BARNES, Presiding Judge.
The trial court granted summary judgment to Community & Southern Bank ("Community Bank" or the "Bank") on its claim for breach of a personal guaranty against Oscar Roberts, III, and awarded the Bank damages in the principal amount of $667,486.02, plus accrued and "secondary" interest, late charges, contractual attorney fees, and post-judgment interest. On appeal, Roberts contends that the trial court erred in granting summary judgment to the Bank on the issue of his liability under the guaranty because the underlying debt was invalid as a matter of law, or, at a minimum, there were genuine issues of material fact as to its legal validity. Roberts also contends that the — trial court erred in granting summary judgment to the Bank on the issue of damages because the Bank relied upon an inadmissible "summary" of its business records to prove its damages, and because there was no evidence that the Bank was entitled to an award of "secondary" interest. For the reasons discussed below, we affirm on condition that the damages awarded to Community Bank be reduced to eliminate "secondary" interest and the portion of contractual attorney fees that was predicated on the award of such interest.
Summary judgment is proper if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." OCGA § 9-11-56(c). On appeal from a trial court's grant of summary judgment, we "conduct a de novo review, construing all reasonable inferences in the light most favorable to the nonmoving party." Bank of North Ga. v. Windermere Dev., 316 Ga.App. 33, 34, 728 S.E.2d 714 (2012).
So viewed, the record shows that on June 30, 2009, Roberts executed a promissory note in favor of First National Bank of Georgia ("First National") in the principal amount of $800,500 (the "Note"). The Note provided that the principal balance would be due on June 30, 2010. The Note also set forth the applicable interest rate and when interest would accrue, the basis for assessing late charges, and the method for calculating attorney fees in the event of collection efforts made after a default.
The Note identified the borrower as the estate of Roberts's father (the "Estate"). The Note was signed by Roberts as attorney-in-fact for his mother, the executrix of the Estate. Roberts had conducted negotiations with First National over the terms of the loan for the Estate, and he represented to First National that he had authority to execute the Note on behalf of his mother in her capacity as executrix. Roberts believed that he had authority to act on behalf of his mother in her capacity as executrix based on a power of attorney that had been signed by her in which she named him as her attorney-in-fact (the "Power of Attorney"). Roberts showed the Power of Attorney to First National.
Upon execution of the Note, Roberts received the $800,500 loan from First National and used the money to purchase undeveloped real estate on behalf of the Estate. Although she was not present at the closing on the loan, Roberts's mother knew that he had executed the Note and did not object to him borrowing money to buy property on behalf of the Estate.
On the same day that he executed the Note, Roberts executed a personal guaranty in favor of First National (the "Guaranty"). Roberts "absolutely and unconditionally guarantee[d]" the Estate's payment of the debt owed to First National as evidenced by the Note. Roberts further agreed in the Guaranty that his obligation to repay the debt owed by the Estate would "not be affected by the illegality, invalidity, or unenforceability of any notes or agreements evidencing the debt ... or any other circumstances which make the indebtedness unenforceable against the borrower" and to waive "all defenses and claims that the borrower could assert," except for payment in full.
The Estate ultimately defaulted on the Note, and Roberts did not make any payments to Community Bank on the Guaranty. Following the default, in December 2012, Community Bank brought the present suit on the Note and Guaranty against the Estate and Roberts, seeking the unpaid principal, accrued interest, "secondary interest," late charges, contractual attorney fees, and post-judgment interest.
The Estate and Roberts answered, denying liability. Roberts admitted that he had executed the Note and Guaranty and that Community Bank had not been paid the out-standing balance on the Note. However, Roberts denied that Community Bank was entitled to recover for any alleged breach of the Note and Guaranty. According to Roberts, the Note was invalid because he had lacked the power to bind the Estate, and thus there was no enforceable contract obligating the Bank to repay the debt owed to Community Bank. Because there was no underlying enforceable debt obligation that had to be repaid to Community Bank, Roberts alleged that the Guaranty for that debt was likewise invalid.
