2020 Georgia Code
Title 9 - Civil Practice
Chapter 11 - Civil Practice Act
Article 6 - Trials
§ 9-11-56. Summary Judgment

1. For claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 30 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.
2. For defending party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
3. Motion and proceedings thereon. The motion shall be served at least 30 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law; but nothing in this Code section shall be construed as denying to any party the right to trial by jury where there are substantial issues of fact to be determined. A summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damage.
4. Case not fully adjudicated on motion. If on motion under this Code section judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall, if practicable, ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
5. Form of affidavits; further testimony; defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. All affidavits shall be filed with the court and copies thereof shall be served on the opposing parties. When a motion for summary judgment is made and supported as provided in this Code section, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Code section, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
6. When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavits facts essential to justify his opposition, the court may refuse the application for judgment, or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had, or may make such other order as is just.
7. Affidavits made in bad faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this Code section are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party may be adjudged guilty of contempt.
8. Appeal. An order granting summary judgment on any issue or as to any party shall be subject to review by appeal. An order denying summary judgment shall be subject to review by direct appeal in accordance with subsection (b) of Code Section 5-6-34.

(Ga. L. 1966, p. 609, § 56; Ga. L. 1967, p. 226, § 25; Ga. L. 1975, p. 757, § 3.)

Cross references.

- Motions in civil actions, Uniform Superior Court Rules, Rule 6.

Reply, Uniform State Court Rules, Rule 6.2.

Motions for summary judgment in probate court proceedings, Uniform Rules for the Probate Courts, Rules 6.5 and 6.6.

U.S. Code.

- For provisions of Federal Rules of Civil Procedure, Rule 56, see 28 U.S.C.

Law reviews.

- For article discussing effective use of motions for summary judgment prior to adoption of this section, see 23 Ga. B.J. 439 (1961). For article summarizing summary judgment in this state, see 27 Mercer L. Rev. 285 (1975). For article discussing interplay of the Appellate Practice Act (Art. 2, Ch. 6, T. 5), § 9-11-54(b), and subsection (h) of this section, see 31 Mercer L. Rev. 1 (1979). For survey of Georgia trial practice and procedure from June 1979 through May 1980, see 32 Mercer L. Rev. 225 (1980). For survey of Georgia trial practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 275 (1981). For article discussing expert testimony and summary judgment motions in medical malpractice actions, see 18 Ga. St. B.J. 44 (1981). For survey of Georgia trial practice and procedure from mid-1981 through mid-1982, see 34 Mercer L. Rev. 299 (1982). For annual survey of law of torts, see 38 Mercer L. Rev. 351 (1986). For annual survey of trial practice and procedure, see 58 Mercer L. Rev. 405 (2006). For survey article on appellate practice and procedure, see 59 Mercer L. Rev. 21 (2007). For survey article on appellate practice and procedure, see 60 Mercer L. Rev. 21 (2008). For annual survey of law on real property, see 62 Mercer L. Rev. 283 (2010). For note, "Summary Judgment in Medical Malpractice Actions," see 7 Ga. St. B.J. 470 (1971). For case note, "Lynch v. Waters: Tolling Georgia's Statute of Limitations for Medical Malpractice," see 38 Mercer L. Rev. 1493 (1987). For note, "Employer Beware: Changing the Landscape of Employment Discrimination Claims at the Summary Judgment Stage," see 68 Mercer L. Rev. 1145 (2017). For case comment, "Yost v. Torok and Abusive Litigation: A New Tort to Solve an Old Problem," see 21 Ga. L. Rev. 429 (1986). For comment, "Overruling Tradition: Summary Judgment in the Eleventh Circuit After 1986," see 41 Mercer L. Rev. 737 (1990).

JUDICIAL DECISIONS

ANALYSIS

• General Consideration
• Purpose of Summary Judgment
• Applicability to Certain Actions, Proceedings, Issues, and Defenses
• Propriety of Summary Judgment
• Burdens on Motion for Summary Judgment
• Evidence on Motion
• A. In General
• B. Personal Knowledge
• C. Records and Supporting Documentation
• D. Application
• Construction of Evidence and Inferences
• Time and Notice for Hearing of Motion for Summary Judgment
• Hearing of Motion for Summary Judgment
• Conversion of Other Motions to Motions for Summary Judgment
• Construction with Notice and Hearing Provisions of Superior Court Rules
• Service and Filing of Affidavits
• Procedure When Affidavits Unavailable
• Affidavits Made in Bad Faith
• Function of Trial Court
• Appealability and Finality

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L 1959, p. 234, § 1 et seq., are included in the annotations for this Code section.

Constitutionality.

- Summary judgment does not unconstitutionally deprive litigants of their right to a jury trial since summary judgment may be entered only when there is no issue of fact for consideration. Harry v. Glynn County, 269 Ga. 503, 501 S.E.2d 196 (1998).

Due process requirements.

- Although a motion for summary judgment is a vehicle for disposing of a controversy without the necessity of a trial and a summary disposition of the issues in order to efficiently resolve litigation, nevertheless, due process requires that the respondent not be surprised; rather, that the respondent be given reasonable opportunity to refute the movant's showing that there are no genuine issues of material fact. Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631, 278 S.E.2d 377 (1981).

Crux of summary judgment procedure.

- Crux of summary judgment procedure is that if there is no substantial issue as to any material fact, then the court can apply the appropriate legal principles and define the legal rights of the parties without lengthy trials to establish already undisputed facts. Caldwell v. Mayor of Savannah, 101 Ga. App. 683, 115 S.E.2d 403 (1960);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Essence of a motion for summary judgment is that there is no genuine issue of material fact to be resolved by the trier of facts, and that the movant is entitled to judgment on the law applicable to the established fact. McCarty v. National Life & Accident Ins. Co., 107 Ga. App. 178, 129 S.E.2d 408 (1962);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Similarity to federal rule.

- O.C.G.A. § 9-11-56 is similar to Fed. R. Civ. P. 56, and on review it is proper for the appellate court to consider federal rulings. Federal Ins. Co. v. Oakwood Steel Co., 126 Ga. App. 479, 191 S.E.2d 298 (1972).

Summary Judgment Act of 1959, Ga. L. 1959, p. 234, § 1 et seq., was substantially identical to Rule 56 of the Federal Rules of Practice and Procedure, 28 U.S.C. Holland v. Sanfax Corp., 106 Ga. App. 1, 126 S.E.2d 442 (1962).

O.C.G.A. § 9-11-56 must be strictly followed in consideration of a motion for summary judgment. Southeastern Metal Prods., Inc. v. Horger, 166 Ga. App. 205, 303 S.E.2d 536 (1983).

Unawareness of rules not excusable.

- Florida attorney's unawareness of Georgia rule permitting motion for summary judgment to be decided by the court without oral hearing was not excusable neglect that warranted reconsideration of the grant of summary judgment. Dominiak v. Camden Tel. & Tel. Co., 205 Ga. App. 620, 422 S.E.2d 887, cert. denied, 205 Ga. App. 899, 422 S.E.2d 887 (1992).

Ga. L. 1966, p. 609, § 56 (see now O.C.G.A. § 9-11-56) must be construed with Ga. L. 1967, p. 226, § 25 (see now O.C.G.A. § 9-11-1). Taylor v. Donaldson, 227 Ga. 496, 181 S.E.2d 340, cert. denied, 404 U.S. 805, 92 S. Ct. 163, 30 L. Ed. 2d 38 (1971).

O.C.G.A.

§ 9-11-56 controls over local court rules. - Local court rules that are not in substantial compliance with the requirements of the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) with regard to summary judgment proceedings are of no effect. Smith v. Conley, 152 Ga. App. 589, 263 S.E.2d 453 (1979).

No conflict with superior court rules.

- O.C.G.A. § 9-11-56 and Rule 6.3 of the Uniform Rules of Superior Courts work together consistently. Furthermore, Rule 6.3 does not thwart the obvious purpose of a hearing in summary judgment, which is to provide counsel with an opportunity to persuade the court and to provide the court with an opportunity to interrogate counsel. Kelley v. First Franklin Fin. Corp., 256 Ga. 622, 351 S.E.2d 443 (1987).

There is no conflict between the requirements of Uniform Superior Court Rules 6.2 and 6.5 and O.C.G.A. § 9-11-56; rather, the requirements are in addition to those set out in the Civil Practice Act, O.C.G.A. Ch. 11, T. 9. West v. Nodvin, 183 Ga. App. 645, 359 S.E.2d 729 (1987).

Rule 6.3 of the Uniform Superior Court Rules is not inconsistent with subsection (c) of O.C.G.A. § 9-11-56, and it is not error for the trial court to grant summary judgment in accordance with Rule 6.3 without an oral-argument hearing, if neither party requested such a hearing. Dallas Blue Haven Pools, Inc. v. Taslimi, 256 Ga. 739, 354 S.E.2d 160 (1987).

Subsection (c) of O.C.G.A. § 9-11-56 refers only to filing of opposing affidavits prior to the day of hearing and provides no authority for other responsive materials to be filed outside the 30-day period prescribed in Superior Court Rule 6.2. Winchester v. Sun Valley-Atlanta Assocs., 206 Ga. App. 140, 424 S.E.2d 85 (1992); Coastal Plains Trucking Co. v. Thomas County Fed. Sav. & Loan Ass'n, 224 Ga. App. 885, 482 S.E.2d 493 (1997).

Section 9-11-55 controlling as to default.

- Motion for summary judgment is not an appropriate means by which a plaintiff can secure a judgment based upon the defendant's alleged default. O.C.G.A. § 9-11-55 is the controlling statute on the issue of default. Watson v. Georgia State Dep't of Educ. Credit Union, 201 Ga. App. 761, 412 S.E.2d 286 (1991).

Summary judgment is analogous to directed verdict; operation of the motions is essentially the same in reference to those issues upon which a movant for summary judgment would have, at trial, the burden of proof, but somewhat different if the motion is made by the opponent of the party with the trial burden. Southern Bell Tel. & Tel. Co. v. Beaver, 120 Ga. App. 420, 170 S.E.2d 737 (1969).

"Claim" defined.

- General Assembly did not intend to give a restrictive meaning to the term "claim" in Ga. L. 1967, p. 226, § 25 (see now O.C.G.A. § 9-11-56), and this term is not confined to such actions as contracts, torts, or the like. Taylor v. Donaldson, 227 Ga. 496, 181 S.E.2d 340, cert. denied, 404 U.S. 805, 92 S. Ct. 163, 30 L. Ed. 2d 38 (1971).

Appeal to superior court by propounder of will as "claim".

- Term "claim," as used in O.C.G.A. § 9-11-56, applies if the propounder of a purported will, upon appeal to the superior court, seeks to establish it as the last will and testament of the decedent. Taylor v. Donaldson, 227 Ga. 496, 181 S.E.2d 340, cert. denied, 404 U.S. 805, 92 S. Ct. 163, 30 L. Ed. 2d 38 (1971).

Statute of limitations may be raised in brief in opposition to a motion for summary judgment. Brown v. Quarles, 154 Ga. App. 350, 268 S.E.2d 403 (1980).

Law of the case doctrine.

- Because the law of the case doctrine did not apply to issues not previously ruled upon below, enumerated as error on appeal, or discussed in a prior appellate decision, the trial court erred in denying summary judgment to a boat's charterer, and partial summary judgment to both the charterer and the boat's owner, in an action arising out of injuries sustained by a longshoreman while on board a cargo ship as the law of the case rule did not preclude consideration of the charterer's status and the issue of whether both were liable under the International Safety Management Code as such were not previously addressed by the trial court. Eastern Car Liner, Ltd. v. Kyles, 280 Ga. App. 362, 634 S.E.2d 129 (2006).

Respondent to a motion to dismiss is entitled to notice of conversion of the motion into one for summary judgment and to 30 days to respond to the motion for summary judgment unless such notice and opportunity are waived. Bonner v. Fox, 204 Ga. App. 666, 420 S.E.2d 312 (1992).

Adjudication on summary judgment is an adjudication on the merits. Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974); Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977); Fierer v. Ashe, 147 Ga. App. 446, 249 S.E.2d 270 (1978); National Heritage Corp. v. Mount Olive Mem. Gardens, Inc., 148 Ga. App. 398, 251 S.E.2d 311 (1978), rev'd on other grounds, 244 Ga. 240, 260 S.E.2d 1 (1979); Walter E. Heller & Co. v. Aetna Bus. Credit, Inc., 158 Ga. App. 249, 280 S.E.2d 144 (1981).

Summary judgment is an abbreviated trial of no less importance than any other trial on the merits. Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974); Davidson Mineral Properties, Inc. v. Gifford-Hill & Co., 235 Ga. 176, 219 S.E.2d 133 (1975).

Grant of summary judgment is a ruling on merits. Usher v. Johnson, 157 Ga. App. 420, 278 S.E.2d 70 (1981).

Granting summary judgment is a decision on the merits and ends the case; amendments and subsequent motions for summary judgment made after this decision on the merits are too late. Ellington v. Tolar Constr. Co., 142 Ga. App. 218, 235 S.E.2d 729, cert. dismissed, 239 Ga. 849, 240 S.E.2d 551 (1977).

Party against whom summary judgment is granted is in the same position as if having lost a verdict. Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974); Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977); National Heritage Corp. v. Mount Olive Mem. Gardens, Inc., 148 Ga. App. 398, 251 S.E.2d 311 (1978), rev'd on other grounds, 244 Ga. 240, 260 S.E.2d 1 (1979); Walter E. Heller & Co. v. Aetna Bus. Credit, Inc., 158 Ga. App. 249, 280 S.E.2d 144 (1981).

There is no such thing as a "default summary judgment." By failing to respond to a motion for summary judgment, a party merely waives the right to present evidence in opposition to the motion. It does not automatically follow that the motion should be granted. McGivern v. First Capital Income Properties, Ltd., 188 Ga. App. 716, 373 S.E.2d 817 (1988); Hughes v. Montgomery Contracting Co., 189 Ga. App. 814, 377 S.E.2d 723 (1989).

Effect of summary judgment on abusive litigation counterclaim.

- Because trial courts are not "infallible" when determining whether questions of fact exist on motions for summary judgment, a trial court's grant of summary judgment on a complaint does not control the merits of a subsequent motion for summary judgment on the defendant's abusive litigation counterclaim arising out of the filing of that complaint. Seckinger v. Holtzendorf, 200 Ga. App. 604, 409 S.E.2d 76, cert. denied, 200 Ga. App. 897, 409 S.E.2d 76 (1991).

Denial of motion for summary judgment decides nothing except that under the evidence before the court at that time there can be rendered no judgment as a matter of law. Ellington v. Tolar Constr. Co., 142 Ga. App. 218, 235 S.E.2d 729, cert. dismissed, 239 Ga. 849, 240 S.E.2d 551 (1977); Graham Bros. Constr. Co. v. Seaboard Coast Line R.R., 150 Ga. App. 193, 257 S.E.2d 321 (1979); T.L. Rogers Oil Co. v. South Carolina Nat'l Bank, 203 Ga. App. 605, 417 S.E.2d 336, cert. denied, 203 Ga. App. 908, 417 S.E.2d 336 (1992).

When the plaintiffs contended that because the trial court originally denied the defendant's motion for summary judgment based on the running of the statute of limitations, it was barred from later entering an order granting such a motion, based on the doctrine of res judicata, it was held that the denial of a motion for summary judgment decides nothing, and thus the plaintiffs' argument based on the doctrine of res judicata was inapposite. Gaskins v. A.B.C. Drug Co., 183 Ga. App. 518, 359 S.E.2d 364 (1987).

Costs, fees, awards despite summary judgment denial.

- Denial of summary judgment does not preclude as a matter of law the exercise of the trial court's discretion under O.C.G.A. § 9-15-14 to award litigation costs and attorney's fees for frivolous actions upon the trial of the case. Porter v. Felker, 261 Ga. 421, 405 S.E.2d 31 (1991).

Denial of summary judgment in a prior case resulted in collateral estoppel of a later claim of abusive litigation. The previous denial of summary judgment to the plaintiff in the abusive litigation case, who was the defendant in the prior case, constituted a binding determination that the claim in the prior case did not lack substantial justification. Walker v. McLarty, 199 Ga. App. 460, 405 S.E.2d 294 (1991), cert. denied, 199 Ga. App. 907, 405 S.E.2d 294 (1991) But see. Graves v. State, 269 Ga. 772, 504 S.E.2d 679 (1998), overruled on other grounds, Jones v. State, 272 Ga. 900, 537 S.E.2d 80 (2000), reversing Graves v. State, 227 Ga. App. 628, 490 S.E.2d 111 (1997).

Subsection (d) of O.C.G.A. § 9-11-56 provides specifically for partial summary judgment. There is no requirement that all claims pled be included in a motion for partial summary judgment. Clark v. West, 196 Ga. App. 456, 395 S.E.2d 884 (1990).

Judgment on the pleadings held not partial summary judgment.

- If the record shows that no matter outside the pleadings is presented or considered by the court when making an order on a motion for judgment on the pleadings, entry of judgment is not a partial summary judgment, but a judgment on the pleadings only. Goolsby v. Allstate Ins. Co., 130 Ga. App. 881, 204 S.E.2d 789 (1974).

Disposition of motion to dismiss under summary judgment procedure when matter outside pleadings considered.

- Although a petition may amply meet liberalized requirements of notice pleading so as to preclude dismissal from consideration of the petition alone, the court has authority to consider the matter outside the pleadings, if presented, and if the court does so, the court must dispose of the matter under summary judgment procedures. Kiker v. Hefner, 119 Ga. App. 629, 168 S.E.2d 637 (1969).

Defendant's motion to dismiss for lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process was not converted to a summary judgment motion upon consideration of matters outside the pleadings and, thus, dismissal was not directly appealable under the summary judgment statute. Church v. Bell, 213 Ga. App. 44, 443 S.E.2d 677 (1994).

Motion to dismiss by the state transportation department was treated as a motion for summary judgment because the department, the surviving relatives of the decedents who died in an auto accident, and the trial court relied on numerous documents outside the pleadings. DOT v. Carr, 254 Ga. App. 781, 564 S.E.2d 14 (2002).

Motion for summary judgment on basis of complaint equivalent to motion to dismiss.

- If a motion for summary judgment is made by the defendant solely on the basis of the complaint, such motion is functionally equivalent to a motion to dismiss for failure to state a claim; such complaint should be liberally construed in favor of the complainant, with the facts alleged in the complaint taken as true, and the motion for summary judgment must be denied if a claim has been pled. Guthrie v. Monumental Properties, Inc., 141 Ga. App. 21, 232 S.E.2d 369 (1977).

Trial judge has inherent power, during the same term of court in which judgment is rendered, to revise, correct, revoke, modify, or vacate such judgment, even upon the court's own motion, for purpose of promoting justice and in the exercise of sound legal discretion. LeCraw v. Atlanta Arts Alliance, Inc., 126 Ga. App. 656, 191 S.E.2d 572 (1972).

Number of motions for summary judgment.

- There is nothing limiting the number of times a party may make a motion for summary judgment. Graham Bros. Constr. Co. v. Seaboard Coast Line R.R., 150 Ga. App. 193, 257 S.E.2d 321 (1979); T.L. Rogers Oil Co. v. South Carolina Nat'l Bank, 203 Ga. App. 605, 417 S.E.2d 336, cert. denied, 203 Ga. App. 908, 417 S.E.2d 336 (1992).

Renewed or second motion for summary judgment may be considered within the discretion of a trial court, even though there has been no expansion of the record since the denial of the first motion for summary judgment. Southeastern Metal Prods., Inc. v. Horger, 166 Ga. App. 205, 303 S.E.2d 536 (1983); Travelers Indem. Co. v. Thomas, 172 Ga. App. 816, 324 S.E.2d 735 (1984).

Nothing in O.C.G.A. § 9-11-56 limits the number of times a party may make a motion for summary judgment, even without proffering additional evidence, leaving it within the trial judge's discretion to consider such motions. Eastern Car Liner, Ltd. v. Kyles, 280 Ga. App. 362, 634 S.E.2d 129 (2006).

Although the court found that summary judgment was improperly granted, nothing in O.C.G.A. § 9-11-56 limited the number of times a party could make a motion for summary judgment; thus, upon remand, either party could file a motion for summary judgment and seek a determination based upon the evidence and standard for summary adjudication. Gold Creek SL, LLC v. City of Dawsonville, 290 Ga. App. 807, 660 S.E.2d 858 (2008).

Grant after previous denial.

- Previous denial of summary judgment does not preclude the subsequent grant thereof on the basis of an expanded record. Ellington v. Tolar Constr. Co., 142 Ga. App. 218, 235 S.E.2d 729, cert. dismissed, 239 Ga. 849, 240 S.E.2d 551 (1977); Graham Bros. Constr. Co. v. Seaboard Coast Line R.R., 150 Ga. App. 193, 257 S.E.2d 321 (1979); Christian v. Allstate Ins. Co., 152 Ga. App. 358, 262 S.E.2d 621 (1979); T.L. Rogers Oil Co. v. South Carolina Nat'l Bank, 203 Ga. App. 605, 417 S.E.2d 336, cert. denied, 203 Ga. App. 908, 417 S.E.2d 336 (1992).

Prior denial of summary judgment does not foreclose the subsequent grant thereof, as an order or other form of decision is subject to revision at any time before entry of judgment adjudicating all claims, rights, and liabilities of all parties. Fierer v. Ashe, 147 Ga. App. 446, 249 S.E.2d 270 (1978).

Although the plaintiffs filed the plaintiffs' negligence lawsuit in the superior court of one county and that court denied the defendants' motion for summary judgment, the circuit court in the county to which the lawsuit was transferred did not err in reconsidering the defendants' motion for summary judgment and granting the motion because nothing limits the number of times a party may make a motion for summary judgment and res judicata does not apply to a denial of a motion for summary judgment. Hubbard v. DOT, 256 Ga. App. 342, 568 S.E.2d 559 (2002).

Striking of a counterclaim after consideration of the proposed pretrial orders of the plaintiff and the defendant, pleadings, evidence, and arguments of counsel is tantamount to a grant of summary judgment motion and appealable without certificate of immediate review, even though interlocutory. Aiken v. Citizens & S. Bank, 249 Ga. 481, 291 S.E.2d 717, cert. denied, 459 U.S. 973, 103 S. Ct. 307, 74 L. Ed. 2d 287 (1982).

Third-party defendant is entitled to move for summary judgment against the original plaintiff on any ground for which the original defendant would be entitled to summary judgment against the plaintiff. Empire Shoe Co. v. Nico Indus., Inc., 197 Ga. App. 411, 398 S.E.2d 440 (1990).

When motion to dismiss is treated as motion for summary judgment.

- If a motion to dismiss is supplemented by argument of counsel and matters outside of the pleadings, it is treated as a motion for summary judgment. Blasingame v. Blasingame, 249 Ga. 791, 294 S.E.2d 519 (1982).

An exhibit offered at a hearing on an interlocutory injunction that was the basis of the trial court's decision to grant the appellee's motion to dismiss converted the motion to dismiss to a motion for summary judgment, and the appellants were entitled to have the notice required in the summary judgment provisions. Wallis v. Trustees, Sugar Hill United Methodist Church, 252 Ga. 51, 310 S.E.2d 915 (1984).

In an action filed by children to recover damages for injuries sustained by their parent in a fall in a nursing home facility, a motion to dismiss the action for failure to state a claim filed by the center that operated the facility was converted to a motion for summary judgment and, on appeal, was to be reviewed as such; the children, as nonmovants, submitted documentary evidence in response to the motion, and, by doing so, in effect requested that the motion be converted into one for summary judgment and acquiesced in the trial court's decision not to give notice of the actual nature of the pending motion. Gaddis v. Chatsworth Health Care Ctr., Inc., 282 Ga. App. 615, 639 S.E.2d 399 (2006).

Treatment of O.C.G.A.

§ 9-11-12(b)(6) motion as one for summary judgment. - So long as the parties are afforded sufficient time within which to file affidavits and other evidentiary materials, a trial court sua sponte can treat an O.C.G.A. § 9-11-12(b)(6) motion as one for summary judgment, even though neither party has introduced matter outside of the pleadings. Zepp v. Mayor of Athens, 180 Ga. App. 72, 348 S.E.2d 673 (1986).

Although the trial court converted the defendant limited liability company's (LLC's) motion to dismiss the plaintiff sanitation company's action into a motion for summary judgment when the court considered matters outside the pleadings, the appellate court refused to reverse the trial court's judgment finding that an agreement which allowed the sanitation company to purchase the LLC for $500,000 less than any amount offered by a third party was an unreasonable restraint on alienation because the trial court allowed the sanitation company to introduce evidence in support of the company's claims. RTS Landfill, Inc. v. Appalachian Waste Sys., LLC, 267 Ga. App. 56, 598 S.E.2d 798 (2004).

Notice of conversion of motion to motion for summary judgment.

- In a case alleging unfair employment termination, the trial court's failure to notify the employee of the trial court's conversion of the employer's motion to dismiss to a summary judgment motion, and the court's failure to give the employee at least 30 days to respond, although error, was not reversible because the employee failed to show that the employee was harmed by this deficiency in the notice; because the employee failed to provide the appellate court with a transcript of the summary judgment hearing, the trial court's summary judgment was presumed to have been correct on appeal and was affirmed. Bynum v. Horizon Staffing, 266 Ga. App. 337, 596 S.E.2d 648 (2004).

Motion in limine held not to be, in effect, a motion for summary judgment.

- Motion in limine in a dispossessory action that the issuance of the writ of possession had rendered the issue of possession moot was not in effect a motion for summary judgment and, in granting the motion and dismissing the case, the court did not violate the defendant's right, pursuant to subsection (c) of O.C.G.A. § 9-11-56 and Rule 6.2 of the Uniform Rules for Superior and State Courts, to have at least 30 days to respond to the motion, when none of the parties wished to pursue their damage claims and, therefore, nothing remained to be tried. Diplomat Restaurant, Inc. v. Anthony, 180 Ga. App. 431, 349 S.E.2d 284 (1986).

Standing to oppose motion made by codefendant.

- Codefendant in a tort action has no standing to oppose a motion for summary judgment made by the other codefendant, if the codefendant has no existing rights that will be adversely affected by the grant thereof. Southeastern Erection Co. v. Flagler Co., 108 Ga. App. 831, 134 S.E.2d 822 (1964);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Effect of ruling at earlier hearing on admissibility.

- Grant of judgment for the plaintiffs on the pleadings after a ruling that no issuable defense had been alleged was not error on the ground that the court had, some months earlier, denied a motion for summary judgment made on behalf of the plaintiffs, when the court was considering the effect of evidence, whereas at the preliminary hearing the court was considering the admissibility of the evidence. Phillips v. Marcin, 162 Ga. App. 202, 290 S.E.2d 546 (1982).

Seventh Amendment right to jury trial not infringed.

- Because the Seventh Amendment to the U.S. Constitution did not apply in state courts, and an insured's right to a jury trial thereunder was not infringed when genuine issues of material fact were lacking and disposition of the matter was best handled by way of summary judgment, the insured's Seventh Amendment right to a jury trial was not infringed; as a result, the insured failed to demonstrate any constitutional deprivation warranting a 42 U.S.C. § 1983 action. Cuyler v. Allstate Ins. Co., 284 Ga. App. 409, 643 S.E.2d 783, cert. denied, 2007 Ga. LEXIS 510 (Ga. 2007).

