Emmett v. Regions Bank
| Decision Date | 26 May 1999 |
| Docket Number | No. A99A0224, No. A99A0225. |
| Citation | 518 S.E.2d 472,238 Ga. App. 455 |
| Parties | EMMETT v. REGIONS BANK (Two Cases). |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Edmund A. Waller, Gainesville, for appellant.
Stewart, Melvin & Frost, Frank Armstrong III, Gainesville, for appellee.
Nolan Emmett, the executor of the estates of Gilbert Lee Cabbage and Florence Irene Cabbage, and Claude Richard Emmett, co-executor of Mrs. Cabbage's estate, sued Regions Bank. The Emmetts asserted that the bank improperly cashed certificates of deposit ("CDs") and a savings account that were jointly held by Mr. and Mrs. Cabbage, and failed to pay the proceeds of Mr. Cabbage's IRA to Mrs. Cabbage.
The bank deposited the proceeds of the IRA into the court registry and moved to interplead Mr. Cabbage's daughter, Brenda Hayes. The disposition of those funds remains pending in the trial court and is not before this court.
The trial court granted summary judgment to the bank as to the CDs and the savings account in both actions. The Emmetts appeal, alleging the court erred in denying their motions to compel and strike, and in granting partial summary judgment to the bank. For the reasons that follow, we affirm.
Mr. and Mrs. Cabbage had been married for approximately 40 years, and each had two children by previous marriages. They jointly held a checking account, a savings account, and two CDs with Regions Bank. Mr. Cabbage also held an IRA and a third CD jointly with Hayes at Regions Bank.
In June 1996, Mrs. Cabbage was diagnosed with pancreatic cancer and a few weeks later she entered a nursing home. On June 17, 1996, Regions Bank transferred approximately $30,000 from the couple's joint savings account into a new account held by Mr. Cabbage and Hayes. On that date the bank also cashed the two CDs held by Mr. and Mrs. Cabbage, worth approximately $14,000 and $25,000, and opened two new CDs held by Mr. Cabbage and Hayes. On June 21, 1996, Hayes transferred the assets listed above into other accounts in her name. On June 24, 1996, Mr. Cabbage died, and Nolan Emmett was appointed executor of his will. On August 26, 1996, Mrs. Cabbage died, and Nolan and Claud Richard Emmett were appointed co-executors of her will.
1. The Emmetts first argue that the trial court erred in denying their motion to compel Regions Bank to produce certain documents. We review the trial court's ruling on discovery matters for abuse of discretion. Mixon v. City of Warner Robins, 214 Ga. App. 519(2), 448 S.E.2d 377 (1994). The Emmetts sought, among other things, a copy of the debit memo withdrawing more than $30,000 from Mr. and Mrs. Cabbage's joint savings account and copies of all checks written on the checking and savings accounts for April through July of 1996. Regions Bank responded to the motion by producing copies of some of the items requested, but not all, indicating that some items could not be found, such as the debit memo showing the savings account withdrawal. Regions Bank also submitted affidavits by its bookkeeping supervisor and two bookkeeping clerks, swearing they had searched for the requested documents but that some of them could not be found.
In denying the motion to compel, the trial court noted that Regions Bank stated that the only evidence it had regarding the transactions at issue were computer records, which it had produced. Pretermitting the issue of whether the bank should have kept copies of these transactions for seven years, as the Emmetts argue, the bank showed that it did not have certain copies in its possession. Therefore, we find the trial court did not abuse its discretion in denying the motion to compel the bank to produce documents it did not have.
2. The Emmetts next argue that the trial court erred in denying their motion to strike affidavits submitted by Regions Bank and to strike Hayes' deposition. The Emmetts contend that the affidavits of the teller who waited on Mr. Cabbage and Hayes on June 17, 1996, and of the vice president who explained the computer-generated documents showing the history of the account and CDs should be struck because they did not specifically state they were made of the affiants' own knowledge.
OCGA § 9-11-56(e) provides that affidavits supporting a summary judgment motion "shall be made on personal knowledge." However, the affidavits need not expressly state that they are based on personal knowledge if they clearly reflect that their contents were rooted in the affiant's "personal knowledge and observation." Edwards v. Campbell Taggart Baking Cos., 219 Ga.App. 806, 808(2), 466 S.E.2d 911 (1996). Here, Rhodes' affidavit stated that:
Mr. Gilbert Cabbage and Mrs. Brenda Hayes, customers of Regions Bank, were personally known to me.... Mr. Cabbage and his daughter, Brenda Hayes, came into the Bank on June 17, 1996. Mr. Cabbage cashed in two CD's that were in the name of Gilbert Cabbage/Florence Cabbage. Two new CD's were opened that same day in the name of Gilbert Cabbage or Brenda Sue Hayes.
It is clear from the affidavit that Rhodes made the statements from her personal knowledge.
Further, contrary to appellants' representation in their briefs, the Regions Bank vice-president swears in his affidavit that it is "based on personal knowledge." The trial court did not abuse its discretion in denying the Emmetts' motion to strike the affidavits based on lack of personal knowledge.
3. The Emmetts next contend that the trial court erred in denying their motion to strike Hayes' deposition because she had been impeached during her testimony. The trial court did not explicitly rule on this ground of the Emmetts' motion to strike. However, none of the cases cited by the appellants supports the proposition that a trial court should strike a deposition when the deponent is impeached. Further, Hayes' allegedly impeaching statement, her admission that she falsely swore her father's estate was not in probate in order to gain title to his car, does not address whether Regions Bank had authority to transfer the assets at issue here. Finally, Regions Bank argues that, even if Hayes' deposition were struck, the bank teller's affidavit conclusively establishes that Mr. Cabbage authorized the transactions at issue. We find no support for the conclusion that a trial court should strike deposition testimony when the deponent is allegedly impeached during the deposition, and hold the trial court did not abuse its discretion in denying the Emmetts' motion to strike Hayes' deposition.
4. Appellants also argue that the trial court should have struck these affidavits and Hayes' deposition because the "best evidence" of the transactions at issue would be the CDs themselves and debit memos or checks showing the fund withdrawals. OCGA § 24-5-4(a) provides that "[t]he best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for." However, the Emmetts do not question that the CDs existed, or that a large sum of money was withdrawn from the savings account; they question whether the transactions were properly authorized.
It is not contrary to the best-evidence rule that oral testimony of a fact in issue may be primary evidence thereof, although there is written evidence of the same fact, where the essential fact to be proved is neither the existence nor the contents of the writing, but the existence of the independent fact itself, to which the writing is merely collateral or incidental. In such a situation the rule requiring...
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