Avery Enterprises, Inc., d/b/a Centurion Stoneworks, South, appeals an order granting summary judgment in favor of defendant Lyndhurst Builders, LLC. The record shows that the trial court misinterpreted a statement made by counsel for Avery and erroneously based summary judgment on that statement. The record shows that on April 5, 2005, Avery filed an action in which it alleged that Lyndhurst was indebted to Avery in the amount of $7,414.93 on an account.1 The list of transactions comprising the debt was attached to the complaint. The transactions listed run from April 3, 2001 through January 30, 2004. Lyndhurst denied the debt and counterclaimed for attorney fees and costs. On October 27, 2005, Lyndhurst served discovery on Avery, including one request for admission. On February 15, 2007, Lyndhurst moved for summary judgment based on the arguments that Avery failed to timely respond to the request to admit, that the statute of limitations had run on the claims, and that a suit on an open account was not the proper type of claim under the circumstances. The unanswered discovery sought an admission that the amounts owed were all for transactions occurring more than four years prior to suit being filed. Avery had failed to respond for 69 days.
On April 16, 2007, Avery responded to the motion for summary judgment, moved to withdraw the admission, and requested oral argument on the motions. Avery also filed an amended and restated complaint in which it asserted that Lyndhurst was liable on a contract dated January 4, 2001 in the amount of $4,707.34 plus accumulated interest and attorney fees. In response to the amended complaint, Lyndhurst asserted that it was still entitled to partial summary judgment on any remaining claims on an open account based on the statute of limitations for that type of claim. On September 14, 2007, Avery filed the affidavit of Patricia Avery, the vice president of Avery, to authenticate the agreement between the parties and the relevant invoices. Avery also moved to add Tom Porter, a principle of Lyndhurst, as a party defendant.
