Foskey v. Smith

• Decision Date: 24 June 1981
• Docket Number: No. 61686,61686
• Citation: 159 Ga.App. 163,283 S.E.2d 33
• Court: Georgia Court of Appeals
• Parties: FOSKEY v. SMITH.

Page 33

283 S.E.2d 33

159 Ga.App. 163

FOSKEY v. SMITH.

No. 61686.

Court of Appeals of Georgia.

June 24, 1981.

Rehearing Denied July 6, 1981.

Certiorari Granted Sept. 8, 1981.

Alvin W. Arnold, W. Lonnie Barlow, Cochran, for appellant.

Duross Fitzpatrick, Cochran, for appellee.

BIRDSONG, Judge.

The appellant Foskey is a farmer who has over the past years held a charge account with the appellee Jordan Smith d/b/a Smith Farm Supply. Foskey paid out his account with Smith in February, 1979. Then between March and June, 1979, Smith alleged that Foskey made new charges for various farm supplies and after giving credit for all payments, Smith asserted that Foskey owed over $5,000 plus interest on the unpaid balance on the charge account. Foskey admitted making new purchases from Smith but denied owing the amount alleged. Foskey admitted owing Smith $1,850.50 but asserted in a verified pleading and a brief that Smith either had made a mistake or had prepared false bills showing that Foskey had purchased more fertilizer than actually purchased or feed which Foskey denied purchasing at all. Smith filed an amended complaint reducing his demand to the amount of $4,349 based upon a reduced claim of interest on the unpaid balance and added a claim for attorney fees based upon an allegation that Foskey had been stubbornly litigious. Simultaneously with his amended complaint Smith filed a motion for summary judgment attaching thereto affidavits from himself, his bookkeeper, and two truck drivers who affirmed that they had delivered fertilizer to Foskey and spread it on Foskey's farm land. Foskey represented himself pro se and filed a verified, amended, answer to the amended complaint but has filed no counter-affidavits and has produced no evidence outside his verified pleadings in support of his answer. The trial court entered summary judgment for Smith in the amount of the open account as demanded in Smith's complaint, reserving the issue of attorney fees. Foskey brings this appeal arguing that there are unresolved issues of fact and therefore the grant of summary judgment was error. Held :

In his reply brief, Smith asks this court to grant 10% penalty for a frivolous appeal. However, we are satisfied that Foskey's appeal was not taken solely for purposes of delay and will deny the request for penalty.

We are here confronted with a motion for summary judgment supported by affidavits from the movant (creditor) showing a debt for services and materials with supporting documents showing the actual charges made to the debtor. In contradiction, the debtor disputes the accuracy of the supporting document and the amount of the indebtedness but only in verified pleadings.

We wish to emphasize that in cases involving unverified pleadings even in the face of serious allegations in the answer by a respondent apparently creating distinct issues in the pleadings, nevertheless the Summary Judgment Act was designed to dispose of such litigation expeditiously and avoid useless time and expense in a jury trial where a respondent, given notice and opportunity to show an issue of fact by competent evidence (affidavits or testimony by deposition or otherwise), nevertheless its unverified answer does nothing to contradict the affidavits of the movant which show that the respondent has no issuable cause or defense. "It is one thing to make wide general sweeping allegations in a petition, but quite another to testify of one's own knowledge to the existence or non-existence of a fact. Courts are entitled to have a litigant...