FOURTH DIVISION

DOYLE, P. J.,

MILLER and DILLARD, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

March 2, 2015

In the Court of Appeals of Georgia

A14A2282. TRIPLE T-BAR, LLC d/b/a FINAL MARKDOWN et

al. v. DDR SOUTHEAST SPRINGFIELD, LLC.

MILLER, Judge.

DDR Southeast Springfield, LLC (“DDR”), as successor in interest, filed suit

to recover the outstanding balance on an lease agreement executed by Triple T-Bar,

LLC, and guaranteed by Todd and Barbara Blackwell. After the trial court entered a

consent judgment against Triple T-Bar, DDR moved for summary judgment on the

ground that the Blackwells were personally liable under the guaranty. The trial court

granted DDR’s motion, and the Blackwells appeal, contending that the trial court

erred in granting DDR’s motion for summary judgment because DDR failed to

establish that the lease agreement and guaranty were admissible businessrecords and
there were questions of fact as to whether the guaranty was enforceable.

1 For the

reasons set forth below, we affirm.

“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. We review the grant of

summary judgment de novo, construing the evidence in favor of the nonmovant.”

(Citation omitted.) Angel Business Catalysts, LLC v. Bank of the Ozarks, 316 Ga.

App. 253, 254 (728 SE2d 854) (2012).

So viewed, the evidence shows that in November 2006, Triple T-Bar entered

into an agreement with Inland Southeast Springfield, LLC (“Inland”), to lease a

commercial property in Lawrenceville until February 2012. The lease was signed by

both Blackwells as representatives of Triple T-Bar, the Blackwells were identified in

the lease asthe guarantors, and the Blackwells’ personal guaranty was attached to the

lease and incorporated therein by reference. The guaranty cross-referenced the lease

agreement, again identified the Blackwells as the guarantors, and also identified

Inland as the landlord and Triple T-Bar as the tenant. In February 2007, DDR

acquired Inland and became the landlord of the property. 

1

 The judgment against Triple T-Bar is not challenged. 

2
In April 2007, Triple T-Bar’srent payment check wasreturned for insufficient

funds. Triple T-Bar then failed to pay rent for the months of April 2008 and

September 2008, and it made itslast rent payment in October 2008.In February 2009,

Triple T-Bar closed its business operations and vacated the premises without DDR’s

consent, in violation of the lease agreement. When Triple T-Bar failed to re-open for

business and pay past due rent as DDR requested, DDR filed suit against the

Blackwells and Triple T-Bar. 

1. The Blackwells contend that the trial court erred in granting summary

judgment to DDR because DDR did not lay a foundation to admit the lease and the

guaranty into evidence. We discern no error.

Under OCGA § 24-8-803, businessrecords may be admissible as an exception

to the hearsay rule. The statute provides that

a memorandum, report, record, or data compilation, in any form, of acts,

events, conditions, opinions, or diagnoses, if (A) made at or near the

time of the described acts, events, conditions, opinions, or diagnoses;

(B) made by, or frominformation 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 wasthe regular practice

of that business activity to make the memorandum, report, record, or

data compilation, all asshown by the testimony of the custodian or other

qualified witness[.]

OCGA § 24-8-803 (6).

3
In support of its summary judgment motion filed on May 24, 2013, DDR

submitted the affidavit of its assistant general counsel and attached to the affidavit the

lease agreement and the guaranty. In her affidavit, the assistant general counsel

offered no testimony establishing her familiarity with DDR’s method of keeping

business records, her personal knowledge about any of the transactions, or that the

lease and guaranty were made in the regular course of business. As a result, DDR’s

assistant general counsel failed to lay a proper foundation in her initial affidavit to

admit the lease and the guaranty as business records. See, e.g., Nalley Northside

Chevrolet v. Herring, 215 Ga. App. 185, 186-187 (3) (450 SE2d 452) (1994) (records

attached to affidavit should not have been admitted as businessrecords where affiant

offered no testimony establishing his knowledge with the business’s method of

keeping records or about the transactions, and provided no facts showing that the

entries were made in the regular course of business).

Nevertheless, in a reply brief in support of its motion for summary judgment,

DDR attached a second affidavit from its assistant general counsel that cured the

defects in her initial affidavit. Notably, in her second affidavit, the assistant general

counsel averred that she was familiar with DDR’s record keeping, lease files were

maintained in DDR’s regular course of business, and DDR acquired the lease

4
agreement in this case after merging with Inland. “[E]mployees of successor entities

can authenticate business records of their predecessor entities that pass to them by

virtue of merger.” (Citation and punctuation omitted.) Ware v. Multibank 2009-1

RES-ADC Venture, LLC, 327 Ga. App. 245, 249 (2) (758 SE2d 145) (2014); see also

Angel Business Catalysts, supra, 316 Ga. App. at 255-256 (1) (holding that, when

“routine, factual documents made by one business are transmitted and delivered to a

second business and there entered in the regular course of business of the receiving

business, such documents are admissible” as businessrecords). Thissecond affidavit

was sufficient to lay a foundation. Therefore, the lease agreement and attached

guaranty were properly admitted as business records.

The Blackwells argue that the trial courtshould not have considered the second

affidavit because it was not timely filed. 

