Tench v

United States Tsubaki, Inc., 191 Ga. App. 248, 381 S.E.2d 319, 1989 Ga. App. LEXIS 534 (1989). Summary judgment precluded. — When evidence in an action against a defendant-farmer on open account indicated that the plaintiff was basing the plaintiff’s estimation of the defendant’s indebtedness on the business records of another corporation it had purchased and the defendant denied indebtedness in the amount claimed by the plaintiff, and since the plaintiff’s affidavit failed to establish the defendant’s account to be a commercial one authorizing a certain annual finance charge pursuant to O.C.G.A. § 7-4-16, there were issues of material fact yet to be resolved and the plaintiff was precluded from summary judgment. Paulk v. Carolina E. Inc., 172 Ga. App. 669, 324 S.E.2d 527, 1984 Ga. App. LEXIS 2627 (1984). Disallowing interest on open accounts does not affect law of set-off. Meriwether v. Bird, 9 Ga. 594, 1851 Ga. LEXIS 62 (1851). Claim not barred. — Trial court erred by granting summary judgment in favor of a debtor on all of the invoices that made 753 General Considerations (Cont’d) up a creditor’s claim against the debtor on the ground that the complaint was barred by the four-year limitation period for a suit on account because the trial court’s grant of summary judgment was based on a purported admission by the creditor that its claims accrued on April 3, 2001, but the trial court misread the document, and the creditor submitted authenticated invoices, which showed dates more recent than four years prior to the date suit was filed; unless otherwise provided in the agreement, claims are barred if the claims are asserted more than four years after invoices are submitted to the buyer. Avery Enters. v. Lyndhurst Builders, LLC, 304 Ga. App. 353, 696 S.E.2d 389, 2010 Ga. App. LEXIS 523 (2010). Prejudgment Interest Error in calculating pre-judgment interest. — Because the trial court in an action involving a tax lien encumbrance erred in calculating pre-judgment interest pursuant to O.C.G.A. § 7-4-16, which applies to commercial accounts, remand for re-calculation based on O.C.G.A. § 7-4-15 was required. Homeland Communities, Inc. v. Rahall & Fryer, P.C., 235 Ga. App. 440, 509 S.E.2d 714, 1998 Ga. App. LEXIS 1530 (1998). Trial court erred in modifying a judgment to add prejudgment interest as the court could not award prejudgment interest for the debt which was based on a contract claim, an asset purchase agreement; therefore, the debt was not a commercial debt to which O.C.G.A. § 7-4-16 applied. Capital Cargo, Inc. v. Port of Port Royal, 261 Ga. App. 803, 584 S.E.2d 54, 2003 Ga. App. LEXIS 777 (2003). In the action involving the City of Griffin and the Commissioners of the Board of Commissioners of Spalding County in which an unlawful tax was alleged, the trial court improperly assessed prejudgment interest under O.C.G.A. § 7-4-16 because that statute applied only to commercial accounts. McDaniel v. City of Griffin, 281 Ga. App. 350, 636 S.E.2d 62, 2006 Ga. App. LEXIS 1102 (2006). Heating system installer’s invoices did not specify terms per O.C.G.A. § 7-4-16 as 7-4-16 the invoice did not define the interest sought as that applicable to commercial accounts, and did not list a specific rate of interest; therefore, the trial court erred when the court granted prejudgment interest at the rate allowed by that statute. Carrier Corp. v. Rollins, Inc., 316 Ga. App. 630, 730 S.E.2d 103, 2012 Ga. App. LEXIS 623 (2012). When contract specified no rate of interest and complaint merely prayed for “interest” without specifying the rate thereof, pre-judgment interest only at the applicable “legal rate” of seven percent was authorized pursuant to O.C.G.A. § 7-4-2(a)(1). Gold Kist Peanuts v. Alberson, 178 Ga. App. 253, 342 S.E.2d 694, 1986 Ga. App. LEXIS 1637 (1986). Request for prejudgment interest must be specific. — If the rate allowed under O.C.G.A. § 7-4-16 is sought before trial, the trial court is authorized to grant pre-judgment interest at that rate, but the request must specify the interest rate sought. Spears v. Allied Eng’g Assocs., 186 Ga. App. 878, 368 S.E.2d 818, 1988 Ga. App. LEXIS 475 (1988). Unpublished decision: Defendant was not entitled to pre-judgment interest under O.C.G.A. § 7-4-16 on the defendant’s suit on account counterclaim because the defendant did not comply with the requirement that a commercial creditor make a pre-trial invocation of the applicability of that provision (while the standard terms and conditions provided that outstanding amounts would bear one and a half percent interest, it did not apply to the debts underlying the defendant’s counterclaim); the