ADAMS, Judge.
Chip Patterson signed a guaranty for a restaurant lease, and when the tenant failed to pay, Bennett Street Properties, L.P., the landlord, unsuccessfully sought to collect on the guaranty. Bennett Street then brought suit to enforce the guaranty, and after discovery, the trial court granted summary judgment in its favor and denied Patterson's cross-motion for summary judgment. Patterson appeals.
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). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245(1), 577 S.E.2d 564 (2003).
Construing the facts in favor of Patterson for purposes of analyzing the summary judgment granted against him, the record
Appellant Patterson founded and is the chief executive officer of a company that manages parking services; the company has about 1,500 employees across the country. On behalf of that business, Patterson has signed at least 100 parking service agreements. Nevertheless, he testified that he does not usually read documents before signing them.
In the 1990s, Patterson met and became friends with Anthony LaRocco, a restaurateur, while providing parking services to a restaurant run by LaRocco near the Bennett Street Premises. That restaurant ceased operating in about 2006, and, approximately one month before Christmas 2007, LaRocco asked Patterson to lend him $250,000 in connection with opening a new restaurant named Vita at the Bennett Street Premises; Patterson knew that LaRocco was "broke" at the time. The two discussed the plans for the restaurant, including the restaurant concept, the menu, and what the revenue and expense projections were. Part of Patterson's "research, [or] due diligence," was his knowing LaRocco. In addition, LaRocco gave Patterson a one-page proforma about the business, as well as the proposed menu. Patterson testified that he obtained legal advice relative to the documents. During this process, Patterson also received a copy of a lease for the proposed restaurant: He averred, "At some point, I did get the lease, yes." Patterson was asked specifically, "But did you ever have a copy of the Vita—of the lease that Vita was going to enter into?" Patterson responded, "At some point, yes."
Meanwhile, prior to the closings, LaRocco called Patterson on or the day before December 24, 2007 and told him that Bennett Street would not let him open the restaurant without Patterson signing a guaranty.
Patterson did not attend the December 27, 2007 closing, but the signed guaranty was presented to Bennett Street with all five pages and Patterson's original signature. Partly in reliance on that guaranty, Bennett Street consummated the agreement to assign the lease to LaRocco. At the same closing,
Patterson's loan to Vita, which actually came from a family trust, closed on January 4, 2008. LaRocco personally guaranteed the loan in favor of Patterson's family trust.
Vita defaulted on its obligations under the lease. Months after the transaction, Patterson and LaRocco met with Jack Brown, a representative of Bennett Street, in an attempt to "let him know the business couldn't support the rent that was in the lease"; in other words, to attempt to renegotiate the lease. Those talks failed, Patterson eventually failed or refused to respond to a demand to make good on the guaranty, and this suit followed.
On cross-motions for summary judgment, the trial court found as undisputed fact, among other things, that as of 2007, Bennett Street was the landlord and Atlanta's Best Dining Bennett, Inc. (ABDB) was the tenant of the relevant premises pursuant to the 1989 lease; that LaRocco asked his friend Patterson, an experienced businessman, who had already loaned $250,000 in connection with opening Vita, to sign the guaranty that had been prepared by Bennett Street; that Patterson signed it on December 24, 2007 without reading it or discussing it with anyone; that on December 27, the signed guaranty was brought to the closing and the transaction closed, which included an assignment of the lease to LaRocco and an amendment to that lease; that the lease was then assigned to Vita which later defaulted; and that Bennett Street made demand on Patterson under the guaranty, but Patterson refused to pay. Our review of the briefs and record shows that the facts found by the trial court as recited in this paragraph are not in dispute. The trial court concluded that Patterson's legal arguments were not persuasive, and, accordingly, it found as a matter of law that the guaranty is valid and binding on Patterson. It therefore granted summary judgment in favor of Bennett Street and denied Patterson's cross-motion. The court also made a ruling on damages that will be further discussed below.
1. Patterson contends the guaranty does not comply with the Statute of Frauds, which requires a promise to answer for the debt of another to be in writing and signed by the party to be bound. See OCGA § 13-5-30(2). More specifically, he contends the guaranty does not satisfy the requirement that the writing must "identify the debt, the principal debtor, the promisor, and the promisee. [Cits.]" John Deere Co. v. Haralson, 278 Ga. 192, 193, 599 S.E.2d 164 (2004).