In October 2013, Community Bank filed a motion for summary judgment against Roberts.
1. In challenging the trial court's grant of summary judgment to Community Bank on the issue of liability, Roberts contends that the court erred in concluding that, as a matter of law, he was obligated to repay the Note based on the Guaranty. According to Roberts, as guarantor of the Note, he is entitled to assert any defenses that are available to the Estate regarding the enforceability of the Note. And, Roberts argues, the Note is unenforceable as a matter of law, or, at a minimum, there is a genuine issue of material fact regarding its enforceability. Specifically, Roberts argues that the underlying debt and Note are invalid and unenforceable because he lacked power to bind the Estate, given that he was never appointed to serve as legal representative of the Estate by the probate court, and given that the Power of Attorney executed by his mother allegedly did not authorize him to act on her behalf in her capacity as executrix of the Estate. Roberts also argues that the Note is null and void because the probate court never authorized the Estate to borrow money.
We are unpersuaded by Roberts's arguments because under the terms of the
In the Guaranty, Roberts agreed to the following:
(Emphasis supplied.) Roberts further agreed:
(Emphasis supplied.)
In light of these clear and unambiguous provisions of the Guaranty, Roberts waived his right to assert any defense available to the Estate pertaining to the illegality, invalidity, or unenforceability of the underlying debt and Note. Accordingly, the express terms of the Guaranty precluded Roberts from challenging the underlying debt and Note on the ground that he lacked authority to bind the Estate, or from arguing that the Note was invalid because the probate court never authorized the Estate to borrow money. The trial court therefore did not err in granting summary judgment to Community Bank on the issue of Roberts's liability for the underlying debt and Note under the terms of the Guaranty. See, e.g., Community & Southern Bank v. DCB Investments, 328 Ga.App. 605, 613-614(2), 760 S.E.2d 210 (2014) (defendants expressly waived any and all defenses to their liability for certain promissory notes); Heath v. Boston Capital Corporate Tax Credit Fund VIII, 253 Ga.App. 537, 539(2), 559 S.E.2d 743 (2002) (defendants expressly waived in their guaranty any right to challenge the validity or enforceability of the underlying transaction giving rise to the guaranty agreement); Vickers, 158 Ga.App. at 438(1), 280 S.E.2d 842 (waiver provision of guaranty precluded guarantor from raising defense that otherwise would have created "an issue of material fact precluding the grant of summary judgment").
2. In challenging the grant of summary judgment to Community Bank on the issue of damages, Roberts contends that the Bank relied upon an inadmissible "summary" of its business records to prove its damages. In support of damages, Community Bank submitted the Melnikoff Affidavit. In his Affidavit, Melnikoff relied on, among other documents, an attached Loan History Report as the basis for his calculations and sought to authenticate it as a business record of Community Bank. Roberts argues, however, that the Loan History Report was a "summary" that was inadmissible and could not be relied upon by Melnikoff because the underlying business records upon which it was based were never made available to him to review for their accuracy. We are unpersuaded because the trial court was entitled to find that
"Admissibility of evidence on motion for summary judgment is governed by the rules relating to form and admissibility of evidence generally." (Citation and punctuation omitted.) Koules v. SP5 Atlantic Retail Ventures, LLC, 330 Ga.App. 282, 285(2), 767 S.E.2d 40 (2014). "Affidavits purporting to establish the amount of a debt without accompanying business records, where appropriate, are insufficient" to sustain summary judgment. (Punctuation and footnote omitted.) Walter R. Thomas Assoc. v. Media Dynamite, 284 Ga.App. 413, 415(1), 643 S.E.2d 883 (2007). Creating an exception to the hearsay rule for business records, Georgia's new evidence code provides:
OCGA § 24-8-803(6).
Georgia's new evidence code also allows for the admission of summaries of voluminous business records under certain circumstances. OCGA § 24-10-1006 provides in relevant part:
As made clear by the plain language of the statute, one of the requirements for the admission of a summary is that the underlying records upon which the summary is based must be made accessible to the other parties for examination or copying. See Hanna v. First Citizens Bank & Trust Co., 323 Ga.App. 321, 328-329(4), 744 S.E.2d 894 (2013).
