Albany Oil Mill, Inc. v. Sumter Elec. Membership Corp.
| Decision Date | 01 March 1994 |
| Docket Number | No. A93A1899,A93A1899 |
| Citation | 212 Ga.App. 242,441 S.E.2d 524 |
| Parties | ALBANY OIL MILL, INC. v. SUMTER ELECTRIC MEMBERSHIP CORPORATION. |
| Court | Georgia Court of Appeals |
Clayton A. Hall, Hawkinsville, for appellant.
Ellis & Easterlin, James C. Gatewood, Russ F. Barnes, Americus, for appellee.
Sumter Electric underbilled Albany Oil Mill, Inc., for a ten-month period. The underbilling totaled $18,628.76. This underbilling was due to Sumter Electric's reliance on incomplete information gathered in the field. Albany Oil Mill refused to pay the underbilled amount, and in turn Sumter brought suit to recover those sums. The trial court granted summary judgment to Sumter Electric with respect to the main claim, and Albany Oil Mill appeals.
1. The trial court observed, in dicta not prompted by either party, that Albany Oil Mill did not present a defense of estoppel as was presented in the factually similar case of City of East Point v. Upchurch Packing Co., 58 Ga.App. 829, 200 S.E. 210 (1938). Wilson v. Keheley & Co., 177 Ga.App. 769, 770(2), 341 S.E.2d 245 (1986).
However, estoppel is an affirmative defense, and must therefore be set forth affirmatively "[i]n pleading to a preceding pleading." OCGA § 9-11-8(c). (Emphasis supplied.) Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga.App. 342, 346, 173 S.E.2d 723 (1970).
In arguing that the elements of an estoppel defense were sufficiently stated even though the word "estoppel" was not used, appellant relies upon assertions not supported by evidence in the record that were made for the first time in its response to Sumter Electric's motion for summary judgment. Specifically, no suggestion is made except in response to Sumter Electric's motion for summary judgment that Albany Oil Mill detrimentally relied upon the utility's underbilling in good faith when setting its own rates for the cold storage services it provides to its customers. No estoppel defense had been made out for Sumter Electric to meet at the time its motion for summary judgment was filed, and appellant does not suggest otherwise. Albany Oil Mill's brief in response to Sumter Electric's motion could not in itself serve to render the grant of that motion inappropriate by supplying the missing elements of an otherwise waived estoppel defense. We therefore find no error.
2. Albany Oil Mill argues that material issues of fact remain on the issues of negligence and lack of diligence on the part of Sumter Electric. However, in the absence of an affirmative defense of estoppel suggesting that Albany Oil Mill justifiably relied on the underbilling to its detriment, it is immaterial whether the underbilling is the result of the utility's inexcusable failure properly to calculate appellant's electricity usage in the first instance. Daugherty v. MARTA, 187 Ga.App. 864, 867, 371 S.E.2d 677 (1988).
3. Albany Oil Mill asserts that the trial court erred in applying OCGA §§ 46-3-11 and 46-3-12 in granting summary judgment to Sumter Electric. Even assuming the trial court's analysis is flawed in this respect, it was not crucial to the result reached. A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. See, e.g., American Honda Motor Co. v. Williams & Assoc., 208 Ga.App. 636, 642(2), 431 S.E.2d 437 (1993). It is the grant itself that is to be reviewed for error, and not the analysis employed. See Fudge v. Colonial Baking Co. of Atlanta, 186 Ga.App. 582, 367 S.E.2d 814 (1988). This enumeration is without merit.
4. Appellant cites City of Commerce v. Duncan & Godfrey, Inc., 157 Ga.App. 337, 277 S.E.2d 266 (1981), for the proposition that, even in cases of underbilling, ...
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