Cited in Algernon Blair, Inc. v. National Sur. Corp., 222 Ga. 672, 151 S.E.2d 724 (1966); Atlanta Funtown, Inc. v. Crouch, 114 Ga. App. 702, 152 S.E.2d 583 (1966); Harrington v. Frye, 116 Ga. App. 755, 159 S.E.2d 84 (1967); Grizzard v. Grizzard, 224 Ga. 42, 159 S.E.2d 400 (1968); O'Kelley v. Evans, 224 Ga. 49, 159 S.E.2d 418 (1968); Jackson v. Kight, 117 Ga. App. 385, 160 S.E.2d 668 (1968); Norton Realty & Loan Co. v. City of Gainesville, 224 Ga. 166, 160 S.E.2d 819 (1968); Kerry v. Brown, 224 Ga. 200, 160 S.E.2d 832 (1968); Passmore v. Truman & Smith Inst., Inc., 117 Ga. App. 620, 161 S.E.2d 323 (1968); McLeod v. Westmoreland, 117 Ga. App. 659, 161 S.E.2d 335 (1968); Levy v. G.E.C. Corp., 117 Ga. App. 673, 161 S.E.2d 339 (1968); Boatright v. Padgett Motor Sales, Inc., 117 Ga. App. 578, 161 S.E.2d 402 (1968); Brooks v. Holman, 117 Ga. App. 615, 161 S.E.2d 512 (1968); Futch v. Futch, 224 Ga. 350, 161 S.E.2d 868 (1968); McCurry v. Bailey, 224 Ga. 318, 162 S.E.2d 9 (1968); Dyer v. Lanier, 224 Ga. 371, 162 S.E.2d 340 (1968); Trammell v. West, 224 Ga. 365, 162 S.E.2d 353 (1968); Ryder v. Schreeder, 224 Ga. 382, 162 S.E.2d 375 (1968); Kiker v. Hefner, 224 Ga. 511, 162 S.E.2d 731 (1968); Moulder v. Steele, 118 Ga. App. 87, 162 S.E.2d 785 (1968); Atlanta Biltmore Hotel Corp. v. Martell, 118 Ga. App. 172, 162 S.E.2d 815 (1968); Flowers v. Flowers, 118 Ga. App. 85, 162 S.E.2d 818 (1968); Zappa v. Allstate Ins. Co., 118 Ga. App. 235, 162 S.E.2d 911 (1968); Sanfrantello v. Sears, Roebuck & Co., 118 Ga. App. 205, 163 S.E.2d 256 (1968); Rubel Baking Co. v. Levitt, 118 Ga. App. 306, 163 S.E.2d 437 (1968); Wade v. Howell, 224 Ga. 626, 163 S.E.2d 717 (1968); National Factor & Inv. Corp. v. State Bank, 224 Ga. 535, 163 S.E.2d 817 (1968); Fidelity-Phenix Ins. Co. v. Mauldin, 118 Ga. App. 401, 163 S.E.2d 834 (1968); Seaview Dev. Co. v. Galanti, 118 Ga. App. 378, 163 S.E.2d 845 (1968); Savannah Elec. & Power Co. v. Edenfield, 118 Ga. App. 531, 164 S.E.2d 366 (1968); Zeesman v. Cordele Credit Jewelry, Inc., 224 Ga. 732, 164 S.E.2d 729 (1968); Farmers Union Whse. v. Bird, 224 Ga. 842, 165 S.E.2d 148 (1968); Todd v. Windsor, 118 Ga. App. 805, 165 S.E.2d 438 (1968); Malone v. Ottinger, 118 Ga. App. 778, 165 S.E.2d 660 (1968); Colonial Stores, Inc. v. Holt, 118 Ga. App. 826, 166 S.E.2d 30 (1969); Duncan Cleaners, Inc. v. Shuman Co., 119 Ga. App. 128, 166 S.E.2d 387 (1969); Davis v. American Acceptance Corp., 119 Ga. App. 265, 167 S.E.2d 222 (1969); Herrington v. LaCount, 225 Ga. 232, 167 S.E.2d 631 (1969); Hood v. General Shoe Corp., 119 Ga. App. 649, 168 S.E.2d 326 (1969); Carden v. LaGrone, 225 Ga. 365, 169 S.E.2d 168 (1969); Travelers Ins. Co. v. Pullin, 120 Ga. App. 69, 169 S.E.2d 688 (1969); City of Atlanta v. Royal Peacock Social Club, Inc., 225 Ga. 474, 169 S.E.2d 807 (1969); Summerlin v. Beacon Inv. Co., 120 Ga. App. 296, 170 S.E.2d 307 (1969); Morris v. Morris, 121 Ga. App. 100, 172 S.E.2d 872 (1970); Worley v. Travelers Indem. Co., 121 Ga. App. 179, 173 S.E.2d 248 (1970); Reynolds v. Wilson, 121 Ga. App. 153, 173 S.E.2d 256 (1970); Johnson v. Frazier, 121 Ga. App. 212, 173 S.E.2d 434 (1970); Askew v. Carroll, 121 Ga. App. 305, 173 S.E.2d 463 (1970); Ward v. Ward, 226 Ga. 212, 173 S.E.2d 703 (1970); Herring v. R.L. Mathis Cert. Dairy Co., 121 Ga. App. 373, 173 S.E.2d 716 (1970); Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 173 S.E.2d 723 (1970); Elberton-Elbert County Hosp. Auth. v. Watson, 121 Ga. App. 550, 174 S.E.2d 470 (1970); Brooks v. Holman, 121 Ga. App. 720, 175 S.E.2d 131 (1970); Kirkland v. Jones, 122 Ga. App. 131, 176 S.E.2d 510 (1970); American Bank v. Gray, 122 Ga. App. 443, 177 S.E.2d 208 (1970); Adamson v. Adamson, 226 Ga. 719, 177 S.E.2d 241 (1970); Williams v. Williams, 226 Ga. 734, 177 S.E.2d 481 (1970); Bulloch County Bank v. Dodd, 226 Ga. 773, 177 S.E.2d 673 (1970); Citizens Bank v. Alexander-Smith Academy, Inc., 226 Ga. 871, 178 S.E.2d 178 (1970); Georgia Power Co. v. Jones, 122 Ga. App. 614, 178 S.E.2d 265 (1970); Dodson v. Phagan, 122 Ga. App. 752, 178 S.E.2d 748 (1970); Shepard v. Wilson, 123 Ga. App. 74, 179 S.E.2d 550 (1970); Abco Bldrs., Inc. v. Peavy Concrete Prod., Inc., 123 Ga. App. 167, 179 S.E.2d 695 (1971); Sorrells v. Smith, 227 Ga. 262, 180 S.E.2d 238 (1971); Smith v. Standard Oil Co., 227 Ga. 268, 180 S.E.2d 691 (1971); Rader v. Rayette Faberge, Inc., 123 Ga. App. 328, 181 S.E.2d 83 (1971); Citizens Bank v. Barber, 123 Ga. App. 507, 181 S.E.2d 545 (1971); Bekins Van Lines Co. v. Barlow, 123 Ga. App. 601, 181 S.E.2d 908 (1971); Goodwin v. First Baptist Church, 227 Ga. 603, 182 S.E.2d 105 (1971); Leathers v. Klebold, 227 Ga. 683, 182 S.E.2d 423 (1971); Salters v. Pugmire Lincoln-Mercury, Inc., 124 Ga. App. 414, 184 S.E.2d 56 (1971); Rushing v. Ellis, 124 Ga. App. 621, 184 S.E.2d 667 (1971); Whittle v. Johnston, 124 Ga. App. 785, 186 S.E.2d 129 (1971); Burdell v. Georgia R.R. Bank & Trust Co., 124 Ga. App. 828, 186 S.E.2d 291 (1971); J.H. Ewing & Sons v. Montgomery, 124 Ga. App. 836, 186 S.E.2d 335 (1971); Sumter County v. Pritchett, 125 Ga. App. 222, 186 S.E.2d 798 (1971); Crowder v. Electro-Kinetics Corp., 228 Ga. 610, 187 S.E.2d 249 (1972); Corbin v. Gulf Ins. Co., 125 Ga. App. 281, 187 S.E.2d 312 (1972); Johnson v. Wormsloe Found., Inc., 228 Ga. 722, 187 S.E.2d 682 (1972); Cheek v. J. Allen Couch & Son Funeral Home, 125 Ga. App. 438, 187 S.E.2d 907 (1972); Stewart v. Jim Walter Homes, Inc., 229 Ga. 244, 190 S.E.2d 520 (1972); Leachman v. Cobb Dev. Co., 229 Ga. 207, 190 S.E.2d 537 (1972); Beaubien v. Bogle, 126 Ga. App. 406, 190 S.E.2d 830 (1972); Frost v. Gasaway, 229 Ga. 354, 190 S.E.2d 902 (1972); Byers v. Lieberman, 126 Ga. App. 582, 191 S.E.2d 470 (1972); General Fin. Corp. v. Davis, 126 Ga. App. 821, 191 S.E.2d 865 (1972); Roy D. Warren Co. v. Wagnon, 126 Ga. App. 776, 191 S.E.2d 894 (1972); Haber v. Georgia Power Co., 127 Ga. App. 19, 192 S.E.2d 436 (1972); Payne v. Payne, 229 Ga. 822, 194 S.E.2d 458 (1972); Bloodworth v. Smith, 128 Ga. App. 378, 196 S.E.2d 691 (1973); Equity Nat'l Life Ins. Co. v. Shelnutt, 128 Ga. App. 849, 198 S.E.2d 350 (1973); Howell v. Harden, 129 Ga. App. 200, 198 S.E.2d 890 (1973); Trammell v. Elliott, 230 Ga. 841, 199 S.E.2d 194 (1973); Tingle v. Arnold, Cate & Allen, 129 Ga. App. 134, 199 S.E.2d 260 (1973); Henry v. Allstate Ins. Co., 129 Ga. App. 223, 199 S.E.2d 338 (1973); Mattison v. Jackson-Atlantic, Inc., 129 Ga. App. 279, 199 S.E.2d 387 (1973); Brown v. Harwell, 129 Ga. App. 313, 199 S.E.2d 637 (1973); Food Fair, Inc. v. Mock, 129 Ga. App. 421, 199 S.E.2d 820 (1973); Frey v. Friendly Motors, Inc., 129 Ga. App. 636, 200 S.E.2d 467 (1973); Ernst v. Little, 129 Ga. App. 756, 201 S.E.2d 185 (1973); Continental Carriers, Inc. v. Seaboard Coast Line R.R., 129 Ga. App. 889, 201 S.E.2d 826 (1973); National Bank v. Merritt, 130 Ga. App. 85, 202 S.E.2d 193 (1973); Cooper v. Plott, 121 Ga. App. 488, 174 S.E.2d 446 (1974); Register v. Kandlbinder, 231 Ga. 786, 204 S.E.2d 145 (1974); Ryle v. Ryle, 130 Ga. App. 680, 204 S.E.2d 339 (1974); Georgia Auto Sales, Inc. v. Hinrichsen, 131 Ga. App. 43, 205 S.E.2d 65 (1974); Bernath Barrel & Drum Co. v. Ostrum Boiler Serv., Inc., 131 Ga. App. 140, 205 S.E.2d 459 (1974); Whitehurst v. Universal C.I.T. Credit Corp., 131 Ga. App. 202, 205 S.E.2d 489 (1974); Smith v. Rothstein, 131 Ga. App. 632, 206 S.E.2d 592 (1974); Thibadeau v. Crane, 131 Ga. App. 591, 206 S.E.2d 609 (1974); Pritchett v. Rainey, 131 Ga. App. 521, 206 S.E.2d 726 (1974); Townsend v. Orkin Exterminating Co., 131 Ga. App. 824, 207 S.E.2d 230 (1974); Hannah v. Shauck, 131 Ga. App. 834, 207 S.E.2d 239 (1974); Holbrook Waterproofing Co. v. Cleaver, 132 Ga. App. 24, 207 S.E.2d 562 (1974); O'Pry v. Goodman, 132 Ga. App. 191, 207 S.E.2d 674 (1974); Lowe v. American Mach. & Foundry Co., 132 Ga. App. 572, 208 S.E.2d 585 (1974); Adams v. Citizens & S. Nat'l Bank, 132 Ga. App. 622, 208 S.E.2d 628 (1974); Jaciewicki v. Gordarl Assocs., 132 Ga. App. 888, 209 S.E.2d 693 (1974); Avis Rent A Car Sys. v. Rice, 132 Ga. App. 857, 209 S.E.2d 270 (1974)

Aiken Asphalt Paving Co. v. Winn, 133 Ga. App. 3, 209 S.E.2d 700 (1974); Sasser & Co. v. Griffin, 133 Ga. App. 83, 210 S.E.2d 34 (1974); Thomas v. Allstate Ins. Co., 133 Ga. App. 193, 210 S.E.2d 361 (1974); Wielgorecki v. White, 133 Ga. App. 834, 212 S.E.2d 480 (1975); First Nat'l Bank v. Osborne, 233 Ga. 602, 212 S.E.2d 785 (1975); Harrell v. Wilson, 233 Ga. 899, 213 S.E.2d 871 (1975); Duval & Co. v. Malcom, 233 Ga. 784, 214 S.E.2d 356 (1975); R.L. Kimsey Cotton Co. v. Ferguson, 233 Ga. 962, 214 S.E.2d 360 (1975); Stein v. Maddox, 234 Ga. 164, 215 S.E.2d 231 (1975); Dutch Inns of Am., Inc. v. United Va. Leasing Corp., 134 Ga. App. 525, 215 S.E.2d 290 (1975); Taylor v. B. & W. Elec. Supply Co., 134 Ga. App. 634, 215 S.E.2d 530 (1975); Jackson v. Jackson, 234 Ga. 587, 216 S.E.2d 808 (1975); Langley v. Pacific Indem. Co., 135 Ga. App. 29, 217 S.E.2d 369 (1975); Bob's Dairy Barn & Restaurant, Inc. v. I.D.S. Leasing Corp., 135 Ga. App. 227, 217 S.E.2d 462 (1975); Freeman v. Phillips, 135 Ga. App. 466, 218 S.E.2d 144 (1975); John Deere Indus. Equip. Co. v. Ponder, 135 Ga. App. 688, 218 S.E.2d 686 (1975); Tax Assessors v. Chitwood, 235 Ga. 147, 218 S.E.2d 759 (1975); Capes v. Morgan, 235 Ga. 1, 218 S.E.2d 764 (1975); Jones v. Young, 136 Ga. App. 21, 220 S.E.2d 24 (1975); McKinnon v. Trivett, 136 Ga. App. 59, 220 S.E.2d 63 (1975); Barone v. Adcox, 235 Ga. 588, 221 S.E.2d 6 (1975); Clements v. Warner Robins Supply Co., 235 Ga. 612, 221 S.E.2d 35 (1975); United States Fire Ins. Co. v. Day, 136 Ga. 359, 221 S.E.2d 467 (1975); Central Soya Co. v. Bundrick, 137 Ga. App. 63, 222 S.E.2d 852 (1975); Southland Inv. Corp. v. McIntosh, 137 Ga. App. 216, 223 S.E.2d 257 (1976); Allan v. Allan, 236 Ga. 199, 223 S.E.2d 445 (1976); Lindgren v. Dowis, 236 Ga. 278, 223 S.E.2d 682 (1976); Graves Refrigeration, Inc. v. Haswell, 137 Ga. App. 515, 224 S.E.2d 494 (1976); Georgia Motor Club, Inc. v. First Nat'l Bank & Trust Co., 137 Ga. App. 521, 224 S.E.2d 498 (1976); Strickland v. Citizens & S. Nat'l Bank, 137 Ga. App. 538, 224 S.E.2d 504 (1976); Kleiner v. Silver, 137 Ga. App. 560, 224 S.E.2d 508 (1976); Rowland v. Kellos, 236 Ga. 799, 225 S.E.2d 302 (1976); Waters v. Groover, 138 Ga. App. 276, 226 S.E.2d 74 (1976); Shepherd Constr. Co. v. State Hwy. Dep't, 138 Ga. App. 252, 226 S.E.2d 79 (1976); Phillips v. Hertz Com. Leasing Corp., 138 Ga. App. 441, 226 S.E.2d 287 (1976); Wilson v. Coite Somers Co., 138 Ga. App. 455, 226 S.E.2d 277 (1976); LaCount v. United Ins. Co. of Am., 138 Ga. App. 476, 226 S.E.2d 307 (1976); Massey v. Henderson, 138 Ga. App. 565, 226 S.E.2d 750 (1976); National Bank & Trust Co. v. Grant, 237 Ga. 337, 227 S.E.2d 372 (1976); Bingham v. Advance Indus. Sec., Inc., 138 Ga. App. 875, 228 S.E.2d 1 (1976); Cornwell v. Williams Bros. Lumber Co., 139 Ga. App. 773, 229 S.E.2d 551 (1976); Henderson Mill, Ltd. v. McConnell, 237 Ga. 807, 229 S.E.2d 660 (1976); Foster Wheeler Corp. v. Georgia Power Co., 140 Ga. App. 261, 230 S.E.2d 494 (1976); Thomas v. Jackson, 238 Ga. 90, 231 S.E.2d 50 (1976); First Nat'l Bank & Trust Co. v. AMF Skamper Corp., 140 Ga. App. 422, 231 S.E.2d 456 (1976); Stern v. Wyatt, 140 Ga. App. 704, 231 S.E.2d 519 (1976); Raven v. S.S. Kresge Co., 140 Ga. App. 799, 232 S.E.2d 122 (1976); Crisp v. First Nat'l Bank, 141 Ga. App. 30, 232 S.E.2d 376 (1977); Hoffman v. PMC Dev. Co., 238 Ga. 258, 232 S.E.2d 541 (1977); Hampton v. McCord, 141 Ga. App. 97, 232 S.E.2d 582 (1977); Burgess v. Clermont Properties, Inc., 141 Ga. App. 112, 232 S.E.2d 627 (1977); Young v. Climatrol S.E. Distrib. Corp., 141 Ga. App. 235, 233 S.E.2d 54 (1977); Nipper v. Crisp County, 141 Ga. App. 312, 233 S.E.2d 270 (1977); Johnson v. Heifler, 141 Ga. App. 460, 233 S.E.2d 853 (1977); Wood v. Metropolitan Atlanta Girls' Club, Inc., 141 Ga. App. 473, 233 S.E.2d 862 (1977); Parker v. Centrum Int'l Film Corp., 141 Ga. App. 521, 233 S.E.2d 877 (1977); Ideal Paint Contractors, Inc. v. Home Mart Bldg. Ctrs., Inc., 141 Ga. App. 830, 234 S.E.2d 670 (1977); Little v. Home Transp. Co., 142 Ga. App. 30, 234 S.E.2d 833 (1977); Mayer v. Turner, 142 Ga. App. 63, 234 S.E.2d 853 (1977); Harbin Lumber Co. v. Fowler, 142 Ga. App. 167, 235 S.E.2d 638 (1977); Stallings v. Chance, 142 Ga. App. 491, 236 S.E.2d 110 (1977); Farnan v. National Bank, 142 Ga. App. 777, 236 S.E.2d 923 (1977); Price v. Winn, 142 Ga. App. 790, 237 S.E.2d 409 (1977); Newton Bros. v. Shank, 143 Ga. App. 21, 237 S.E.2d 412 (1977); Moore v. Trust Co. Bank, 142 Ga. App. 877, 237 S.E.2d 471 (1977); Sims v. Sims, 239 Ga. 451, 238 S.E.2d 32 (1977); Stallings v. Chance, 239 Ga. 567, 238 S.E.2d 327 (1977); Jones v. Doe, 143 Ga. App. 451, 238 S.E.2d 555 (1977); Shaw v. First Nat'l Bank, 143 Ga. App. 416, 238 S.E.2d 719 (1977); Wilson v. Citizens Bank, 143 Ga. App. 402, 238 S.E.2d 754 (1977); Mahler v. Paquin, 143 Ga. App. 773, 240 S.E.2d 185 (1977); Davis v. South Carolina Ins. Co., 143 Ga. App. 782, 240 S.E.2d 191 (1977); McAllister v. American Nat'l Red Cross, 240 Ga. 246, 240 S.E.2d 247 (1977); Shipp v. World Automotive, Inc., 144 Ga. App. 38, 240 S.E.2d 590 (1977); Freeman v. Saxton, 240 Ga. 309, 240 S.E.2d 708 (1977); Security Branding, Inc. v. Corbitt, 144 Ga. App. 164, 240 S.E.2d 728 (1977); Peek v. Southern Guar. Ins. Co., 240 Ga. 498, 241 S.E.2d 210 (1978); Fairington, Inc. v. Yeargin Constr. Co., 144 Ga. App. 491, 241 S.E.2d 608 (1978); Mercury Rising, Inc. v. Gwinnett Bank & Trust Co., 144 Ga. App. 502, 241 S.E.2d 620 (1978); Johnson v. Citizens & S. Bank, 144 Ga. App. 515, 241 S.E.2d 625 (1978); Goolsby v. Oakes, 240 Ga. 493, 241 S.E.2d 836 (1978); Canal Ins. Co. v. Cambron, 240 Ga. 708, 242 S.E.2d 32 (1978); Orkin Exterminating Co. v. Martin Co., 240 Ga. 662, 242 S.E.2d 135 (1978); Goodwin v. Trust Co., 144 Ga. App. 787, 242 S.E.2d 302 (1978); Columbus, Ga., By Bd. of Tax Assessors v. Outreach For Christ, Inc., 241 Ga. 2, 243 S.E.2d 42 (1978); Floyd v. DeVille, 145 Ga. App. 161, 243 S.E.2d 115 (1978); Wall v. Citizens & S. Bank, 145 Ga. App. 76, 243 S.E.2d 271 (1978); LDH Properties, Inc. v. Morgan Guar. Trust Co., 145 Ga. App. 132, 243 S.E.2d 278 (1978); Allstate Ins. Co. v. Christian Brokerage Co., 145 Ga. App. 126, 243 S.E.2d 281 (1978); National Life & Accident Ins. Co. v. Rouse, 145 Ga. App. 40, 243 S.E.2d 300 (1978); Currington v. Federated Mut. Ins. Co., 145 Ga. App. 350, 243 S.E.2d 713 (1978); Barber v. Adams, 145 Ga. App. 627, 244 S.E.2d 149 (1978); Smith v. Gibbs, 145 Ga. App. 647, 244 S.E.2d 615 (1978); Whiteside v. Douglas County Bank, 145 Ga. App. 775, 245 S.E.2d 2 (1978); Hollingsworth v. Georgia Osteopathic Hosp., 145 Ga. App. 870, 245 S.E.2d 60 (1978); Parker v. Fidelity Bank, 146 Ga. App. 52, 245 S.E.2d 364 (1978); Fagala v. Morrison, 146 Ga. App. 377, 246 S.E.2d 408 (1978); Applebaum v. David, Inc., 146 Ga. App. 406, 246 S.E.2d 424 (1978); Owens v. Griggs, 146 Ga. App. 478, 246 S.E.2d 480 (1978); Cooper v. Public Fin. Corp., 146 Ga. App. 250, 246 S.E.2d 684 (1978); Tally v. Atlanta Nat'l Real Estate Trust, 146 Ga. App. 585, 246 S.E.2d 700 (1978); Whiteside v. Douglas County Bank, 146 Ga. App. 888, 247 S.E.2d 558 (1978); Bozard v. J.A. Jones Constr. Co., 146 Ga. App. 877, 247 S.E.2d 605 (1978); Boling v. Golden Arch Realty Corp., 242 Ga. 3, 247 S.E.2d 744 (1978); Nationwide Fin. Corp. v. Banks, 147 Ga. App. 73, 248 S.E.2d 54 (1978); Shepherd v. Epps, 242 Ga. 322, 249 S.E.2d 33 (1978); Chambers v. Citizens & S. Nat'l Bank, 242 Ga. 498, 249 S.E.2d 214 (1978); Robinson v. Carswell, 147 Ga. App. 521, 249 S.E.2d 331 (1978); Oliver v. City of Atlanta, 147 Ga. App. 790, 250 S.E.2d 519 (1978); Stubbs v. Olshan, 147 Ga. App. 793, 250 S.E.2d 535 (1978); Concept-National, Inc. v. DiMattina Supply Co., 147 Ga. App. 865, 250 S.E.2d 552 (1978); Skyway Cycle Sales, Inc. v. Gordon, 148 Ga. App. 150, 251 S.E.2d 118 (1978); McFarland v. Beardsly, 148 Ga. App. 645, 252 S.E.2d 72 (1979); Century Bldrs., Inc. v. Carter, 243 Ga. 14, 252 S.E.2d 507 (1979); Thomasson v. Trust Co. Bank, 149 Ga. App. 556, 254 S.E.2d 881 (1979); Carl E. Jones Dev., Inc. v. Wilson, 149 Ga. App. 679, 255 S.E.2d 135 (1979)

Gobbi v. Hurt, 150 Ga. App. 60, 256 S.E.2d 664 (1979); Dunaway v. North Ga. Co., 150 Ga. App. 66, 256 S.E.2d 669 (1979); Luedtke v. National Stor-All, Inc., 150 Ga. App. 93, 256 S.E.2d 672 (1979); State Farm Mut. Auto. Ins. Co. v. Sloan, 150 Ga. App. 464, 258 S.E.2d 146 (1979); Gorlin v. First Nat'l Bank, 150 Ga. App. 637, 258 S.E.2d 290 (1979); Albert v. Bryan, 150 Ga. App. 649, 258 S.E.2d 300 (1979); Tanner v. Ayers, 150 Ga. App. 709, 258 S.E.2d 545 (1979); Corbin v. Pilgrim Realty Co., 151 Ga. App. 102, 258 S.E.2d 758 (1979); Sumner v. Adel Banking Co., 244 Ga. 73, 259 S.E.2d 32 (1979); Ivey Contracting Co. v. Elliott, 151 Ga. App. 361, 259 S.E.2d 658 (1979); Knight v. First Fed. Sav. & Loan Ass'n, 151 Ga. App. 447, 260 S.E.2d 511 (1979); Great N. Nekoosa Corp. v. Board of Tax Assessors, 244 Ga. 624, 261 S.E.2d 346 (1979); A.R. Hudson Realty, Inc. v. Hood, 151 Ga. App. 778, 262 S.E.2d 189 (1979); Johnson v. Lastinger, 152 Ga. App. 328, 262 S.E.2d 601 (1979); Walter E. Heller & Co. v. Color-Set. Inc., 152 Ga. App. 347, 262 S.E.2d 614 (1979); Peppers v. Siefferman, 153 Ga. App. 206, 265 S.E.2d 26 (1980); Tahoe Carpet Indus., Inc. v. Aetna Bus. Credit, Inc., 153 Ga. App. 317, 265 S.E.2d 116 (1980); Ogletree v. Upson County Hosp. Auth., 153 Ga. App. 429, 265 S.E.2d 347 (1980); Ramsey Winch Co. v. Trust Co. Bank, 153 Ga. App. 500, 265 S.E.2d 848 (1980); Reese v. Sanders, 153 Ga. App. 654, 266 S.E.2d 313 (1980); Bennett v. Shipman, 153 Ga. App. 876, 267 S.E.2d 271 (1980); Commercial Credit Equip. Corp. v. Bates, 154 Ga. App. 71, 267 S.E.2d 469 (1980); Bailey v. Johnson, 245 Ga. 823, 268 S.E.2d 147 (1980); Hart v. Trust Co., 154 Ga. App. 329, 268 S.E.2d 384 (1980); Ford v. Whitmire, 154 Ga. App. 382, 268 S.E.2d 430 (1980); Jankowski v. Taylor, 154 Ga. App. 752, 269 S.E.2d 871 (1980); Jordan v. Jordan, 246 Ga. 395, 271 S.E.2d 450 (1980); McCray v. Hunter, 157 Ga. App. 509, 277 S.E.2d 795 (1981); Benton Bros. Ford Co. v. Cotton States Mut. Ins. Co., 157 Ga. App. 448, 278 S.E.2d 40 (1981); Huckabee Buick, Inc. v. Miller, 157 Ga. App. 429, 278 S.E.2d 79 (1981); Premium Distrib. Co. v. National Distrib. Co., 157 Ga. App. 666, 278 S.E.2d 468 (1981); King's Appliance & Elecs., Inc. v. Citizens & S. Bank, 157 Ga. App. 857, 278 S.E.2d 733 (1981); Hill Aircraft & Leasing Corp. v. Planes, Inc., 158 Ga. App. 151, 279 S.E.2d 250 (1981); Sigmon v. Womack, 158 Ga. App. 47, 279 S.E.2d 254 (1981); Miller Grading Contractors v. Georgia Fed. Sav. & Loan Ass'n, 247 Ga. 730, 279 S.E.2d 442 (1981); Cole v. Jordan, 158 Ga. App. 200, 279 S.E.2d 497 (1981); Sheppard v. Yara Eng'g Corp., 248 Ga. 147, 281 S.E.2d 586 (1981); Richards v. Mayor of Americus, 158 Ga. App. 693, 282 S.E.2d 122 (1981); Holt v. Bray, 159 Ga. App. 43, 282 S.E.2d 693 (1981); Goss v. Thornton, 159 Ga. App. 166, 283 S.E.2d 63 (1981); Hawkins v. Greenberg, 159 Ga. App. 302, 283 S.E.2d 301 (1981); Sanders v. Colwell, 248 Ga. 376, 283 S.E.2d 461 (1981); Thompson v. Hurt, 159 Ga. App. 656, 284 S.E.2d 671 (1981); Ford Motor Credit Co. v. Mells, 159 Ga. App. 796, 285 S.E.2d 197 (1981); Floyd v. Lamar Ferrell Chevrolet, Inc., 159 Ga. App. 756, 285 S.E.2d 218 (1981); Northcutt v. Mills, 159 Ga. App. 768, 285 S.E.2d 228 (1981); Stender v. Fulton County, 160 Ga. App. 852, 287 S.E.2d 696 (1982); Lang v. Federated Dep't Stores, Inc., 161 Ga. App. 760, 287 S.E.2d 729 (1982); Mintz v. Frazier, 160 Ga. App. 668, 288 S.E.2d 24 (1981); Ridge v. Espinoza, 160 Ga. App. 678, 288 S.E.2d 56 (1981); International Sys. v. City of Jackson, 161 Ga. App. 423, 288 S.E.2d 344 (1982); Utz v. Powell, 160 Ga. App. 888, 288 S.E.2d 601 (1982); Telligman v. Monumental Properties, Inc., 161 Ga. App. 13, 288 S.E.2d 846 (1982); Voliton v. Piggly Wiggly, 161 Ga. App. 813, 288 S.E.2d 924 (1982); Neely v. Richmond County, 161 Ga. App. 71, 289 S.E.2d 258 (1982); Sharpe's Appliance Store, Inc. v. Anderson, 161 Ga. App. 112, 289 S.E.2d 312 (1982); Property Pickup, Inc. v. Morgan, 249 Ga. 239, 290 S.E.2d 52 (1982); First Nat'l Bank v. National Bank, 249 Ga. 216, 290 S.E.2d 55 (1982); Moya Enters., Inc. v. Harry Anderson Trucking, Inc., 162 Ga. App. 39, 290 S.E.2d 145 (1982); Keasler v. Cedar Bluff Bank, 162 Ga. App. 57, 290 S.E.2d 150 (1982); Robinson v. Stevens Indus., Inc., 162 Ga. App. 132, 290 S.E.2d 336 (1982); Hawkins v. Travelers Ins. Co., 162 Ga. App. 231, 290 S.E.2d 348 (1982); Miles v. Edgewood Chenille, Inc., 162 Ga. App. 168, 290 S.E.2d 494 (1982); Holland v. Tri-City Hosp. Auth., 162 Ga. App. 256, 291 S.E.2d 107 (1982); J.L. Lester & Sons v. Smith, 162 Ga. App. 506, 291 S.E.2d 251 (1982); Cohran v. Carlin, 249 Ga. 510, 291 S.E.2d 538 (1982); Baker v. Baker, 249 Ga. 429, 292 S.E.2d 75 (1982); Donehoo v. Phillips, 162 Ga. App. 671, 292 S.E.2d 542 (1982); Williams v. Physicians & Surgeons Community Hosp., 249 Ga. 588, 292 S.E.2d 705 (1982); Stroup v. Castellucis, 163 Ga. App. 113, 293 S.E.2d 523 (1982); McCullough v. Molyneaux, 163 Ga. App. 352, 294 S.E.2d 560 (1982); Atlanta Professional Ass'n for Thoracic & Cardiovascular Surgery v. Allen, 163 Ga. App. 400, 294 S.E.2d 647 (1982); Young v. Hinton, 163 Ga. App. 692, 295 S.E.2d 150 (1982); Cato Oil & Grease Co. v. Lewis, 250 Ga. 24, 295 S.E.2d 527 (1982); Maddox v. Allstate Ins. Co., 164 Ga. App. 21, 296 S.E.2d 84 (1982); Sawyer v. Citizens & S. Nat'l Bank, 164 Ga. App. 177, 296 S.E.2d 134 (1982); Northside Cleaners, Inc. v. Paleologou, 163 Ga. App. 827, 296 S.E.2d 361 (1982); Ashburn Motor Inn, Inc. v. White Adv. Int'l, 164 Ga. App. 438, 296 S.E.2d 220 (1982); Slaughter v. Ford Motor Credit Co., 164 Ga. App. 428, 296 S.E.2d 428 (1982); Davis v. Ford Motor Credit Co., 164 Ga. App. 137, 296 S.E.2d 431 (1982); Georgia Hwy. Express, Inc. v. UPS, Inc., 164 Ga. App. 674, 297 S.E.2d 497 (1982); National Carloading Corp. v. Security Van Lines, 164 Ga. App. 850, 297 S.E.2d 740 (1982); Frazier v. Petecraft Aviation Servs., Inc., 164 Ga. App. 568, 298 S.E.2d 532 (1982); Peluso v. Central of Ga. R.R., 165 Ga. App. 215, 299 S.E.2d 51 (1983); Gilbert v. Decker, 165 Ga. App. 11, 299 S.E.2d 65 (1983); Fields Realty & Ins. Co. v. Teper, 165 Ga. App. 28, 299 S.E.2d 74 (1983); Brown v. City of Atlanta, 165 Ga. App. 310, 299 S.E.2d 101 (1983); Dobbs v. Cobb E.N.T. Assocs., 165 Ga. App. 238, 299 S.E.2d 141 (1983); Willingham v. Bridges, 165 Ga. App. 35, 299 S.E.2d 392 (1983); Regional Pacesetters, Inc. v. Halpern Enters., Inc., 165 Ga. App. 777, 300 S.E.2d 180 (1983); Burgett v. Thamer Constr., Inc., 165 Ga. App. 404, 300 S.E.2d 211 (1983); A-Larms, Inc. v. Alarms Device Mfg. Co., 165 Ga. App. 382, 300 S.E.2d 311 (1983); Johnson v. G.A.B. Bus. Servs. Inc., 165 Ga. App. 284, 300 S.E.2d 325 (1983); Browning v. Powell, 165 Ga. App. 315, 301 S.E.2d 52 (1983); City of Acworth v. John J. Harte Assocs., 165 Ga. App. 438, 301 S.E.2d 499 (1983); Smith v. Smith, 165 Ga. App. 532, 301 S.E.2d 696 (1983); Marconi Avionics, Inc. v. DeKalb County, 165 Ga. App. 628, 302 S.E.2d 384 (1983); Jones v. Rodzewicz, 165 Ga. App. 635, 302 S.E.2d 402 (1983); Vizzini v. Blonder, 165 Ga. App. 840, 303 S.E.2d 38 (1983); Bartley v. Augusta Country Club, Inc., 166 Ga. App. 1, 303 S.E.2d 129 (1983); Spell v. Bible Baptist Church, Inc., 166 Ga. App. 22, 303 S.E.2d 156 (1983); Wiard v. Phoenix Ins. Co., 166 Ga. App. 47, 303 S.E.2d 161 (1983); Whirlpool Corp. v. Hurlbut, 166 Ga. App. 95, 303 S.E.2d 284 (1983); Morrison Dental Assocs. v. Wilcher, 166 Ga. App. 236, 303 S.E.2d 775 (1983); Higginbottom v. Thiele Kaolin Co., 251 Ga. 148, 304 S.E.2d 365 (1983); Klorer-Willhardt, Inc. v. Martz, 166 Ga. App. 446, 304 S.E.2d 442 (1983); Murch v. Brown, 166 Ga. App. 538, 304 S.E.2d 750 (1983); Purcell v. C. Goldstein & Sons, 166 Ga. App. 547, 305 S.E.2d 10 (1983); Marchman Oil & Chem. Co. v. Southern Petro. Trading Co., 167 Ga. App. 691, 307 S.E.2d 509 (1983); Christian v. M & R Collection Adjustment, Inc., 167 Ga. App. 712, 307 S.E.2d 523 (1983); Partridge v. Partridge, 167 Ga. App. 716, 307 S.E.2d 524 (1983); Parks v. Atlanta Pub. Sch. Sys. Bd. of Educ., 168 Ga. App. 572, 309 S.E.2d 645 (1983)

