Blоckbuster Textiles, LLC, a linen supply company, brought suit against OVIP, Inc. d/b/a Vinings Inn seeking to recover on an open account and for damages for breach of the parties’ contract. OVIP subsequently filed a motion for summary judgment, contending that it had paid the account in full, that it did not breach the contract, and that even if it did breach the contract, the amount of liquidated damages was incоrrectly calculated. Blockbuster responded and moved to strike OVIP’s motion on the basis that it did not comply with Uniform Superior Court Rule 6.5; Blockbuster also filed a cross-motion for summary judgment. After a hearing, the trial court granted Blockbuster’s motion for summary judgment and awarded it $11,611.64 on its open account claim and $13,025.80 on its claim for liquidated damages. OVIP appeals.
As is relevant here, the contract provided that OVIP would use Blockbuster as its exclusive supplier of restaurant linens for a period of 24 months beginning September 1, 2004. The contract further provided for liquidated damages if OVIP terminated the сontract prior to the expiration date for any reason other than documented service complaints to Blockbuster that were not resolved within 30 days. In addition to the payment of аll unpaid charges on the account prior to termination, the liquidated damages provision provided that OVIP must pay the greater of (1) the average weekly invoice total multiplied by the numbеr of weeks remaining in the unexpired term of the contract, or (2) the current replacement cost of all linens and other products allocated to OVIP.
In support of its motion for summary judgment, Blоckbuster submitted the affidavit of its Chief Financial Officer, Greg Hood. In his affidavit, Hood averred that beginning April 1, 2005 and through October 17,2005, OVIP refused to pay the agreed-upon rental rate for the restaurant linens аs provided in the contract. According to the Hood affidavit, the unpaid invoice amount for the period totaled $11,611.64. His affidavit further provided that OVIP refused to accept further deliveries of linens from Blockbuster after October 17, 2005. As of that date, 45 weeks remained in the contract and Hood averred that the average weekly invoice total was $723.66. Thus, Hood calculated the liquidаted damages owed by OVIP under the contract as follows: “The average weekly invoice of $723.66 multiplied by 40% multiplied by 45 weeks equals $289.46 per week or $13,025.80 in total.” OVIP responded to Blockbuster’s motion by challenging the amount of payments Blockbuster credited to its account and further contending that it was not in breach of the contract. OVIP also contended that even if it breached the contract, the amount of liquidated damages calculated by Blockbuster was erroneous because the average of the invoice total was improperly calculated by Blockbuster. OVIP mаkes these contentions in this appeal as well, and additionally challenges the enforceability of the liquidated damages provision of the contract. 1
1. Citing
Lager’s v. Palace Laundry,
Blockbuster argues that OVIP is foreclosed from challenging the enforceability of the liquidated damages provision for the first time оn appeal. It is true that both of our appellate courts have consistently refused to consider arguments advancing new legal theories for the first time on appeal.
As we have held, “ ‘ “(i)ssues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is tаken. One may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on (below).” ’ ” Assn. Svcs. v. Smith, 249 Ga. App. 629, 632 (1) (549 SE2d 454 ) (2001); see also Pfeiffer v. Ga. Dept. of Transp.,275 Ga. 827 , 828-829 (2) (573 SE2d 389 ) (2002) (Court of Appeals properly refused to review argument made in opposition to summary judgment that was raised for the first time on appeal).
CPD Plastering v. Miller,
In its reply brief to this Court, OVIP relies on
Dental One Assoc. v. JKR Realty Assoc.,
[t]hat case does not stand for the proposition that a party can raise new legal issues on appeal. Instead that case simply acknowledges that to be entitled to summary judgmеnt, a party who bears the burden of proof at trial must present the trial court with the facts showing its entitlement to judgment. When the record fails to contain the facts supporting the grant of summary judgment, the nоn-movant may argue this ground to the appellate court regardless of whether the non-movant asserted an “objection to the prima facie case.”
(Footnote omitted.)
Pfeiffer v. Ga. Dept. of Transp.,
OVIP also makes the additional аrgument in its reply brief that genuine issues of material fact remain as the enforceability of the provision because Blockbuster failed to prove the three factors which must be present fоr the trial court to determine, as a matter of law, whether the provision is enforceable.
Peterson v. P. C. Towers, L.P.,
2. OVIP next contends that genuine issues of material fact remain as to the amounts owed on the account because Blockbuster has failed to introduce all the invoices issued during the relevant period (April 1, 2005 to mid-October 2005) or make a proper showing of how the payments were credited to its account during that period. Contrary to OVIP’s argument, it does aрpear that all invoices for the period April 1, 2005 to mid-October 2005 were attached as exhibits to Hood’s affidavit. However, it is true that the record is lacking with regards to the documentation concerning all payments that were made by OVIP during the period. Blockbuster relies on Hood’s affidavit to show that some of the amounts paid by OVIP during the relevant time frame were credited to amounts owing prior to April 1, 2005 — specifically
Business records, when appropriate, must accompany an affidavit purporting to establish the amount of a debt. Casey v. North Decatur Courtyards &c. Assn.,213 Ga. App. 190 , 191-192(2) (444SE2d361) (1994). When records relied upon and referred to in an affidavit are neither аttached to the affidavit nor included in the record, the affidavit is insufficient. Taquechel v. Chattahoochee Bank,260 Ga. 755 , 756 (2) (400 SE2d 8 ) (1991); Watson v. Ga. State &c. Credit Union,201 Ga. App. 761 (1) (412 SE2d 286 ) (1991).
Mountain Bound v. Alliant Foodservice,
3. OVIP also argues that even if Blockbuster is entitled to liquidated damages, issues of fact remain as to the proper calculation of those damages, specifically that there is no documentation to support the calculation of the average weekly invoice total. We disagree. Hood explained in his affidavit how the damages were calculated, as provided in the contract, and the invoices for the relevant period were attached as exhibits to the affidavit. The trial court’s order is thus affirmed to the extent that it awarded Blockbuster $13,025.80 on its claim for liquidated damages.
4. Lastly, OVIP argues that Blockbuster has failed to show that it breached the contrаct by refusing to pay because it issued a check to Blockbuster on October 17, 2005, the day Blockbuster claimed the breach occurred. Pretermitting the merits of this argument, Blockbuster also claimed that the contract was breached when OVIP refused to and failed to accept delivery of the linens as provided by the terms of the contract. We agree that Blockbuster presentеd uncontradicted evidence as to the delivery issue, and thus it was entitled to summary judgment on its claim that OVIP breached the parties’ contract. We thus remand for further proceedings consistent with this oрinion.
Judgment affirmed in part and reversed in part, and case remanded with direction.
Notes
We note that OVIP’s brief on appeal does not contain proper citations to the record as required by Court of Appeals Rule 25 (c) (3) (iii).