Fisher & Phillips, LLP v. Amerex Environmental Technologies, Inc.

SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
April 21, 2015
In the Court of Appeals of Georgia
A15A0206. FISHER & PHILLIPS, LLP v. AMEREX
ENVIRONMENTAL TECHNOLOGIES, INC., et al.
MILLER, Judge.
Fisher & Phillips, LLP (hereinafter “F&P”) sued Amerex Environmental
Technologies, Inc., its President, Joseph Pircon, and its registered agent, Brian
McMahon (collectively “the Defendants”) seeking to recover more than $129,000 in
unpaid invoices for legal services that F&P allegedly provided to the defendants. The
case went into default when the Defendants failed to file a response. F&P moved for
a default judgment.1 The trial court denied F&P’s motion and dismissed the case sua
sponte, without a hearing, for failure to state a claim on an open account. F&P
1
After the case went into default, the trial court ordered F&P to file a motion
for default judgment or formally notify the trial court of its intent to pursue its claims.
appeals, contending that the trial court erred in dismissing its complaint. For the
reasons that follow, we reverse.
When, as here, a question of law is at issue we owe no deference to the trial
court’s ruling and apply a de novo standard of review. See Artson, LLC v. Hudson,
322 Ga. App. 859, 860 (747 SE2d 68) (2013).
So viewed, the complaint shows that, in January 2011, F&P began providing
legal services to the Defendants. F&P regularly invoiced Defendants for the legal
services provided, as well as other charges incurred by F&P in connection with the
provisions of those legal services. As of July 2013, the Defendants had an outstanding
principal balance of $129,725.65 for the invoiced services.
Accordingly, on March 3, 2014, F&P filed its unverified complaint seeking to recover
the principal and interest due on the outstanding invoices, and seeking attorney fees.
In its claim on an open account, F&P set out the invoice number, date and
outstanding balance of each open invoice.
In its sole enumeration of error, F&P contends that the trial court lacked
authority to involuntarily dismiss the case, without a hearing or trial, merely because
F&P failed to make a prima facie showing on its open account claim. We agree.
2
In dismissing F&P’s complaint, the trial court specifically found that F&P
failed to verify the complaint as required by law. Contrary to the trial court’s finding,
“[t]here is no law requiring the verification of an action on an open account. (Citation
omitted.) Braswell v. Hodges, 95 Ga. App. 231, 233 (3) (97 SE2d 588) (1957).
Rather, a defendant is statutorily required to file a verified answer if the plaintiff
brings a verified action on an open account. See OCGA § 9-10-112. Where, as here,
the plaintiff files an unverified action on an open account, the defendant is merely
relieved of the verification requirement set forth in OCGA § 9-10-112. See Braswell,
supra, 95 Ga. App. at 233 (3).2 Accordingly, F&P’s complaint was not subject to
dismissal for lack of verification.
In dismissing the complaint, the trial court also specifically found that F&P
failed to tender an authenticated invoice or testimony that the outstanding invoices
remained unpaid. In so holding, the trial court relied on this Court’s decision in
American Arbitration Assn. v. Bowen, 322 Ga. App. 51, 52-53 (1) (743 SE2d 612)
(2013), which held that
2
See also Allen Tile & Marble Co. v. Vinyl Plastics, Inc., 99 Ga. App. 186, 188
(2) (107 SE2d 881) (1959) (where petition based on open account was not verified,
defendant could file answer by general denial).
3
[a] suit on open account is available as a simplified procedure to the
provider of goods and services where the price of such goods or services
has been agreed upon and where it appears that the plaintiff has fully
performed its part of the agreement and nothing remains to be done
except for the other party to make payment. To establish a prima facie
case for a complaint on account, the plaintiff must tender an
authenticated invoice, along with testimony that the invoice remains
unpaid.
(Citations omitted.) Contrary to the trial court’s ruling, Bowen does not require the
dismissal of a complaint on open account merely because the plaintiff failed to
establish a prima facie case in its complaint. Rather, in Bowen, this Court reversed the
dismissal of the plaintiff’s suit on account on the ground that the plaintiff established
a prima facie case for recovery on an open account at trial. See id.As F&P correctly argues, there is no question in this case that the Defendants
are in default, and none of them filed any documents or motions with the trial court
after they were served with the complaint. Moreover, F&P’s complaint clearly set
forth sufficient allegations to state a claim on an open account, even if F&P failed to
set forth a prima facie case, since the complaint specifically set out the invoice
number, date and outstanding balance of each open invoice. Clearly, in this case, as
in Bowen, supra, F&P established that services per the invoices were provided, and
4
nothing remained except for the Defendants, who were in default, to make payment.
Under these circumstances, F&P’s complaint was not subject to dismissal for failure
to state a claim. See Superior Roofing Co. of Ga. v. American Professional Risk
Servs., 323 Ga. App. 416, 417 (744 SE2d 400) (2013) (complaint not subject to
dismissal for failure to state a claim unless allegations disclose with certainty that
claim is not entitled to relief under any state of provable facts asserted therein).
Accordingly, we reverse the trial court’s order dismissing the complaint.
2. F&P did not enumerate as error the denial of its motion for a default
judgment. Nevertheless, we note that where, as here, a case is in default and the
damages are liquidated,
the plaintiff at any time [after expiration of the 15-day period] shall be
entitled to verdict and judgment by default, in open court or in
chambers, as if every item and paragraph of the complaint or other
original pleading were supported by proper evidence, without the
intervention of a jury[.]
OCGA § 9-11-55 (a). “By statutory definition, an action on an open account is
considered an action for liquidated damages.” (Citation omitted.) Sellers v. Nodvin,
207 Ga. App. 742, 746 (3) (429 SE2d 138) (1993); see also Hazlett & Hancock
Construction Co. v. Virgil Womack Construction Co., 181 Ga. App. 25, 26 (2) (351
5
SE2d 218) (1986) (a suit on account is one type of liquidated claim which becomes
established and fixed without the necessity of proof by the plaintiff when the case
goes into default). Accordingly, it appears that F&P is entitled to a default judgment
on its open account claim.
Judgment reversed. Andrews, P. J., and Branch, J., concur.
6