Bennett v. Bank of S., 168 Ga. App. 536, 309 S.E.2d 682 (1983); Logan v. American Bankers Life Assurance Co., 168 Ga. App. 647, 310 S.E.2d 263 (1983); Hayes v. Murray, 169 Ga. App. 78, 311 S.E.2d 477 (1983); Wright v. Southern Bell Tel. & Tel. Co., 169 Ga. App. 454, 313 S.E.2d 150 (1984); Groover Eng'g Co. v. Capital Assocs., 169 Ga. App. 480, 313 S.E.2d 498 (1984); Hayes v. Murray, 252 Ga. 529, 314 S.E.2d 885 (1984); Perry v. International Indem. Co., 169 Ga. App. 818, 315 S.E.2d 13 (1984); Avera v. Avera, 253 Ga. 16, 315 S.E.2d 883 (1984); Evans v. Kaiser Aluminum & Chem. Corp., 170 Ga. App. 145, 316 S.E.2d 517 (1984); Lawrence v. Timber Prods. Inspection, Inc., 170 Ga. App. 156, 316 S.E.2d 525 (1984); Continental Ins. Co. v. Hawkins, 170 Ga. App. 274, 316 S.E.2d 596 (1984); Pritchard v. Wilson, 170 Ga. App. 313, 316 S.E.2d 604 (1984); El-Amin v. Trust Co. Bank, 171 Ga. App. 35, 318 S.E.2d 655 (1984); Bradley v. Tattnall Bank, 170 Ga. App. 821, 318 S.E.2d 657 (1984); Georgia Am. Ins. Co. v. Varnum, 171 Ga. App. 190, 318 S.E.2d 814 (1984); Richards v. Southern Fin. Corp., 171 Ga. App. 268, 319 S.E.2d 103 (1984); Smith v. Maner, 171 Ga. App. 363, 319 S.E.2d 532 (1984); Coast Catamaran Corp. v. Mann, 171 Ga. App. 844, 321 S.E.2d 353 (1984); Suttle v. Northside Realty Assocs., 171 Ga. App. 928, 321 S.E.2d 424 (1984); Williams v. Heykow, Inc., 171 Ga. App. 936, 321 S.E.2d 431 (1984); Jahncke Serv., Inc. v. DOT, 172 Ga. App. 215, 322 S.E.2d 505 (1984); Poss v. Moreland, 253 Ga. 730, 324 S.E.2d 456 (1985); Sparks v. Parks, 172 Ga. App. 823, 324 S.E.2d 784 (1984); Wisseh v. Bank of Credit & Commerce Int'l, 173 Ga. App. 286, 325 S.E.2d 897 (1985); Wood v. Chatham Eng'g & Constr. Co., 173 Ga. App. 289, 326 S.E.2d 8 (1985); Baker v. Wulf, 173 Ga. App. 674, 327 S.E.2d 796 (1985); Mingledolph v. University Emergency Physicians, 174 Ga. App. 75, 329 S.E.2d 222 (1985); Duenas v. Bence, 174 Ga. App. 80, 329 S.E.2d 260 (1985); Blackburn v. State Farm Fire & Cas. Co., 174 Ga. App. 157, 329 S.E.2d 284 (1985); Lewis v. Rickenbaker, 174 Ga. App. 371, 330 S.E.2d 140 (1985); Guillebeau v. Yeargin, 254 Ga. 490, 330 S.E.2d 585 (1985); Payne v. Dixie Elec. Co., 174 Ga. App. 610, 330 S.E.2d 749 (1985); Bradbury v. Mead Corp., 174 Ga. App. 601, 330 S.E.2d 801 (1985); Bandy v. Hospital Auth., 174 Ga. App. 556, 332 S.E.2d 46 (1985); Anderberg v. Georgia Elec. Membership Corp., 175 Ga. App. 14, 332 S.E.2d 326 (1985); Franklin v. Piggly Wiggly Food S., Inc., 175 Ga. App. 20, 332 S.E.2d 329 (1985); Alexander v. Heritage Corp., 175 Ga. App. 55, 332 S.E.2d 667 (1985); Collie v. Hutson, 175 Ga. App. 672, 334 S.E.2d 13 (1985); Drohan v. Carriage Carpet Mills, 175 Ga. App. 717, 334 S.E.2d 219 (1985); Anderson v. Hendrix, 175 Ga. App. 720, 334 S.E.2d 697 (1985); Bentley v. National Bank, 175 Ga. App. 732, 334 S.E.2d 331 (1985); Hayes v. Fernandez, 176 Ga. App. 332, 335 S.E.2d 735 (1985); Messex v. Lynch, 255 Ga. 208, 336 S.E.2d 755 (1985); J.M. Clayton Co. v. Martin, 177 Ga. App. 228, 339 S.E.2d 280 (1985); Edelschick v. Blanchard, 177 Ga. App. 410, 339 S.E.2d 628 (1985); Bekele v. Ryals, 177 Ga. App. 445, 339 S.E.2d 655 (1986); Skinner v. Perkins, 255 Ga. 366, 339 S.E.2d 717 (1986); Fulghum v. Kelly, 255 Ga. 652, 340 S.E.2d 589 (1986); Edmonds v. Bates, 178 Ga. App. 69, 342 S.E.2d 476 (1986); Evans v. Bibb Co., 178 Ga. App. 139, 342 S.E.2d 484 (1986); Reynolds v. Transport Ins. Co., 178 Ga. App. 462, 343 S.E.2d 502 (1986); Watkins v. Watkins, 256 Ga. 58, 344 S.E.2d 220 (1986); Brown v. Rowe, 178 Ga. App. 575, 344 S.E.2d 245 (1986); Nicholson v. Harris, 179 Ga. App. 35, 345 S.E.2d 63 (1986); Advanced Contouring, Inc. v. McMillan Div. of States Eng'g Corp., 179 Ga. App. 128, 345 S.E.2d 666 (1986); Douglas County v. Anneewakee, Inc., 179 Ga. App. 270, 346 S.E.2d 368 (1986); Buffington v. Gold Kist, Inc., 179 Ga. App. 393, 346 S.E.2d 577 (1986); Hodges Plumbing & Elec. Co. v. ITT Grinnell Co., 179 Ga. App. 521, 347 S.E.2d 257 (1986); Clark v. McBride, 256 Ga. 308, 348 S.E.2d 634 (1986); Capital Ford Truck Sales, Inc. v. United States Fire Ins. Co., 180 Ga. App. 413, 349 S.E.2d 201 (1986); Cline v. McLeod, 180 Ga. App. 286, 349 S.E.2d 232 (1986); Davis v. Aetna Cas. & Sur. Co., 180 Ga. App. 567, 349 S.E.2d 525 (1986); Helmich v. Kennedy, 796 F.2d 1441 (11th Cir. 1986); Hunnicutt v. Hunnicutt, 180 Ga. App. 798, 350 S.E.2d 770 (1986); Kirk v. Lithonia Mobile Homes, Inc., 181 Ga. App. 533, 352 S.E.2d 788 (1987); Yates Paving & Grading Co. v. Waters, 181 Ga. App. 537, 352 S.E.2d 791 (1987); Seymour v. Vaughn, 181 Ga. App. 604, 353 S.E.2d 91 (1987); Arre Indus., Inc. v. Aralmex, 181 Ga. App. 607, 353 S.E.2d 94 (1987); Dein v. Lesack, 181 Ga. App. 671, 353 S.E.2d 602 (1987); Hively v. Davis, 181 Ga. App. 733, 353 S.E.2d 622 (1987); Brown v. Coastal Emergency Servs., Inc., 181 Ga. App. 893, 354 S.E.2d 632 (1987); Jones v. Gordon, 182 Ga. App. 29, 354 S.E.2d 658 (1987); Alliance Auto Acceptance Lease, Inc. v. Chuck Clancy Ford, Inc., 182 Ga. App. 182, 355 S.E.2d 112 (1987); Goldkist, Inc. v. Brownlee, 182 Ga. App. 287, 355 S.E.2d 773 (1987); Patterson v. Lanham, 182 Ga. App. 343, 355 S.E.2d 738 (1987); Goodman v. Kahn, 182 Ga. App. 724, 356 S.E.2d 757 (1987); Baker v. Baker, 257 Ga. 187, 356 S.E.2d 873 (1987); Showalter v. Villa Prado Assocs., 182 Ga. App. 705, 356 S.E.2d 895 (1987); Jones v. Clark, 182 Ga. App. 871, 357 S.E.2d 285 (1987); Coca-Cola Co. v. Denmark, 182 Ga. App. 883, 357 S.E.2d 286 (1987); Dixie Constr. Prods., Inc. v. Southeastern Council on Comp. Ins., 183 Ga. App. 101, 357 S.E.2d 831 (1987); Williams v. Thomas, 183 Ga. App. 51, 357 S.E.2d 872 (1987); Watkins v. Laser/Print-Atlanta, Inc., 183 Ga. App. 172, 358 S.E.2d 477 (1987); Burns v. Gleason, 183 Ga. App. 245, 358 S.E.2d 646 (1987); Cook v. Arrington, 183 Ga. App. 384, 358 S.E.2d 869 (1987); ARA Transp. v. Barnes, 183 Ga. App. 424, 359 S.E.2d 157 (1987); Smoky Mt. Enters., Inc. v. Bennett, 183 Ga. App. 514, 359 S.E.2d 366 (1987); Falcone Int'l, Inc. v. Clowes, 184 Ga. App. 442, 361 S.E.2d 708 (1987); Lynch v. Georgia Power Co., 185 Ga. App. 256, 363 S.E.2d 777 (1987); Sofet v. Roberts, 185 Ga. App. 451, 364 S.E.2d 595 (1987); My Fair Lady of Ga., Inc. v. Harris, 185 Ga. App. 459, 364 S.E.2d 580 (1988); Sutton v. Sullivan & Carden, 185 Ga. App. 577, 364 S.E.2d 887 (1988); Smith v. Southeastern Fid. Ins. Co., 258 Ga. 15, 365 S.E.2d 105 (1988); Schwartz v. Rennie, 185 Ga. App. 638, 365 S.E.2d 159 (1988); Moffie v. Oglethorpe Univ., Inc., 186 Ga. App. 328, 367 S.E.2d 112 (1988); Jernigan Auto Parts, Inc. v. Commercial State Bank, 186 Ga. App. 267, 367 S.E.2d 250 (1988); Southerland v. Dalton Paving & Constr., Inc., 186 Ga. App. 743, 368 S.E.2d 193 (1988); Brice v. Northwest Ga. Bank, 186 Ga. App. 871, 368 S.E.2d 816 (1988); Menningmann v. Independent Fire Ins. Co., 187 Ga. App. 118, 369 S.E.2d 295 (1988); Young v. Wooldridge, 187 Ga. App. 661, 371 S.E.2d 100 (1988); Reahard v. Ivester, 188 Ga. App. 17, 371 S.E.2d 905 (1988); Willis v. Allen, 188 Ga. App. 390, 373 S.E.2d 79 (1988); Peck v. Rollins Protective Servs., Inc., 189 Ga. App. 381, 375 S.E.2d 494 (1988); Calhoun v. Bone, 189 Ga. App. 396, 375 S.E.2d 871 (1988); Hunt v. Lee, 190 Ga. App. 403, 379 S.E.2d 215 (1989); Ledbetter v. Delight Whsle. Co., 191 Ga. App. 64, 380 S.E.2d 736 (1989); Reese v. Georgia Power Co., 191 Ga. App. 125, 381 S.E.2d 110 (1989); Barnes v. GMAC, 191 Ga. App. 201, 381 S.E.2d 146 (1989); Adams v. Atlanta Faith Mem. Church, Inc., 191 Ga. App. 215, 381 S.E.2d 397 (1989); Wilson v. Wickes-Homecrafters, Inc., 191 Ga. App. 474, 382 S.E.2d 194 (1989); Doug Howles' Paces Ferry Dodge, Inc. v. Chrysler Credit Corp., 191 Ga. App. 556, 382 S.E.2d 364 (1989); Lynburn Enters., Inc. v. Lawyers Title Ins. Corp., 191 Ga. App. 710, 382 S.E.2d 599 (1989); Whelchel v. Laing Properties, Inc., 190 Ga. App. 182, 378 S.E.2d 478 (1989); Brygider v. Atkinson, 192 Ga. App. 424, 385 S.E.2d 95 (1989); Deal v. Builders Transp., Inc., 192 Ga. App. 511, 385 S.E.2d 293 (1989); Edmunds v. Cowan, 192 Ga. App. 616, 386 S.E.2d 39 (1989)

International Bus. Consulting, Ltd. v. First Union Nat'l Bank, 192 Ga. App. 742, 386 S.E.2d 400 (1989); Hill v. Federal Employees Credit Union, 193 Ga. App. 44, 386 S.E.2d 874 (1989); Baughcum v. Cecil Key Paving, Inc., 190 Ga. App. 21, 378 S.E.2d 151 (1989); Clemons v. Piggly Wiggly Food S., Inc., 193 Ga. App. 309, 387 S.E.2d 600 (1989); Jacobs v. Spano, 193 Ga. App. 447, 387 S.E.2d 924 (1989); Harris v. Boyd, 193 Ga. App. 467, 388 S.E.2d 60 (1989); Campbell v. Hyatt Regency, 193 Ga. App. 542, 388 S.E.2d 341 (1989); State Farm Mut. Auto. Ins. Co. v. Weathers, 193 Ga. App. 557, 388 S.E.2d 393 (1989); Houston v. Georgia N.E.R.R., 193 Ga. App. 687, 388 S.E.2d 762 (1989); Simmons v. Holsey Temple Christian Methodist Church, 193 Ga. App. 770, 389 S.E.2d 1 (1989); Lewis v. McDowell, 194 Ga. App. 429, 390 S.E.2d 605 (1990); Steerman v. American States Ins. Co., 194 Ga. App. 461, 390 S.E.2d 669 (1990); Barnes v. Johnson, 194 Ga. App. 568, 390 S.E.2d 921 (1990); Miller v. Smith & Smith Land Surveyors, 194 Ga. App. 474, 391 S.E.2d 20 (1990); Mark Singleton Buick, Inc. v. Taylor, 194 Ga. App. 630, 391 S.E.2d 435 (1990); King v. Sheraton Savannah Corp., 194 Ga. App. 618, 391 S.E.2d 457 (1990); Webb v. Rushing, 194 Ga. App. 732, 391 S.E.2d 709 (1990); Hyzer v. Hickman, 195 Ga. App. 213, 393 S.E.2d 79 (1990); Stuckey Diamonds, Inc. v. Jones, 195 Ga. App. 351, 393 S.E.2d 706 (1990); Electrical Distrib., Inc. v. Turner Constr. Co., 196 Ga. App. 359, 395 S.E.2d 879 (1990); Hudgins v. Bawtinhimer, 196 Ga. App. 386, 395 S.E.2d 909 (1990); Collier v. Powell, 196 Ga. App. 522, 396 S.E.2d 264 (1990); Wall v. Southern Ry., 196 Ga. App. 483, 396 S.E.2d 266 (1990). But see CSX Transp., Inc. v. Trism Specialized Carriers, Inc., 9 F. Supp. 2d 1374 (N.D. Ga. 1998); Lee v. North Am. Life & Cas. Co., 196 Ga. App. 792, 397 S.E.2d 64 (1990); Miller v. Jeff Davis Apts., Ltd. II, 196 Ga. App. 600, 396 S.E.2d 494 (1990); Primo's, Inc. v. Clayton Common Assocs., 197 Ga. App. 286, 398 S.E.2d 231 (1990); Bell v. Coronet Ins. Co., 197 Ga. App. 211, 398 S.E.2d 242 (1990); Cheeley v. Henderson, 197 Ga. App. 543, 398 S.E.2d 787 (1990); Taquechel v. Chattahoochee Bank, 260 Ga. 755, 400 S.E.2d 8 (1991); Hill-Everett v. Jones, 197 Ga. App. 872, 399 S.E.2d 739 (1990); Hall v. Scott USA, Ltd., 198 Ga. App. 197, 400 S.E.2d 700 (1990); Kievman v. Kievman, 260 Ga. 853, 400 S.E.2d 317 (1991); Jones v. Campbell, 198 Ga. App. 83, 400 S.E.2d 364 (1990); State Farm Mut. Auto. Ins. Co. v. Ainsworth, 198 Ga. App. 740, 402 S.E.2d 759 (1991); Battle v. Sandy Springs Assocs., 198 Ga. App. 584, 402 S.E.2d 336 (1991); Kelley v. Baker Protective Servs., Inc., 198 Ga. App. 378, 401 S.E.2d 585 (1991); Owen v. M & M Metro Supply, Inc., 198 Ga. App. 420, 401 S.E.2d 612 (1991); Joiner v. Lee, 197 Ga. App. 754, 399 S.E.2d 516 (1990); Arnall, Golden & Gregory v. Health Serv. Ctrs., Inc., 197 Ga. App. 791, 399 S.E.2d 565 (1990); Precise v. City of Rossville, 261 Ga. 210, 403 S.E.2d 47 (1991); Judge v. Wellman, 198 Ga. App. 782, 403 S.E.2d 76 (1991); 944, Inc. v. Georgia State Bank, 198 Ga. App. 893, 403 S.E.2d 466 (1991); Brown v. Apollo Indus., Inc., 199 Ga. App. 260, 404 S.E.2d 447 (1991); Kelly v. Vargo, 261 Ga. 422, 405 S.E.2d 36 (1991); Artis v. Gaither, 199 Ga. App. 114, 404 S.E.2d 322 (1991); Doctors Bldg. Partners v. Grimes Bridge Assocs., 199 Ga. App. 216, 404 S.E.2d 582 (1991); S & W Masonry Contractor, Inc. v. Jamison Co., 199 Ga. App. 628, 405 S.E.2d 519 (1991); Collier v. Evans, 199 Ga. App. 763, 406 S.E.2d 90 (1991); Bailey v. Butler, 199 Ga. App. 753, 406 S.E.2d 97 (1991); Daniel v. Safeway Ins. Co., 199 Ga. App. 833, 406 S.E.2d 266 (1991); Wilson v. Tara Ford, Inc., 200 Ga. App. 98, 406 S.E.2d 807 (1991); Fulton v. Pilon, 199 Ga. App. 861, 406 S.E.2d 517 (1991); Evans v. City of Atlanta, 199 Ga. App. 878, 406 S.E.2d 530 (1991); Dent v. Memorial Hosp., 200 Ga. App. 499, 408 S.E.2d 473 (1991); Moore v. Service Merchandise Co., 200 Ga. App. 463, 408 S.E.2d 480 (1991); E.H. Crump Co. v. Millar, 200 Ga. App. 598, 409 S.E.2d 235 (1991); Costanzo v. Jones, 200 Ga. App. 806, 409 S.E.2d 686 (1991); Sullenberger v. Grand Union Co., 201 Ga. App. 194, 410 S.E.2d 381 (1991); Sims v. Foss, 201 Ga. App. 345, 411 S.E.2d 59 (1991); Culberson v. Fulton-DeKalb Hosp. Auth., 201 Ga. App. 347, 411 S.E.2d 75 (1991); Northside Bldg. Supply Co. v. Foures, 201 Ga. App. 259, 411 S.E.2d 87 (1991); Mauldin v. Weinstock, 201 Ga. App. 514, 411 S.E.2d 370 (1991); Johnson v. Lomas Mtg. USA, Inc., 201 Ga. App. 562, 411 S.E.2d 731 (1991); Sarantis v. Kroger Co., 201 Ga. App. 552, 411 S.E.2d 758 (1991); Jones v. Ward, 201 Ga. App. 757, 412 S.E.2d 576 (1991); Jackson v. DOT, 201 Ga. App. 863, 412 S.E.2d 847 (1991); First Community Bank v. Bryan Starr & Assocs., 203 Ga. App. 696, 417 S.E.2d 330 (1992); Bethco, Inc. v. Cinema 'N' Drafthouse Int'l, Inc., 204 Ga. App. 143, 418 S.E.2d 467 (1992); Famble v. State Farm Ins. Co., 204 Ga. App. 332, 419 S.E.2d 143 (1992); T.L. Rogers Oil Co. v. Sommers Co., 203 Ga. App. 404, 417 S.E.2d 44 (1992); Lend Lease Trucks, Inc. v. TRW, Inc., 206 Ga. App. 410, 425 S.E.2d 293 (1992); Scott v. Hamilton Dorsey Alston Co., 206 Ga. App. 504, 426 S.E.2d 55 (1992); Tri-City Constr. Co. v. Sandy Plains Partnership, 206 Ga. App. 506, 426 S.E.2d 57 (1992); Alco Std. Corp. v. Westinghouse Elec. Corp., 206 Ga. App. 794, 426 S.E.2d 648 (1992); Corry v. Robinson, 207 Ga. App. 167, 427 S.E.2d 507 (1993); Georgia Canoeing Ass'n v. Henry, 263 Ga. 77, 428 S.E.2d 336 (1993); Thurmond v. Richmond County Bd. of Educ., 207 Ga. App. 437, 428 S.E.2d 392 (1993); Hasty v. Spruill, 207 Ga. App. 485, 428 S.E.2d 420 (1993); King v. Crain-Daly Volkswagen, Inc., 207 Ga. App. 583, 428 S.E.2d 586 (1993); First Nat'l Bank v. Loggins, 207 Ga. App. 814, 429 S.E.2d 278 (1993); Sagnibene v. Budget Rent-A-Car Sys., 209 Ga. App. 44, 432 S.E.2d 639 (1993); Hailey v. Blalock, 209 Ga. App. 345, 433 S.E.2d 337 (1993); Lawal v. Stanley Bostitch Co., 209 Ga. App. 439, 433 S.E.2d 706 (1993); Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 435 S.E.2d 54 (1993); Riverdale Pools & Constr., Inc. v. Evans, 210 Ga. App. 127, 435 S.E.2d 501 (1993); Pope v. Department of Human Resources, 209 Ga. App. 835, 434 S.E.2d 731 (1993); Dixieland Truck Brokers, Inc. v. International Indem. Co., 210 Ga. App. 160, 435 S.E.2d 520 (1993); Spartan Food Sys. v. Williams, 212 Ga. App. 674, 442 S.E.2d 489 (1994); Schulman v. MIS Resources Int'l, 212 Ga. App. 588, 443 S.E.2d 2 (1994); Brown v. Southeastern Sec. Ins. Co., 216 Ga. App. 234, 454 S.E.2d 158 (1995); Conklin v. Zant, 216 Ga. App. 357, 454 S.E.2d 159 (1995); Southern Medical Corp. v. Liberty Mut. Ins. Co., 216 Ga. App. 289, 454 S.E.2d 180 (1995); Cooper v. Corporate Property Investors, 220 Ga. App. 889, 470 S.E.2d 689 (1996); Washington v. Jefferson County, 221 Ga. App. 81, 470 S.E.2d 714 (1996); Sullivan v. Horn, 221 Ga. App. 289, 470 S.E.2d 765 (1996); Young v. John Deere Co., 221 Ga. App. 157, 471 S.E.2d 19 (1996); Brown v. Super Disc. Mkts., Inc., 223 Ga. App. 174, 477 S.E.2d 839 (1996); Allstate Ins. Co. v. Sapp, 223 Ga. App. 443, 477 S.E.2d 869 (1996); Saxton v. Coastal Dialysis & Medical Clinic, Inc., 220 Ga. App. 805, 470 S.E.2d 252 (1996); Hansen v. Mt. Yonah Scenic Estates Club, Inc., 227 Ga. App. 258, 488 S.E.2d 732 (1997); Blue Cross & Blue Shield of Ga., Inc. v. Kell, 227 Ga. App. 266, 488 S.E.2d 735 (1997); Nicholl v. NationsBank, 227 Ga. App. 287, 488 S.E.2d 751 (1997); Jenkins v. Brice, 231 Ga. App. 843, 499 S.E.2d 734 (1998); Stephens v. Clairmont Ctr., Inc., 230 Ga. App. 793, 498 S.E.2d 307 (1998); Kitfield v. Henderson, Black & Greene, 231 Ga. App. 130, 498 S.E.2d 537 (1998); Jones v. Krystal Co., 231 Ga. App. 102, 498 S.E.2d 565 (1998); Patriot Gen. Ins. Co. v. Millis, 233 Ga. App. 867, 506 S.E.2d 145 (1998); La Petite Academy, Inc. v. Prescott, 234 Ga. App. 32, 506 S.E.2d 183 (1998); Taylor v. Gelfand, 233 Ga. App. 835, 505 S.E.2d 222 (1998); Kelson v. Central of Ga. R.R., 234 Ga. App. 200, 505 S.E.2d 803 (1998)

Mullis v. Speight Seed Farms, Inc., 234 Ga. App. 27, 505 S.E.2d 818 (1998); Roberts v. City of Macon, 234 Ga. App. 287, 506 S.E.2d 650 (1998); Hannah v. Hampton Auto Parts, Inc., 234 Ga. App. 392, 506 S.E.2d 910 (1998); Re/Max Executives, Inc. v. Vacalis, 234 Ga. App. 659, 507 S.E.2d 235 (1998); Davis v. First Healthcare Corp., 234 Ga. App. 744, 507 S.E.2d 563 (1998); Fulton County Tax Comm'r v. GMC, 234 Ga. App. 459, 507 S.E.2d 772 (1998); Lewis v. Lease Atlanta, Inc., 234 Ga. App. 812, 508 S.E.2d 188 (1998); Zampatti v. Tradebank Int'l Franchising Corp., 235 Ga. App. 333, 508 S.E.2d 750 (1998); Woods v. State, 243 Ga. App. 195, 532 S.E.2d 747 (2000); Bakhtiarnejad v. Cox Enters., 247 Ga. App. 205, 541 S.E.2d 33 (2000); Georgialina Enters. v. Frakes, 250 Ga. App. 250, 551 S.E.2d 95 (2001); Wallace v. Stringer, 250 Ga. App. 850, 553 S.E.2d 166 (2001); Bob Davidson & Assocs. v. Norm Webster & Assocs., 251 Ga. App. 56, 553 S.E.2d 365 (2001); Little Tallapoosa Dev., Inc. v. Baldwin Paving Co., 251 Ga. App. 238, 553 S.E.2d 860 (2001); Span v. Phar-Mor, Inc., 251 Ga. App. 320, 554 S.E.2d 309 (2001); Milestone v. David, 251 Ga. App. 832, 555 S.E.2d 163 (2001); Sherrill v. Stockel, 252 Ga. App. 276, 557 S.E.2d 8 (2001).