OCGA § 9-11-56 (c), which requires that a motion for summary

judgment be served at least 30 days before the time fixed for a hearing,

and OCGA § 9-11-6 (d), which requiresthat when a motion issupported

by affidavit, the affidavit shall be served with the motion, have been

construed together to mean that an affidavit relied on in support of a

motion for summary judgment must be on file for at least 30 days prior

to the hearing. 

(Citations and footnotes omitted.) Cordell v. Bank of North Ga., 295 Ga. App. 402,

405 (1) (b) (672 SE2d 429) (2008). In this case, neither party requested a hearing on

5
DDR’smotion forsummary judgment and no hearing was held. Consequently, the 30-

day statutory period for filing the affidavit did not apply. See Shropshire v. Alostar

Bank of Commerce, 314 Ga. App. 310, 313 (2) (a) (724 SE2d 33) (2012).

Nevertheless, the requirement under OCGA § 9-11-6 (d) that an affidavit

supporting a motion be served contemporaneously with the motion “is to ensure that

the other side has adequate notice of and opportunity to respond to such evidence.”

(Citation and punctuation omitted.) Alcatraz Media v. Yahoo!Inc., 290 Ga. App. 882,

884-885 (1) (b) (660 SE2d 797) (2008). However, “[t]rial courts may consider

affidavits which are not filed or served within the time limits contemplated by the

statutes, and it is not necessary to note the exercise of discretion on the record.”

(Citations and footnotes omitted.) Kropp v. Roberts, 246 Ga. App. 497, 499 (540

SE2d 680) (2000).

Here, DDR submitted its second affidavit on July 29, 2013, and the trial court

entered itssummary judgment order on March 25, 2014. It is apparent that in granting

summary judgment to DDR, the trial court considered the second affidavit because

it stated that it had the briefs of the parties, all other pleadings in the case, and the

record before it. Since DDR submitted the second affidavit almost eight months

before the entry of the summary judgment order, the Blackwells were not surprised

6
by its filing. In the absence of evidence in the record to the contrary, we must

presume the trial court acted correctly. See Shropshire, supra, 314 Ga. App. at 314

(2) (a). Therefore, no error has been shown by the trial court’s consideration of the

second affidavit.

2. The Blackwells also contend that the trial court erred in granting summary

judgment to DDR because the guaranty is incomplete and the Blackwells did not

intend to be personally liable for the lease. The Blackwells’ claim has no merit.

“Under Georgia’s Statute of Frauds, a personal guaranty of a debt is not

enforceable unless it is in writing, is signed by the party being charged as the

guarantor, and identifies the debt, the principal debtor, the promisor, and the

promisee.” (Citations omitted.) Lafarge Bldg. Materials, Inc. v. Thompson, 295 Ga.

637, 639 (2) (763 SE2d 444) (2014); see also OCGA § 13-5-30 (2) (“A promise to

answer for the debt, default, or miscarriage of another” is not binding on the promisor

unless it is in writing and signed by the promisor.).

Here, the lease and guaranty both identify the Blackwells asthe guarantors; the

guaranty was incorporated into the lease; and the guaranty provided that it served as

an inducement for Inland to enter into the lease, asInland would not have entered into

7
the lease with Triple T-Bar had the Blackwells not executed the guaranty. The

guaranty also provided that the Blackwells

absolutely, unconditionally, and irrevocably guarantees to [Inland] . . .

the full and punctual performance and observance by [Triple T-Bar] of

all the terms, conditions, covenants, and obligationsto be performed and

observed by [Triple T-Bar] under the Lease . . . including, without

limitation, the payment as and when due, whether by acceleration or

otherwise, of all Minimum Rent and Additional Rent (both as defined

in the Lease) and any other sums payable by [Triple T-Bar] under the

Lease[.]

The guaranty further provided that it was a continuing obligation that could not be

impaired, diminished, or terminated for any reason. 

The Blackwells’ argument that the guarantyis unenforceable because it was not

dated is meritless because the guaranty provided that it was executed

contemporaneously with the lease, which was signed on November 8, 2006. The

Blackwells further argue that the guaranty is not enforceable because they did not

initial every page and the document was not notarized, but they point to no authority

holding that these omissions render the guaranty unenforceable. The Blackwells’

signatures are plainly on the guaranty and the signatures are not alleged to be forged.

Therefore, the Blackwells are charged with knowledge of and are bound by the terms

8
of the guaranty. See Megel v. Donaldson, 288 Ga. App. 510, 516 (5) (654 SE2d 656)

(2007).

Given that the guaranty was in writing, it identified all of the essential parties

and obligations, and the Blackwells signed the guaranty, there is no question of fact

that DDR, as the successor in interest to the promisee, was entitled to enforce the

guaranty and hold the Blackwells personally liable for Triple T-Bar’s debt. See

C.L.D.F. Inc. v. Aramore LLC, 290 Ga. App. 271, 273-274 (1) (659 SE2d 695) (2008)

(concluding that the guaranty contemporaneously executed and incorporated into

lease was enforceable). Accordingly, the trial court properly granted summary

judgment to DDR.

Judgment affirmed. Doyle, P. J., and Dillard, J., concur.

9