Lee Et Al. v. Fuerst &Amp; Davis., 173 Ga. App. 362, 326 S.E.2d 482 (1985)

Georgia Court Of Appeals

Status: DECIDED

Docket Number: 69247

Parts: DEEN, Presiding Judge.

Linked as:

Summary

Judgment affirmed. Sognier, J., concurs. McMurray, P. J., concurs in the judgment only.

Summary

Judgment affirmed. Sognier, J., concurs. McMurray, P. J., concurs in the judgment only.

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Floyd E. Stonecypher, for appellants.

Robert E. Lee and Frances G. Lee appeal from the grant of summary judgment for the appellee, Fuerst & Davis, in an action seeking payment for physician's services (due since September 1981) and interest thereon. The Lees contend that there was no evidence that the appellee was a licensed medical provider, a requisite showing for the appellee to recover. See Management Search v. Kinard, 231 Ga. 26 (199 SE2d 899) (1973). Held:

1. The record contains no transcript or brief of the evidence, if any, adduced at the hearing on the motion for summary judgment. Additionally, while the record on appeal contains a copy of some interrogatories from the appellants to the appellee, it omits any copy of the appellee's response (if any); in the notice of appeal, the appellants instructed the state court clerk to exclude the appellee's brief in support of the motion for summary judgment, and the appellee here asserts that those interrogatories were included with that brief.

Under OCGA 9-11-29.1 a party relying upon discovery material in a pretrial motion has the burden of filing that material with the trial court. Nevertheless, the appellants still had the duty to prepare a record sufficient for this court to review the judgment of the court below, and we cannot determine whether these interrogatories were filed and considered at the hearing because of the omission of the appellee's brief. Accordingly, we must assume that the judgment below for the amount due for physician's services was correct. Cf. Brown v. Frachiseur, 247 Ga. 463 (277 SE2d 16) (1981); Huttig Sash &c. Co. v. Controlled Bldg. Corp., 165 Ga. App. 99 (299 SE2d 411) (1983).

2. The appellants also contend that the trial court's award of interest was patently usurious and therefore error. On the principal judgment of $369, the trial court had awarded $155 interest. This award of interest, however, did not exceed the rate allowable on a commercial account. OCGA 7-4-16; Martin v. Mayer, 63 Ga. App. 387 (11 SE2d 218) (1940).

Sidney Lee Storesund, Martin L. Fierman, for appellee.

1985