defendant’s pre-trial efforts to seek interest under O.C.G.A. § 7-4-16 did not specify the rate of interest being sought. Discrete Wireless, Inc. v. Coleman Techs., Inc., 422 Fed. Appx. 777, 2011 U.S. App. LEXIS 7043 (11th Cir. 2011). Prejudgment interest not excessive. — Prejudgment interest based on unpaid rent and unpaid taxes was not excessive. Georgia Color Farms, Inc. v. K. K. L., Ltd. Pshp., 234 Ga. App. 849, 507 S.E.2d 817, 1998 Ga. App. LEXIS 1321 (1998), cert. denied, No. S99C0293, 1999 Ga. LEXIS 185 (Ga. Feb. 19, 1999). Prejudgment interest on invoices. — Invoices which were a liquidated debt on a commercial account were subject to 754 7-4-16 prejudgment interest. Trebor Corp. v. Nutmeg Indus., Inc., 208 Ga. App. 697, 431 S.E.2d 402, 1993 Ga. App. LEXIS 570 (1993), cert. denied, No. S93C1373, 1993 Ga. LEXIS 932 (Ga. Oct. 5, 1993). Prejudgment interest awarded by a jury in an action on an account should have been stricken by a trial judge because a fixed sum was owed by a purchaser and the fact that the jury did not award the entire amount sought did not make the damages unliquidated; further, the parties stipulated that interest under O.C.G.A. § 7-4-16 was a matter for the court to decide. Kroger Co. v. U. S. Foodservice of Atlanta, Inc., 270 Ga. App. 525, 607 S.E.2d 177, 2004 Ga. App. LEXIS 1516 (2004). Post-judgment interest. — A commercial account is not, by virtue of O.C.G.A. § 7-4-16, transformed into such an “obligation” as would come within the exception to the standard post-judgment interest rate of 12 percent per year that is established by O.C.G.A. § 7-4-12. ADC Constr. Co. v. Hall, 202 Ga. App. 119, 413 S.E.2d 522, 1991 Ga. App. LEXIS 1718 (1991). O.C.G.A. § 7-4-16 does not authorize a creditor to recover both pre-judgment and post-judgment interest at the same rate. It would only permit creditor to recover pre-judgment interest at a rate which is “greater than the post-judgment rate” of 12 percent per year that “all judgments in this state shall bear” pursuant to O.C.G.A. § 7-4-12. ADC Constr. Co. v. Hall, 202 Ga. App. 119, 413 S.E.2d 522, 1991 Ga. App. LEXIS 1718 (1991). Portion awarding interest in a foreclosure judgment was vacated and the case remanded for recalculation of the interest rate pursuant to O.C.G.A. § 7-4-2 because § 7-4-2 governed the rate of interest in contracts when the interest rate was not specified and since the maximum legal rate specified in the declaration, which was not a commercial account, was not definite and ascertainable, the trial court erred in awarding 18 percent interest rather than the seven percent. Northside Bank v. Mountainbrook of Bartow County Homeowners Ass’n, 338 Ga. App. 126, 789 S.E.2d 378, 2016 Ga. App. LEXIS 449 (2016). Prejudgment interest when unliquidated damages. — FDIC’s demand was for $10 million, the limit under the insurance policy and the amount the insurer ultimately paid, and the only thing left to dispute was whether the insurer’s policy covered the wrongful renovations done by the bank at all, but a dispute as to liability did not make a claim unliquidated, and given that the insurer paid the money, it could assert that the claim was unliquidated; declaratory judgments were not coercive, and the entire lawsuit had been dedicated to extensively litigating prejudgment interest, which clearly sufficed under Georgia law. FDIC v. Certain Underwriters at Lloyd’s of London, 45 F.4th 1301, 2022 U.S. App. LEXIS 23203 (11th Cir. 2022). Procedure In the absence of a liquidated demand, O.C.G.A. § 7-4-16 is inapplicable. Typo-Repro Servs., Inc. v. Bishop, 188 Ga. App. 576, 373 S.E.2d 758, 1988 Ga. App. LEXIS 1129 (1988). When there was a question of adequate statement of account regarding charges to a subcontractor, the debts were not liquidated because it was not certain how much was due to the general contractor from the subcontractor. American Aluminum Prods. Co. v. Binswanger Glass Co., 194 Ga. App. 703, 391 S.E.2d 688, 1990 Ga. App. LEXIS 307 (1990). Pretrial pleading is an adequate means of invoking O.C.G.A. § 7-4-16. Jack V. Heard Contractors, Inc. v. Moriarity, 185 Ga. App. 317, 363 S.E.2d 822, 1987 Ga. App. LEXIS 2482 (1987). Request for repudiation must be specific. — When a sales contract was not repudiated, and the due date was not extended as to any of the invoices at issue, the statute of limitations began to run on the date the last invoice was received; a letter requesting an offset did not qualify as repudiation since the letter only requested, but did not condition repayment upon an offset. Advance Tufting, Inc. v. Daneshyar, 259 Ga. App. 415, 577 S.E.2d 90, 2003 Ga. App. LEXIS 117 (2003). 755 7-4-17