Capital City Developers stands for the proposition that a document that simply lists the current balance, accrued interest, and fees owed on a bank loan at the time of the litigation is not a business record but rather a "summary." See Hanna, 323 Ga.App. at 328(4), 744 S.E.2d 894 (citing Capital City Developers and concluding that "a printout of a screen-capture listing the current balance, accrued interest, late charges, loan fees, and last payment" was a "summary" of current amounts owed rather than an original business record). In contrast, we have treated reports that provide a detailed transaction history of a loan as business records, not as summaries. See Dawson Pointe, LLC v. SunTrust Bank, 312 Ga.App. 338, 339, 718 S.E.2d 570 (2011) (trial court acted within its discretion in admitting "document setting forth the history of the loan" as a business record); Kensington Partners, LLC v. Beal Bank Nevada, 311 Ga.App. 196, 199(3), 715 S.E.2d 491 (2011) (business records attached to affidavit of bank portfolio manager, including "payment history" for the loan, supported trial court's grant of summary judgment to bank); Ishak v. First Flag Bank, 283 Ga.App. 517, 519, 642 S.E.2d 143 (2007) (trial court acted within its discretion in admitting "loan history report [that] itself included the effective date and the entered date for each of the transactions listed" as a business record) (punctuation omitted). Although these cases were decided under Georgia's former evidence code, we discern no basis for departing from their logic here. Moreover, our treatment of loan or payment history reports as business records in those cases is consistent with the fact that the business records exception specifically allows for the admission of a "data compilation, in any form," OCGA § 24-8-803(6), and a trial court is entitled to exercise its discretion and find that such reports fall within the "data compilation" category of business records. See generally Rosenberg v. Collins, 624 F.2d 659, 665 (5th Cir.1980) (holding that "computer data compilations may be business records themselves, and should be treated as any other record of regularly conducted activity"); WGNX, Inc. v. Gorham, 185 Ga.App. 489, 490(2)(a), 364 S.E.2d 621 (1988) (holding that "computer printout of a list of the dates on which the commercials [at issue] aired and the cost of each airing" was properly admitted as business record).
In contrast to the document at issue in Capital City Developers, the Loan History Report at issue here provided a description of each transaction relating to the Estate's loan from its inception, along with a corresponding "posting date" for each transaction, the transaction amount, and any change to the principal balance resulting from the transaction. Thus, the Loan History Report, like the loan or payment history reports discussed in previous cases, was admissible as a business record. See Dawson Pointe, LLC, 312 Ga.App. at 339, 718 S.E.2d 570; Kensington Partners, LLC, 311 Ga.App. at 199(3), 715 S.E.2d 491; Ishak, 283 Ga.App. at 519, 642 S.E.2d 143.
In reaching this conclusion, we reject Roberts's additional argument that the Loan History Report must be treated as a summary, rather than an a business record, because some of the transactions listed on the
3. Lastly, Roberts contends that the trial court erred in granting summary judgment to Community Bank on the issue of damages because the Bank provided insufficient proof that, in addition to accrued interest, $84,040.55 in "secondary" interest was owed on the underlying debt. Roberts maintains that the Note and other business records of Community Bank make no mention of and provide no basis for an award of "secondary" interest.
Community Bank concedes that the judgment should be reduced to eliminate the "secondary" interest and the portion of attorney fees predicated on the award of such interest. Accordingly, we affirm on condition that the trial court reduce the judgment to reflect the amount conceded by Community Bank to be the correct sum. See AKA Mgmt. v. Branch Banking & Trust Co., 275 Ga.App. 615, 621(3), 621 S.E.2d 576 (2005); English Restaurant v. A.R. II, 194 Ga.App. 639, 642(3), 391 S.E.2d 462 (1990).
Judgment affirmed on condition.
BOGGS and BRANCH, JJ., concur.