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

Court of Appeals of Georgia

April 21, 2015

FISHER & PHILLIPS, LLP
v.
AMEREX ENVIRONMENTAL TECHNOLOGIES, INC. et al

Open account. Fulton Superior Court. Before Judge Glanville.

Van Sant Law, Christopher L. Moore, for appellant.

Joseph Pircon, pro se.

Brian McMahon, pro se.

MILLER, Judge. Andrews, P. J., and Branch, J., concur.

OPINION

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 appeals, contending that the trial court erred in dismissing its complaint. For the reasons that follow, we reverse.

[332 Ga.App. 262] 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 S.E.2d 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.

In dismissing F& P's complaint, the trial court specifically found that F& P failed to verify the complaint as required by

Page 60

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 S.E.2d 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. ...


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