Applebaum v. David, Inc.

246 S.E.2d 424, 146 Ga. App. 406, 1978 Ga. App. LEXIS 2379

• Court: Court of Appeals of Georgia
• Decided: June 23, 1978
• Docket: 55647
• Status: Published

Opinion

Birdsong, Judge.

Appellee sued the appellant for the sum of $2,603.14 principal, attorney fees and court costs based upon a written contract. Appellant filed a general denial. Appellee filed a motion for summary judgment with supporting affidavits and records showing the alleged indebtedness. Appellant filed a counter-affidavit alleging certain setoffs. The trial court entered partial summary judgment for appellee in the amount of $1,564.23, there being no evidence or affidavit to dispute this amount as being owed. The trial court further ordered that the issue as to whether or not appellant owed further sums, in excess of $1,564.23, service charges, interest and costs of court be set for trial.

Appellant appeals based upon the premise that the granting of partial summary judgment was erroneous in that there remained issues of fact to be decided by a jury. Held:

The trial court complied with Code Ann. § 81A-156 (d) relating to partial summary judgment. The appellant in opposing appellee’s motion for summary judgment did not by affidavit set forth specific facts showing a genuine issue for trial as to those matters contained in the motion for partial summary judgment, and, as a result, "[t]he evidence in support of [appellee’s] motion for summary judgment pierced the bare denial of the debt in the defendant’s answer.” Dutch Inns of Amer. v. United Va. Leasing Corp., 134 Ga. App. 525, 526 (215 SE2d 290). See Young v. Climatrol Southeast Dist. Corp., 141 Ga. App. 235 (233 SE2d 54).

Judgment affirmed.

Bell, C. J., and Shulmán, J., concur. Johnson & Fain, Don W. Johnson, for appellant. Macey & Zusmann, H. William Cohen, for appellee.