GEORGIA RECEIVABLES, INC. v. Te
Decision Date | 06 October 1999 |
Docket Number | No. A99A1568, No. A99A1569. |
Parties | GEORGIA RECEIVABLES, INC. v. TE. Georgia Receivables, Inc. v. Lewis. |
Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Frederick J. Hanna & Associates, Elizabeth C. Whealler, Marietta, for appellant.
Bunkuy Te, pro se.
Linda Lewis, pro se.
In both of these cases, Georgia Receivables, Inc. sued upon and sought summary judgment on two health club contracts which Georgia Receivables had purchased from the health clubs. The two defendants, Te and Lewis, filed unverified answers contesting their liability, but did not respond to the motions for summary judgment.
The trial court, nonetheless, sua sponte granted summary judgment to both defendants on the ground that the contracts sued upon were void because they violated OCGA § 10-1-393.2. Georgia Receivables appeals in both cases, raising the same enumerations of error in each, and they are consolidated for appeal.
The company contends that it was error for the trial court, sua sponte, to grant summary judgment to the defendants. This argument fails.
The trial court can grant sua sponte summary judgment under Georgia law. [Cit.] In fact, the trial court can grant summary judgment to the Golston v. Garigan, 245 Ga. 450, 451(1), 265 S.E.2d 590 (1980)[.] [Cits.] ... "If the record demands such a judgment, it would be proper." [Cits.]
Generali—U.S. Branch v. Southeastern &c. Ins. Co., 229 Ga.App. 277, 278(1), 493 S.E.2d 731 (1997).
Here, Georgia Receivables does not argue that the two contracts at issue comply with OCGA § 10-1-393.2, only that the defendants below did not raise that issue. That statute, however, provides that:
[a]ny contract which does not comply with this Code section shall be void and unenforceable; no purchaser of any note associated with or contained in any health spa contract shall make any attempt to collect on the note ... if there has been any violation by the health spa of subsections (b) through (m) ... of this Code section.
(Emphasis supplied.) OCGA § 10-1-393.2(n).
Hodges v. Community Loan &c. Corp., 234 Ga. 427, 430, 216 S.E.2d 274 (1975). See also Ga. Investment Co. v. Norman, 231 Ga. 821, 204 S.E.2d 740 (1974).
While Hodges and Ga. Investment Co. dealt with the Industrial Loan Act, the same rationale applies to the Act at issue here.
Georgia Receivables' reliance on Ga. Receivables v. Cheatham, 216 Ga.App. 656, 455 S.E.2d 375 (1995) is unavailing for two reasons. First, that case is physical precedent only and not binding. Court of Appeals Rule 33(a). Second, it involved an unraised affirmative defense that the...
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