Benedict v. Snead, 253 Ga. App. 749, 560 S.E.2d 278 (2002); Conley v. Dawson, 257 Ga. App. 665, 572 S.E.2d 34 (2002); Sheridan v. DataNational, Inc., 258 Ga. App. 28, 572 S.E.2d 718 (2002); Estate of Jennings v. Psychiatric Health Servs., 258 Ga. App. 111, 573 S.E.2d 115 (2002); Durham v. Mathis, 258 Ga. App. 749, 575 S.E.2d 6 (2002); Mustaqeem-Graydon v. SunTrust Bank, 258 Ga. App. 200, 573 S.E.2d 455 (2002); Smith v. Nationwide Mut. Ins. Co., 258 Ga. App. 570, 574 S.E.2d 627 (2002); Hall v. Norfolk S. Ry. Co., 258 Ga. App. 712, 574 S.E.2d 902 (2002); Charles v. Glover, 258 Ga. App. 710, 574 S.E.2d 910 (2002); Ponder v. Brooks, 256 Ga. App. 596, 569 S.E.2d 267 (2002); West Coast Cambridge, Inc. v. Rice, 262 Ga. App. 106, 584 S.E.2d 696 (2003); Ga. DOD v. Johnson, 262 Ga. App. 475, 585 S.E.2d 907 (2003); Holt & Holt, Inc. v. Choate Constr. Co., 271 Ga. App. 292, 609 S.E.2d 103 (2004); Gay v. Ga. Dep't of Corr., 270 Ga. App. 17, 606 S.E.2d 53 (2004); Carswell v. Oconee Reg'l Med. Ctr., Inc., 270 Ga. App. 155, 605 S.E.2d 879 (2004); Condon v. Vickery, 270 Ga. App. 322, 606 S.E.2d 336 (2004); Park Regency Ptnrs., L.P. v. Gruber, 271 Ga. App. 66, 608 S.E.2d 667 (2004); Harrison v. Williams, 270 Ga. App. 308, 605 S.E.2d 923 (2004); Palma v. Ga. Farm Bureau Ins. Co., 270 Ga. App. 333, 606 S.E.2d 341 (2004); Mathews v. Marietta Toyota, Inc., 270 Ga. App. 337, 606 S.E.2d 862 (2004); Albany Bone & Joint Clinic, P.C. v. Hajek, 272 Ga. App. 464, 612 S.E.2d 509 (2005); Dierkes v. Crawford Orthodontic Care, P.C., 284 Ga. App. 96, 643 S.E.2d 364 (2007); Harris v. Inn of Lake City, 285 Ga. App. 521, 647 S.E.2d 277 (2007); Kennedy v. Ga. Dep't of Human Res. Child Support Enforcement, 286 Ga. App. 222, 648 S.E.2d 727 (2007); Hamburger v. PFM Capital Mgmt., 286 Ga. App. 382, 649 S.E.2d 779 (2007); Kay-Lex Co. v. Essex Ins. Co., 286 Ga. App. 484, 649 S.E.2d 602 (2007); Mooneyham v. Provident Auto Leasing Co., 288 Ga. App. 837, 655 S.E.2d 640 (2007); Exel Transp. Servs. v. Sigma Vita, Inc., 288 Ga. App. 527, 654 S.E.2d 665 (2007); Hous. Auth. v. Ellis, 288 Ga. App. 834, 655 S.E.2d 621 (2007); CDP Event Servs. v. Atcheson, 289 Ga. App. 183, 656 S.E.2d 537 (2008); Edwards v. Sewell, 289 Ga. App. 128, 656 S.E.2d 246 (2008); Pazur v. Belcher, 290 Ga. App. 703, 659 S.E.2d 804 (2008); Alcatraz Media, LLC v. Yahoo! Inc., 290 Ga. App. 882, 660 S.E.2d 797 (2008); Roylston v. Bank of Am., N.A., 290 Ga. App. 556, 660 S.E.2d 412 (2008); Smith v. Stewart, 291 Ga. App. 86, 660 S.E.2d 822 (2008); Allstate Ins. Co. v. Sutton, 290 Ga. App. 154, 658 S.E.2d 909 (2008); Beasley v. Northside Hosp., Inc., 289 Ga. App. 685, 658 S.E.2d 233 (2008); Somers v. M.A.U., Inc., 289 Ga. App. 731, 658 S.E.2d 242 (2008); Brookview Holdings, LLC v. Suarez, 285 Ga. App. 90, 645 S.E.2d 559 (2007); Drew v. Istar Fin., Inc., 291 Ga. App. 323, 661 S.E.2d 686 (2008); McLaine v. McLeod, 291 Ga. App. 335, 661 S.E.2d 695 (2008); Davis v. Harpagon Co., LLC, 283 Ga. 539, 661 S.E.2d 545 (2008); Rosado v. Rosado, 291 Ga. App. 670, 662 S.E.2d 761 (2008); Miller v. Branch Banking & Trust Co., 292 Ga. App. 189, 663 S.E.2d 756 (2008); Johnson v. GAPVT Motors, Inc., 292 Ga. App. 79, 663 S.E.2d 779 (2008); Scott v. Bank of Am., 292 Ga. App. 34, 663 S.E.2d 386 (2008); Secured Equity Fin., LLC v. Washington Mut. Bank, F. A., 293 Ga. App. 50, 666 S.E.2d 554 (2008); Coote v. Branch Banking & Trust Co., 292 Ga. App. 164, 664 S.E.2d 554 (2008); Zurich Am. Ins. Co. v. Beasley, 293 Ga. App. 8, 666 S.E.2d 83 (2008); Rooks v. Tenet Health Sys. GB, Inc., 292 Ga. App. 477, 664 S.E.2d 861 (2008); Bickerstaff Real Estate Mgmt., LLC v. Hanners, 292 Ga. App. 554, 665 S.E.2d 705 (2008); Rheem Mfg. v. Butts, 292 Ga. App. 523, 664 S.E.2d 878 (2008); Greater Ga. Life Ins. Co. v. Eason, 292 Ga. App. 682, 665 S.E.2d 725 (2008); Weatherly v. Weatherly, 292 Ga. App. 879, 665 S.E.2d 922 (2008); Morrill v. Cotton States Mut. Ins. Co., 293 Ga. App. 259, 666 S.E.2d 582 (2008); Avion Sys. v. Thompson, 293 Ga. App. 60, 666 S.E.2d 464 (2008); McCall v. Couture, 293 Ga. App. 305, 666 S.E.2d 637 (2008); Partain v. Oconee County, 293 Ga. App. 320, 667 S.E.2d 132 (2008); Triple Net Props., LLC v. Burruss Dev. & Constr., Inc., 293 Ga. App. 323, 667 S.E.2d 127 (2008); Custer v. Coward, 293 Ga. App. 316, 667 S.E.2d 135 (2008); AMLI Residential Props. v. Ga. Power Co., 293 Ga. App. 358, 667 S.E.2d 150 (2008); Harris Ins. Agency, Inc. v. Tarene Farms, LLC, 293 Ga. App. 430, 667 S.E.2d 200 (2008); Kinzy v. Farmers Ins. Exch., 293 Ga. App. 509, 667 S.E.2d 673 (2008); Am. Teleconferencing Servs. v. Network Billing Sys., LLC, 293 Ga. App. 772, 668 S.E.2d 259 (2008); Clay v. Oxendine, 285 Ga. App. 50, 645 S.E.2d 553 (2007); Dowse v. Southern Guar. Ins. Co., 263 Ga. App. 435, 588 S.E.2d 234 (2003); Dalton Paving & Constr., Inc. v. South Green Constr. of Ga., Inc., 284 Ga. App. 506, 643 S.E.2d 754 (2007); MCG Health, Inc. v. Barton, 285 Ga. App. 577, 647 S.E.2d 81 (2007); Bullington v. Blakely Crop Hail, Inc., 294 Ga. App. 147, 668 S.E.2d 732 (2008); DaimlerChrysler Motors Co. v. Clemente, 294 Ga. App. 38, 668 S.E.2d 737 (2008); Schofield Interior Contrs., Inc. v. Std. Bldg. Co., 293 Ga. App. 812, 668 S.E.2d 316 (2008); City of Decatur v. DeKalb County, 284 Ga. 434, 668 S.E.2d 247 (2008); Dennis v. First Nat'l Bank of the S., 293 Ga. App. 890, 668 S.E.2d 479 (2008); Coleman v. Arrington Auto Sales & Rentals, 294 Ga. App. 247, 669 S.E.2d 414 (2008); Lawyers Title Ins. Corp. v. Stribling, 294 Ga. App. 382, 670 S.E.2d 154 (2008); Savage v. E. R. Snell Contr., Inc., 295 Ga. App. 319, 672 S.E.2d 1 (2008); Dyess v. Brewton, 284 Ga. 583, 669 S.E.2d 145 (2008); De Castro v. Durrell, 295 Ga. App. 194, 671 S.E.2d 244 (2008); Mullis v. Bibb County, 294 Ga. App. 721, 669 S.E.2d 716 (2008); C & H Dev., LLC v. Franklin County, 294 Ga. App. 792, 670 S.E.2d 491 (2008); DeSarno v. Jam Golf Mgmt., LLC, 295 Ga. App. 70, 670 S.E.2d 889 (2008); McCullough v. Reyes, 287 Ga. App. 483, 651 S.E.2d 810 (2007); Monfort v. Colquitt County Hosp. Auth., 288 Ga. App. 202, 653 S.E.2d 535 (2007); Pruette v. Phoebe Putney Mem. Hosp., 295 Ga. App. 335, 671 S.E.2d 844 (2008); Creeden v. Fuentes, 296 Ga. App. 96, 673 S.E.2d 611 (2009); Lamb v. Fulton-DeKalb Hosp. Auth., 297 Ga. App. 529, 677 S.E.2d 328 (2009); Kitchen v. Insuramerica Corp., 296 Ga. App. 739, 675 S.E.2d 598 (2009); Russell v. Barrett, 296 Ga. App. 114, 673 S.E.2d 623 (2009); Iwan Renovations, Inc. v. N. Atlanta Nat'l Bank, 296 Ga. App. 125, 673 S.E.2d 632 (2009); Calloway v. City of Fayetteville, 296 Ga. App. 200, 674 S.E.2d 66 (2009); Daniel v. Allstate Ins. Co., 290 Ga. App. 898, 660 S.E.2d 765 (2008); Davis v. MARTA, 296 Ga. App. 355, 674 S.E.2d 627 (2009); Haugabook v. Crisler, 297 Ga. App. 428, 677 S.E.2d 355 (2009); McCray v. FedEx Ground Package Sys., 291 Ga. App. 317, 661 S.E.2d 691 (2008); Rachels v. Thompson, 290 Ga. App. 115, 658 S.E.2d 890 (2008); Safe Shield Workwear, LLC v. Shubee, Inc., 296 Ga. App. 498, 675 S.E.2d 249 (2009); Hanson Staple Co. v. Eckelberry, 297 Ga. App. 356, 677 S.E.2d 321 (2009); Am. Nat'l Prop. & Cas. Co. v. Amerieast, Inc., 297 Ga. App. 443, 677 S.E.2d 663 (2009); Gardner v. Marcum, 292 Ga. App. 369, 665 S.E.2d 336 (2008); Ins. Co. of Pa. v. APAC-Southeast, Inc., 297 Ga. App. 553, 677 S.E.2d 734 (2009); Hicks v. Heard, 297 Ga. App. 689, 678 S.E.2d 145 (2009); Riding v. Ellis, 297 Ga. App. 740, 678 S.E.2d 178 (2009); Auto-Owners Ins. Co. v. State Farm Fire & Cas. Co., 297 Ga. App. 751, 678 S.E.2d 196 (2009); Tookes v. Murray, 297 Ga. App. 765, 678 S.E.2d 209 (2009); Lee v. Phoebe Putney Mem. Hosp., Inc., 297 Ga. App. 692, 678 S.E.2d 340 (2009); Abdul-Malik v. AirTran Airways, Inc., 297 Ga. App. 852, 678 S.E.2d 555 (2009); Greenhorne & O'Mara, Inc. v. City of Atlanta, 298 Ga. App. 261, 679 S.E.2d 818 (2009); Mason v. Allstate Ins. Co., 298 Ga. App. 308, 680 S.E.2d 168 (2009); Lehman v. Keller, 297 Ga. App. 371, 677 S.E.2d 415 (2009); Gettner v. Fitzgerald, 297 Ga. App. 258, 677 S.E.2d 149 (2009); Keyingham Invs., LLC v. Fid. Nat'l Title Ins. Co., 298 Ga. App. 467, 680 S.E.2d 442 (2009)

Grange Mut. Cas. Co. v. Snipes, 298 Ga. App. 405, 680 S.E.2d 438 (2009); Yim v. J's Fashion Accessories, Inc., 298 Ga. App. 399, 680 S.E.2d 466 (2009); McGregor v. Columbia Nat'l Ins. Co., 298 Ga. App. 491, 680 S.E.2d 559 (2009); Rushin v. Ussery, 298 Ga. App. 830, 681 S.E.2d 263 (2009); Leo v. Waffle House, Inc., 298 Ga. App. 838, 681 S.E.2d 258 (2009); Summit Auto. Group, LLC v. Clark Kia Motors Ame., Inc., 298 Ga. App. 875, 681 S.E.2d 681 (2009); Irvin Int'l, Inc. v. Riverwood Int'l Corp., 299 Ga. App. 633, 683 S.E.2d 158 (2009); Jones v. City of Willacoochee, 299 Ga. App. 741, 683 S.E.2d 683 (2009); Reynolds Props. v. Bickelmann, 300 Ga. App. 484, 685 S.E.2d 450 (2009); OnBrand Media v. Codex Consulting, Inc., 301 Ga. App. 141, 687 S.E.2d 168 (2009); Quarles v. Quarles, 285 Ga. 762, 683 S.E.2d 583 (2009); Textile Rubber & Chem. Co. v. Thermo-Flex Techs., Inc., 301 Ga. App. 491, 687 S.E.2d 919 (2009); Solley v. Mullins Trucking Co., 301 Ga. App. 565, 687 S.E.2d 924 (2009); Northland Ins. Co. v. Am. Home Assur. Co., 301 Ga. App. 726, 689 S.E.2d 87 (2009); Hollis & Spann, Inc. v. Hopkins, 301 Ga. App. 29, 686 S.E.2d 817 (2009); Stefano Arts v. Sui, 301 Ga. App. 857, 690 S.E.2d 197 (2010); Drury v. Harris Ventures, Inc., 302 Ga. App. 545, 691 S.E.2d 356 (2010); Kaplan v. City of Sandy Springs, 286 Ga. 559, 690 S.E.2d 395 (2010); Henderson v. Sargent, 297 Ga. App. 504, 677 S.E.2d 709 (2009); Buckler v. DeKalb County Bd. of Comm'rs, 299 Ga. App. 465, 683 S.E.2d 22 (2009); Gallagher v. Buckhead Cmty. Bank, 299 Ga. App. 622, 683 S.E.2d 50 (2009); Weaver v. Pizza Hut of Am., Inc., 298 Ga. App. 645, 680 S.E.2d 668 (2009); Jones v. O'Day, 303 Ga. App. 159, 692 S.E.2d 774 (2010); Baker v. Harcon, Inc., 303 Ga. App. 749, 694 S.E.2d 673 (2010); Powerhouse Custom Homes, Inc. v. 84 Lumber Co., L.P., 307 Ga. App. 605, 705 S.E.2d 704 (2011); AAF-McQuay, Inc. v. Willis, 308 Ga. App. 203, 707 S.E.2d 508 (2011); Lee v. McCord, 292 Ga. App. 707, 665 S.E.2d 414 (2008); Lewis v. Ritz Carlton Hotel Co., LLC, 310 Ga. App. 58, 712 S.E.2d 91 (2011); Karle v. Belle, 310 Ga. App. 115, 712 S.E.2d 96 (2011); Davis v. Foreman, 311 Ga. App. 775, 717 S.E.2d 295 (2011); Jones v. White, 311 Ga. App. 822, 717 S.E.2d 322 (2011); In re Estate of Tapley, 312 Ga. App. 234, 718 S.E.2d 92 (2011); Aleman v. Sugarloaf Dialysis, LLC, 312 Ga. App. 658, 719 S.E.2d 551 (2011); Griffin v. State Bank, 312 Ga. App. 87, 718 S.E.2d 35 (2011); Hays v. Ga. Farm Bureau Mut. Ins. Co., 314 Ga. App. 110, 722 S.E.2d 923 (2012); Sands v. Lindsey, 314 Ga. App. 160, 723 S.E.2d 471 (2012); Trendmark Homes, Inc. v. Bank of N. Ga., 314 Ga. App. 886, 726 S.E.2d 138 (2012); Boatright v. Glynn County Sch. Dist., 315 Ga. App. 468, 726 S.E.2d 591 (2012); Amtrust N. Am., Inc. v. Smith, 315 Ga. App. 133, 726 S.E.2d 628 (2012); McCrary v. Middle Ga. Mgmt. Servs., 315 Ga. App. 247, 726 S.E.2d 740 (2012); Tallahassee State Bank v. Macon, 317 Ga. App. 128, 730 S.E.2d 646 (2012); Sun Nurseries, Inc. v. Lake Erma, LLC, 316 Ga. App. 832, 730 S.E.2d 556 (2012); Greenway v. Northside Hosp., 317 Ga. App. 371, 730 S.E.2d 742 (2012); Brown v. Seaboard Constr. Co., 317 Ga. App. 667, 732 S.E.2d 325 (2012); McRae v. Hogan, 317 Ga. App. 813, 732 S.E.2d 853 (2012); Dixie Roadbuilders, Inc. v. Sallet, 318 Ga. App. 228, 733 S.E.2d 511 (2012); Ga. Cash Am. v. Greene, 318 Ga. App. 355, 734 S.E.2d 67 (2012); Meek v. Mallory & Evans, Inc., 318 Ga. App. 407, 734 S.E.2d 109 (2012); Parker v. All Am. Quality Foods, Inc., 318 Ga. App. 689, 734 S.E.2d 510 (2012); Maxum Indem. Co. v. Jimenez, 318 Ga. App. 669, 734 S.E.2d 499 (2012); Coweta County v. Cooper, 318 Ga. App. 41, 733 S.E.2d 348 (2012); Shell v. Tidewater Fin. Co., 318 Ga. App. 69, 733 S.E.2d 375 (2012); Kovacs v. Cornerstone Nat'l Ins. Co., 318 Ga. App. 99, 736 S.E.2d 105 (2012); Circle K Stores, Inc. v. T. O. H. Assocs., 318 Ga. App. 753, 734 S.E.2d 752 (2012); Cox v. Mayan Lagoon Estates Ltd., 319 Ga. App. 101, 734 S.E.2d 883 (2012); Samuels v. CBOCS, Inc., 319 Ga. App. 421, 742 S.E.2d 141 (2012); Kammerer Real Estate Holdings, LLC v. PLH Sandy Springs, LLC, 319 Ga. App. 393, 740 S.E.2d 635 (2012), overruled on other grounds, 322 Ga. App. 859, 747 S.E.2d 68 (2013); Oduok v. Wedean Props., 319 Ga. App. 785, 738 S.E.2d 626 (2013); Bogart v. Wis. Inst. for Torah Study, 321 Ga. App. 492, 739 S.E.2d 465 (2013); Garrett v. S. Health Corp. of Ellijay, Inc., 320 Ga. App. 176, 739 S.E.2d 661 (2013); Garner & Glover Co. v. Barrett, 321 Ga. App. 205, 738 S.E.2d 721 (2013); Nash v. Twp. Invs., LLC, 320 Ga. App. 494, 740 S.E.2d 236 (2013); Floyd County v. Scott, 320 Ga. App. 549, 740 S.E.2d 277 (2013); Henderson v. Sugarloaf Residential Prop. Owners Ass'n, 320 Ga. App. 544, 740 S.E.2d 273 (2013); Dixie Group, Inc. v. Shaw Indus. Group, 303 Ga. App. 459, 693 S.E.2d 888; Freund v. Warren, 320 Ga. App. 765, 740 S.E.2d 727 (2013); Clayton County v. Austin-Powell, 321 Ga. App. 12, 740 S.E.2d 831 (2013), overruled on other grounds, Phillips v. Harmon, 297 Ga. 386, 774 S.E.2d 596 (2015); St. Paul Fire & Marine Ins. Co. v. Hughes, 321 Ga. App. 738, 742 S.E.2d 762 (2013); Woodcraft by MacDonald, Inc. v. Ga. Cas. & Sur. Co., 293 Ga. 9, 743 S.E.2d 373 (2013); Bobick v. Cmty. & S. Bank, 321 Ga. App. 855, 743 S.E.2d 518 (2013); Bd. of Regents of the Univ. Sys. of Ga. v. Barnes, 322 Ga. App. 47, 743 S.E.2d 609 (2013), overruled on other grounds by Wolfe v. Regents of the Univ. Sys. of Ga., 300 Ga. 223, 794 S.E.2d 85 (Ga. 2016); Ansley v. Raczka-Long, 293 Ga. 138, 744 S.E.2d 55 (2013); Sherman v. City of Atlanta, 317 Ga. 345, 730 S.E.2d 113 (2013); McGraw v. IDS Prop. & Cas. Ins. Co., 323 Ga. App. 408, 744 S.E.2d 891 (2013); Hanna v. First Citizens Bank & Trust Co., Inc., 323 Ga. App. 321, 744 S.E.2d 894 (2013); UWork.com, Inc. v. Paragon Techs., Inc., 321 Ga. App. 584, 740 S.E.2d 887 (2013); Price v. Thapa, 323 Ga. App. 638, 745 S.E.2d 311 (2013); Aubain-Gray v. Hobby Lobby Stores, Inc., 323 Ga. App. 672, 747 S.E.2d 684 (2013); Carter v. Riggins, 323 Ga. App. 747, 748 S.E.2d 117 (2013); Cmty. Music Ctrs. of Atlanta, LLC v. JW Broad., Inc., 323 Ga. App. 757, 748 S.E.2d 127 (2013); Norfolk S. Ry. v. Zeagler, 293 Ga. 582, 748 S.E.2d 846 (2013); Benfield v. Wells, 324 Ga. App. 85, 749 S.E.2d 384 (2013); Houston v. Wal-Mart Stores E., L.P., 324 Ga. App. 105, 749 S.E.2d 400 (2013); Patel v. Ameris Bank, 324 Ga. App. 227, 749 S.E.2d 809 (2013); Freeman v. Smith, 324 Ga. App. 426, 750 S.E.2d 739 (2013), overruled on other grounds by Franklin v. Pitts, 349 Ga. App. 544, 826 S.E.2d 427 (2019); Danes v. Rogers, 324 Ga. App. 504, 751 S.E.2d 135 (2013); Stillwater Enters. v. Hanson Pipe & Precast, LLC, 324 Ga. App. 582, 751 S.E.2d 193 (2013); O'Dell v. Mahoney, 324 Ga. App. 360, 750 S.E.2d 689 (2013); STC Two, LLC v. Shulman-Weiner, 325 Ga. App. 245, 750 S.E.2d 730 (2013); Herren v. Sucher, 325 Ga. App. 219, 750 S.E.2d 430 (2013); Aquanaut Diving & Eng'g, Inc. v. Guitar Ctr. Stores, Inc., 324 Ga. App. 570, 751 S.E.2d 175 (2013); Bedsole v. Action Outdoor Adver. JV, LLC, 325 Ga. App. 194, 750 S.E.2d 445 (2013); The Kroger Co. v. Schoenhoff, 324 Ga. App. 619, 751 S.E.2d 438 (2013); Johnson v. Burrell, 294 Ga. 301, 751 S.E.2d 301 (2013); Crabapple Lake Parc Cmty. Ass'n v. Circeo, 325 Ga. App. 101, 751 S.E.2d 866 (2013); Quinney v. Phoebe Putney Mem. Hosp., 325 Ga. App. 112, 751 S.E.2d 874 (2013); DJ Mortg., LLC v. Synovus Bank, 325 Ga. App. 382, 750 S.E.2d 797 (2013); Wells Fargo Bank, N.A. v. Twenty Six Properties, LLC, 325 Ga. App. 662, 754 S.E.2d 630 (2014); Richards v. Wells Fargo Bank, N.A., 325 Ga. App. 722, 754 S.E.2d 770 (2014); Burke v. Prime Rate Premium Fin. Corp., 325 Ga. App. 760, 754 S.E.2d 802 (2014); First Chatham Bank v. Liberty Capital, LLC, 325 Ga. App. 821, 755 S.E.2d 219 (2014); Wooden v. Synovus Bank, 325 Ga. App. 876, 756 S.E.2d 19 (2014); Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657, 755 S.E.2d 683 (2014); Askew v. Rogers, 326 Ga. App. 24, 755 S.E.2d 836 (2014); Scrocca v. Ashwood Condominium Ass'n, 326 Ga. App. 226, 756 S.E.2d 308 (2014)

Taylor v. McGraw, 327 Ga. App. 654, 760 S.E.2d 657 (2014); Reed v. Carolina Cas. Ins. Co., 327 Ga. App. 130, 755 S.E.2d 356 (2014); Thompson-El v. Bank of Am., N.A., 327 Ga. App. 309, 759 S.E.2d 49 (2014); Cartersville Ranch, LLC v. Dellinger, 295 Ga. 195, 758 S.E.2d 781 (2014); Fabian v. Pontikakis, 327 Ga. App. 392, 759 S.E.2d 295 (2014); Adams v. DeWitt, 327 Ga. App. 576, 760 S.E.2d 191 (2014); Roca Properties, LLC v. Dance Hotlanta, Inc., 327 Ga. App. 700, 761 S.E.2d 105 (2014); Internet Brands, Inc. v. Jape, 328 Ga. App. 272, 760 S.E.2d 1 (2014); 915 Indian Trail, LLC v. State Bank & Trust Co., 328 Ga. App. 524, 759 S.E.2d 654 (2014); Barzey v. City of Cuthbert, 295 Ga. 641, 763 S.E.2d 447 (2014); Hayek v. Chastain Park Condo. Ass'n, 329 Ga. App. 164, 764 S.E.2d 183 (2014); Sanchez v. Atlanta Union Mission Corp., 329 Ga. App. 158, 764 S.E.2d 178 (2014); Courtland Hotel, LLC v. Salzer, 330 Ga. App. 264, 767 S.E.2d 750 (2014); Boston v. Athearn, 329 Ga. App. 890, 764 S.E.2d 582 (2014); Cope v. Evans, 329 Ga. App. 354, 765 S.E.2d 40 (2014); DeKalb County v. Kirkland, 329 Ga. App. 262, 764 S.E.2d 867 (2014); Hill v. VNS Corp., 329 Ga. App. 274, 764 S.E.2d 876 (2014); Maree v. ROMAR Joint Venture, 329 Ga. App. 282, 763 S.E.2d 899 (2014), overruled on other grounds by SRM Group, Inc. v. Travelers Prop. Cas. Co. of Am., 308 Ga. 404, 841 S.E.2d 729 (2020). Rumsey v. Gillis, 329 Ga. App. 488, 765 S.E.2d 665 (2014); Holcomb v. Long, 329 Ga. App. 515, 765 S.E.2d 687 (2014); Davidson v. Meticulously Clean Sweepers, LLC, 329 Ga. App. 640, 765 S.E.2d 783 (2014); Justice v. SCI Ga. Funeral Servs., 329 Ga. App. 635, 765 S.E.2d 778 (2014); Rollins v. Rollins, 329 Ga. App. 768, 766 S.E.2d 162 (2014), vacated, remanded, 298 Ga. 161, 780 S.E.2d 328 (2015); First Citizens Bank & Trust, Inc. v. Ruddell, 330 Ga. App. 82, 766 S.E.2d 538 (2014); Godwin v. Mizpah Farms, LLLP, 330 Ga. App. 31, 766 S.E.2d 497 (2014); Sentinel Offender Services, LLC v. Glover, 296 Ga. 315, 766 S.E.2d 456 (2014); Wright v. Waterberg Big Game Hunting Lodge Otjahewita (Pty), Ltd., 330 Ga. App. 508, 767 S.E.2d 513 (2014).

Lowry v. Fenzel, 331 Ga. App. 603, 769 S.E.2d 522 (2015); Brazeal v. NewPoint Media Group, LLC, 331 Ga. App. 49, 769 S.E.2d 763 (2015); Buttacavoli v. Owen, Gleaton, Egan, Jones & Sweeney LLP, 331 Ga. App. 88, 769 S.E.2d 794 (2015), cert. denied, 2015 Ga. LEXIS 416 (Ga. 2015); Gaslowitz v. Stabilis Fund I, LP, 331 Ga. App. 152, 770 S.E.2d 245 (2015); Sanders v. Riley, 296 Ga. 693, 770 S.E.2d 570 (2015); Ashton Atlanta Residential, LLC v. Ajibola, 331 Ga. App. 231, 770 S.E.2d 311 (2015); Roberts v. Cmty. & S. Bank, 331 Ga. App. 364, 771 S.E.2d 68 (2015); 9766, LLC v. Dwarf House, Inc., 331 Ga. App. 287, 771 S.E.2d 1 (2015); Southern States-Bartow County, Inc. v. Riverwood Farm Prop. Owners Ass'n, Inc., 331 Ga. App. 878, 769 S.E.2d 823 (2015); In re Estate of Wade, 331 Ga. App. 535, 771 S.E.2d 214 (2015); SJN Props., LLC v. Fulton County Bd. of Assessors, 296 Ga. 793, 770 S.E.2d 832 (2015).

Tuohy v. City of Atlanta, 331 Ga. App. 846, 771 S.E.2d 501 (2015); Cheeley Invs., L.P. v. Zambetti, 332 Ga. App. 115, 770 S.E.2d 350 (2015), cert. denied, No. S15C1298, 2015 Ga. LEXIS 615 (Ga. 2015); Barking Hound Vill., LLC v. Monyak, 331 Ga. App. 811, 771 S.E.2d 469 (2015); Brown v. GeorgiaCarry.Org, Inc., 331 Ga. App. 890, 770 S.E.2d 56 (2015), cert. denied, 2015 Ga. LEXIS 732 (Ga. 2015); Barbour-Amir v. Comcast of Georgia/Virginia, Inc., 332 Ga. App. 279, 772 S.E.2d 231 (2015); Padilla v. Medrano, 332 Ga. App. 393, 772 S.E.2d 836 (2015); Doctors Hosp. of Augusta, LLC v. Alicea, 332 Ga. App. 529, 774 S.E.2d 114 (2015), aff'd, 299 Ga. 315, 788 S.E.2d 392 (2016); Caraway v. Spillers, 332 Ga. App. 588, 774 S.E.2d 162 (2015); Dolan v. Auto Owners Ins. Co., 333 Ga. App. 601, 773 S.E.2d 789 (2015); Allan v. Jefferson Lakeside, L.P., 333 Ga. App. 222, 775 S.E.2d 763 (2015); Wells Fargo Bank, N.A. v. Cook, 332 Ga. App. 834, 775 S.E.2d 199 (2015), cert. denied, No. S15C1753, 2015 Ga. LEXIS 720 (Ga. 2015); Ellis v. Hartford Run Apartments, LLC, 335 Ga. App. 118, 779 S.E.2d 103 (2015), cert. denied, No. S16C0607, 2016 Ga. LEXIS 289 (Ga. 2016); Gaskins v. Berry's Boat Dock, 334 Ga. App. 642, 780 S.E.2d 83 (2015); Coon v. Medical Ctr., Inc., 335 Ga. App. 278, 780 S.E.2d 118 (2015), aff'd, 300 G. 722, 797 S.E.2d 828 (2017); Hughes v. Cornerstone Inspection Grp., Inc., 336 Ga. App. 283, 784 S.E.2d 116 (2016); Bo Phillips Company, Inc. v. R. L. King Properties, LLC, 336 Ga. App. 705, 783 S.E.2d 445 (2016); Hill v. Jackson, 336 Ga. App. 679, 783 S.E.2d 719 (2016); Rivera v. Washington, 298 Ga. 770, 784 S.E.2d 775 (2016); Zook v. Arch Specialty Ins. Co., 336 Ga. App. 669, 784 S.E.2d 119 (2016); PLIVA, Inc. v. Dement, 335 Ga. App. 398, 780 S.E.2d 735 (2015); Houghton v. Sacor Financial, Inc., 337 Ga. App. 254, 786 S.E.2d 903 (2016); Adewumi v. Amelia Grove/Ashland Park Homeowners Ass'n, 337 Ga. App. 275, 787 S.E.2d 761 (2016); Campbell v. Ailion, 338 Ga. App. 382, 790 S.E.2d 68 (2016); Humphrey v. JP Morgan Chase Bank, N.A., 337 Ga. App. 331, 787 S.E.2d 303 (2016); Barclay v. Stephenson, 337 Ga. App. 365, 787 S.E.2d 322 (2016); R&G Invs. & Holdings, LLC v. Am. Family Ins. Co., 337 Ga. App. 588, 787 S.E.2d 765 (2016), cert. denied, No. S16C1830, 2017 Ga. LEXIS 144 (Ga. 2017); State of Ga. v. International Keystone Knights of the Ku Klux Klan, Inc., 299 Ga. 392, 788 S.E.2d 455 (2016); Edel v. Southtowne Motors of Newnan II, Inc., 338 Ga. App. 376, 789 S.E.2d 224 (2016); Pass v. Forestar GA Real Estate Group, Inc., 337 Ga. App. 244, 787 S.E.2d 250 (2016), cert. denied, No. S16C1689, 2016 Ga. LEXIS 830 (Ga. 2016); SunTrust Bank v. Venable, 299 Ga. 655, 791 S.E.2d 5 (2016); Harris v. Deutsche Bank Nat'l Trust Co., 338 Ga. App. 838, 792 S.E.2d 111 (2016); Greenberg Farrow Architecture, Inc. v. JMLS 1422, LLC, 339 Ga. App. 325, 791 S.E.2d 635 (2016); Stroud v. Hall County, 339 Ga. App. 37, 793 S.E.2d 104 (2016); Rigby v. Flue-Cured Tobacco Coop. Stabilization Corp., 339 Ga. App. 558, 794 S.E.2d 413 (2016); Liberty Capital, LLC v. First Chatham Bank, 338 Ga. App. 48, 789 S.E.2d 303 (2016); Trustgard Ins. Co. v. Herndon, 338 Ga. App. 347, 3790 S.E.2d 115 (2016); Northside Bank v. Mountainbrook of Bartow County Homeowners Ass'n, 338 Ga. App. 126, 789 S.E.2d 378 (2016); Progressive Mt. Ins. Co. v. Bishop, 338 Ga. App. 115, 790 S.E.2d 91 (2016); Bryant v. Optima Int'l, 339 Ga. App. 696, 792 S.E.2d 489 (2016); George v. Hercules Real Estate Services, Inc., 339 Ga. App. 843, 795 S.E.2d 81 (2016); Burrowes v. Bank of Am., N.A., 340 Ga. App. 248, 797 S.E.2d 493 (2017); Atl. Geoscience, Inc. v. Phoenix Dev. & Land Inv., LLC, 341 Ga. App. 81, 799 S.E.2d 242 (2017); Mashburn Constr., L.P. v. CharterBank, 340 Ga. App. 580, 798 S.E.2d 251 (2017); Popham v. Landmark Am. Ins. Co., 340 Ga. App. 603, 798 S.E.2d 257 (2017); Ga. Dep't of Admin. Servs. v. McCoy, 340 Ga. App. 877, 798 S.E.2d 687 (2017); City of Atlanta v. Hogan Constr. Group, LLC, 341 Ga. App. 620, 801 S.E.2d 606 (2017); Rintoul v. Tolbert, 341 Ga. App. 688, 802 S.E.2d 56 (2017); Hosp. Auth. v. Fender, 342 Ga. App. 13, 802 S.E.2d 346 (2017); Fox v. Norfolk S. Corp., 342 Ga. App. 38, 802 S.E.2d 319 (2017); Souza v. Berberian, 342 Ga. App. 165, 802 S.E.2d 401 (2017); Martin v. Ledbetter, 342 Ga. App. 208, 802 S.E.2d 432 (2017); Kolb v. Northside Hospital, 342 Ga. App. 192, 802 S.E.2d 413 (2017); Downes v. Oglethorpe University, Inc., 342 Ga. App. 250, 802 S.E.2d 437 (2017); American Safety Indemnity Co. v. Sto Corp., 342 Ga. App. 263, 802 S.E.2d 448 (2017); Ga. Farm Bureau Mut. Ins. Co. v. Rockefeller, 343 Ga. App. 36, 805 S.E.2d 660 (2017), cert. denied, No. S18C0338, 2018 Ga. LEXIS 258 (Ga. 2018); Demere Marsh Assocs., LLC v. Boatright Roofing & Gen. Contr., Inc., 343 Ga. App. 235, 808 S.E.2d 1 (2017); Sure, Inc. v. Premier Petroleum, Inc., 343 Ga. App. 219, 807 S.E.2d 19 (2017); Alford v. Hernandez, 343 Ga. App. 332, 807 S.E.2d 84 (2017), cert. denied, No. S18C0459, 2018 Ga. LEXIS 327 (Ga. 2018); Viad Corp v. United States Steel Corp., 343 Ga. App. 609, 808 S.E.2d 58 (2017); Avery v. Paulding County Airport Auth., 343 Ga. App. 832, 808 S.E.2d 15 (2017); Coleman v. Glynn County, 344 Ga. App. 545, 809 S.E.2d 383 (2018), cert. denied, No. S18C0869, 2018 Ga. LEXIS 566; cert. denied, No. S18C0881, 2018 Ga. LEXIS 572 (Ga. 2018); Davis v. Ganas, 344 Ga. App. 697, 812 S.E.2d 36 (2018); MacDowell v. Gallant, 344 Ga. App. 856, 811 S.E.2d 513 (2018), cert. denied, No. S18C0963, 2018 Ga. LEXIS 626 (Ga. 2018); Peterson v. Peterson, 303 Ga. 211, 811 S.E.2d 309 (2018); Ga.-Pac. Consumer Prods., LP v. Ratner, 345 Ga. App. 434, 812 S.E.2d 120 (2018), cert. denied, 2018 Ga. LEXIS 736, cert. denied, No. S18C1130, 2018 Ga. LEXIS 725 (Ga. 2018); Crop Production Services, Inc. v. Moye, 345 Ga. App. 228, 812 S.E.2d 565 (2018); Cancel v. Medical Center of Central Ga., Inc., 345 Ga. App. 215, 812 S.E.2d 592 (2018), cert. denied, No. S18C1054, 2018 Ga. LEXIS 769 (Ga. 2018); Southern Trust Insurance Company v. Cravey, 345 Ga. App. 697, 814 S.E.2d 802 (2018), cert. denied, No. S18C1319, 2018 Ga. LEXIS 820 (Ga. 2018); Gold v. DeKalb County Sch. Dist., 346 Ga. App. 108, 815 S.E.2d 259 (2018), aff'd, 307 Ga. 330, 834 S.E.2d 808 (2019); Amberfield Homeowners Ass'n v. Young, 346 Ga. App. 29, 813 S.E.2d 618 (2018); HA&W Capital Partners, LLC v. Bhandari, 346 Ga. App. 598, 816 S.E.2d 804 (2018); Williams v. Durden, 347 Ga. App. 363, 819 S.E.2d 524 (2018); Mercer v. Mercer, 347 Ga. App. 563, 820 S.E.2d 189 (2018); Sheffield v. Conair Corporation, 348 Ga. App. 6, 821 S.E.2d 93 (2018), cert. denied, No. S19C0437, 2019 Ga. LEXIS 467 (Ga. 2019); Weickert v. Home Depot U.S. A., Inc., 347 Ga. App. 889, 821 S.E.2d 110 (2018), cert. denied, 2019 Ga. LEXIS 551 (Ga. 2019); Division Six Sports, Inc. v. Hire Dynamics, LLC, 348 Ga. App. 347, 822 S.E.2d 841 (2019); Sage Atlanta Props., Ltd. v. Hawxhurst, 349 Ga. App. 758, 824 S.E.2d 387 (2019); Hayman v. Paulding County, 349 Ga. App. 77, 825 S.E.2d 482 (2019); The Plantation at Bay Creek Homeowners Association, Inc. v. Glasier, 349 Ga. App. 203, 825 S.E.2d 542 (2019); Gutierrez v. Hilti, Inc., 349 Ga. App. 752, 824 S.E.2d 391 (2019); First Acceptance Ins. Co. of Ga. v. Hughes, 305 Ga. 489, 826 S.E.2d 71 (2019); Laymac v. Kushner, 349 Ga. App. 727, 824 S.E.2d 768 (2019), cert. denied, No. S19C1091, 2019 Ga. LEXIS 871 (Ga. 2019); Cars v. W. Funding II, 349 Ga. App. 517, 826 S.E.2d 370 (2019); Yim v. Carr, 349 Ga. App. 892, 827 S.E.2d 685 (2019), cert. denied, No. S19C1220, 2019 Ga. LEXIS 853 (Ga. 2019); Golden Isles Cruise Lines, Inc. v. Lowie, 350 Ga. App. 1, 827 S.E.2d 703 (2019); Williams v. Murrell, 348 Ga. App. 754, 824 S.E.2d 638 (2019); Phillips v. Adams, Jordan & Herrington, P.C., 350 Ga. App. 184, 828 S.E.2d 414 (2019); Pasha v. Battle Creek Homeowners Ass'n, 350 Ga. App. 433, 829 S.E.2d 618 (2019); Nugent v. Myles, 350 Ga. App. 442, 829 S.E.2d 623 (2019); Jones Lang LaSalle Operations LLC v. Johnson, 350 Ga. App. 439, 829 S.E.2d 629 (2019)

