Young v. CLIMATROL SOUTHEAST DISTRIBUTING CORPORATION

233 S.E.2d 54, 141 Ga. App. 235, 1977 Ga. App. LEXIS 1847

• Court: Court of Appeals of Georgia
• Decided: February 8, 1977
• Docket: 53119
• Status: Published

Opinion

Marshall, Judge.

The issue presented by this appeal is whether there exists a genuine issue as to any material fact which would negate the granting of motion for summary judgment. Appellee, Climatrol, moved for summary judgment on its complaint on account against appellant, Young. The allegation was that Young was indebted to Climatrol for $40,935.36 for air conditioning and heating units delivered to Young on account. Climatrol supported its motion with an affidavit of its credit manager that Young’s company had ordered the merchandise, that it was shipped to and received by Young, that demand for payment was made but that Young refused to pay because some of the merchandise was defective, that Climatrol sent some servicemen to Young to remedy the defects, and that thereafter Young still did not pay the account, did not back charge for any defects and did not return any of the merchandise.

Young contends that his own affidavit shows controverted issues of fact in that he states therein (1) he did not personally order the merchandise, (2) he did not know whether he had received the merchandise or not, and (3) he did not owe the amount claimed. Held:

There are no factual matters in dispute and summary judgment was properly granted. If Young’s company did not order nor receive the merchandise then it was incumbent on him to set forth "specific facts showing that there is a genuine issue for trial.” CPA § 56 (e) (Code Ann. § 81A-156 (e)). His statement that he did not "personally” order the merchandise and that he did not know whether or not the merchandise was received does not meet this burden. See, e. g., Gregory v. Vance Publishing Corp., 130 Ga. App. 118 (7) (202 SE2d 515). Nowhere in his deposition does Young deny either of these facts when the circumstances clearly show that he possessed the knowledge to either admit or deny each of them. Nor does the bare denial of the indebtedness sustain his burden. See, e. g., Dutch Inns v. United Va. Leasing Corp., 134 Ga. App. 525 (215 SE2d 290). Summary judgment was properly granted.

Argued January 5, 1977 Decided February 8, 1977. Ralph E. Carlisle, Stanton J. Shapiro, for appellant. Lipshutz, Zusmann, Sikes, Pritchard & Cohen, H. William Cohen, Dennis M. Hall, for appellee.

Judgment affirmed.

Deen, P. J., and Webb, J., concur.