MASHBURN CONSTRUCTION, L.P. et al.
ANDREWS, J. RAY and REESE, JJ.
action seeking a deficiency judgment on a note following a
foreclosure sale, the trial court granted summary judgment to
CharterBank and against Mashburn Construction, L.P., and two
guarantors of the note, Ray Mashburn and Philip Denney. On
appeal, Mashburn Construction and the guarantors
(collectively, "Appellants") contend that the trial
court's evidentiary rulings constituted error and that
jury issues existed as to whether CharterBank
("Appellee") was entitled to a deficiency judgment
and, if so, the amount to which it was entitled. For the
reasons set forth, infra, we affirm in part and reverse in
part, and remand this case for further proceedings.
in the light most favorable to Appellants, as the parties
opposing summary judgment,  the record shows the following
facts. In June 2007, Mashburn Construction borrowed $958, 690
from McIntosh Commercial Bank ("MCB"). Mashburn and
Denney executed unconditional personal guarantees of the
note. In addition, the note was secured by real property in
Construction defaulted on the note, and Appellee, as
MCB's successor-in-interest, instituted foreclosure
proceedings. On September 7, 2010, the property was
sold at a foreclosure sale for $725, 000. Appellee filed a
petition to confirm the sale in the Fulton County Superior
Court, pursuant to OCGA § 44-14-161 (a). The Fulton County
court conducted a hearing on the petition and confirmed the
sale,  finding, inter alia, that the sales price
was at least equal to the true market value of the property
at the time of the sale.
then filed the instant action, seeking a deficiency judgment
against Appellants for the difference between the amount they
owed on the note and the proceeds from the foreclosure sale.
After Appellants answered the complaint and denied any
further liability on the note, Appellee filed a motion for
summary judgment. Appellee supported its motion with the
affidavit of its manager, James Chandler. Attached to
Chandler's affidavit were several documents, including
one (hereinafter, "Exhibit G") generated from
MCB's computerized account record for the note that
showed the payment history for the note since its inception.
Also attached to the affidavit was a daily interest
calculation on a spreadsheet ("Exhibit H") that was
produced by Appellee and showed the principal and interest
due and payable on the note, as well as the variable interest
rate that applied each day during the term of the note.
opposition to the motion for summary judgment, Appellants
asserted, among other things, that Appellee had failed to
present competent evidence of the amount due on the note
because Exhibit H contained errors and constituted
inadmissible hearsay. In response, Appellee submitted a
second affidavit by Chandler in which he admitted that there
were incorrect calculations in Exhibit H, explaining that the
proceeds of the foreclosure sale should have been applied to
interest charges first. According to this second affidavit,
Chandler had corrected the "typo" in Exhibit H and
had created a revised spreadsheet, which was attached to the
affidavit ("Exhibit O"). In addition, Chandler
attached to the affidavit a new document ("Exhibit
P") showing the loan transaction history with all
interest rate changes since the note's inception.
conducting a motion hearing,  the trial court granted summary
judgment to Appellee, awarding it $581, 420 in principal and
interest, plus accrued interest, late charges, and attorney
fees. This appeal followed.
In order to prevail on a motion for summary judgment under
OCGA § 9-11-56, the moving party must show that there
exists no genuine issue of material fact, and that the
undisputed facts, viewed in the light most favorable to the
nonmoving party, demand judgment as a matter of law.
Moreover, on appeal from the denial or grant of summary
judgment[, ] the appellate court is to conduct a de novo
review of the evidence to determine whether there exists a
genuine issue of material fact, and whether the undisputed
facts, viewed in the light most favorable to the nonmoving
party, warrant judgment as a matter of law.
these guiding principles in mind, we turn now to
Appellants' specific claims of error.
Appellants contend that the trial court erred when it
disregarded evidence that, prior to the foreclosure sale,
Appellee breached an agreement to accept the proceeds of a
"short sale" of the property to a third party and
to forgive the balance of the note. They argue that they
presented evidence during the summary judgment hearing to
show that the agreement provided that, after Appellee
accepted the proceeds of the short sale, it would release its
mortgage on the property and release Appellants from any
further obligations that existed under the note and
guarantees, including any potential deficiency. Appellants
claim that they also showed that Appellee breached the
agreement and improperly proceeded with the September 2010
foreclosure sale. Appellants argue that, because they
presented evidence of Appellee's breach during the
summary judgment hearing, a jury issue existed as to whether
Appellee was estopped from seeking a deficiency judgment for
the balance due on the note.
cannot prevail on this argument, however, because they have
failed to include a transcript of the summary judgment
hearing in the record on appeal. "Without a transcript,
we must assume the trial court had an adequate basis for its
findings, as we cannot assume from a nonexistent transcript
that the trial court failed to consider any relevant evidence
or arguments." Consequently, this alleged error presents
no basis for reversing the trial court's order.
Citing OCGA § 24-8-803 (6), the business records
exception to the hearsay rule, Appellants contend that the
trial court erred in considering Exhibit O, the calculation
of damages attached to Chandler's second affidavit,
because it constituted inadmissible hearsay. Appellants have
failed, however, to show by the record that they raised this
hearsay objection in the court below. The record contains no
motion challenging the admissibility of Chandler's second
affidavit or Exhibit O, and, without a transcript, Appellants
are unable to show that they raised the issue during the
summary judgment hearing. Moreover, the trial court's order
does not include a ruling on the admissibility of
is no more fundamental principle of appellate review than
that preventing consideration of evidentiary objections not
raised before the trial court and contained in the record on
A party alleging error carries the burden of showing it
affirmatively by the record, and when that burden is not met,
the judgment is assumed to be correct and will be affirmed.
It cannot be presumed from a silent or non-existent
transcript of a hearing below that a proper objection was
if a party fails to show that it properly preserved its
hearsay objection, the objection shall be deemed waived, and
the evidence shall be considered legal and
case, Appellants have failed to show that they raised a
hearsay objection to Exhibit O under OCGA § 24-8-803
(6), and that it was overruled by the trial court.
Consequently, this issue is deemed waived for the purposes of
the instant appeal.
Appellants contend that the trial court erred in granting
summary judgment to Appellee, arguing that it failed to ...