Houston Hospitals, Inc. v. Felder, 351 Ga. App. 394, 829 S.E.2d 182 (2019), cert. denied, No. S19C1628, 2020 Ga. LEXIS 210 (Ga. 2020); Howell v. Bates, 350 Ga. App. 708, 830 S.E.2d 250 (2019); Oconee Fed. S&L Ass'n v. Brown, 351 Ga. App. 561, 831 S.E.2d 222 (2019), cert. dismissed, No. S20C0074, 2020 Ga. LEXIS 201 (Ga. 2020); Dixon v. Dixon, 352 Ga. App. 169, 834 S.E.2d 309 (2019); 6428 Church St. v. SM Corrigan, LLC, 352 Ga. App. 437, 834 S.E.2d 603 (2019), cert. denied, No. S20C0468, 2020 Ga. LEXIS 386 (Ga. 2020); cert. denied, No. S20C0473, 2020 Ga. LEXIS 399 (Ga. 2020); Fayette Cty. Bd. of Tax Assess. v. WalMart Stores, Inc., 354 Ga. App. 584, 841 S.E.2d 104 (2020); Williams Inv. Co. v. Girardot, 354 Ga. App. 762, 841 S.E.2d 436 (2020); Curry v. Conopco, Inc., 354 Ga. App. 692, 840 S.E.2d 151 (2020); Campbell v. Cirrus Education, 355 Ga. App. 628, 845 S.E.2d 393 (2020); Spann v. Davis, 355 Ga. App. 673, 845 S.E.2d 415 (2020); Zahler v. Nat'l Collegiate Student Loan Trust 2006-1, 355 Ga. App. 458, 844 S.E.2d 530 (2020); Joseph v. Certain Underwriters at Lloyd's London, Ga. App. , 844 S.E.2d 852 (2020); Five Star Athlete Mgmt., Inc. v. Davis, 355 Ga. App. 774, 845 S.E.2d 754 (2020); Saik v. Brown, Ga. App. , S.E.2d (June 25, 2020); Zulke v. AC&DC Power Technologies, LLC, Ga. App. , S.E.2d (July 22, 2020); Walia v. Walia, Ga. App. , S.E.2d (July 30, 2020); JPMorgan Chase Bank v. Cronan, 355 Ga. App. 556, 845 S.E.2d 298 (2020); Campbell v. Cirrus Education, Inc., 355 Ga. App. 637, 845 S.E.2d 384 (2020); Premier Eye Care Assocs. v. Mag Mut. Ins. Co., 355 Ga. App. 620, 844 S.E.2d 282 (2020); City of Norcross v. Gwinnett County, 355 Ga. App. 662, 843 S.E.2d 31 (2020); McCalla Raymer, LLC v. Foxfire Acres, Inc., Ga. App. , 846 S.E.2d 404 (2020).

Cited in Saks Mgmt. & Assocs. v. Sung, Ga. App. , S.E.2d (Aug. 21, 2020).

Premier Eye Care Assocs. v. Mag Mut. Ins. Co., 355 Ga. App. 620, 844 S.E.2d 282 (2020).

Mullinax v. Pilgrim's Pride Corp., 354 Ga. App. 186, 840 S.E.2d 666 (2020); Helton v. United Servs. Auto. Ass'n, 354 Ga. App. 208, 840 S.E.2d 692 (2020).

Sheffield v. Futch, 354 Ga. App. 661, 839 S.E.2d 294 (2020); GeorgiaCarry.Org, Inc. v. Atlanta Botanical Garden, Inc., 306 Ga. 829, 834 S.E.2d 27 (2019); Chatham Area Transit Auth. v. Brantley, 353 Ga. App. 197, 834 S.E.2d 593 (2019); Head v. de Souse, 353 Ga. App. 309, 836 S.E.2d 227 (2019); First Communities Mgmt., Inc. v. Holmes, 353 Ga. App. 409, 837 S.E.2d 717 (2020); 280 Partners, LLC v. Bank of North Georgia, 352 Ga. App. 605, 835 S.E.2d 377 (2019); Sweet City Landfill, LLC v. Lyon, 352 Ga. App. 824, 835 S.E.2d 764 (2019); DeKalb County Bd. of Tax Assessors v. CWS SGARR Brookhaven, LLC, 352 Ga. App. 848, 836 S.E.2d 729 (2019); Bates v. Howell, 352 Ga. App. 733, 835 S.E.2d 814 (2019); Cannon v. Oconee County, 353 Ga. App. 296, 835 S.E.2d 753 (2019); Mitchell v. Capehart, 353 Ga. App. 461, 838 S.E.2d 125 (2020); Parham v. Stewart, 308 Ga. 170, 839 S.E.2d 605 (2020).

Purpose of Summary Judgment

Prompt and inexpensive method of disposing of cases.

- Motion for summary judgment is designed to provide a prompt and inexpensive method of disposing of any cause if the pleadings, depositions, and affidavits clearly show there is no issue of material fact, although allegations of the pleadings standing alone may raise such an issue. Maxey-Bosshardt Lumber Co. v. Maxwell, 127 Ga. App. 429, 193 S.E.2d 885 (1972).

Purpose of former Ga. L. 1959, p. 234, § 1 et seq. was to afford to either party litigant, upon motion, a judgment forthwith if the record shows there was not a genuine issue existing between the parties. Southern v. Adams, 111 Ga. App. 217, 141 S.E.2d 320 (1965);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Very purpose of former Ga. L. 1959, p. 234, § 1 et seq. was to afford either party litigant a judgment forthwith if the record showed there was not a genuine issue existing between the parties, but only after each party had an opportunity to make out a case or establish a defense, as the case may be. Scales v. Peevy, 103 Ga. App. 42, 118 S.E.2d 193 (1961); Sparks v. Rinker, 111 Ga. App. 191, 141 S.E.2d 185 (1965);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Summary resolution has its place; efficient and orderly dispensation of justice is enhanced when unnecessary and protracted litigation is avoided. Shmunes v. GMC, 146 Ga. App. 486, 246 S.E.2d 486 (1978).

Unnecessary jury trials eliminated.

- Summary judgment was clearly intended to dispose of litigation expeditiously and avoid the useless time and expense of going through a jury trial even though the petition fairly bristles with serious allegations, if, when given notice and an opportunity to produce affidavits by persons competent to testify on their own knowledge to the truth of such allegations, the pleader does nothing to contradict affidavits of the movant that show the opposite party has no right to prevail. Crutcher v. Crawford Land Co., 220 Ga. 298, 138 S.E.2d 580 (1964); Brown v. J.C. Penney Co., 123 Ga. App. 233, 180 S.E.2d 364 (1971); Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974); Motel Mgt. Sys. v. Billing, 143 Ga. App. 702, 240 S.E.2d 173 (1977);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Function of motion for summary judgment is to avoid a useless trial if there is no genuine issue as to any material fact. General Gas Corp. v. Carn, 103 Ga. App. 542, 120 S.E.2d 156 (1961);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Former Ga. L. 1959, p. 234, § 1 et seq. obviously had as one of its purposes, if there was no genuine issue as to any material fact, to allow the trial court to apply appropriate legal principles and define the legal rights of the parties without lengthy trials to establish already undisputed facts. Scales v. Peevy, 103 Ga. App. 42, 118 S.E.2d 193 (1961);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Purpose of the Summary Judgment Act of 1959 (former Ga. L. 1959, p. 234, § 1 et seq.) was to eliminate the necessity for a jury trial if there was no genuine issue as to any material fact in the case. General Ins. Co. of Am. v. Camden Constr. Co., 115 Ga. App. 189, 154 S.E.2d 26 (1967);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Purpose of former Ga. L. 1959, p. 234, § 1 et seq. was to eliminate the necessity for a jury trial if there is no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. Holland v. Sanfax Corp., 106 Ga. App. 1, 126 S.E.2d 442 (1962); King v. Fryer, 107 Ga. App. 715, 131 S.E.2d 203 (1963); Lampkin v. Edwards, 222 Ga. 288, 149 S.E.2d 708 (1966); Boston Ins. Co. v. Barnes, 120 Ga. App. 585, 171 S.E.2d 626 (1969); Elder v. Smith, 121 Ga. App. 461, 174 S.E.2d 239, rev'd on other grounds, 226 Ga. 688, 177 S.E.2d 77 (1970); Tony v. Pollard, 248 Ga. 86, 281 S.E.2d 557 (1981);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Purpose of former Ga. L. 1959, p. 234, § 1 et seq. was to eliminate the necessity for a trial by jury if, giving the opposing party the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence, there was no genuine issue as to any material fact, and the moving party was entitled to judgment as a matter of law. Butterworth v. Pettitt, 223 Ga. 355, 155 S.E.2d 20 (1967); Southern Bell Tel. & Tel. Co. v. Beaver, 120 Ga. App. 420, 170 S.E.2d 737 (1969); Kroger Co. v. Cobb, 125 Ga. App. 310, 187 S.E.2d 316 (1972); Maxey-Bosshardt Lumber Co. v. Maxwell, 127 Ga. App. 429, 193 S.E.2d 885 (1972); Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974); Beach v. First Fed. Sav. & Loan Ass'n, 140 Ga. App. 882, 232 S.E.2d 158 (1977); Jones v. First Nat'l Bank, 142 Ga. App. 18, 234 S.E.2d 794 (1977); Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977); Hewatt v. Bonner, 142 Ga. App. 442, 236 S.E.2d 111 (1977); Motel Mgt. Sys. v. Billing, 143 Ga. App. 702, 240 S.E.2d 173 (1977); Skinner v. Humble Oil & Ref. Co., 145 Ga. App. 372, 243 S.E.2d 732 (1978); Culwell v. Lomas & Nettleton Co., 148 Ga. App. 478, 251 S.E.2d 579 (1978); Mock v. Canterbury Realty Co., 152 Ga. App. 872, 264 S.E.2d 489 (1980); Riddle v. Driebe, 153 Ga. App. 276, 265 S.E.2d 92 (1980); Cincinnati Ins. Co. v. Davis, 153 Ga. App. 291, 265 S.E.2d 102 (1980); Lagerstrom v. Beers Constr. Co., 157 Ga. App. 396, 277 S.E.2d 765 (1981); Troutt v. Nash AMC/Jeep, Inc., 157 Ga. App. 399, 278 S.E.2d 54 (1981); Parlato v. Metropolitan Atlanta Rapid Transit Auth., 165 Ga. App. 758, 302 S.E.2d 613 (1983); Bowman v. United States Life Ins. Co., 167 Ga. App. 673, 307 S.E.2d 134 (1983);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Purpose of permitting summary judgments is to dispose of unnecessary trials and not to upset a verdict authorized by the evidence merely because at a previous stage of the case a finding may not have been authorized in accordance with such verdict. Hill v. Willis, 224 Ga. 263, 161 S.E.2d 281 (1968).

Ga. L. 1967, p. 234, § 1 et seq. (see now O.C.G.A. § 9-11-56) serves a useful purpose, namely, to eliminate the necessity of trial by jury if there is no genuine issue of fact to be tried. Brown v. J.C. Penney Co., 123 Ga. App. 233, 180 S.E.2d 364 (1971).

Point of summary judgment is to remove from the jury what is so clear as not to need rumination. Siefferman v. Peppers, 159 Ga. App. 688, 285 S.E.2d 61 (1981).

No intent to change existing procedures afforded to parties.

- Purpose of former Ga. L. 1959, p. 234, § 1 et seq. was not to change or amend or do away with any of the existing procedures afforded parties to a lawsuit. Braselton Bros. v. Better Maid Dairy Prods., Inc., 110 Ga. App. 515, 139 S.E.2d 124 (1964);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Not intended to eliminate all trial by jury.

- It is not the purpose of summary judgment to change the general rules with reference to submitting questions to the jury, and summary judgment should be granted only if there is no genuine issue of fact as shown by the record before the court. Wasserman v. Southland Inv. Corp., 105 Ga. App. 420, 124 S.E.2d 674 (1962); Clayton v. Steve-Cathey, Inc., 105 Ga. App. 570, 125 S.E.2d 118 (1962);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Purpose of enacting Ga. L. 1959, p. 234, § 1 et seq. was not to change the general rule that questions of negligence, of contributory negligence, of cause and proximate cause, and of whose negligence or of what negligence constitutes the proximate cause of an injury are, except in plain, palpable, and indisputable cases, solely for the jury. Malcom v. Malcolm, 112 Ga. App. 151, 144 S.E.2d 188 (1965);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Trial of all the issues of fact by the jury was not intended to be abrogated by summary judgment. Ginn v. Morgan, 225 Ga. 192, 167 S.E.2d 393 (1969).

Material issues identified.

- Purpose of summary judgment procedure is to determine whether there is a material issue of fact to be tried, rather than to set up technical pitfalls for the unwary. Glenn v. Metropolitan Atlanta Rapid Transit Auth., 158 Ga. App. 98, 279 S.E.2d 481 (1981).

On summary judgment, a trial court determines only whether a material issue of fact exists, and such determination does not include "the discovery of the truth of such fact" or permit frustration of a plaintiff's constitutional right to a trial by jury "by inferring the existence of other facts" from predicate evidence. Bruno's Food Stores, Inc. v. Taylor, 228 Ga. App. 439, 491 S.E.2d 881 (1997).

Procedure pierces formal verbiage of pleadings.

- Primary purpose of summary judgment procedure was to allow a party to pierce the allegations of the pleadings, show the truth to the court, and receive judgment if there was no genuine issue of material fact, although an issue might be raised by the pleadings. Scales v. Peevy, 103 Ga. App. 42, 118 S.E.2d 193 (1961); Spratlin v. Manufacturers Acceptance Corp., 105 Ga. App. 463, 125 S.E.2d 110 (1962); Calhoun v. Eaves, 114 Ga. App. 756, 152 S.E.2d 805 (1966); Laite v. Baxter, 126 Ga. App. 743, 191 S.E.2d 531 (1972); Gregory v. Vance Publishing Corp., 130 Ga. App. 118, 202 S.E.2d 515 (1973); Flanders v. Columbia Nitrogen Corp., 135 Ga. App. 21, 217 S.E.2d 363 (1975); Maxwell v. Columbia Realty Venture, 155 Ga. App. 289, 270 S.E.2d 704 (1980);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Purpose of a motion for summary judgment is to pierce formal verbiage of the pleadings by showing that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Connors v. City Council, 120 Ga. App. 499, 171 S.E.2d 578 (1969); French v. Norman, 124 Ga. App. 567, 184 S.E.2d 663 (1971).

Summary judgment is designed to enable the judge, by piercing formal verbiage of the pleadings, to filter out sham issues that might otherwise cause needless and time-consuming litigation. Boston Ins. Co. v. Barnes, 120 Ga. App. 585, 171 S.E.2d 626 (1969); Porter v. Felker, 261 Ga. 421, 405 S.E.2d 31 (1991).

Very object of a motion for summary judgment is to separate what is formal or pretended in denial or averment from what is genuine and substantial so that only the latter may subject a suitor to the burden of a trial. Maxey-Bosshardt Lumber Co. v. Maxwell, 127 Ga. App. 429, 193 S.E.2d 885 (1972).

Applicability to Certain Actions, Proceedings, Issues, and Defenses

Attorney fees.

- When a company sought attorney fees, under O.C.G.A. § 13-6-11, and punitive damages from its attorneys regarding their participation in a sale of the company's assets, summary judgment should have been granted in favor of the attorneys because no claims as to which such relief might have been awarded were found to be proper. R.W. Holdco, Inc. v. Johnson, 267 Ga. App. 859, 601 S.E.2d 177 (2004).

In an action to recover on a promissory note with past due interest, and upon entering summary judgment in favor of the lender, the trial court erred in awarding the lender $10,195.40 in attorney fees in a judgment in which the principal and interest amounted to only $6,259.12; under the formula delineated under O.C.G.A. § 13-1-11, such amount was limited to $650.91. Long v. Hogan, 289 Ga. App. 347, 656 S.E.2d 868 (2008), cert. denied, 2008 Ga. LEXIS 516 (Ga. 2008).

Evidence supported an award of attorney fees because the evidence presented by the client in a legal malpractice suit could authorize a jury to conclude that, despite owing the client a fiduciary duty, the attorney's persistent failure to adequately represent the client went beyond mere negligence and rose to the level of bad faith. Brito v. Gomez Law Group, LLC, 289 Ga. App. 625, 658 S.E.2d 178 (2008).

Breach of fiduciary duty.

- In a case in which a company sued the company's attorneys for breach of fiduciary duty for closing a sale of the company's assets, summary judgment was properly granted in favor of the attorneys because the attorneys made all proper disclosures to the employee and officer who had apparent authority to conduct the sale, and they justifiably relied on that authority, as well as on certain consent minutes from the corporation which was represented as being the company's parent. R.W. Holdco, Inc. v. Johnson, 267 Ga. App. 859, 601 S.E.2d 177 (2004).

Summary judgment was inappropriate in a breach of fiduciary duty action which centered around a verbal settlement agreement as material fact issues remained as to whether: (1) a company's offer to buy the minority shareholders' stock required a written purchase agreement; (2) the parties agreed to all material terms; and (3) a note signed by one of the minority shareholders had been cancelled. McKenna v. Capital Res. Partners, IV, L.P., 286 Ga. App. 828, 650 S.E.2d 580 (2007), cert. denied, 2007 Ga. LEXIS 752, 763 (Ga. 2007).

Because a claim filed by a minority shareholder against the officers and directors of a corporation alleging their depletion of corporate assets through excessive salaries related to the value or price the shareholder would receive in a stock appraisal action, the shareholder's exclusive remedy was within that action; thus, a separate breach of fiduciary duty claim filed in the shareholder's direct action against the officers and directors was properly disposed of via summary judgment. Levy v. Reiner, 290 Ga. App. 471, 659 S.E.2d 848 (2008).

Recoupment.

- In an action seeking a writ of possession for a mobile home, because the mobile home's tenants expressly waived any recourse against their bankrupt lender arising from a prior judgment, based on a voluntary settlement with the bankrupt lender accepting a general unsecured claim, the tenants could not later assert any right of recoupment; as a result, the trial court did not err in granting summary judgment as to that claim against the tenants and in favor of a successor lender. Hill v. Green Tree Servicing, LLC, 280 Ga. App. 151, 633 S.E.2d 451 (2006).

Employee fraud.

- Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56(c) in an employee's fraud claim, wherein the employee contended that the employee was fraudulently induced to give up additional severance benefits in order to accept an at-will position with the successor to the employer, and that such position did not in fact exist, as the record clearly indicated that the employee worked and was paid for a period of almost two years prior to the employee's termination. Cramp v. Georgia-Pacific Corp., 266 Ga. App. 38, 596 S.E.2d 212 (2004).

Acts of employees.

- Because an employer had not produced any evidence that established, as a matter of law, that a bartender's actions in breaking up a fight in their bowling center fell outside the class of activities its bartenders performed generally, a jury issue remained, and summary judgment should not have been granted. Brown v. AMF Bowling Ctrs., Inc., 236 Ga. App. 277, 511 S.E.2d 619 (1999).

Plaintiff who could not show that an employee was acting within the scope of employment at the time of a collision could not show a genuine issue of material fact in a wrongful death action against the employer, and summary judgment was therefore appropriate. Tyner v. Comfort Rest Sleep Prods., Inc., 236 Ga. App. 423, 512 S.E.2d 321 (1999).

Grant of summary judgment to an amusement park in an injured worker's personal injury suit was proper because the worker had violated OSHA regulations and National Fire Protection Association (NFPA) standards governing electrical safety in numerous respects, which were mandatory and had the force of law, and the worker's conduct fulfilled all of the requirements of negligence per se. Kull v. Six Flags over Ga. II, L.P., 264 Ga. App. 715, 592 S.E.2d 143 (2003).

Summary judgment in favor of a crane company was reversed because a question of fact remained regarding whether a crane operator, who was an employee of the company, was acting as the company's employee or as a borrowed servant of a general contractor on a construction site when the operator allegedly committed a negligent act that injured a worker. A contract between the company and the contractor labeling the operator a borrowed servant was not dispositive and a question remained regarding how much control the contractor actually had over the crane operator's actions. Gibson v. Tim's Crane & Rigging, Inc., 266 Ga. App. 42, 596 S.E.2d 215 (2004).

Employee on personal errand.

- Trial court properly granted summary judgment to the company on the injured person's lawsuit alleging that the company was liable to the injured party for the actions of its employee, who struck the injured party's vehicle while turning the truck the employee was driving into an intersection as the employee returned from a personal visit with relatives as the injured person could not show that the employee was acting within the scope of employment, that the company had actual knowledge of the employee's driving record, or that the employee's driving record showed a pattern of reckless driving. Upshaw v. Roberts Timber Co., 266 Ga. App. 135, 596 S.E.2d 679 (2004).

Trial court properly granted an employer's motion for summary judgment, in a personal injury action filed by a mother and daughter as the latter failed to show that the former was liable under the doctrine of respondeat superior for the accident caused by its employee, given that the employee was running personal errands at the time of the collision, despite the fact the errands seemed work-related, and was not on a special mission undertaken at the employer's direction; further, any reliance by the mother and daughter on the traveling sales person exception applied in workers' compensation cases was misplaced. Gassaway v. Precon Corp., 280 Ga. App. 351, 634 S.E.2d 153 (2006).

Trial court properly granted summary judgment to the health center on the patient's claim that the center was responsible for the negligent hiring/retention of the mental health assistant who allegedly raped the patient as the health center showed that the center exercised ordinary care not to hire a person who posed a reasonably foreseeable risk of inflicting harm on others by hiring a professional investigation service to do a background check on the mental health assistant; as a result of that background check, the service advised the health center that the mental health assistant had not been involved in criminal activity and the patient did not show that the health center otherwise knew that the mental health assistant posed a risk of harm to the center's patients. Munroe v. Universal Health Servs., Inc., 277 Ga. 861, 596 S.E.2d 604 (2004).

When a company sued the company's attorneys and accountants for fraud and aiding and abetting fraud regarding their participation in a sale of the company's assets because they did not notify the company's principal of the sale, summary judgment was properly granted in favor of the attorneys and accountants because the employee who conducted the sale had apparent authority to do so and actual fraud was insufficiently pled, under O.C.G.A. § 9-11-9(b), as a response to the attorneys' and accountants' motion for summary judgment. R.W. Holdco, Inc. v. Johnson, 267 Ga. App. 859, 601 S.E.2d 177 (2004).

Because a corporation's president did not participate in the allegedly negligent work of employees of the corporation at a decedent's home or supervise or direct the employees in the work at the home, summary judgment in favor of the president in a wrongful death action brought by the decedent's children was affirmed; the president's alleged failure to provide proper training to the employees was not a sufficiently direct participation in a tort to expose the president to personal liability. Beasley v. A Better Gas Co., 269 Ga. App. 426, 604 S.E.2d 202 (2004).

In the employer's action to recover for theft of corporate funds, the employee was not entitled to summary judgment because the six-year statute of limitations applicable to constructive trust claims only barred the employer's action as to some, but not all, of the employee's thefts. Total Supply, Inc. v. Pridgen, 267 Ga. App. 125, 598 S.E.2d 805 (2004).

Employer was properly granted summary judgment in an employee's personal injury and loss of consortium suit filed against the employer because the employee's accidental injury, which occurred as the employee was walking to work from an employer-owned parking facility to the employee's work building and who was struck by an employer-operated vehicle, was compensable under the Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq. Longuepee v. Ga. Inst. of Tech., 269 Ga. App. 884, 605 S.E.2d 455 (2004).

Because a contract between a crane owner and a general contractor stated that the owner's employee was a borrowed servant, a trial court correctly granted summary judgment in a negligence action arising from injuries resulting from the crane operation. Tim's Crane & Rigging, Inc. v. Gibson, 278 Ga. 796, 604 S.E.2d 763 (2004).

In a negligent hiring and supervision suit based on respondeat superior filed by a decedent's wife against an employer and its allegedly negligent employee, the trial court properly denied an employer's motion for summary judgment, given that the evidence was in dispute as to whether the employee was acting in the scope of employment at the time of the fatal injury to the decedent, and whether the employee might have foreseen that some injury would have resulted from an act or omission, or that consequences of a generally injurious nature might have been expected, based upon evidence that in the 22 years that the employee had driven for companies owned by the same people, the employee had received two speeding tickets and was involved in two minor car accidents. Remediation Res., Inc. v. Balding, 281 Ga. App. 31, 635 S.E.2d 332 (2006).

In a personal injury action, the trial court properly granted summary judgment to an employer on the issue of respondeat superior as the employer could not be found liable for its employee's personal actions undertaken at the time of the collision, which were not in furtherance of the employer's interests, and were not within the employee's scope of employment nor ratified by the employer. Hankerson v. Hammett, 285 Ga. App. 610, 647 S.E.2d 319 (2007).

In a personal injury action arising from an auto accident, summary judgment to an employer was reversed as an injured driver presented some evidence showing that at the time of the accident the employer's employee might have been on a work-related cell phone call or distracted by such a call that the employee chose not to answer, creating a jury question as to the employer's liability for the employee's actions. Hunter v. Modern Cont'l Constr. Co., 287 Ga. App. 689, 652 S.E.2d 583 (2007).

In a tort action filed by an executrix against a hospital, the hospital was properly granted summary judgment on a claim of medical battery as the undisputed facts supported an inference that the executrix's mother consented to the nursing staff determining what types of food the mother could tolerate, and as a result the nursing staff's conduct in exercising that discretion in deciding what types of food the mother could eat did not support a medical battery claim. Morton v. Wellstar Health Sys., 288 Ga. App. 301, 653 S.E.2d 756 (2007), cert. denied, 2008 Ga. LEXIS 292 (Ga. 2008).

County sheriff's authority over county-owned property.

- County sheriff had the independent authority to repaint and remark county-owned sheriff's vehicles assigned to the sheriff's exclusive use, but lacked the authority to modify portions of a county-owned building in which the sheriff's office and jail were housed as that facility was shared with the superior, state, and magistrate courts of Clayton County, as well as the clerks of those courts, the solicitor general, and the district attorney, and hence, not under the sheriff's exclusive use. As a result, subject to compliance with O.C.G.A. § 40-8-91, summary judgment in favor of the county as to the extent of the sheriff's authority was reversed as to the former, but affirmed as to the latter. Hill v. Clayton County Bd. of Comm'rs, 283 Ga. App. 15, 640 S.E.2d 638 (2006), overruled on other grounds, Mayor & Aldermen of Savannah v. Batson-Cook Co., 291 Ga. 114, 728 S.E.2d 189 (Ga. 2012).

Applying this rule in a Federal Employers' Liability Act case and permitting the claimant to reach a jury trial, rather than applying a different theory embodied in the comparable federal rule, did no violence to the principle that federal cases interpreting the substantive law control. Hepner v. Southern Ry., 182 Ga. App. 346, 356 S.E.2d 30 (1987).

Federal Employers' Liability Act.

- Trial court erroneously granted summary judgment to an employer, upon an employee's claim for benefits under the Federal Employers' Liability Act, for injuries to the right leg, right knee, and right ankle, given the evidence substantiating those injuries and that the employer was placed on some kind of notice regarding the injuries; but, summary judgment was upheld as to claims for benefits regarding the employee's injuries to both arms, wrists, hands, feet, left ankle, and left knee as no evidence substantiating those injuries, or as to medical causation, was presented. Phelps v. CSX Transp., Inc., 280 Ga. App. 330, 634 S.E.2d 112 (2006).

Quantum meruit for broker's fee.