Here, the guaranty specifically identifies the debt as the obligations of the tenant under the January 20, 1989 lease for a portion of the building located at 2110 Peachtree Road, commencing on December 24, 2007 and terminating on December 31, 2010. The guaranty makes clear that the obligations of the tenant may be changed or altered without notice to the guarantor and assigned without effect on the guaranty. The guaranty specifies that ABDB has assigned to LaRocco its interest in the lease, which, when read with the remainder of the guaranty, can only be read to mean the interest of the tenant. Thus, based solely on the plain reading of the agreement, the guaranty identifies the debt as the obligations of the tenant under the specified 1989 lease, as assigned to LaRocco, for a three-year period running from December 24, 2007 to December 31, 2010.
The assignment contemplated in the guaranty occurred on December 27, 2007, and it is documented by a written agreement of that date entitled "Assignment of Leasehold Estate Assumption Agreement and Bill of Sale" (the "2007 Assignment"). The 2007 Assignment explains that the landlord and LaRocco were agreeing to a "Fourth Amendment" to the lease and that "in the event of any conflict between the original lease and prior amendments, with the Fourth Amendment, that the Fourth Amendment shall control." The 2007 Assignment itemizes the amendments and modifications to the original lease.
Under the rules of construction applicable when addressing the Statute of
Here, both the 2007 Assignment to LaRocco and the Fourth Amendment to the 1989 lease were signed on December 27, 2007, three days after Patterson signed the guaranty. The terms of the guaranty itself (without relying on parol evidence) show that an assignment of the 1989 lease from ABDB to LaRocco was contemplated as a part of the same transaction as the guaranty; indeed, the guaranty states that it was a "condition precedent to the Landlord's consent to the assignment...." See LaFarge, 307 Ga.App. at 771(2), 706 S.E.2d 131 (in order to construe contemporaneous writings together, they must be made in the course of the same transaction). And Patterson agreed to guaranty the tenant's obligations even if the lease were further amended or assigned. See generally Brzowski v. Quantum Nat. Bank, 311 Ga.App. 769, 771(1), n. 7, 717 S.E.2d 290 (2011) (a person may guarantee present and future debts of the debtor); Pendley v. Stewart, 116 Ga.App. 327, 329-330(3), 157 S.E.2d 511 (1967) ("one can execute a contract of guaranty making himself liable for future debts to be incurred by another"). Further, writings may be considered contemporaneous even when they are not executed on the same day as long as they are part of the same transaction. See Dabbs v. Key Equip. Finance, 303 Ga.App. 570, 574, 694 S.E.2d 161 (2010) (The word "contemporaneous" "does not connote perfect or absolute coincidence in point of time."). Finally, even though the guaranty refers to the assignment as having already occurred, there is no question that the 2007 Assignment is the assignment to which the guaranty refers. See Senske v. Harris Trust & Sav. Bank, 233 Ga.App. 407, 410(1), 504 S.E.2d 272 (1998) (where guaranty plainly shows to which document it refers, a minor error in a reference to the second document is not fatal). Accordingly, the guaranty and the 2007 Assignment, along with the Fourth Amendment,
When read together, these documents identify the principal debt as required by the Statute of Frauds. In addition, the guaranty sufficiently identifies the principal debtor as LaRocco, and it provides that Patterson consented to any subsequent assignment. Finally, the guaranty identifies Patterson as the promisor and Bennett Street as the promisee. We therefore conclude that the trial court did not err by holding that the Statute of Frauds does not bar Bennett Street's claim on the guaranty. "The statute of frauds is `for the prevention of frauds and perjuries.' [Cit.]" John Deere, 278 Ga. at 194, n. 2, 599 S.E.2d 164. Under the facts of this case, the harm sought to be avoided by the Statute of Frauds does not exist.
