Bogart v. Wisconsin Institute for Torah Study
321 Ga. App. 492
| Ga. Ct. App. | 2013Background
- Institute filed Oct. 21, 2011 complaint alleging Bogart owed $11,142.92 on account and $19,524.20 promissory note from Nov. 2003 with payments of $500/month; complaint attached enrollment contracts (2001-2002), the note, and a March 28, 2011 account statement.
- Bogart answered asserting Institute was not the real party in interest and the complaint failed to state a claim; no motion to dismiss and no discovery.
- Institute moved for summary judgment supported by an affidavit from the Dean-President, asserting records show Bogart owes $11,142.92; court granted summary judgment for that amount plus interest and costs.
- Bogart contends real-party-in-interest defense, statute of limitations, and alleged inconsistencies in the record; those issues were addressed on summary judgment.
- On appeal, the court affirmed the grant of summary judgment, finding Institute established real-party-in-interest status, Bogart waived any statute-of-limitations defense, and the evidence supported a definite indebtedness amount.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Real-party-in-interest status. | Institute is the real party in interest with unrebutted records. | Bogart claimed Institute was not the real party in interest. | Institute affirmatively shown as real party; no evidence of third-party assignment. |
| Statute of limitations defense. | N/A | Bogart raised limitations defense but failed to plead it beforehand. | Defense waived; not properly raised below. |
| Whether alleged record inconsistencies preclude summary judgment. | Evidence shows a definite balance due as of March 2011. | Disputes over contract dates and balance undermine the judgment. | Evidence supported a definite amount owed; no triable issue. |
Key Cases Cited
- Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (summary-judgment burden; proof by movant to show absence of genuine issue)
- Sawgrass Builders v. Key, 212 Ga. App. 138 (1) (441 SE2d 99) (1994) (real-party-in-interest—evidence of status after assignment)
- Inti. Furniture Distributors v. Lifshultz Fast Freight, 176 Ga. App. 102 (1) (335 SE2d 628) (1985) (abatement issues; summary judgment when matters are not sole issue)
- Trebor Corp. v. Nutmeg Indus., 208 Ga. App. 697-698 (1) (431 SE2d 402) (1993) (summary judgment when opposing affidavit fails to refute certitude)
- Yalanzon v. Citibank, 169 Ga. App. 961 (1) (315 SE2d 677) (1984) (credit evidence create genuine issue of fact)
- Big Sandy Partnership v. Branch Banking & Trust Co., 313 Ga. App. 871 (1) (723 SE2d 82) (2012) (affirming summary judgment where defenses lacking)