where no hearing occurred and court may exercise discretion |
| Enforceability of guaranty under Statute of Frauds | Guaranty incomplete (no date, not initialed on every page, not notarized); Blackwells did not intend personal liability | Guaranty is written, signed by guarantors, identifies parties and obligations, and was incorporated into lease | Court: Guaranty satisfied Statute of Frauds and is enforceable; Blackwells personally liable |
| Successor’s right to enforce predecessor’s records/rights | (implied) DDR lacked standing to authenticate predecessor’s records | DDR, as successor by merger, may authenticate and enforce predecessor’s lease and guaranty | Court: Successor may authenticate predecessor records; DDR entitled to enforce guaranty |
Key Cases Cited
- Angel Business Catalysts, LLC v. Bank of the Ozarks, 316 Ga. App. 253 (discussing summary judgment standard and admissibility of business records)
- Ware v. Multibank 2009-1 RES-ADC Venture, LLC, 327 Ga. App. 245 (employees of successor can authenticate predecessor business records)
- Nalley Northside Chevrolet v. Herring, 215 Ga. App. 185 (affidavit insufficient where affiant lacked knowledge of record-keeping practices)
- Cordell v. Bank of North Ga., 295 Ga. App. 402 (timing requirements for affidavits supporting summary-judgment motions explained)
- Shropshire v. Alostar Bank of Commerce, 314 Ga. App. 310 (no 30-day rule application where no hearing requested)
- Lafarge Bldg. Materials, Inc. v. Thompson, 295 Ga. 637 (Statute of Frauds requirements for guaranties)
- C.L.D.F., Inc. v. Aramore LLC, 290 Ga. App. 271 (guaranty contemporaneously executed and incorporated into lease is enforceable)