325 Ga. App. 560
Ga. Ct. App.2014Background
- CBS and Anointed Hair entered a 2010 billboard-advertising agreement; in 2011 they executed a new contract that by its terms superseded the 2010 contract and covered two billboards for 13 periods at $1,700 per period, plus a “space available” bonus billboard at no extra cost.
- Anointed Hair never received the promised bonus billboard; CBS sued in August 2012 on the 2011 contract for unpaid rental periods (seeking $10,200).
- Anointed Hair’s original answer was struck for lack of counsel, and the trial court entered default judgment for CBS as to liability only, reserving damages for a hearing.
- At the damages hearing the trial court admitted testimony about the 2010 contract over CBS’s objection, found CBS failed to prove damages by a preponderance (in part because 2010 records weren’t produced), and awarded judgment to Anointed Hair, apparently recognizing a pro-rated credit as an offset for the bonus billboard.
- The Court of Appeals found the trial court’s order ambiguous (unclear whether it opened default to allow a late counterclaim) and held there was no evidence supporting the trial court’s factual finding that the 2010 contract guaranteed a free bonus billboard; it reversed and remanded for clarification and further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of testimony about 2010 contract | Evidence of 2010 contract was irrelevant to CBS’s suit on the 2011 contract; trial court erred in admitting it | Evidence could be relevant if the court opened default or allowed counterclaim | Reversed/remanded: admission may have been proper if trial court opened default; because order is ambiguous, record requires clarification |
| Reliance on 2010 contract to deny damages | 2011 contract governs; 2010 contract evidence should not defeat CBS’s damage proof | 2010 contract (per defendant) affects available remedies/offsets | Reversed: trial court relied on an unwritten/unspecified 2010-contract guarantee without record support; no evidence that 2010 guaranteed free billboard |
| Sufficiency of CBS’s proof of damages (incomplete records) | 2011 account records alone should suffice to prove unpaid periods | Incomplete records (lack of 2010 entries) made account “incomplete” and undermined proof | Remanded: court’s reliance on missing 2010 records ties to ambiguity about whether counterclaim/default was opened; needs clarification and new judgment |
| Late counterclaim / setting aside default | CBS’s default judgment remained; evidence of 2010 contract irrelevant if counterclaim not permitted | Anointed Hair sought to set aside default and assert counterclaim based on 2010 contract | Reversed/remanded: trial court’s order is unclear whether it set aside default and allowed the counterclaim; must clarify action before appellate review |
Key Cases Cited
- Slaick v. Arnold, 316 Ga. App. 141 (appellate review standards for bench-trial findings and reversal when judgment rests on erroneous legal theory)
- CRS Sirrine, Inc. v. Dravo Corp., 213 Ga. App. 710 (trial-court factual inconsistencies require reversal)
- Corey v. Clear Channel Outdoor, Inc., 299 Ga. App. 487 (trial court’s discretion to admit evidence relevant if counterclaim is allowed)
- Aycock v. Household Finance Corp. of Ga., 142 Ga. App. 207 (late filing of counterclaims not allowed after time to file defensive pleadings without court permission)