Bogart v. Wis. Inst. for Torah Study

• Decision Date: 07 March 2013
• Docket Number: No. A12A2429.,A12A2429.
• Citation: 739 S.E.2d 465,321 Ga.App. 492
• Parties: BOGART v. WISCONSIN INSTITUTE FOR TORAH STUDY.
• Court: Georgia Court of Appeals

321 Ga.App. 492

739 S.E.2d 465

BOGART

v.WISCONSIN INSTITUTE FOR TORAH STUDY.

No. A12A2429.

Court of Appeals of Georgia.

March 7, 2013.

David Bogart, Gregory David Golden, for Appellant.

Neil A. Moskowitz, Atlanta, for Appellee.

BRANCH, Judge.

On appeal from the trial court's grant of summary judgment to plaintiff Wisconsin Institute for Torah Study in its action on a promissory note and on account, defendant David Bogart argues that the Institute is not the real party in interest, that the action is time-barred, and that factual inconsistenciesinthe Institute's evidence preclude summary judgment. We find no error and affirm.

To prevail at summary judgment under OCGA § 9–11–56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.... [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(Citations omitted.) Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

So viewed, the record shows that on October 21, 2011, the Institute filed a complaint alleging that Bogart had executed contracts concerning the enrollment of two of his children at the Institute and that he owed $11,142.92 on account, which he had refused to pay. The complaint also alleged that in November 2003, Bogart had executed a promissory note in favor of the Institute in the amount of $19,524.20, with payments to be made “in the amount of $500 per month, beginning in July 2004 until completion, including any future tuition, fees, and pledges,” and that Bogart had defaulted on the note. Attached to the Institute's complaint were (1) two executed contracts concerning Bogart's children's enrollment at the Institute for the 2001–2002 school year; (2) the November 2003 promissory note; and (3) the Institute's statement of Bogart's account dated March 28, 2011, and showing an amount due of $11,142.92.

Bogart filed an answer on his own behalf asserting, inter alia, that the Institute was not the real party in interest and that the complaint had failed to state a claim for which relief could be granted. Bogart did not file a motion to dismiss, however, and no discovery was undertaken by either party.

The Institute filed a motion for summary judgment supported by an affidavit from the “Dean–President” of the Institute, who averred that his duties included “being custodian of the accounts receivable and business records of the company” as well as maintaining “the company's files containing the documents and correspondence” for those accounts and business records. The affidavit described the documents attached to the complaint as “prepared at or near the time of the events appearing on them” and “prepared and/or kept in the normal course of business” of the Institute. Finally, the affiant averred that based on these records and his personal knowledge, “there is now due [to the Institute] the principal sum of $11,142.92 by [Bogart] upon account”; that “no part thereof” had been “paid or satisfied”; and that any payments already made by Bogart “have previously been credited by [the Institute].” Neither party having requested a hearing on the Institute's motion, the trial court granted summary judgment to it in the amount of $11,142.92 plus interest and costs. This appeal followed.

1. Bogart first asserts that because the Institute has not shown whether it is a corporation, a partnership, or some other legal entity, it was not entitled to summary judgment as the real party in interest. We disagree.

Under 9–11–17(a), “[e]very action shall be prosecuted in the name of the real party in interest.” An objection to a party's status as the real party in interest “is a matter in abatement and does not go to the merits of the action.” (Citation omitted.) Fleming v. Caras, 170 Ga.App. 579(1), 317 S.E.2d 600 (1984). Thus such objections “ ‘are properly disposed of pursuant to [a] motion to dismiss' ” rather than a defendant's motion for summary judgment. Id., quoting Primas v. Saulsberry, 152 Ga.App. 88(2), 262 S.E.2d 251 (1979).

Although “[t]he defendant bringing a motion in abatement has the burden of proving the facts necessary to support a judgment of dismissal,” Jones Motor Co. v. Anderson, 258 Ga.App. 161, 162, 573 S.E.2d 429 (2002), a matter raised in abatement of an action is properly disposed of on a plaintiff's motion for summary judgment when the matter “was not the only issue on which judgment was sought.” Int'l Furniture Distributors v. Lifshultz Fast Freight, 176 Ga.App. 102, 102(1), 335 S.E.2d 628 (1985); see also Wirth v. Cach, LLC, 300 Ga.App. 488, 489, 685 S.E.2d 433 (2009) (a plaintiff moving for summary judgment must establish “the non-existence of any genuine issue of fact,” including defendant's assertion that plaintiff was not the real party in interest). Thus this Court has reversed a grant of summary judgment on the basis of a real-party-in-interest objection asserted in a defendant's answer when plaintiffs had failed to present “any evidence establishing their status as the current holders of an interest in the contract at issue.” Sawgrass Builders, Inc. v. Key, 212 Ga.App. 138(1), 441 S.E.2d 99 (1994).

Here, the Institute provided some evidence that it was the real party in interest when it produced and authenticated its statement of Bogart's account showing that he owed the Institute, and not any other party, the principal sum of $11,142.92, and Bogart has not provided any evidence that the account has been assigned to a specific third party. Compare Sawgrass, supra at 138(1), 441 S.E.2d 99 (plaintiff failed to produce evidence that it remained a real party in interest after an assignment of the contract at issue to a third party). Because Bogart failed to produce any evidence in support of his asserted defense that the Institute was not the real party in interest, the trial court did not err when it implicitly rejected that defense and granted the Institute summary judgment. Int'l Furniture, supra at 102(1), 335 S.E.2d 628 (affirming grant of summary judgment to plaintiff in action on account even though the trial court did not make a separate determination under OCGA § 9–11–12(d) on the defense of improper service, which was a matter in abatement).

2. Bogart also argues that the trial court erred when it failed to consider whether the applicable statute of limitation barred the Institute's suit. Even if we are troubled by the complaint's claim that the contracts were executed in 2009 when their subject matter was the 2001–2002 school year, the record shows that Bogart failed to raise the defense of any statute of limitation either in his answer or in his response to the Institute's motion for summary judgment.

OCGA § 9–11–8(c) states that a party filing a responsive pleading “shall set forth affirmatively” defenses including that based on a “statute of limitations,” and it is settled that a defendant “may not avail himself of an affirmative defense which he failed to properly present” to the trial court. Searcy v. Godwin, 129 Ga.App. 827, 829(1), 201 S.E.2d 670 (1973). Because Bogart failed to raise the defense of the statute of limitation below, he has waived the issue on appeal. See id. (defendant's failure to raise...