- In a case in which a former employee alleged that the employee was entitled to quantum meruit against the former employer for having found a buyer for the employer's property, for which the employer had orally indicated that the employer would reward the employee, but the employee failed to raise in the trial court that the employee was a referral agent who was exempt from the real estate licensing statutes pursuant to O.C.G.A. § 43-40-29(a)(9), the issue was not reviewable on appeal; summary judgment under O.C.G.A. § 9-11-56(c) was granted to the employer as the employee was not licensed under O.C.G.A. §§ 43-40-1(2)(A) and43-40-30(a). The true nature of the exchange was a sale of real estate, an agreement was prohibited by the licensing statutes; accordingly, it could not be the basis of a quantum meruit claim. Everett v. Goodloe, 268 Ga. App. 536, 602 S.E.2d 284 (2004).

Equitable subrogation.

- In an action seeking a declaration that a bank held a first priority lien against certain real property that a trust purchased at a non-judicial foreclosure sale, because the trust failed in the trust's burden to show that, as a matter of law, the application of the principle of equitable subrogation would impair its superior or equal equity, or that it would be unduly prejudiced thereby; and similarly failed to show that the bank was culpably and inexcusably negligent, the trial court did not err in denying the trust's motion for summary judgment. Greer v. Provident Bank, Inc., 282 Ga. App. 566, 639 S.E.2d 377 (2006).

Malicious prosecution claim by former employee.

- Employer, an armored truck company, reasonably believed that its ex-employee, a messenger, had taken five bags from a bank holding room, signed for only four, and absconded with the missing bag; the trial court properly granted summary judgment to the employer on the messenger's malicious prosecution claim. Gibbs v. Loomis, Fargo & Co., 259 Ga. App. 170, 576 S.E.2d 589 (2003).

Adverse possession by state.

- Questions of fact as to whether the state acquired land by adverse possession arise if the state's claim of acquisition by adverse possession is disputed by parties producing evidence that the parties have record title to the land, that the state's possession of the land was permissible, and that the state did not purport to have a valid claim of right to the land or give notice that it did have a valid claim to the land. Tanner v. Brasher, 254 Ga. 41, 326 S.E.2d 218 (1985).

Adverse possession by private party.

- Trial court properly granted summary judgment to the grantor's grandchildren as the grandchildren held the disputed parcel of property under color of title, via a deed to the grantor's daughter, albeit the fact that such was not effective as a deed conveying a present interest, for the prescription period of seven years, and the grantor's heirs at law did not contest the deed until suit was filed. Matthews v. Crowder, 281 Ga. 842, 642 S.E.2d 852 (2007).

Easement.

- Trial court properly granted a corporation's summary judgment motion and awarded a corporation injunctive relief, barring an owner from interfering with the corporation's right of access to a highway, as the corporation's predecessor improved property on which it held a parol license, which created an easement that ran with the land under O.C.G.A. § 44-9-4, and which passed to the corporation. Blake v. RGL Assocs., Inc., 267 Ga. App. 709, 600 S.E.2d 765 (2004).

Trial court erred in granting a couple's motion for summary judgment, in an action against a landowner declaring that a warranty deed included an express easement across the landowner's land, as the language contained within the deed failed to contain any means of identifying the quantity, dimensions, or location of the easement intended to be conveyed, and a survey failed to show the easement; thus, the express easement sought to be conveyed was void for vagueness and unenforceable. Smith v. Tolar, 281 Ga. App. 406, 636 S.E.2d 112 (2006).

Because a buyer's proposed landfill would not be a public utility, but would be privately-owned, it was not entitled to a written verification of zoning compliance so it could pursue a state permit to build a landfill; hence, when combined with the fact that the county did not violate the provisions of the Open Meetings Act under O.C.G.A. § 50-14-1(d), the county was properly granted summary judgment as to these issues. EarthResources, LLC v. Morgan County, 281 Ga. 396, 638 S.E.2d 325 (2006).

In an action arising from the sale of property, the trial court erred in granting summary judgment to the sellers, contrary to both O.C.G.A. §§ 44-5-62 and44-5-63, as a floodwater detention easement burdened the property by permitting the impoundment of water on it to prevent flooding or increased water runoff on other property located downstream and, even though the lake was certainly open and obvious, the same could not necessarily be said of the easement; moreover, a factual issue remained as damages and although the buyers' constructive notice of the easement by reason of its recordation within the chains of title would provide a compelling reason for exempting the easement from operation of the warranty deed, O.C.G.A. § 44-5-63 provided otherwise. McMurray v. Housworth, 282 Ga. App. 280, 638 S.E.2d 421 (2006).

Because the record contained no evidence that a neighboring landowner's predecessor in interest, or its agents, used the road continuously for at least 20 years, the predecessor did not acquire a private way by prescription and hence, the neighbor lacked any private way by prescription over a landowner's property to clear timber and remove barbed wire from the roadway without committing a trespass; hence, the trial court did not err in granting the landowner summary judgment as to the issue of trespass. Norton v. Holcomb, 285 Ga. App. 78, 646 S.E.2d 94 (2007), cert. denied, No. S07C1221, 2007 Ga. LEXIS 654 (Ga. 2007).

Because genuine issues of material fact remained as to whether a lessee's failure to reserve an easement to the subject property at the time the lessee executed a corrective quitclaim deed was otherwise unreasonable, foreclosing the condemnation action, partial summary judgment to the lessee was unwarranted. Wright v. Brookshire, 286 Ga. App. 162, 648 S.E.2d 485 (2007).

Pursuant to an expressed dedication involving land owned by an adjacent landowner and a neighbor, the trial court properly granted summary judgment in favor of the neighbor as the declaration authorized the neighbor to rearrange their own building and parking spaces as long as the easement was maintained. Wilcox Holdings, Ltd. v. Hull, 290 Ga. App. 179, 659 S.E.2d 406 (2008).

Because the language of an easement agreement between two adjacent commercial landowners was ambiguous, parol evidence was admissible to show the parties' intent. Thus, questions of fact remained regarding intent, making summary judgment inappropriate. McGuire Holdings, LLLP v. TSQ Partners, LLC, 290 Ga. App. 595, 660 S.E.2d 397 (2008).

Action between adjoining landowners.

- In a suit between two landowners to enforce the terms of an easement, while no error resulted from an order striking certain affidavits in support of a second landowner's claim for reimbursement for its grading work, genuine material fact issues precluded summary judgment on this claim. Further, summary judgment was unwarranted as to the issue of whether the second landowner was entitled to use a detention pond on the first landowner's property. McGuire Holdings, LLLP v. TSQ Partners, LLC, 290 Ga. App. 595, 660 S.E.2d 397 (2008).

Appeal from probate court.

- Appeal to the superior court from the probate court is subject to established procedures for civil actions, thus entitling a party to invoke the summary judgment procedure. Woodall v. First Nat'l Bank, 118 Ga. App. 440, 164 S.E.2d 361 (1968).

Arbitration.

- Motion for summary judgment is not a proper procedural vehicle by which to seek to enforce an arbitration provision in a limited warranty because the remedy of a defendant who is aggrieved by the refusal of a plaintiff to arbitrate is to apply to the court for a stay of proceedings pending arbitration. Tillman Group, Inc. v. Keith, 201 Ga. App. 680, 411 S.E.2d 794 (1991).

Case referred to auditor.

- Court of record has no jurisdiction to entertain and grant summary judgment in a case which has been referred to an auditor for the purpose of having the auditor determine the questions of law and fact involved, if the auditor has heard the case and filed a report of the auditor's findings of law and fact. Braselton Bros. v. Better Maid Dairy Prods., Inc., 110 Ga. App. 515, 139 S.E.2d 124 (1964);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Verbal contracts.

- When a party who leased certain land from its supposed owner, who could not read, and then attempted to enforce an option to purchase the land, which was included in documents the lessee gave the owner to sign, the owner was entitled to summary judgment canceling their agreement because the agreement did not adequately describe the land that was the subject of the transaction, and the lessee was not entitled to summary judgment and specific performance. Makowski v. Waldrop, 262 Ga. App. 130, 584 S.E.2d 714 (2003).

Sellers were properly granted summary judgment in an action filed by a buyer arising out of an oral land sales contract given that: (1) no evidence of the buyer's partial performance existed sufficient to remove that contract from the statute of frauds; (2) a wetlands study and interest rate negotiation were not a part of the contract; and (3) a later negotiated contract was an arm's length transaction, the price of which was negotiated at the time, and hence, did not relate to the original contract. Payne v. Warren, 282 Ga. App. 524, 639 S.E.2d 528 (2006).

In light of the unresolved facts as to whether a monetary transfer between the parties, evidenced by an oral agreement, was either a loan or an investment, and the borrowers failed to affirmatively disprove the lender's claim that the transfer was a loan as alleged in the complaint, the trial court erred in granting summary judgment to the borrowers. Marcum v. Gardner, 283 Ga. App. 453, 641 S.E.2d 678 (2007).

Because a buyer's direct and uncontroverted evidence sufficiently showed the existence of an enforceable oral agreement for a dealer to sell to the buyer a rare Mercedes-Benz, with the price term being the manufacturer's suggested retail price ultimately arrived at by the manufacturer, and the dealer's circumstantial evidence failed to create a genuine issue of material fact regarding the price, the buyer satisfied the burden required to support an order granting summary judgment in the buyer's favor. Jones v. Baran Co., LLC, 290 Ga. App. 578, 660 S.E.2d 420 (2008).

Contracts.

- Because issues of fact existed as to whether the parties entered a binding contract terminating a warehousing agreement, and whether that agreement constituted an accord and satisfaction, summary judgment should not have been granted. Nebraska Plastics, Inc. v. Harris, 236 Ga. App. 499, 512 S.E.2d 388 (1999).

Summary judgment was properly granted to a hospital pursuant to O.C.G.A. § 9-11-56 in the hospital's action against a doctor, seeking recovery of monies loaned to the doctor that were not repaid, because it was found that the doctor breached the agreement within six years of the time that the action was commenced and, accordingly, the action was not time-barred under O.C.G.A. § 9-3-24; the court noted that because the parties had indicated in the contract that the parties "expected" that the amount would be completely repaid within one year of when the repayments were commenced, such was merely a hope and not a binding condition that, when the year expired, started the running of the six-year limitations period, based on contract interpretation laws and the inapplicability of parol evidence under O.C.G.A. § 13-2-1(1). Walker v. Gwinnett Hosp. Sys., 263 Ga. App. 554, 588 S.E.2d 441 (2003).

Summary judgment was properly granted in favor of the seller because the trial court properly exercised the court's judgment and discretion in granting the seller's motion to open the seller's default judgment; no ratification of the parties' contract occurred because it was clear that the seller did not authorize the seller's sibling to act in the seller's behalf when the sibling signed the seller's name to the contract. MacDonald v. Harris, 265 Ga. App. 131, 593 S.E.2d 32 (2003).

When items stolen from an electric company were sold to a supply company, the supply company was not entitled to summary judgment dismissing the electric company's breach of contract claim against it because there were issues of fact concerning the scope of the contract between the parties on which this claim was based, including whether the contract covered new and used goods and whether the parties mutually departed from the agreement's terms. Fed. Ins. Co. v. Westside Supply Co., 264 Ga. App. 240, 590 S.E.2d 224 (2003).

Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56 to those in possession of a colt in a tortious interference with a contract claim by a horse trainer, in which the trainer alleged having a contract to keep the recently born colt in exchange for continued services to the mare's owner; the court found that there was no showing that the possessors of the colt were aware of a contract regarding the ownership of the colt, the possessors had followed the necessary procedures for filing a financing statement under O.C.G.A. § 11-9-501 et seq., the possessors had allegedly foreclosed on the possessors' lien on the mare by the time that the possessors became aware of the trainer's claim, pursuant to O.C.G.A. § 44-14-490, and the trainer did not record a lien against the colt pursuant to O.C.G.A. § 44-14-511. Medlin v. Morganstern, 268 Ga. App. 116, 601 S.E.2d 359 (2004).

When a retired police officer to whom a city had paid more retirement benefits than the police officer was entitled sued the city for breach of contract when the city corrected the error, the city was entitled to summary judgment because the city's contract with the officer required the payment of the amount of retirement benefits that the city paid after correcting the error, and the city clerk who caused the error had no authority to change that contract, so the contract was not breached. Dodd v. City of Gainesville, 268 Ga. App. 43, 601 S.E.2d 352 (2004).

Summary judgment for the storage companies on an owner's breach of contract claim was proper because the owner failed to show that the storage companies breached any duty owed under the contract; the contract clearly provided that the contract created no duty on the part of the storage companies to protect the owner's personal property and that the owner assumed all risk of loss. Liberty v. Storage Trust Props., L.P., 267 Ga. App. 905, 600 S.E.2d 841 (2004).

Because the trial court was faced with an ambiguity in a covenants declaration regarding the construction of improvements on commercial property, the court erred in granting summary judgment to the property's owner and the lessee, and finding that the ambiguity had to be construed against the developer, instead of first attempting to resolve the ambiguity by applying the rules of contract construction provided in O.C.G.A. § 13-2-2(4). White v. Kaminsky, 271 Ga. App. 719, 610 S.E.2d 542 (2004).

Trial court did not err in dismissing a nine-count complaint filed by two uninsured patients, for failing to state a claim and treated as a motion for summary judgment, alleging that a health care provider overcharged the patients for medical care received at rates grossly in excess of the rates charged to private medical insurers, or to Medicare/Medicaid benefit programs, as the parties entered into a valid contract, which the provider did not breach, and the patients failed to support the patients' claims that the provider committed an unfair trade practice or breached a fiduciary duty owed to the patients. Morrell v. Wellstar Health Sys., Inc., 280 Ga. App. 1, 633 S.E.2d 68 (2006).

In a dealer's action for breach of contract and trespass to chattel against two buyers following the buyers' purchase of a vehicle, the trial court properly granted summary judgment to the dealer as the buyers' breach of contract, trespass to chattel, and default on the purchase agreement essentially waived any right they had to arbitrate the dispute; moreover, an appeal as to the propriety of the supersedeas bond imposed was dismissed as moot. Almonte v. West Ashley Toyota, 281 Ga. App. 808, 637 S.E.2d 755 (2006), cert. denied, 2007 Ga. LEXIS 71 (2007).

In a buyer's suit arising out of a failed deal to sell the seller's business seeking damages for breach of contract and specific performance, the trial court erred in granting summary judgment to the sellers as construction of the plain language of an addendum to the parties' letter of intent to sell the business showed that the parties had reached a binding agreement on all material terms concerning the purchase and sale of that business. Goobich v. Waters, 283 Ga. App. 53, 640 S.E.2d 606 (2006).

Based on the application of a merger clause in an expressed and lawful property sales contact, and the clear and unambiguous intent not to hold the lenders liable for transactions concerning the conveyance of a beach house made as consideration supporting the sale, summary judgment was properly granted to the lenders on the sellers' claims of fraud, concealment, breach of contract and unjust enrichment filed against the sellers. Donchi, Inc. v. Robdol, LLC, 283 Ga. App. 161, 640 S.E.2d 719 (2007).

Trial court did not err in awarding summary judgment to the State Medical Education Board, making a student liable for both the amount of the scholarship received and attorney's fees, as: (1) estoppels were unfavored under Georgia law; (2) the student came forward with no more than hearsay to support a claim that oral misrepresentations of fact were made regarding the scholarship; (3) the contract was not rescinded by either party; (4) no mutual mistake of fact was found; and (5) any impossibility in performing the contract was personal to the student. Calabro v. State Med. Educ. Bd., 283 Ga. App. 113, 640 S.E.2d 581 (2006).

Because a buyer failed to comply with provisions of its contract with a seller requiring written notice of a breach, this failure barred the buyer from relying on the seller's alleged breach of the agreement as a basis for the buyer's refusal to close and demand for refund of the earnest money; but, because the seller complied with the notice provision by notifying the buyer that the buyer's refusal to close placed the buyer in breach or default of the agreement and that the buyer had 15 days to cure the breach or default, upon the buyer's failure to do so, the buyer was entitled to summary judgment and to retain the earnest money as liquidated damages. Pillar Dev., Inc. v. Fuqua Constr. Co., 284 Ga. App. 858, 645 S.E.2d 64 (2007), cert. denied, 2007 Ga. LEXIS 669 (Ga. 2007).

Under the same transaction test, because the claims raised by a buyer in a Georgia state court were judicially determined in litigation between the parties in both the federal district court and the federal circuit court of appeals, and also sought redress for the same wrongs, the state court did not err in denying the buyer's partial summary judgment motion regarding those wrongs. BKJB P'ship v. Moseman, 284 Ga. App. 862, 644 S.E.2d 874, cert. denied, 2007 Ga. LEXIS 558 (Ga. 2007).

Upon construction of a contract between an independent contractor and a billboard owner under O.C.G.A. § 13-2-2 because: (1) it was clear that the contractor did not waive any right to recover against the owner under any possible scenario, but only waived a right to recover against the owner's predecessor for damages if the waiver did not invalidate the insurance coverage; and (2) the contract only waived the owner's liability if the waiver did not invalidate the contractor's insurance, summary judgment was erroneously entered to the owner on grounds that the contractor waived a right to recover from the owner and because the trial court failed to consider whether the waiver invalidated the contractor's insurance. Holmes v. Clear Channel Outdoor, Inc., 284 Ga. App. 474, 644 S.E.2d 311 (2007).

While the trial court properly found that a separate and independent contract made the subject of the buyers' breach of contract counterclaim against the seller unenforceable, supporting summary judgment for the seller on the buyers' counterclaim, the court erred in finding that the buyers' denial of any liability to the seller on the seller's complaint was insufficient; thus, the seller was not entitled to summary judgment on the seller's complaint for payment under a consignment contract and for attorney fees. Jones v. Equip. King Int'l, 287 Ga. App. 867, 652 S.E.2d 811 (2007).

On appeal from an order granting a broker's customer summary judgment in the broker's breach of contract action, because the merger doctrine did not apply to the fee contract involving a broker and the customer and the loan contract between the lender and the customer, and material fact issues remained as to the compensation due to the broker, and as to what effect, if any, a modification of the amount of the broker's fee had on the broker's fee agreement with the broker's customer, summary judgment in the customer's favor was reversed. Atlanta Integrity Mortg., Inc. v. Ben Hill United Methodist Church, Inc., 286 Ga. App. 795, 650 S.E.2d 359 (2007).

While the trial court did not err in entering an order granting partial summary judgment to a city on the city's breach of contract claim against a county and the county's tax commissioner, ruling that the latter breached the county's contract to bill, collect, and remit ad valorem taxes on the city's behalf because the county was not given adequate notice that the trial court would address the amount of damages incurred by the city as a result of the county's breach, the grant of summary judgment as to the damages issue was reversed on due process grounds. Ferdinand v. City of East Point, 288 Ga. App. 152, 653 S.E.2d 529 (2007), cert. denied, 2008 Ga. LEXIS 213 (Ga. 2008).

In a breach of contract action filed by a school against an enrolled student's parents seeking payment of a full year's tuition, the trial court properly granted summary judgment to the school as the parents failed in the parents' burden of showing that a liquidated damages clause in the contract amounted to an unenforceable penalty. Turner v. Atlanta Girls' Sch., Inc., 288 Ga. App. 115, 653 S.E.2d 380 (2007).

Because the third party failed to present sufficient evidence supporting that party's position that the third party had a right, as successor in interest, to sue on a creditor's account with the creditor's debtor in order to support the third party's right, summary judgment in the third party's favor in a suit against the debtor was erroneously entered. Ponder v. CACV of Colo., LLC, 289 Ga. App. 858, 658 S.E.2d 469 (2008).

Summary judgment for a bank was proper on a corporation's breach of contract, promissory estoppel, and fraud claims as the bank did not promise not to foreclose the bank's superior mortgage on a property under any circumstances; the bank simply promised to pay the corporation if lots were sold and the corporation removed the corporation's materialman's lien. Kesco, Inc. v. Brand Banking Co., 268 Ga. App. 874, 603 S.E.2d 49 (2004).

Trial court properly denied summary judgment to an independent medical utilization review provider for an employee benefit health plan on a plan participant's breach of contract claim as the participant asserted a third party beneficiary claim against the review provider under a side contract between the review provider and the plan sponsor. Monroe v. Bd. of Regents of the Univ. Sys., 268 Ga. App. 659, 602 S.E.2d 219 (2004).

Summary judgment was improperly granted in favor of a limited partner on that partner's claim that a corporation's breach of contract claim against the partner was barred by the four year statute of limitations applicable to contracts for the sale of goods under O.C.G.A. § 11-2-725 because the contract involved a conveyance of leasehold interests in real property for oil and gas exploration, not the sale of oil and gas. Summary judgment should have been awarded in favor of the corporation on the corporation's claim that the six year statute of limitations in O.C.G.A. § 9-3-24, which was applicable to contracts in writing, applied and did not bar the action. ABF Capital Corp. v. Yancey, 264 Ga. App. 850, 592 S.E.2d 492 (2003).

Trial court improperly granted summary judgment to a claims administrator for an employee benefit health plan on a plan participant's breach of contract claim as the participant raised a jury question on the issue of whether the claims administrator performed the administrator's contractual obligations. Monroe v. Bd. of Regents of the Univ. Sys., 268 Ga. App. 659, 602 S.E.2d 219 (2004).

Contract for specific performance.

- Grant of summary judgment to the plaintiff on the plaintiff's action for specific performance of a contract provision that allegedly required the defendant to sell the defendant's stock to the plaintiff was affirmed; the trial court properly found that the contract required one partner to sell that partner's corporate stock to another partner at book value as determined by the corporation's CPA, and that the contract was valid, enforceable, and supported by valuable consideration. Auldridge v. Rivers, 263 Ga. App. 396, 587 S.E.2d 870 (2003).

Attorney fee contracts.

- Trial court properly granted summary judgment to an attorney in the attorney's action to collect fees due under a written fee agreement with a former client as the attorney provided the services outlined within the contract, and the former client failed to produce any competent evidence supporting an affirmative defense of failure of consideration after the attorney made a prima facie case for summary judgment. Browning v. Alan Mullinax & Assocs., P.C., 288 Ga. App. 43, 653 S.E.2d 786 (2007).

Real estate sales contract.

- In an action arising from the sale of a condominium unit, the trial court did not err in denying the owners' summary judgment motion on the owners' claim of a right of first refusal, as the owners had no such right, but the owners were properly granted summary judgment on the buyer's claims of tortious interference with contractual and business relations and for punitive damages as the owners had a legitimate right to protect when the owners voted on the sale of the subject unit. Quality Foods, Inc. v. Smithberg, 288 Ga. App. 47, 653 S.E.2d 486 (2007), cert. denied, No. S08C0437, 2008 Ga. LEXIS 316 (Ga. 2008).

Contract for marital settlement.

- Trial court erred in granting summary judgment to the executors on an action to enforce a marital settlement agreement entered into before one spouse died as the agreement, which was a contract, was not unenforceable for lack of consideration, but the surviving spouse was also not entitled to judgment as a matter of law because issues regarding the deceased spouse's capacity to enter into the agreement and the surviving spouse's possible rescission of the contract had to be considered by a jury. Guthrie v. Guthrie, 259 Ga. App. 751, 577 S.E.2d 832 (2003), aff'd, 277 Ga. 700, 594 S.E.2d 356 (2004).

Contract to make a will.

- In an action to enforce a contract to make a will, the trial court erred in denying both parties' motions for summary judgment since the contract recited adequate consideration and, thus, was not illusory but was binding, the contract was not in furtherance of an immoral relationship and thus unenforceable, and the contract had not been abandoned; thus, there were no issues for which a jury decision was required. Abrams v. Massell, 262 Ga. App. 761, 586 S.E.2d 435 (2003).

Contracts between contractors.

- When a subcontractor sought compensation from a contractor for increased labor costs caused by the contractor, the contractor was not entitled to summary judgment dismissing the subcontractor's claim as: (1) the subcontractor did not waive the subcontractor's claim by failing to respond to the contractor's denial thereof within 48 hours as the contractor only decided whether the subcontractor could legally assert the subcontractor's claim; (2) the subcontractor's agreement to perform the subcontractor's work according to the contract's timetable did not bar the subcontractor's claim, as this only barred claims for delays contemplated by the parties when the contract was signed, and this provision did not address whether the subcontractor was entitled to compensation for increased labor costs; (3) change orders the subcontractor signed did not bar the subcontractor's claim as it sought damages for disruption, and not merely damages for delay; and (4) a "no damages for delay" provision in the contractor's contract with the owner did not bar the subcontractor's claim because it conflicted with a superseding provision of the contractor's contract with the subcontractor allowing the subcontractor to seek compensation for interferences and delays. Atl. Coast Mech. v. R. W. Allen Beers Constr., 264 Ga. App. 680, 592 S.E.2d 115 (2003).

Summary judgment on contract issues.

- Appellees failed to present any evidence establishing the appellees' status as the current holders of an interest in the contract at issue, despite the appellant's allegation that the contract between them has since been assigned by the appellees to a third party; therefore, since the appellant's objection that the appellees are not the real parties in interest had yet to be addressed, the trial court erred in granting the appellees' motion for summary judgment. Sawgrass Bldrs., Inc. v. Key, 212 Ga. App. 138, 441 S.E.2d 99 (1994).

Lease contracts.

- Because fact issues remained as to whether a lessee's conduct in attempting to exercise a credit amounted to a waiver of the credit, and whether the lessee made a good-faith, prompt, and diligent effort to resolve the amount due under a commercial lease so as to prevent the lessor from terminating the lease and gaining possession, both of which a jury was to decide, summary judgment was improperly entered on the lessor's claim for rent, and properly denied on the lessor's petition for a writ of possession. Eckerd Corp. v. Alterman Props., 264 Ga. App. 72, 589 S.E.2d 660 (2003).

Because a lessee failed to create an issue of fact regarding whether the lessor breached the parties' underlying commercial lease or whether the lessee waived the alleged breach, the trial court correctly granted the lessor's motion for summary judgment on the lessee's breach of contract claim. Nguyen v. Talisman Roswell, L.L.C., 262 Ga. App. 480, 585 S.E.2d 911 (2003).

Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56(c) to the defendants in an action for breach of a lease by the successor in interest to the lessor as the defendants admitted that the defendants had defaulted on the lease and that the successor was owed back rent. Gilco Invs., Inc. v. Stafford Cordele, LLC, 267 Ga. App. 167, 598 S.E.2d 889 (2004).

Because a sublease was ambiguous regarding a sublessee's obligation to pay operating expenses due under the master lease, fact questions remained as to the parties' intent, and a trial court erred in entering summary judgment for the sublessee. Holcim (US), Inc. v. AMDG, Inc., 265 Ga. App. 818, 596 S.E.2d 197 (2004).

Indemnity contracts.

- In an action to recover under an indemnity agreement, because the undisputed facts showed that a party was estopped from denying the validity of a bond, and that the party indemnified a surety for payments made thereunder, the surety was properly granted summary judgment as to the party's liability for monies paid under the bond. Samda Inv. Group, LLC v. Western Sur. Co., 287 Ga. App. 235, 651 S.E.2d 152 (2007).

Because the debtor read a plain, unambiguous guaranty contract and signed the contract as written, the court enforced the contract as written and granted summary judgment to the bank; summary judgment on damages was reversed because, although the remainder of the damages could be calculated on the record, no evidence in the record supported the post-closing interest rate. Charania v. Regions Bank, 264 Ga. App. 587, 591 S.E.2d 412 (2003).

Guaranty contract.

- As no matter of fact was involved, the construction of a guaranty was a matter of law for the court, which found that the guaranty executed by a guarantor contained a very broad waiver clause that plainly and unambiguously waived any claims the guarantor might have had against the debtor and extended to claims arising in equity, or under contract, statute, or common law; the waiver obviously included a claim under O.C.G.A. § 10-7-41, so the trial court erred by denying summary judgment to the debtor and other defendants, and erred as well in granting summary judgment in favor of the guarantor. Brookside Cmtys., LLC v. Lake Dow N. Corp., 268 Ga. App. 785, 603 S.E.2d 31 (2004).

Because an agent for a limited liability company and a builder's vice president testified that the parties negotiated and agreed on the terms of a construction contract including price, time, and the form of the contract, and the limited liability company authorized the builder to begin, the facts showed that the parties entered into an enforceable contract, and since a contract existed, the members' personal guaranties of the construction contract were valid; a trial court's summary judgment in favor of the builder on the members' personal guaranties was affirmed. Marett v. Brice Bldg. Co., 268 Ga. App. 778, 603 S.E.2d 40 (2004).

In an action to collect unpaid rent and fees owed by a lessee to a lessor under a lease agreement, the trial court properly granted partial summary judgment to the lessor, and against the lessee and the lessee's guarantor, as: (1) the language in the lease could not be construed to limit or modify the guarantor's pre-existing obligations under the guaranty through the time of the guarantor's revocation of the lease; and (2) the language of the guaranty, standing alone, was unambiguous and created an unconditional, continuing guaranty. The Cupboard, LLC v. Sunshine Travel Ctr., 283 Ga. App. 34, 640 S.E.2d 584 (2006).

In an action on a guaranty, because the plain and unambiguous terms of the guaranty and the guaranty's addendum only obligated the guarantor to the lease obligations of the original tenant, who was also the guarantor's subsidiary, and not the obligations of a new tenant, the guarantor was properly absolved of any liability to the landlord for the obligations of that new tenant, entitling the tenant to summary judgment on that issue. Highwoods Realty L.P. v. Cmty. Loans of Am., Inc., 288 Ga. App. 226, 653 S.E.2d 807 (2007).

Successor in interest tax liability.

- Order granting summary judgment on the issue of a successor in interest's liability for unpaid taxes in favor of that successor was reversed as the successor failed to protect itself from successor liability for the unpaid sales and use taxes owed by the successor's predecessor under O.C.G.A. § 48-8-46, and the successor failed to protect itself against unrecorded tax liens to the extent allowed by the statute. Graham v. JD Design Group, Inc., 281 Ga. App. 347, 636 S.E.2d 66 (2006).

Warranty contracts.

- Summary judgment should have been granted to a store, pursuant to O.C.G.A. § 9-11-56(c), in an action by a dissatisfied customer who asserted causes of action for breach of an express warranty and a violation of the Fair Business Practices Act, O.C.G.A. § 10-1-390 et seq., as the customer failed to offer evidence of the terms of the warranty, which made both claims lack any foundation; the alleged warranty was based on a store employee's notation on the customer's receipt that the kitchen cabinets that the customer purchased had a "10-year warranty," but there was no indication of any further terms, so there was no enforceable warranty proven. Home Depot U.S.A., Inc. v. Miller, 268 Ga. App. 742, 603 S.E.2d 80 (2004).

Consent decree.

- Summary judgment was affirmed because no construction was required of a consent decree; therefore, the trial court was required to enforce the agreement as written. Since the terms of a settlement agreement were clear and unambiguous in requiring that a motorist pay $24,600 to settle a wrongful death claim, the settlement agreement was for new money and did not consider credit for $10,000 already paid by the motorist's insurer; if the parties had intended to give credit for the earlier payment, the settlement agreement would have stated this. Hicks v. Walker, 265 Ga. App. 495, 594 S.E.2d 710 (2004).

When a tenant who terminated the tenant's lease early and agreed to pay the landlord the difference between the tenant's rental obligation and rent the landlord was able to obtain from a third party said this agreement was a guaranty from which the tenant had been discharged, the landlord was entitled to partial summary judgment on the landlord's breach of contract claim in the landlord's suit to enforce the agreement because the agreement was not a guaranty subject to the discharge provisions of O.C.G.A. § 10-7-20 et seq., as the tenant did not agree to be answerable for the debt of another but, instead, agreed to continue the tenant's rental obligation to the landlord, subject to any credit the tenant might be entitled to for rent the landlord received from a third party. Equifax, Inc. v. 1600 Peachtree, L.L.C., 268 Ga. App. 186, 601 S.E.2d 519 (2004).

Breach of car dealership agreement.

- Summary judgment was properly entered for an automobile manufacturer on a dealership's claim that the manufacturer improperly terminated the parties' dealership agreement as the agreement was terminated after the dealership closed the dealership's business and the dealership's property was foreclosed; the termination was not procedurally defective as the termination notice was sent to the dealership's location of record, to the owner of the dealership at the owner's home address, and to the dealership's attorney. Greensboro Ford, Inc. v. Ford Motor Co., 267 Ga. App. 773, 600 S.E.2d 631 (2004).