The case of Avec Corp. v. Schmidt, 207 Ga.App. 374, 427 S.E.2d 850 (1993), is not controlling. In that case, the guaranty only referred to a lease dated February 10, but there was no lease with that date, and the guaranty and a lease of a different date were internally inconsistent. Unlike in Avec, in this case the guaranty shows on its face that the 2007 Assignment was a part of the same transaction. Dabbs v. Key Equip. Finance is also distinguishable on the facts. In that case, the guaranty referred only to an "agreement," yet there were three leases with the same date as the guaranty. Therefore, without parol evidence, it could not be shown which lease was a part of the same transaction as the guaranty. Dabbs, 303 Ga. App. at 575, 694 S.E.2d 161. See also LaFarge,
2. Patterson contends the trial court erred by granting summary judgment against him on the guaranty because there is an issue of fact as to whether he signed the complete five-page guaranty that Bennett Street seeks to enforce or a version that was missing one page. But undisputed evidence shows that Bennett Street's attorney Duncan drafted the guaranty with five pages and faxed all five pages to LaRocco's attorney; that LaRocco gave the document to Patterson who signed it; that neither Patterson nor LaRocco claims that the document had four pages when Patterson signed it
3. Patterson also contends the guaranty cannot be enforced because it was altered after he signed it, thereby voiding the agreement. The undisputed evidence shows that at the closing on December 27, 2007, Duncan added handwritten language to Paragraph 1, and LaRocco's attorney initialed the change "CP," meaning Patterson, who was not present. Paragraph 1 contains the main guaranty, which provides that Patterson guarantees the obligations of the tenant under the lease. Paragraph 12 of the guaranty only states the term of the agreement: "This Guaranty and the obligations of the Guarantor shall apply to all obligations of Assignee as the tenant under the Lease commencing on the date hereof and terminating on December 31, 2010." At the end of Paragraph 1, LaRocco's attorney simply added the following: "subject to the limitation in Paragraph 12."
Patterson's claim fails because he has not shown that the change materially altered the agreement.
OCGA § 13-4-1. Here, the guaranty was already limited by the term specified in Paragraph 12. Accordingly, the meaning of the guaranty was not changed by the handwritten entry, and therefore the agreement is not void. See, e.g., Price v. Mitchell, 154 Ga.App. 523, 526(2), 268 S.E.2d 743 (1980) (alteration that neither adds nor takes away from the agreement "is merely `surplusage' and not `material'" and cannot therefore create an issue for the jury).
4. Finally, Patterson contends the trial court erred with regard to damages. Patterson's two arguments are that the trial court erred by admitting an alleged business record as an exception to the hearsay rule and that the document is incomplete on its face and therefore inadequate to establish the
With its motion for summary judgment, Bennett Street submitted two affidavits of its managing partner Jack Brown. In those affidavits, Brown averred that he was personally familiar with the books and records of Bennett Street and its method of keeping records; that it was and is the regular course of business for Bennett Street "to make a memorandum or record of [the relevant] acts, events, transactions and occurrences at the time of their occurrence, or within a reasonable time thereafter"; and that he knew that the attached, one-page "Customer Balance Detail" was made in the regular course of Bennett Street's business. He did not aver that the document was computer generated or state when it was made. The undated document has Bennett Street's name at the top; it indicates that it pertains to Vita, LLC; it purports to list "all transactions"; it shows invoices and payments from July 31, 2009 through April 6, 2010, and it reflects a total balance of $197,221.76.
The type of writing admissible as a hearsay exception under the business records exception is "[a]ny writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event...." OCGA § 24-3-14. The record submitted by Bennett Street is not such a record; it is a summary of such records. It was not made at the time of those transactions; it was clearly printed sometime after April 6, 2010, yet it purportedly represents the amount owed on a lease whose term commenced on January 1, 2008.
In order for summaries to be admitted, the underlying records must be available to the court and the parties:
Morris v. Nat. Western Life Ins. Co., 208 Ga.App. 443, 444, (1)(c), 430 S.E.2d 813 (1993). See, e.g., Walter R. Thomas Assocs. v. Media Dynamite, 284 Ga.App. 413, 417(1)(b), 643 S.E.2d 883 (2007) (summary of invoices admissible given that invoices themselves were admitted). Compare E.H. Crump Co. of Ga. v. Millar, 200 Ga.App. 598, 600(3), 409 S.E.2d 235 (1991) (summary of commissions under an employment agreement created for use in litigation was not made in the regular course of business and was not admissible as evidence on summary judgment); Wickes Lumber v. Energy Efficient Homes, 157 Ga.App. 303, 277 S.E.2d 298 (1981) (monthly account statement was itself an admissible business record). Our search of the record reveals no underlying business records were available to the court or Patterson.
We accordingly find that the trial court abused its discretion by considering the one-page summary of the amount owed under the lease in determining the damages to be awarded. In sum, we affirm the judgment as to liability but reverse the award of damages and remand for further proceedings consistent with this opinion.
Judgment affirmed in part and reversed in part, and case remanded.
BLACKWELL, J., concurs in Divisions 1, 2 and 3, and in the judgment.
The trial court held that LaRocco's affidavit failed to raise an issue of material fact as to the principal indebtedness with the exception of the asserted $49,500 credit. It therefore granted summary judgment in the amount of $147,721.76, because that amount was undisputed but denied summary judgment regarding the asserted credit.