The trial court granted summary judgment to Multibank 2009-1 RES-ADC Venture, LLC (“Multibank”) on its complaint for breach of three promissory notes from Reginald B. Ware. On appeal, Ware asserts 12 separate enumerations of error, the majority of which challenge the affidavit submitted in support of Multibank’s motion for summary judgment. For the reasons that follow, we affirm the judgment as to liability on each of the three promissory notes, but reverse the award of damages as to the third note and remand for further proceedings consistent with this opinion.
As an initial matter, we note that Ware’s brief fails to comport with the rules of this Court. It provides no citations to the record,
Given the shortcomings of Ware’s brief, we are authorized to dismiss it. See Court of Appeals Rule 7. However, we choose to exercise our discretion and review the record in this case to resolve the appeal on its merits.
On appeal, Ware asserts various enumerations of error arising from the trial court’s grant of summary judgment to Multibank.
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. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.
(Citation omitted.) Hanna v. First Citizens Bank & Trust Co., Inc.,
Viewed in this light, the record shows that Ware executed a commercial promissory note in favor of Omni National Bank (“Omni”) on December 27, 2006 in the original principal amount of $91,925 (“First Note”).
On August 22, 2012, Multibank brought suit against Ware, seeking the unpaid principal, accrued interest, and contractual attorney
1. In his first two enumerations of error, Ware complains that he was not aware that the hearing held by the trial court would pertain to Multibank’s motion for summary judgment
2. In his third, fourth, fifth, sixth, seventh, and ninth enumerations of error, Ware challenges various aspects of Shah’s affidavit. In her affidavit, Shah sets out her role and personal access to and knowledge of the records created and maintained by Multibank in the ordinary course of business, including the FDIC’s transfer of Omni’s records to Multibank in the ordinary course of business. She also references and authenticates various documents, including the three Notes and their corresponding deeds to secure debt, the omnibus assignments and allonges that transferred the Notes to Multibank from the FDIC as Receiver for Omni, the limited power of attorney executed by the FDIC granting authority to the attorney who executed the assignment documents, and the payment histories for the Notes.
Ware first argues that because Shah was never employed by Omni, she has no personal knowledge of how Omni conducted business or kept its records and therefore is unable to authenticate the records attached to her affidavit. We have consistently rejected similar arguments in the past.
Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness . . . , a memorandum, report, record, or data compilation, in any form ... 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 or by certification ....
OCGA § 24-8-803 (6).
As we understand several of his remaining enumerations of error related to Shah’s affidavit, Ware also calls into question the trustworthiness of the business records relied on by Shah because of the circumstances under which Omni was closed and the FDIC was appointed as Receiver. We are not persuaded. Federal courts that have examined the trustworthiness prong of the business record exception to the hearsay rule have noted that, generally, “bank records are particularly suitable for admission under Rule 803 (6) in light of the fastidious nature of record keeping in financial institutions, which is often required by governmental regulations.” See, e.g., St. Paul Mercury Ins. Co. v. Fed. Deposit Ins. Corp., No. 08-21192-CIV-GARBER,
Although Ware repeatedly refers to the prosecution of certain former Omni executives related to fraudulent schemes to overvalue Omni’s reported assets, he does not argue — much less offer any evidence in support — how those alleged schemes relate specifically to the Notes he executed. Moreover, Ware has not disputed that he is in default on the Notes, nor has he offered any specific dispute as to the amount he owes. Therefore, we decline to accept Ware’s conjectural complaints about the trustworthiness of the documents submitted by Multibank. See St. Paul Mercury Ins. Co.,
And finally, Ware points out that although Shah references the documents within her affidavit and appears to have relied on them in determining the payment amount demanded, she failed to attach the payment history for the Third Note. He therefore argues that her affidavit must fail. We agree, but only to the extent Shah relied on the missing payment history. See, e.g., Powers v. Hudson & Keyse, LLC,
“In an action on a promissory note, a movant may establish a prima facie right to judgment as a matter of law on the issue of liability by producing the promissory note and showing that it was executed.” (Citation and punctuation omitted.) Alexander v. Wachovia Bank, Nat. Assn.,
With respect to the Third Note, however, Multibank’s failure to include the documents referenced by Shah in her affidavit to determine the amount of damages owed by Ware precludes summary judgment on that issue. See Hanna,
3. In his eighth and tenth enumerations of error, Ware complains of the trial court’s failure to “rule on” various interrogatories presumably served on Multibank. Ware wholly fails to support these arguments with either record citations or relevant legal authority.
4. In his eleventh enumeration of error, Ware asserts that the allonges
5. In his final enumeration, Ware contends that the trial court erred by failing to allow a jury trial where he did not expressly waive that right. However, where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law, summary judgment is proper. OCGA § 9-11-56 (c). Because we find that the trial court did not err in granting summary judgment to Multibank as to liability on each of the Notes or as to the damages related to the First and Second Notes, but did err as to its determination of the damages related to the Third Note, we affirm the trial court’s grant of summary judgment in part and reverse in part and remand for further proceedings consistent with this opinion.
Judgment affirmed in part and reversed in part, and case remanded.
Notes
Court of Appeals Rule 25 (a) (1) provides: “Record and transcript citations shall be to the volume or part of the record or transcript and the page numbers that appear on the appellate record or transcript as sent from the trial court.” In addition, Court of Appeals Rule 25 (c) (2) (i) provides: “Each enumerated error shall he supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.”
See Court of Appeals Rule 25 (a) (1).
See Court of Appeals Rule 25 (c) (2); Blanton v. State,
The rules of this court are not intended to provide an obstacle for the unwary or the pro se appellant. Briefs that do not conform to the rules . . . are not merely an inconvenience or grounds for refusing to consider a party’s contentions. Such briefs hinder this court in determining the substance and basis of an appellant’s contentions both in fact and in law and may well prejudice an appellant’s appeal regardless of the amount of leniency shown.
(Citation and punctuation omitted.) Williams v. State,
On March 15, 2007, the First Note was modified to increase the principal balance to $99,925.
Where appropriate, we will refer to the First, Second, and Third Notes collectively as “the Notes.”
Each Note provided for an annual interest rate of 13 percent and attorney fees equal to 15 percent of the principal and interest due in the event of default.
The notice complained of was the trial court’s notice to the parties that the matter was scheduled on the trial calendar beginning April 15, 2013.
Ware does not explain how a failure to rule on Multibank’s request for oral argument prejudiced him. Moreover, at the hearing, Ware admitted that he learned the week before that Multibank’s motion for summary judgment would be considered at that time.
See, e.g., Angel Business Catalysts, LLC v. Bank of the Ozarks,
Because OCGA § 24-8-803 mirrors Rule 803 of the Federal Rules of Evidence, we will look to case law from federal courts within the Eleventh Circuit for guidance in interpreting that statute. See Ga. L. 2011, p. 99, § 1; Barnum v. Coastal Health Svcs.,
We note that although the original principal loan amount in the Third Note was $96,125, Shah alleges in her affidavit that Ware now owes $96,413.38 in unpaid principal without an explanation as to how that amount was determined.
We further note that, based on the record before us, Ware did not file a motion to compel or any other discovery motion related to the complained of interrogatories.
“An allonge is a piece of paper attached to a promissory note on which parties write endorsements for which there is no room on the instrument itself.” (Citation omitted.) Milestone v. David,
“Aparty may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee.” (Citation and punctuation omitted.) Hosch v. Colonial Pacific Leasing Corp.,