Summary judgment was properly entered for an automobile manufacturer on a dealership's claim that the manufacturer failed to pay for the repurchase of the dealership's parts, signage, tools, and equipment as: (1) the dealership failed to return the required release; (2) no vehicles were left at the dealership because the inventory had been seized, impounded, and sold; (3) the property on which the dealership was located had been foreclosed; (4) when the business relocated, the dealership was no longer receiving cars or parts from the manufacturer; and (5) the dealership presented no evidence of the value of the items that the dealership contended the dealership should have been paid for. Greensboro Ford, Inc. v. Ford Motor Co., 267 Ga. App. 773, 600 S.E.2d 631 (2004).

Vehicle purchase agreements.

- Absent a confidential relationship between a lienholder and a prospective buyer of a vehicle subject to a lien, and absent any duty on the lienholder to disclose any problems with the vehicle's title to the buyer, the lienholder was properly granted summary judgment on the buyer's negligence, fraudulent concealment, and derivative claim for punitive damages. Lilliston v. Regions Bank, 288 Ga. App. 241, 653 S.E.2d 306 (2007), cert. denied, 2008 Ga. LEXIS 275 (Ga. 2008).

Foreclosure sales.

- In a wrongful foreclosure proceeding, summary judgment was properly granted in favor of the foreclosing seller because the seller showed that the buyer failed to maintain property insurance or to pay the taxes and assessments due, as required under a security deed; in addition, the propriety of the foreclosure sale was established through an attorney's affidavit and a newspaper publisher's affidavit. Ledford v. Darter, 260 Ga. App. 585, 580 S.E.2d 317 (2003).

Tax foreclosure sales.

- Trial court properly granted summary judgment to the property owner on the property owner's action that sought to set aside a deed executed pursuant to a judicial tax foreclosure sale. No genuine issue existed but that the tax sale was void because the sale was from a grantor who did not have title to the property to the property purchaser and that the sale could not pass title, which remained in the property owner. Canoeside Props. v. Livsey, 277 Ga. 425, 589 S.E.2d 116 (2003).

Request for disclosure of tax records.

- Trial court properly granted summary judgment to the corporation on the corporation's request for disclosure of the individual's tax records, which the corporation sought for the limited purpose of determining whether the individual's business properly qualified as a disadvantaged business regarding the awarding to it of a city contract for airport advertising, as Georgia's Open Records Act, O.C.G.A. § 50-18-70 et seq., favored the disclosure of public records, and neither the individual nor the city could find a specific exception that applied to bar disclosure under such circumstances. City of Atlanta v. Corey Entm't, Inc., 278 Ga. 474, 604 S.E.2d 140 (2004).

Foreclosure actions.

- Because the debtor failed to send written notice of the correct address of the subject property to the bank or the bank's agents, and could not assert an absent grantee's priority to escape the consequences of the debtor's own failure to provide a correct property address to all future holders of the note and deed, the foreclosure sale was not set aside; thus, the trial court properly granted summary judgment to the bank and the assignees of the security interest on the ground that the bank provided sufficient notice of the foreclosure sale. Jackson v. Bank One, 287 Ga. App. 791, 652 S.E.2d 849 (2007), cert. denied, No. S08C0335, 2008 Ga. LEXIS 169 (Ga. 2008).

In a foreclosure action between a bank and the bank's debtors, given that the debtors failed to substantiate the claims of error asserted on appeal with sufficient evidence to create a jury question, and the bank committed no wrong in attempting to collect on a prior judgment against the debtors, summary judgment was properly entered to the bank, disposing of all the debtors' counterclaims filed against the bank. All Fleet Refinishing, Inc. v. W. Ga. Nat'l Bank, 280 Ga. App. 676, 634 S.E.2d 802 (2006).

Wrongful foreclosure.

- Lender was properly granted summary judgment on a borrower's claims for wrongful foreclosure and breach of contract because the borrower defaulted and the borrower's claims were barred by releases of liability in loan modification documents. Heritage Creek Dev. Corp. v. Colonial Bank, 268 Ga. App. 369, 601 S.E.2d 842 (2004).

Georgia Land Sales Act.

- Trial court properly granted summary judgment against a home buyer's claim that the sale of the property at issue failed to comply with the Georgia Land Sales Act (Act), O.C.G.A. § 44-3-1 et seq., as the property contained a house suitable for occupancy at the time of the sale; further, despite the buyer's argument that the statutory exemption under O.C.G.A. § 44-3-4(2) did not apply to residential property, giving the words of the exemption their plain and ordinary meaning, the exemption had to be read as excluding from the Act property upon which either a commercial building, an industrial building, a condominium, a shopping center, a house, or an apartment house was situated. Mancuso v. Steyaard, 280 Ga. App. 300, 640 S.E.2d 50 (2006).

Land sales contracts.

- In an action between a buyer and a seller arising out of a land sales contract, because a question of material fact remained as to whether the failure to close was the buyer's fault, and because both an oral waiver and waiver by conduct could be inferred, the trial court erred in granting summary judgment to the seller. Miller v. Coleman, 284 Ga. App. 300, 643 S.E.2d 797 (2007).

In an action arising out of an alleged breach of a land sales contract, given that the trial court relied on findings of fact that had been resolved only in the context of the ruling on an interlocutory injunction filed by the buyer, and that issues of material fact plainly remained as to whether the seller fulfilled the contractual obligations to designate land adjacent to the buyer's property for use as a city or county road, the trial court's grant of summary judgment to the seller had to be reversed. Taylor v. Thomas, 286 Ga. App. 27, 648 S.E.2d 426 (2007).

In an action filed by a trust and its trustee against a school board alleging breach of a real estate contract, or in the alternative, specific performance of the contract at a reduced purchase price, summary judgment in favor of the school board was reversed on the breach of contract claim; however, summary judgment on the specific performance claim was affirmed as the trust failed to tender the full purchase price, which was a prerequisite to a specific performance demand, the trust was not excused from doing so, and a tender would not have been futile. Peaches Land Trust v. Lumpkin County Sch. Bd., 286 Ga. App. 103, 648 S.E.2d 464 (2007).

In a dispute over an installment contract to purchase land, because evidence sufficiently showed that a buyer partially performed a subsequent oral agreement that was not barred by a merger clause contained in the contract, and the seller accepted the benefit of such performance, summary judgment to the seller was erroneous; moreover, given that jury questions as to part performance of the oral agreement remained, the order denying the buyer's partial summary judgment motion was upheld. Hernandez v. Carnes, 290 Ga. App. 730, 659 S.E.2d 925 (2008).

Suit against real estate agents.

- Trial court properly dismissed an action that a homebuyer filed against the buyer's real estate agent and a seller's real estate agent after the ignition of natural gas that had leaked from the fireplace in the buyer's house because there was no evidence that either agent knew about the leak, concealed the leak, or provided false information about the value of the house. Resnick v. Meybohm Realty, Inc., 269 Ga. App. 486, 604 S.E.2d 536 (2004).

Trial court erred in granting summary judgment to a home seller and against a realtor in construing the unambiguous language in the brokerage agreement at issue, which was for a definite term and was not terminable at will; moreover, although a sale was not consummated, the realtor remained entitled to the realtor's six percent commission, and the seller remained obligated to pay that amount, which was the proper measure of damages. Ben Farmer Realty, Inc. v. Owens, 286 Ga. App. 678, 649 S.E.2d 771 (2007), cert. denied, 2008 Ga. LEXIS 81 (Ga. 2008).

Third party beneficiary.

- Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56(c) to the Stone Mountain Memorial Association and to the Georgia Department of Corrections in a breach of contract action by an inmate who was injured while on a work detail that was required by the Department on the Association's property as the inmate was not an intended beneficiary of the contract pursuant to O.C.G.A. § 9-2-20(b); although the contract provided for the safety of the workplace, those contract provisions were not intended to benefit the inmates on work details but, instead, the inmates were just incidental beneficiaries. Gay v. Ga. Dep't of Corr., 270 Ga. App. 17, 606 S.E.2d 53 (2004).

In a breach of contract action filed by an employee, who was a third-party beneficiary to an employment contract with a contractor, the trial court erred in granting the employee summary judgment as: (1) under the plain language of the employment agreement at issue between the parties, as well as the county's personnel policy, the contractor was authorized to terminate the employee based on the employee's inability or unfitness to perform the assigned duties due to an injury; and (2) the employee could not perform all the job's requirements. Am. Water Serv. USA v. McRae, 286 Ga. App. 762, 650 S.E.2d 304 (2007), cert. denied, 2007 Ga. LEXIS 761 (Ga. 2007).

Because a valid general release entered into by a home buyer and home builder effectuated a binding accord and satisfaction barring any future claims between the parties, and absent evidence to void the release based on fraud, the buyer's filed claims in a subsequent suit filed against the home builder were properly summarily dismissed; thus, assessment of attorney fees was not an abuse of discretion and a penalty for filing a frivolous appeal was ordered. Pacheco v. Charles Crews Custom Homes, Inc., 289 Ga. App. 773, 658 S.E.2d 396 (2008).

Contract action involving road construction.

- Summary judgment pursuant to O.C.G.A. § 9-11-56 was properly granted in the county's action to recover money had and received by the contractor because the contractor asserted that the contract, which was for road striping and which was not opened for public bidding, was for a specialized service under O.C.G.A. § 32-4-63(5), an exception to the public bidding requirements under O.C.G.A. § 32-4-64; however, O.C.G.A. § 32-1-3(6) expressly defined road striping as a form of road construction and not as a special service. Howard v. Brantley County, 260 Ga. App. 330, 579 S.E.2d 758 (2003).

Trial court erred in granting summary judgment on a homebuyer's breach of contract claim against the buyer's realtor as material fact issues remained as to whether the realtor violated the realtor's duties under the Brokerage Relationships in Real Estate Transaction Act, O.C.G.A. § 10-6A-1 et seq.; however, summary judgment was proper, based on the testimony presented on the motion, as to the homebuyer's fraudulent concealment claim. Ikola v. Schoene, 264 Ga. App. 338, 590 S.E.2d 750 (2003).

Employment contracts.

- Trial court did not err by granting summary judgment to a company on an employee's action to enforce an employment agreement and a promise to convey 20 percent of the company's stock to the employee because: (1) the indefinite statement in the employment contract of the employee's duties, the term of the employment, and the employee's salary made the employment contract unenforceable; and (2) the promise of 20 percent of the company's stock was for past consideration, and that was not sufficient consideration to make the promise enforceable. Key v. Naylor, Inc., 268 Ga. App. 419, 602 S.E.2d 192 (2004).

Because there was some evidence that an employment contract was valid and enforceable, the employer was not entitled to summary judgment; but, the employer was entitled to judgment because the time period for payment of future commissions was too indefinite to be enforced as those commissions were not otherwise billable during the period of employment. Hiers v. ChoicePoint Servs., 270 Ga. App. 128, 606 S.E.2d 29 (2004).

In an employee's suit arising out of the termination of an employment contract, the trial court properly granted the employer's motion for summary judgment as: (1) as an at-will employee, the employee could be terminated without cause at any time; (2) the employer was authorized to protect the employer's interest in the employer's curriculum and property; (3) no evidence supported a claim of slander; and (4) vague statements accusing the employee of a crime did not constitute slander per se. Taylor v. Calvary Baptist Temple, 279 Ga. App. 71, 630 S.E.2d 604 (2006).

Upon a de novo review of the plain terms outlined in an employment contract, a former employer was not entitled to receive commission payments from a former employee, a licensed sales agent, for deals closed with the employee's subsequent employer as any contrary reading would result in an unenforceable contract, under O.C.G.A. § 43-40-19(c); hence, summary judgment was properly granted to the employee on that issue, and the former employer's claim for money had and received also failed. Richard Bowers & Co. v. Creel, 280 Ga. App. 199, 633 S.E.2d 555 (2006).

In an action regarding an alleged breach of an employment contract seeking commissions on deals made by a real estate agent that a former real estate broker alleged it was entitled to, the trial court erred in entering summary judgment against the agent, finding that the agent owed the broker commissions as to one of two contested deals, because: (1) the agent closed the deal with that client after terminating employment with the broker; and (2) it was undisputed that the agent had not agreed to share commissions with the broker on deals struck after the agent left the broker's employ. Thus, since summary judgment was properly entered in the agent's favor regarding commissions paid to the agent as to the second of the two contested clients, the broker was not entitled to litigation costs under O.C.G.A. § 13-6-11. Morgan v. Richard Bowers & Co., 280 Ga. App. 533, 634 S.E.2d 415 (2006).

Trial court did not err in denying an employer's summary judgment motion, determining that the employee had performed the services necessary to be entitled to the allegedly agreed-upon per diem compensation; hence, the employee's status as an at-will employee was not determinative, and did not bar the cause of action. Walker Elec. Co. v. Byrd, 281 Ga. App. 190, 635 S.E.2d 819 (2006).

Trial court did not err in granting an employer's motion for summary judgment: (1) denying the employee's request for mandamus relief, given that the employee had no clear legal right to a job reinstatement, and based on a federal conviction, that claim was moot; and (2) denying the employer's quantum meruit claim, as the existence of an employment contract, under which the employee sought the same compensation as a quantum meruit claim, precluded any quantum meruit recovery. Williams v. City of Atlanta, 281 Ga. 478, 640 S.E.2d 35 (2007).

In a renewal action resulting from the termination of a commission agreement in favor of a payee, because the payee's quantum meruit and reformation claims were barred by res judicata, and the fact that the state court potentially lacked jurisdiction over the reformation claim was immaterial, the trial court erred in denying the payor's motion for summary judgment. ChoicePoint Servs. v. Hiers, 284 Ga. App. 640, 644 S.E.2d 456 (2007), cert. denied, No. S07C1166, 2007 Ga. LEXIS 499 (Ga. 2007).

In an action arising from an alleged employment contract between the parties, the trial court erred in granting summary judgment to an employer as genuine issues of material fact remained regarding whether a contract indeed existed between the parties, which the employee actually signed and acknowledged. Shilling v. Cornerstone Med. Assocs., LLC, 290 Ga. App. 169, 659 S.E.2d 416 (2008).

In a breach of contract action centering around a contract of employment with a county employer and the county's board of tax assessors, because the employment contract was never approved by the county commission, and the county's payment of a salary to the employee was not considered a ratification of the contract in the contract's entirety, the employee possessed only an at-will employment. Thus, summary judgment was properly entered against the employee. Powell v. Wheeler County, 290 Ga. App. 508, 659 S.E.2d 893 (2008).

Non-solicitation covenants in employment contracts.

- In an action arising from an alleged breach of a non-solicitation covenant within a consultant agreement, because the employee subject to the covenant understood the covenant to apply only to those clients the employee's employer acquired when it bought the employee's former company, or with whom the employee had material contact during the course of that employment, the trial court misconstrued the agreement by limiting the agreement's scope, and the employer was erroneously granted summary judgment based on the employee's alleged breach. Atl. Ins. Brokers, LLC v. Slade Hancock Agency, Inc., 287 Ga. App. 677, 652 S.E.2d 577 (2007).

Action under Fair Dismissal Act.

- In an action in which an employee, who was terminated for failing to obtain an educator's certificate, waived a rehearing, and was paid a full salary through the date of a hearing, the employee's due process rights under the Fair Dismissal Act, O.C.G.A. § 20-2-940, were not violated; consequently, the school board was properly granted summary judgment. Oliver v. Lee County Sch. Dist., 270 Ga. App. 61, 606 S.E.2d 88 (2004).

Summary judgment based on lack of foreseeability of crime.

- Trial court erred by granting summary judgment based on the lack of foreseeability of a third-party crime; specifically, the parking lot owners clearly knew of prior crimes on the premises prior to the plaintiff sustaining injuries. Rautenberg v. Pope, 351 Ga. App. 503, 831 S.E.2d 209 (2019), cert. denied, No. S20C0054, 2020 Ga. LEXIS 276 (Ga. 2020).

Solemn admission in judicio.

- Trial court properly granted a seller's motion for partial summary judgment and denied the escrow agent's motion to dismiss, in the seller's suit to recover the earnest money deposited by the buyers because the buyers admitted in the buyers' answer that the buyers knew the identity and location of the property, and although the buyers later amended the buyers' answer to raise a Georgia Statute of Frauds, O.C.G.A. § 13-5-30, defense, the buyers never withdrew the buyers' admission, and the buyers and the escrow agent were bound by the admission; the admission constituted a solemn admission in judicio under former O.C.G.A. § 24-4-24(b)(7) (see now O.C.G.A. § 24-14-26), and created a conclusive presumption of law under former subsection (a) of that section. Nhan v. Wellington Square, LLC, 263 Ga. App. 717, 589 S.E.2d 285 (2003).

Res judicata.

- Appeals court agreed with the trial court that the doctrine of res judicata barred the negligence and breach of contract claims asserted by two property owners against a contractor as: (1) the claims were essentially identical to the allegations in a counterclaim filed in a prior Cherokee County action; (2) the parties in the two cases were identical for purposes of res judicata; and (3) the Cherokee County suit resulted in an adjudication on the merits. Perrett v. Sumner, 286 Ga. App. 379, 649 S.E.2d 545 (2007).

Stock agreement not illegal or immoral.

- Although the parties intended to circumvent Georgia Department of Revenue regulations by issuing corporate stock to an employee's spouse, the stock agreement was not illegal or immoral, a trial court erred in voiding the interest of the employee's spouse, and summary judgment in favor of the corporation in the spouse's action for an accounting, dissolution, and other relief was reversed; the corporation's failure to add a different shareholder's name to the corporate stock register did not demand a finding, for summary judgment purposes, that the person was not a shareholder, and the denial of the corporation's summary judgment motion as to that shareholder was affirmed. Edwards v. Grapefields, Inc., 267 Ga. App. 399, 599 S.E.2d 489 (2004).

Oral contract for transfer of real property.

- Summary judgment was properly entered against the deceased's child on a claim against the deceased's estate for specific performance in regard to an alleged oral contract for the conveyance of property since no evidence was presented regarding the value of the land or the home or the value of the services performed in exchange for the alleged promise. Miller v. Miller, 262 Ga. App. 546, 586 S.E.2d 36 (2003), overruled on other grounds, Mateen v. Dicus, 281 Ga. 455, 637 S.E.2d 377.

Landowners' trespass and negligence suit.

- Trial court properly denied a neighbor's motion for summary judgment and the appellate court reversed the denial of the cross-motion for summary judgment filed by the adjoining landowners in a trespass and negligence suit because the neighbor purchased property without first obtaining a survey and the adjoining landowners' home was already encroaching upon the neighbor's property by two feet at the time of the purchase; the adjoining landowners were not liable for their predecessor's conduct in building the house and a fence across the property line of the neighbor's predecessor in title, in the absence of evidence that their predecessor was acting as their agent, and were, therefore, entitled to summary judgment. Navajo Constr., Inc. v. Brigham, 271 Ga. App. 128, 608 S.E.2d 732 (2004).

Landowner's trespass and nuisance suit.

- In two cases involving a dispute for nuisance and trespass arising out of excessive water runoff which flowed onto a landowner's land, the trial court's grant of summary judgment to a construction contractor as to the issue of the contractor's liability was reversed, while the denial of summary judgment to a developer as to the issue of the contractor's liability was affirmed, as: (1) the combination of the lay and expert testimony as to the presence of the excess runoff and its cause presented questions of fact for a jury to decide; (2) merely because the county approved the development activities did not mean that either the contractor or the developer or both could not be held liable for nuisance; and (3) the landowner's action against the alleged creators of the water-runoff nuisance was authorized, regardless of their having sold the property. Green v. Eastland Homes, Inc., 284 Ga. App. 643, 644 S.E.2d 479 (2007), cert. denied, 2007 Ga. LEXIS 629 (Ga. 2007).

Premises liability to invitee.

- In a premise liability action, because questions of fact remained as to whether a student was a university's invitee at the time the student was shot on what was alleged to be the university's property at the time of the assault, and thus, whether the university owed the student a duty of ordinary care, and no evidence was presented that the student lost an "invitee" status, summary judgment in the university's favor was reversed. Clark Atlanta Univ., Inc. v. Williams, 288 Ga. App. 180, 654 S.E.2d 402 (2007), cert. denied, 2008 Ga. LEXIS 227 (Ga. 2008).

In a premises liability action filed by a guest of a property owner, because the guest failed to show that the owner had any actual or constructive knowledge of the alleged hazard that allegedly caused the guest's injuries, specifically, a hole in an otherwise flat, grassy area of the owner's yard, the court properly granted the owner summary judgment. Thomas v. Deason, 289 Ga. App. 753, 658 S.E.2d 165 (2008).

Restrictive covenants.

- On appeal from an order in a declaratory judgment action, the trial court did not err in finding, upon cross-motions for summary judgment, that restrictive covenants which had been made applicable to the subdivision over 20 years earlier remained in effect and prohibited a buyer from re-subdividing certain tracts into residential lots with less than five acres, but did err in ruling that interpretation of the covenants was a legal matter for the court, rather than a factual matter for the jury. Britt v. Albright, 282 Ga. App. 206, 638 S.E.2d 372 (2006), cert. denied, 2007 Ga. LEXIS 199 (Ga. 2007).

Credibility.

- If credibility is crucial, summary judgment becomes improper and a trial indispensable. Winkles v. Brown, 227 Ga. 33, 178 S.E.2d 865 (1970).

If a question of credibility arises as to a material issue, summary judgment should not be granted. Georgia Cas. & Sur. Co. v. Almon, 122 Ga. App. 42, 176 S.E.2d 205 (1970); Ash v. Spear, 137 Ga. App. 12, 223 S.E.2d 26 (1975).

Questions of credibility cannot be resolved on summary judgment. Jones v. Howard, 153 Ga. App. 137, 264 S.E.2d 587 (1980).

False light and invasion of privacy.

- Trial court properly granted summary judgment to an auto dealer, mortgage broker, and lender on an accused person's claim for invasion of privacy by placing a person in a false light as the accused person did not show that the false information - that the accused person allegedly participated in a fraudulent financing scheme - was distributed to the public at large. Additionally, the trial court correctly granted summary judgment on the issue of the accused person's claim that there was an invasion of privacy through appropriation as the accused person did not show any evidence that they took the accused person's name and likeness for their own advantage. Blakey v. Victory Equip. Sales, Inc., 259 Ga. App. 34, 576 S.E.2d 38 (2002).

Defamation actions.

- Summary judgment procedures are particularly appropriate in defamation actions when U.S. Const., amend. i is applicable. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976).

Because of the importance of free speech, summary judgment is the rule, not the exception, in defamation cases. Rosanova v. Playboy Enters., Inc., 411 F. Supp. 440 (S.D. Ga. 1976), aff'd, 580 F.2d 859 (5th Cir. 1978).

Debtor's defamation claim, under O.C.G.A. § 51-5-1(a), against a creditor for reporting its repossession of collateral from the debtor to credit reporting agencies was properly summarily dismissed, under O.C.G.A. § 9-11-56(c), because such a claim was preempted by the Federal Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., absent the creditor's malice or willful intent to injure the debtor, which were not shown. Corbin v. Regions Bank, 258 Ga. App. 490, 574 S.E.2d 616 (2002).

Summary judgment for a city manager was appropriate in a community activist's defamation action because the activist was a limited-purpose public figure by reason of extensive participation in city affairs, and the activist failed to show actual malice by the manager. Sparks v. Peaster, 260 Ga. App. 232, 581 S.E.2d 579 (2003).

Summary judgment was improperly granted to an employer pursuant to O.C.G.A. § 9-11-56(c) in a terminated employee's suit alleging breach of contract, defamation, and tortious interference with contract because there were disputed questions of material fact and matters of credibility that a jury had to resolve regarding whether the corporation's president discharged the employee in good faith or did so for personal reasons unrelated to the employee's job performance. Salhab v. Tift Heart Ctr., P.C., 260 Ga. App. 799, 581 S.E.2d 363 (2003).

Statement that a sheriff provided to the Georgia Department of Labor (DOL) after the sheriff decided not to rehire an employee and the employee filed a claim for workers' compensation benefits was privileged, and the trial court ruled correctly that the sheriff was entitled to summary judgment on the employee's claim alleging slander, even though the sheriff's statement was published by a newspaper one week later and the newspaper published a follow-on article that stated that the sheriff stood by the statement the sheriff made to the DOL. Cooper-Bridges v. Ingle, 268 Ga. App. 73, 601 S.E.2d 445 (2004).

Trial court erroneously granted summary judgment against an election candidate, and in favor of the incumbent, on the former's defamation claims stemming from a printed newspaper advertisement as issues of fact remained as to the actual malice exhibited by the incumbent in publishing the advertisement, and the flagrant accusations stated therein went beyond the criticism, hostility, and unfairness a candidate might expect to encounter while running for political office. Howard v. Pope, 282 Ga. App. 137, 637 S.E.2d 854 (2006).

Libel actions.

- In an action by a contractor against a newspaper and the newspaper's editor, because: (1) the average reader would have interpreted a printed headline's use of the term "rape" as an attempt to convey the severity of the damage to the land that the contractor inflicted rather than to characterize the contractor's conduct that resulted in the damage as criminal; and (2) the article referred to by the headline did not constitute libel per se as the editor unquestionably did not intend, and readers did not interpret, the word "rape" as having any sexual connotation in the context used in the article, the editor and the newspaper were properly granted summary judgment as to the contractor's libel and libel per se claims. Lucas v. Cranshaw, 289 Ga. App. 510, 659 S.E.2d 612 (2008).

Defamation actions by public figures.

- If public figures bring defamation actions, summary judgment, rather than a trial on the merits, is a proper vehicle for affording constitutional protection if there is no substantive basis for a finding of knowing falsity or reckless disregard. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976).

In as much as the First Amendment mandates that a public figure plaintiff prove actual malice by clear and convincing evidence, a court ruling on a motion for summary judgment in a defamation case must be guided by the New York Times "clear and convincing" evidentiary standard in determining whether a genuine issue of actual malice exists - that is, whether the evidence presented is such that a reasonable jury might find that actual malice had been shown with convincing clarity. Barber v. Perdue, 194 Ga. App. 287, 390 S.E.2d 234 (1989), cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 414 (1990).

Application of public figure standard in libel case.

- Summary judgment as to liability was reversed because the intermediate appellate court and the trial court applied the wrong standard of fault to a limited-purpose public figure involved in a controversy over the operation of a county landfill; the New York Times v. Sullivan standard applied, requiring the public figure to prove by clear and convincing evidence that the Internet user published false and defamatory statements knowing that the statements were false or acting in reckless disregard of their truth or falsity. Mathis v. Cannon, 276 Ga. 16, 573 S.E.2d 376 (2002).

Application of voluntary payment doctrine.

- Voluntary payment doctrine did not bar a city's unjust enrichment and conversion claims filed against a construction contractor as the contractor failed to show that a genuine issue of material fact remained over whether the city was negligent in ascertaining the true facts and any prejudice if the duplicate payment were returned to the city. D & H Constr. Co. v. City of Woodstock, 284 Ga. App. 314, 643 S.E.2d 826 (2007).

Assertions that were merely opinions.

- Trial court properly granted the youth leader's motion for summary judgment on the troop leader's libel action since the youth leader's resignation letter, which, inter alia, alleged that the troop leader was "immoral" and did not live life according to the ideals of scouting did not support a libel action since its assertions were only opinions, incapable of being proved false. Gast v. Brittain, 277 Ga. 340, 589 S.E.2d 63 (2003).

Action against police officers.

- In an action for false arrest, false imprisonment, and malicious prosecution, the police officers were entitled to summary judgment based on qualified immunity after a school's principal failed to show the officers acted with actual malice or deliberate intent to injure the principal when the officers arrested the principal for hindering the arrest of two students for fighting and closing a door on an officer's foot and arm. Reed v. DeKalb County, 264 Ga. App. 83, 589 S.E.2d 584 (2003).

Background check agent was entitled to summary judgment on the employee's claims for negligence, defamation, libel, and slander since the employee's agreement with the employer, which contained an exculpatory clause releasing the employer and the employer's agents from any liabilities, claims, or lawsuits in regard to the information obtained in any background check was valid and the libel, slander, and defamation claims were barred by the one year statute of limitations as publication occurred when the agent sent the report to the employer not when the employer fired the employee. McCleskey v. Vericon Res., Inc., 264 Ga. App. 31, 589 S.E.2d 854 (2003).

Defenses of lack of jurisdiction and insufficient service.

- Defenses of lack of jurisdiction over the person and insufficiency of service of process are matters in abatement, not matters in bar, and are not within the scope of summary judgment procedure. Larwin Mtg. Investors v. Delta Equities, Inc., 129 Ga. App. 769, 201 S.E.2d 187 (1973).

Jurisdictional type motion is not within the scope of summary judgment procedure. Hemphill v. Con-Chem, Inc., 128 Ga. App. 590, 197 S.E.2d 457 (1973).

Waiver of most defenses.

- Trial court erred to the extent the court ruled that an insurer was prevented from introducing any evidence on liability following a default judgment entered against the insurer because the insurer could still assert policy defenses but, otherwise, by failing to answer timely the insurer was precluded from asserting any affirmative defense included within O.C.G.A. § 9-11-8(c). Willis v. Allstate Ins. Co., 321 Ga. App. 496, 740 S.E.2d 413 (2013).

Motions to dismiss for lack of jurisdiction over the person, when tried on affidavits pursuant to O.C.G.A. § 9-11-43(b), do not become motions for summary judgment. McPherson v. McPherson, 238 Ga. 271, 232 S.E.2d 552 (1977); Terrell v. Porter, 189 Ga. App. 778, 377 S.E.2d 540 (1989).

Although a defendant's motion for summary judgment raised the issue of insufficiency of service of process, that defense is a plea in abatement and, as such, it is not properly a basis of a motion for summary judgment, but if the defense is raised for resolution in the trial court and it has not otherwise been waived by the defendant, the nomenclature of the pleading that raises that issue should not be a material consideration. Under these circumstances, the proper disposition of the case is to vacate the order of the trial court on the cross-motions for summary judgment and to remand the case with the direction that the plaintiff's complaint be dismissed for insufficiency of service of process. Cheshire Bridge Enters., Inc. v. Lexington Ins. Co., 183 Ga. App. 672, 359 S.E.2d 702, cert. denied, 183 Ga. App. 905, 359 S.E.2d 702 (1987).

Dilatory pleas.

- Because summary judgment was improperly granted on a dilatory plea, and hence was not an adjudication on the merits, a plea of res judicata in a subsequent action would be denied. National Heritage Corp. v. Mount Olive Mem. Gardens, Inc., 244 Ga. 240, 260 S.E.2d 1 (1979).

Discrimination.

- Although there was evidence that a homeowner who listed a house with a real estate agency committed discrimination when the homeowner refused to show the house to African-American homebuyers, the evidence did not support the homebuyers' claims that the agency and a broker who worked for the agency participated in that discrimination, and the appellate court reversed the trial court's judgment denying summary judgment in favor of the agency, the broker, and a real estate company that sold a franchise to the agency on the homebuyers' claims alleging violation of Georgia's Fair Housing Act, O.C.G.A. § 8-3-200 et seq., and intentional infliction of emotional distress. Coldwell Banker Real Estate Corp. v. DeGraft-Hanson, 266 Ga. App. 23, 596 S.E.2d 408 (2004).

Dispute as to meaning of words.

- When it is clear from a writing and other evidence that the parties' intent as to meaning of certain words contained in the writing is in dispute, summary judgment should not be granted. Jones v. Howard, 153 Ga. App. 137, 264 S.E.2d 587 (1980).

Language of agreement controlled between exterminator and insurer.

- Exterminator was properly granted summary judgment in a home owner's action to recover additional damages after a settlement for termite damage because the literal language of the agreement made additional repairs the responsibility of an insurer, rather than the exterminator. Anderson v. Astro Exterminating Servs., 259 Ga. App. 370, 577 S.E.2d 67 (2003).

Domestication of child support judgments of foreign countries.

