345 Ga. App. 530
Ga. Ct. App.2018Background
- Prestige sued Scott on a verified complaint alleging she defaulted under a written retail installment contract for a car, repossession occurred, the car was sold commercially reasonably, and a deficiency balance of $18,326.09 remained.
- Prestige verified its complaint; Scott’s answer was not verified.
- Prestige moved to strike Scott’s unverified answer and for judgment on the pleadings under OCGA § 9-10-112 (verification requirement for suits on open account). Scott did not respond to the motions.
- The trial court granted the motions, struck Scott’s answer, and entered default judgment for Prestige. Scott appealed directly from the default judgment.
- The Court of Appeals considered whether an action to recover a deficiency after repossession under a retail installment contract is a suit on open account subject to OCGA § 9-10-112’s verification/answer requirements.
Issues
| Issue | Plaintiff's Argument (Scott) | Defendant's Argument (Prestige) | Held |
|---|---|---|---|
| Whether OCGA § 9-10-112 (verification of defendant’s answer in suits on open account) applies | The claim is not a suit on open account but a deficiency/contract-based claim arising from a retail installment sale; § 9-10-112 does not apply | Prestige argued its verified complaint sounded in an ‘‘action on an open account’’ so Scott’s unverified answer was subject to strike under § 9-10-112 | Held: § 9-10-112 does not apply; a deficiency claim after repossession under a retail installment contract is not an open account action |
| Whether the trial court properly struck the answer and entered default judgment | Scott argued the motions were improper because the suit was not an open account action; thus striking and default were erroneous | Prestige argued noncompliance with § 9-10-112 justified striking the answer and judgment | Held: Trial court erred in striking the answer and entering default judgment; orders reversed and case remanded |
Key Cases Cited
- Harper v. Carroll Tire Co., 237 Ga. App. 767 (verification under OCGA § 9-10-112; striking noncomplying answer)
- Altacare Corp. v. Decker, Hallman, Barber & Briggs, P.C., 316 Ga. App. 718 (definition and limits of open account actions)
- Watson v. Sierra Contracting Corp., 226 Ga. App. 21 (suit on open account for materials/work performed)
- Hickey v. Kostas Chiropractic Clinics, P.A., 259 Ga. App. 222 (suit on open account for unpaid chiropractic services)
- Gator Exp. Serv., Inc. v. Funding Sys. Leasing Corp., 158 Ga. App. 92 (distinguishing lease recovery from open account)
- Doughty v. Assoc. Commercial Corp., 152 Ga. App. 575 (compliance with motor vehicle deficiency statute is condition precedent to recovery)
- Zampatti v. Tradebank Int’l Franchising Corp., 235 Ga. App. 333 (bona fide dispute over amount/receipt of goods makes open account inappropriate)