Baylis v. DaryaniBaylis v. Daryani
Andrella Baylis and CI², Inc., 1 (collectively “Baylis”), the defendants below, appeal the orders entered in favor of Sam Daryani d/b/a Custom House, Ltd., striking Baylis’s answer, dismissing CI²’s counterclaim, and еntering a default judgment against Baylis and CI². Baylis contends the trial court erred by holding that Baylis’s answer was required to comply with the “magic language” contained in OCGA § 9-10-112 2 еven though that Code section conflicts with OCGA § 9-11-8 (b) and further contends the trial court erred by dismissing CI²’s counterclaim. Finding no error, we affirm.
*730 1. The record shows that Daryani filed a verified complaint on an open account against Baylis and CI², and service was made on Baylis and CI². Baylis and CI² filed an unverified answer, which included CI²’s counterclaim against Daryani asserting an abusive litigation claim under OCGA § 9-15-14. Later, the defendants filed an amended verified answer striking paragraph 2 in the unverified answеr, contending that CI² had not been served with process, and replacing paragraph 2 with a paragraph captioned “Insufficiency of Process” concerning CI². Even though it contained a general denial of the allegations of the complaint, the amended answer did not deny specifically, in thе terms required by OCGA § 9-10-112, that Baylis and CI² were indebted to Daryani in any sum or allege any specific amounts that they were indebted to Daryani.
Alleging that the defendants had not complied with OCGA § 9-10-112, Daryani moved to strike their answer and enter judgment in his favor. The trial court found that the requirements of OCGA § 9-10-112 were compulsory and that Baylis and CI² were required, in a verified answer, to deny that they were indebted to Daryani in any sum or to specify the amount they admitted they might be indebted to Daryani. Because the trial court found that Baylis and CI² had not done so, the court granted the motion to strike the defendants’ answer, found that they were in default, and entered judgment for Daryani.
Although Baylis and CI² contend the trial court erred by relying upon OCGA § 9-10-112 because it is “faulty” and conflicts with the general provision of the Civil Practice Act, OCGA § 9-11-8 (b), it is well settled that “ ‘a specific statute will prevail over a general statute, absent any indication of a contrary legislative intent.’ ” (Footnote omitted.) Mann
v. State,
Because the defendants’ answer did not сomply with the requirements of OCGA § 9-10-112, the trial court did not err by striking their answer. “Where a suit is brought on a verified open account and the defendant’s plea does nоt comply with OCGA § 9-10-112’s pleading requirements, the plea is properly struck.
Nelson v. Mexicana de Jugos y Sabores,
2. CI² also contends the trial court erred by dismissing its counterclaim for abusive litigation. The record shows that Daryani originally moved to dismiss this counterclaim because it sought relief under OCGA § 9-15-14, and he alleged the proper method for seeking a recovery under that Code section was by motion, not counterclaim. Before the trial court could rule on the motion, however, CI² amended its counterclaim to seek relief under “OCGA § 51-7-80 et seq.” The trial court, however, dismissed the counterclaim against Daryani because it did not comply with the notice provisions of OCGA § 51-7-84. 3 This Code section establishes as a condition precedent for any abusive litigation claim under Article 5 of Title 51, see OCGA § 51-7-81, that the person alleged injured by the abusive litigation give written notice by some means that would show that the “person against whom such injured person intends to assert a claim for abusive litigation” and give this person the “opportunity to voluntarily withdraw, abandon, discontinue, or dismiss the civil proceeding, claim, defense, motion, appeal, civil process, or other position” giving rise to the abusive litigation claim. OCGA § 51-7-84 (a).
The record reflected that CI² failed to provide sufficient notice in this litigation as required by OCGA § 51-7-84. Instead, CI² relied upon a notice that it had given Daryani in a prior action between the parties. This notice is not sufficient. “The abusive litigаtion tort set forth in OCGA § 51-7-80 et seq. is in derogation of the common law, and must be strictly limited to the meaning of the language used, and
*732
not extended beyond the plain and еxplicit statutory terms.” (Citation omitted.)
Kirsch v. Meredith,
3. In their brief Baylis and CI² argue that this action should have been barred by the statute of limitation. As this allegation was not enumerated as errоr, it is not properly before us. “Matters not enumerated as error will not be considered on appeal.”
Rider v. State,
Further, by not obtaining a ruling on the statute of limitatiоn defense before judgment was entered against them, Baylis and CI² have waived it. Even though the statute of limitation defense was raised in their answer, a defendant must file a motion in such regard or otherwise attempt to raise such issue before the trial court entered judgment against them.
A defendant may not avail himself of аn affirmative defense which he failed to properly present. As pointed out in decisions prior to the Civil Practice Act: “The bar of the statute of limitаtion is a privilege to the defendant, the benefit of which he may elect to take advantage of or waive as he pleases. The statute in most instаnces operates upon the remedy and not the right; and hence if the defendant chooses not to raise the objection of the lapse of the statutory time, the right will be enforced, and will result in a judgment which will possess all the attributes of, and be as effective as, a judgment rendered within the statutory period.”
(Citations and punctuation omitted.)
Searcy v. Godwin,
Judgment affirmed.
Notes
Daryani’s complaint also asserted claims against Tony Fannin, but he was never served with process; the trial court’s orders being appealed did not apply to him, and, thus, he is not a proper party to this appeal.
“Whenever an action is brought on an open account and the same is verifiеd by the plaintiff as provided by law, the answer either shall deny that the defendant is indebted in any *730 sum or shall specify the amount in which the defendant admits he may be indebtеd and it shall be verified as required by law.”
(a) As a condition precedent to any claim for abusive litigation, the person injured by such act shall give written noticе by registered or certified mail or statutory overnight delivery or some other means evidencing receipt by the addressee to any person against whom such injured person intends to assert a claim for abusive litigation and shall thereby give the person against whom an abusive litigation claim is contemplatеd an opportunity to voluntarily withdraw, abandon, discontinue, or dismiss the civil proceeding, claim, defense, motion, appeal, civil process, or other position. Such notice shall identify the civil proceeding, claim, defense, motion, appeal, civil process, or other position which the injured person claims constitutes abusive litigation.
(b) An action or claim under this article requires the final termination of the proceeding in which the alleged abusive litigation occurred and must be brought within one year of the date of final termination.