- In a case in which the plaintiff, a West German resident, sought to domesticate a West German judgment for child support, and because the facts established the defendant's minimum contacts with West Germany and that the defendant was afforded adequate notice and a reasonable opportunity to be heard in West Germany, the court abused the court's discretion in failing to rule that the West German judgment be domesticated and was enforceable according to the judgment's terms. Knothe v. Rose, 195 Ga. App. 7, 392 S.E.2d 570 (1990).

Failure to file Family Violence Report.

- Officers who investigated a claim of possible child abuse failed in the officers' obligation to file a Family Violence Report, as required by O.C.G.A. § 17-4-20.1(c), and the trial court properly denied a motion for summary judgment pursuant to O.C.G.A. § 9-11-56 by the officers and others in a wrongful death claim on behalf of a deceased child as genuine issues of material fact existed as to whether their failure to investigate and file the necessary report proximately resulted in the child's injuries and death; the definition of "family violence" was broad under O.C.G.A. § 19-13-1, and although "reasonable discipline" was excepted thereunder, the officers had an obligation to investigate allegations that a child was being whipped. Meagher v. Quick, 264 Ga. App. 639, 594 S.E.2d 182 (2003).

Forfeiture of bond.

- Jury trial is not required when a bond is forfeited, unless the trial court agrees that there are genuine issues of material fact to be resolved. State v. Slaughter, 246 Ga. 174, 269 S.E.2d 446 (1980).

On forfeiture of bond, securities become quasiparties to the proceedings and subject themselves to the jurisdiction of the court so that summary judgment may be rendered on their bonds. State v. Slaughter, 246 Ga. 174, 269 S.E.2d 446 (1980).

Counterclaim for payments on bond by co-surety.

- Summary judgment was properly entered for a lessee bank on a lessor developer's counterclaim that alleged that the bank was obligated to pay the entire debt to the bondholder incurred to fund the project, rather than the debt service over the 15-year term of the lease, as the parties knew that the lease term was 15 years and that the term of the note was 20 years, yet failed to specifically provide that the bank pay the debt after the lease expired; parol evidence was inadmissible under O.C.G.A. § 13-2-2(1) to prove the parties' intentions as the lease was unambiguous. Porter Communs. Co. v. SouthTrust Bank, 268 Ga. App. 29, 601 S.E.2d 422 (2004).

Fraud.

- Although summary judgment may in a proper case be obtained in an action based on fraud and misrepresentation, summary judgment will be denied if the moving party is not entitled to judgment as a matter of law. Mitchell v. Calhoun, 229 Ga. 757, 194 S.E.2d 421 (1972).

If information as to a claimed fraudulent transaction rests exclusively within the knowledge of the participants, and the plaintiff has no means successfully to meet the facts alleged in the defendant's affidavit, summary judgment should not be granted on the defendant's affidavit. Mitchell v. Calhoun, 229 Ga. 757, 194 S.E.2d 421 (1972).

Because the plaintiff alleged fraud but failed to point to any evidence to prove an essential element of fraud, there remained no genuine issue of material fact, and therefore the trial court did not err in granting the defendant's motion for summary judgment on the issue of fraud. Brown v. Buffington, 203 Ga. App. 402, 416 S.E.2d 883 (1992).

Trial court erroneously granted summary judgment dismissing the home buyers' fraud claim against the sellers and the sellers' agent, given various misrepresentations made by the sellers' agent on the sellers' behalf, for the purpose of inducing the buyers to purchase the home. Smiley v. S & J Inves., Inc., 260 Ga. App. 493, 580 S.E.2d 283 (2003).

When items stolen from an electric company were sold to a supply company, the supply company was not entitled to summary judgment dismissing the electric company's fraud claim against the supply company because a jury could find that the supply company's principal knew the items were stolen. Fed. Ins. Co. v. Westside Supply Co., 264 Ga. App. 240, 590 S.E.2d 224 (2003).

Trial court erred in granting summary judgment pursuant to O.C.G.A. § 9-11-56(c) to a parent in an action against the parent's child, alleging fraud and coercion in the child's failure to transfer assets to the parent after the parent had transferred them to the parent's two children in order to protect them in the event that the parent was put into a nursing home; the evidence showed that the parent had control over all faculties and was under no duress, fraud, or coercion while engaging in the transfers to the children, and summary disposition of the issues as to liability and vesting of title back to the parent was inappropriate. Friar v. Friar, 265 Ga. App. 680, 595 S.E.2d 374 (2004).

Because it was shown that a decedent, before dying, substantially depleted his assets by making gifts to his wife and by purchasing land in the name of a corporate entity without consideration from the entity, a jury could infer that the decedent was intentionally depleting his assets to deprive his ex-wife of access to those assets in claims under the terms of a settlement agreement between the decedent and the ex-wife. Since such actions could be construed as an intent to defraud, it was error to grant the decedent's executor, the decedent's surviving wife, and the corporate entity summary judgment on claims of fraud. Miller v. Lomax, 266 Ga. App. 93, 596 S.E.2d 232 (2004).

Buyer presented enough evidence to raise issues of fact concerning the buyer's claim that the sellers knew about the condition of a septic system before the sellers sold the house and intentionally misled the buyer by telling the buyer that the system was in "perfect working order," and the trial court erred by granting the sellers' motion for summary judgment on the buyer's claim alleging fraud. Hudson v. Pollock, 267 Ga. App. 4, 598 S.E.2d 811 (2004).

Summary judgment for storage companies in an owner's fraud claim was proper because: (1) the parties' contract contained a merger clause; (2) the owner did not seek to rescind the contract until the owner filed a complaint; (3) by seeking damages for breach of contract in the owner's complaint, the owner took action inconsistent with a repudiation; (4) the owner delayed almost nine months in attempting to rescind the contract; and (5) since the owner failed to promptly rescind the contract, the merger clause barred the owner's fraud claim. Liberty v. Storage Trust Props., L.P., 267 Ga. App. 905, 600 S.E.2d 841 (2004).

In an action between a home builder and its buyers, the trial court did not err in granting summary judgment on the buyers' fraud claim as: (1) the terms of the construction contract explicitly acknowledged that the construction price was based on allowances set in the budget and would change if actual costs exceeded the original allowance amount; (2) the buyers both acknowledged that the buyers understood that the original contract price was not a fixed price, and that the buyers would be responsible for actual costs that exceeded the allowances contained in the contract; (3) the buyers admitted that a portion of the additional costs resulted from changes that the buyers had requested; and (4) as a result, the mere existence of the change orders did not indicate that the builder fraudulently induced the buyers to enter into the contract. Davis v. Whitford Props., 282 Ga. App. 143, 637 S.E.2d 849 (2006).

Trial court did not err in granting a car dealer summary judgment against a customer's fraud claim as: (1) the customer's contention that the dealer knew of the alleged defects in a car sold to the customer at the time of the sale was specifically negated by affidavits submitted by the dealer's service and maintenance employees; and (2) even if the dealer knew of the car's defectiveness after the sale, this knowledge did not amount to either knowledge, or a reckless disregard of the car's defectiveness, at the time of the sale; hence, as a result, the trial court did not err in granting the dealer's motion for summary judgment on the customer's claims for attorney fees under O.C.G.A. § 13-6-11, costs, and punitive damages pursuant to O.C.G.A. § 51-12-5.1. Morris v. Pugmire Lincoln Mercury, Inc., 283 Ga. App. 238, 641 S.E.2d 222 (2007).

Dissolution of nonprofit corporation.

- Trial court erred in entering summary judgment for a college as to a Baptist convention's request to enjoin the college from dissolving as: (1) the convention was a member of the college under the Georgia Nonprofit Corporations Code, specifically under an earlier version of O.C.G.A. § 14-3-140; (2) the college's attempt at dissolving was a sham as the college intended to continue its functions under a new corporate entity; (3) the corporate reorganization was either a merger under O.C.G.A. § 14-3-1103(a)(3) or a disposition of assets under O.C.G.A. § 14-3-1202(b)(3), but it was not a true dissolution, and absent the convention's approval, it could not stand; and (4) O.C.G.A. § 14-3-1430(2)(A) did not justify the dissolution as the convention was the only member and it did not seek dissolution. Baptist Convention v. Shorter College, 266 Ga. App. 312, 596 S.E.2d 761 (2004), aff'd, 279 Ga. 466, 614 S.E.2d 37 (2005).

Stockholders' declaratory judgment action.

- Because no evidence was presented that the shares in the administratively dissolved company which the stockholders originally purchased, and which pre-dated the corporation's formation, were ever transformed into the corporation's stock, and the stockholders' fraud claims were vague at best, the corporation was properly granted summary judgment in the stockholders' declaratory judgment action seeking a declaration that the stockholders owned stock in the corporation based on the stockholders' purchase of stock in the administratively dissolved company. Wright v. AFLAC, Inc., 283 Ga. App. 890, 643 S.E.2d 233 (2007).

Georgia Public Service Commission.

- Actions against the Georgia Public Service Commission are not exempt from the summary judgment procedures of O.C.G.A. § 9-11-56. Statesboro Tel. Co. v. Georgia Pub. Serv. Comm'n, 235 Ga. 179, 219 S.E.2d 127 (1975).

Application to Telephone Customer Protection Act.

- Because a telephone customer was enrolled in a radio station's discount program, calls containing unsolicited advertisements fell within the established business relationship exemption and were not automatically prohibited by the Telephone Customer Protection Act (TCPA), 47 U.S.C. § 227; the telephone customer was barred from recovering under the TCPA, and summary judgment in favor of the radio station was affirmed. Schneider v. Susquehanna Radio Corp., 260 Ga. App. 296, 581 S.E.2d 603 (2003).

Open Records Act.

- In denying a request under the Open Records Act (ORA), O.C.G.A. § 50-18-70 et seq., an agency was limited to the authority cited in denying an initial request; an insurance commissioner's refusal to disclose an investigation report and records was an abuse of discretion based on the reasons provided for denying the request, and an order granting summary judgment in favor of the commissioner and denying an individual's summary judgment motion in an ORA action was reversed. Hoffman v. Oxendine, 268 Ga. App. 316, 601 S.E.2d 813 (2004).

Insufficiency in the allegations of a complaint is not a matter that is proper for review on a motion for summary judgment if the allegations of the complaint are considered well-pled and the single issue before the court is whether on the merits the moving party in the position of a defendant has carried the party's burden of showing that as a matter of law the party in the position of a plaintiff is not entitled to relief because one essential element under any theory of recovery is lacking and incapable of proof. Robinson v. Starr, 197 Ga. App. 440, 398 S.E.2d 714 (1990).

Insurance fraud.

- Issues of fact concerning whether a former employee actually signed an insurance card and whether an insurer detrimentally relied upon alleged misrepresentations precluded the award of summary judgment in the insurer's fraud action against a former employee. Centennial Life Ins. Co. v. Smith, 210 Ga. App. 194, 435 S.E.2d 498 (1993).

Summary judgment was properly granted for the insurer because the insured's complaint fell outside the four-year statute of limitation for fraud and negligent misrepresentation claims. Nash v. Ohio Nat'l Life Ins. Co., 266 Ga. App. 416, 597 S.E.2d 512 (2004).

Auto insurance contracts.

- Since there was no law or policy requiring insurance coverage for negligent service of alcohol, the home insurer's motor vehicle exclusion applied as the injured party's damages arose out of an automobile accident, and the alleged independent act of negligence did not negate the exclusion. Manning v. USF&G Ins. Co., 264 Ga. App. 102, 589 S.E.2d 687 (2003).

When an injured party sued the insurer of a motorist against whom the injured party obtained a judgment, both to collect on the judgment and to assert a claim, as assignee of the motorist, for bad faith failure to settle, the insurer was not entitled to summary judgment because, even though the motorist did not provide the insurer with notice of the claim, the injured party provided the insurer with sufficient notice, under O.C.G.A. § 33-7-15(c), when it provided the insurer a copy of the complaint, with a court clerk's notation of the case number and the date on which the complaint was filed, and the insurer did not show that the injured party's failure to provide the insurer with a copy of the summons deprived it of the ability to timely and adequately investigate the claim. Canal Indem. Co. v. Greene, 265 Ga. App. 67, 593 S.E.2d 41 (2003).

Trial court properly entered summary judgment against a corporation's insurer as the corporation was the named insured on a policy, notwithstanding the policy's identification of the named insured as an individual, doing business as a trade name, as the insurer filed a certificate of insurance with the Georgia Public Service Commission, pursuant to former O.C.G.A. § 46-7-12(a), stating that it had insured the corporation, doing business as the trade name; as the insurer failed to rebut testimony that a truck owned by the individual was involved in an accident while it was engaged in the corporation's business, the injured parties' collision with the truck was covered by the policy. Hartford Cas. Ins. Co. v. Smith, 268 Ga. App. 224, 603 S.E.2d 298 (2004).

Summary judgment was properly entered for an insurer in the injured parties' declaratory judgment suit as the insurer clearly stated that the insurer was issuing one contract, albeit in two sections, and that the insurer's insured was entitled to only one payout; the insurer issued two policy numbers and two declarations pages to the insured as the insurer could only accommodate four vehicles under the insurer's policy declarations, and the insured had seven vehicles. Smith v. Allstate Ins. Co., 268 Ga. App. 229, 603 S.E.2d 302 (2004).

Since an injured person was neither named in the policy covering the vehicle in which the person was riding at the time of an accident, nor residing in the same household as the policy holder, and was not a beneficiary of the other four policies owned by the policyholder, the injured person was not entitled to stack the policies; thus, a trial court's summary judgment in favor of the insurance company was affirmed. Beard v. Nunes, 269 Ga. App. 214, 603 S.E.2d 735 (Aug. 23, 2004).

Trial court properly entered partial summary judgment for an insurer and refused to extend the full limits of the policy to the injured parties; the policy excluded "any loss arising out of" the use of an automobile by any person living with the insured, which covered the driver, and the injured parties were injured due to the driver's actions in driving an automobile. Carver v. Empire Fire & Marine Ins. Co., 270 Ga. App. 100, 605 S.E.2d 842 (2004).

In an action concerning the limits of uninsured motorist (UM) coverage available under a claimant's policy, which was held with the claimant's husband who was the named insured thereunder, their insurer was properly granted summary judgment on that issue as the 2001 amendment to O.C.G.A. § 33-7-11 had no effect on the limits of UM coverage under the policy covering the claimant's vehicle, and as such, the insurer was not required to notify the claimant of the change in the law or to secure a separate UM election at the time this vehicle was added to the original insurance policy. Soufi v. Haygood, 282 Ga. App. 593, 639 S.E.2d 395 (2006).

Judgment dependent on auto insurance policy and policy not in evidence.

- In an insured's suit against an insurance agent alleging that the agent was aware of the need to provide coverage for vehicles sold in South Carolina, but the policy issued covered only vehicles at the insured's address in Georgia, summary judgment for the agent based on the insured's failure to read the policy was error because the policy was not in evidence and it was not clear that the policy readily demonstrated that the coverage requested had not been issued. Unique Auto Sales, LLC v. Dunwody Ins. Agency, 348 Ga. App. 656, 824 S.E.2d 578 (2019).

Insurance provision in murder-suicide case.

- Because substantial fact issues existed as to whether an insurance policy provision transferring ownership to the insured was activated in an apparent murder-suicide case, and whether the insured had murdered his wife, the owner of the policy, it was error of the court to grant summary judgment. Bland v. Ussery, 172 Ga. App. 131, 322 S.E.2d 335 (1984).

Insurance contracts.

- As the facts were not in dispute and a proper construction of the unambiguous language of the vacancy exclusion of an insurance policy showed that the vandalism that occurred in a certain insured building was not a covered loss because the building had been vacant for more than 60 days prior to the loss, the trial court should have granted the insurer summary judgment in an action by the buyer of the building, who was the assignee of the insured, to recover for the vandalism damage. Sorema N. Am. Reinsurance Co. v. Johnson, 258 Ga. App. 304, 574 S.E.2d 377 (2002).

Trial court erred in granting summary judgment to the casualty insurance company on the insured's claim for damages under the insured's insurance policy it had on the insured's property that was destroyed by fire as the purpose of summary judgment was to determine whether there was a triable issue of fact and whether the insured submitted to an examination as required under the policy could not be determined until that issue was tried. The error occurred because the insured submitted to an examination, but left the examination after three hours of questioning when the insured became angry at the way the insured was being questioned, although the insured did say as the insured left that the insured would continue the questioning with the assistance of the court. Evans v. Ohio Cas. Ins. Co., 264 Ga. App. 485, 591 S.E.2d 378 (2003).

When an insurer sought a declaratory judgment defining the insurer's rights and responsibilities under an insurance policy issued to an insured cemetery that was sued for desecrating a grave, the construction of the policy was a matter for the court that could be resolved by summary judgment. Nationwide Mut. Fire Ins. Co. v. Somers, 264 Ga. App. 421, 591 S.E.2d 430 (2003).

When an insured sued an insurance agent for fraud and breach of fiduciary duty because the agent allegedly misrepresented the coverage afforded by a policy the insured purchased through the agent, the insured's failure to read the policy entitled the agent to summary judgment, as no confidential relationship between the insured and the agent existed. Canales v. Wilson Southland Ins. Agency, 261 Ga. App. 529, 583 S.E.2d 203 (2003).

Trial court properly declined to rule, as a matter of law, that when a child was with the noncustodial parent, the child was not a "resident" of the noncustodial parent's home for insurance coverage purposes; the questions of domicile and residence were typically fact questions left to the jury, and because the parents had joint custody of a child killed in a home accident while staying at the noncustodial father's home, a jury could find that the child was in fact a resident of the father's home at the time of the accident. Baldwin v. State Farm Fire & Cas. Co., 264 Ga. App. 229, 590 S.E.2d 206 (2003).

Denial of an insurance company's summary judgment motion in a declaratory action brought against an injured person seeking a determination regarding coverage obligations in the injured person's underlying assault and battery claim was reversed because the injured person conceded that there was no coverage, but asserted estoppel based on delays in sending the reservation of rights notice and in filing the declaratory judgment action; since the injured person had no rights under the policy, the injured person was not allowed to sue the insurance company directly, and the injured person also lacked standing to assert the defense of waiver or estoppel against the insurance company for failing to provide a timely notice of reservation of rights. Capitol Indem. Corp. v. Fraley, 266 Ga. App. 561, 597 S.E.2d 601 (2004).

Trial court's grant of summary judgment pursuant to O.C.G.A. § 9-11-56 to an insurer in an insured's declaratory judgment action seeking a coverage determination was erroneous because the insured, who worked as a roofing supervisor for a livelihood, had been engaged in manual roofing labor for the insured's pastor as a favor at the time of the incident and, accordingly, the insured's actions were not excluded under either the business pursuits exclusion nor under the professional services exclusion as roofing was a trade or occupation; the insured's notice to the insurer within a month of being sued was reasonably timely. Cunningham v. Middle Ga. Mut. Ins. Co., 268 Ga. App. 181, 601 S.E.2d 382 (2004).

Upon an insurer's interlocutory appeal, the appeals court found that the insurer was properly denied summary judgment on an insured's individual and class action claims for unearned insurance premiums owed under credit life and disability policies as the insured satisfied any contractual notice requirements to filing suit, the class was properly certified, and the insured adequately represented the interests of the class. J.M.I.C. Life Ins. Co. v. Toole, 280 Ga. App. 372, 634 S.E.2d 123 (2006).

In an action between an insurer and its insured regarding the insured's claim for additional coverage, because the provisions regarding blanket liability and additional limits of liability were ambiguous, and application of O.C.G.A. § 13-2-2 was insufficient to eliminate the ambiguity in that it was impossible to ascertain how much coverage was provided for the items at issue, particularly soft cost, a jury was to consider the circumstances surrounding the transaction to determine the scope and effect of the policy; hence, the insured was erroneously granted partial summary judgment on the issue. RLI Ins. Co. v. Highlands on Ponce, LLC, 280 Ga. App. 798, 635 S.E.2d 168 (2006).

Trial court's grant of summary judgment was upheld on appeal, in an insurance applicant's negligent misrepresentation action filed against an agency and its agent, as the applicant failed to include the insurance application, that was the focus of the suit, in the appellate record. Hattaway v. Conner, 281 Ga. App. 20, 635 S.E.2d 330 (2006).

In an action filed against an insurer seeking coverage under a homeowners policy, the insureds were properly denied coverage for damages to a home the insureds did not live in, and the insurer was properly granted summary judgment on the issue of coverage as the policy at issue clearly stated that the "insured premises" meant the residence the insureds used as their primary residence. Varsalona v. Auto-Owners Ins. Co., 281 Ga. App. 644, 637 S.E.2d 64 (2006).

Trial court erred in denying an insurer's motion for summary judgment as to the issue of coverage as an assault and battery exclusion contained in the insurer's commercial general liability policy barred coverage to the insured for damages claims arising from a shooting on the insured's premises in a wrongful death action filed against the insured; moreover, inclusion of the phrase "whether or not" in the exclusion was significant and made clear that the exclusion was intended to apply to all instances of assault and battery occurring on the premises. First Specialty Ins. Corp. v. Flowers, 284 Ga. App. 543, 644 S.E.2d 453 (2007).

Trial court did not err in granting an insurer summary judgment in the insurer's declaratory judgment action finding that the insurer owed no duty to the insured to defend or indemnify the insured in an action filed by the insured's client who was injured in an accident involving the covered vehicle as the policy at issue showed no liability coverage and, hence, did not obligate the insurer to that duty. Simalton v. AIU Ins. Co., 284 Ga. App. 152, 643 S.E.2d 553 (2007).

In a breach of contract action filed by an insured against an insurer, the trial court did not err in granting the insurer summary judgment as to the issue of coverage as questions answered untruthfully in the application for insurance by the insured amounted to misrepresentations warranting a cancellation of the policy at issue, pursuant to O.C.G.A. § 33-24-7. T. J. Blake Trucking, Inc. v. Alea London, Ltd., 284 Ga. App. 384, 643 S.E.2d 762 (2007), cert. denied, No. S07C1101, 2007 Ga. LEXIS 505 (Ga. 2007).

Because Georgia contract law stated that the statute of limitation on a contract which contemplated an actual demand began to run 30 days after notice was sent of the amount due, as contemplated by the contract between an insured and the insured, the trial court erred in finding that the insurer's claim for reimbursement from the insured was time-barred; thus, summary judgment in favor of the insured was inappropriate. Canal Ins. Co. v. Pro Search, 286 Ga. App. 164, 648 S.E.2d 497 (2007), cert. denied, 2007 Ga. LEXIS 870 (Ga. 2007).

Trial court properly granted summary judgment to an insured in the insurer's declaratory judgment action, requiring the insurer to defend and indemnify the insured in the underlying suit filed by a resident of the insured's personal care home arising from an attack by a fellow resident as the incident occurred without the insured's foresight, expectation, or design, and was thus properly characterized as accidental under the terms of the insured's policy. Cincinnati Ins. Co. v. Magnolia Estates, Inc., 286 Ga. App. 183, 648 S.E.2d 498 (2007), cert. denied, No. S07C1660, 2008 Ga. LEXIS 88 (Ga. 2008).

Due to the inadequacies of an insured's bad faith demand, as its attempt to equate the submission of a claim with the demand for payment required by O.C.G.A. § 33-4-6 was directly contravened by case law, and the fact that the insurer met all the insurer's obligations under the policy the insurer issued to the insured, the trial court did not err in denying summary judgment to the insured and granting summary judgment on the insurer's cross-motion, authorizing the insurer to quitclaim the refinanced property to the insurer in full satisfaction of the insurer's duties and obligations under the policy. BayRock Mortg. Corp. v. Chi. Title Ins. Co., 286 Ga. App. 18, 648 S.E.2d 433 (2007), cert. denied, 2008 Ga. LEXIS 108 (Ga. 2008).

Because the damages a tenant sought under a commercial general liability policy issued to the insured-landlord for carbon monoxide poisoning were clearly excluded by the unambiguous terms contained within an exclusion under the policy, the trial court erred in denying the insurer's motion for summary judgment as to the issue of coverage. Auto-Owners Ins. Co. v. Reed, 286 Ga. App. 603, 649 S.E.2d 843 (2007), aff'd, 284 Ga. 286, 667 S.E.2d 90 (2008).

Given that the language in an insurance contract providing for catastrophic coverage only extended to inpatient, and not outpatient, services, the trial court properly granted summary judgment as to the issue of the insurer's coverage as the hospital bill for which the insured sought payment was for outpatient services. Michna v. Blue Cross & Blue Shield of Ga., Inc., 288 Ga. App. 112, 653 S.E.2d 377 (2007), cert. denied, 2008 Ga. LEXIS 214 (Ga. 2008).

Under the ordinary rules of contract construction, because: (1) no ambiguity in an insurance contact existed; and (2) the insurer was authorized to reduce the uninsured motorist policy limits therein per the directions of the insured, no error resulted from the trial court's order granting summary judgment to an insurer as to the issue of coverage. Moreover, separate signatures rejecting bodily injury coverage and property damage coverage were not required, and the court did not rely upon affidavits containing inadmissible evidence. Lambert v. Alfa Gen. Ins. Corp., 291 Ga. App. 57, 660 S.E.2d 889 (2008).

Summary judgment was properly granted to an insured pursuant to O.C.G.A. § 9-11-56(c) and denied to an insurer in the insured's action seeking to collect unpaid claims under the insured's policy wherein the insured was entitled to indemnification for losses arising from employee dishonesty; however, based on the construction rules of O.C.G.A. § 13-2-2, the ambiguous non-cumulative policy liability limit was construed in the insured's favor, but could not be interpreted to allow the limit for each of the years of coverage, but rather, the limit was applied to the entire three-year policy period. Cincinnati Ins. Co. v. Sherman & Hemstreet, Inc., 260 Ga. App. 870, 581 S.E.2d 613 (2003), aff'd, 277 Ga. 734, 594 S.E.2d 648 (2004).

Insurance settlement.

- Trial court properly granted summary judgment to the vehicle owner in the insurer's suit against the vehicle owner after the insurer settled a claim with an injured victim after the company employee who rented a vehicle from the vehicle owner was involved in an accident that injured the victim; since no evidence showed the insurer and the vehicle owner contracted otherwise, Georgia statutory law dictated that the renter's liability insurance coverage, provided by the insurer, was the primary insurance and the vehicle owner's insurance provided secondary coverage. Zurich Am. Ins. Co. v. General Car & Truck Leasing Sys., 258 Ga. App. 733, 574 S.E.2d 914 (2002).

In an action claiming beneficiary status to two annuities issued to a decedent, the trial court properly granted summary judgment to a foundation, and against an individual, on grounds that the decedent failed to do all that was necessary to change the beneficiary of the decedent's annuities to the individual, as such was specifically required for the change of beneficiary designation to go into effect, and substantial compliance with the requirements was insufficient; hence, no material fact issues remained. Lake v. Young Harris Alumni Found., Inc., 283 Ga. App. 409, 641 S.E.2d 628 (2007).

Uninsured motorist coverage.

- Conclusion that an insurer was only obligated to provide an insured with $40,000 of uninsured motorist (UM) coverage was supported by both the unambiguous policy language and by the fact that the insured admitted that the insured had not made a written request pursuant to former O.C.G.A. § 33-7-11(a)(3) for an increase in UM coverage above the minimum coverage required at the time of the accident; thus, the trial court properly granted the insurer summary judgment on the insurer's request for a declaration that the insured only had $40,000 of UM coverage. Payne v. Middlesex Ins. Co., 259 Ga. App. 867, 578 S.E.2d 470 (2003).

Because Georgia public policy prohibited an exclusion within an insurer's uninsured coverage for the use of any motor vehicle by an insured to carry persons or property for a fee, as such denied the statutorily mandated coverage to an otherwise qualified insured, and the requirements under O.C.G.A. § 33-7-11 were plain and not illogical, summary judgment in favor of the insurer on this issue was reversed. Wagner v. Nationwide Mut. Fire Ins. Co., 288 Ga. App. 132, 653 S.E.2d 526 (2007).

Trial court erred in denying motions for summary judgment pursuant to O.C.G.A. § 9-11-56 by an insurer in a declaratory judgment action pursuant to O.C.G.A. § 9-4-2 seeking to determine whether the insurer had a duty to defend, and by the owners of an automobile on claims of negligent entrustment by the plaintiffs, a driver and passengers; the owners' son, who was driving the vehicle when the accident occurred, did not have permission to drive the vehicle, and therefore the son was not an insured under the owners' insurance policy. Metro. Prop. & Cas. Ins. Co. v. McCall, 261 Ga. App. 92, 581 S.E.2d 651 (2003).

Parent who filed a wrongful death action against an unidentified driver after a child's body was found by the side of a road presented no evidence that the unidentified driver was negligent or that the driver's actions caused the decedent's death, and the appellate court affirmed the trial court's judgment granting a motion for summary judgment, which was filed by an insurance company that provided uninsured motorist coverage. Dawkins v. Doe, 263 Ga. App. 737, 589 S.E.2d 303 (2003).

Trial court erroneously granted summary judgment to an UM insurer because the injured claimant, who was also a federal employee, fell under the purview of federal compensation law; thus, under these federal provisions, the medical benefits insurer and the workers' compensation insurer had subrogation liens and were able to enforce the liens upon the injured party's receipt of a settlement from the liable third party, regardless of Georgia's requirement that such action be preceded by a determination that the injured person had been fully compensated. Thurman v. State Farm Mut. Auto. Ins. Co., 278 Ga. 162, 598 S.E.2d 448 (2004).

Insured who tried to recover damages for injuries the insured sustained in a motor vehicle accident in Florida, but who alleged that the insured's claim was denied because the insured's did not have the right to sue under Florida's no-fault statute, was entitled to collect uninsured motorist benefits from the insured's own insurance company, pursuant to O.C.G.A. § 33-7-11. However, the trial court, which heard the insured's action against, erred when the court denied the company's motion for summary judgment on the insured's claim seeking penalties and attorney fees, pursuant to O.C.G.A. § 33-4-6, because the case presented a unique issue of law and there was no evidence that the company acted in bad faith when the company denied the insured's claim. Ga. Farm Bureau Mut. Ins. Co. v. Williams, 266 Ga. App. 540, 597 S.E.2d 430 (2004).

Insurance coverage on dealer "loaner" vehicle.

- Nothing required an insurer to provide excess insurance on a "loaner" car above the statutory minimum limits but the law required excess coverage in an amount not less than the limits; summary judgment reducing coverage below the limits was error. Hendrix v. Universal Underwriters Ins. Co., 263 Ga. App. 589, 588 S.E.2d 761 (2003).

Death while pursued by emergency vehicles.

- Trial court erred in denying summary judgment to a city and the city's employees in a wrongful death action; a police officer's actions were not the proximate cause of the decedent's death during a crash with a vehicle that was fleeing from the police at high speed, and therefore O.C.G.A. § 40-6-6 did not apply. City of Pooler v. Edenfield, 263 Ga. App. 278, 587 S.E.2d 408 (2003).

Punitive damages may not be recovered if there is no entitlement to compensatory damages; because a homeowner had settled the property damage claim arising from an incident in which a truck struck the homeowner's house, and was not allowed to recover under the bodily injury provision of the policy since the homeowner was not injured in and did not witness the incident, summary judgment for an insurance company in the company's declaratory judgment action addressing the company's liability on the homeowner's punitive damage claim was affirmed. Flynn v. Allstate Ins. Co., 268 Ga. App. 222, 601 S.E.2d 739 (2004).

Insurer coverage.

- An insurer was entitled to summary judgment in the insurer's declaratory judgment action because the insurer's policy did not cover an injured bar patron's claims against an insured, an investigations and security firm that serviced the bar, because the subject policy's clear exclusions for assault, battery, and punitive damages did not conflict with a security guard endorsement. Capitol Indem., Inc. v. Brown, 260 Ga. App. 863, 581 S.E.2d 339 (2003).

State benefit health plan claims administrator was properly granted summary judgment in an action challenging the administrator's review of a physician's corporation's health plan claims because, in part, the administrator had no duty to produce the administrator's policies absent a confidential relationship, which was not established merely by the corporation's trust and confidence in the administrator. Brown v. Blue Cross Blue Shield of Ga., Inc., 260 Ga. App. 796, 581 S.E.2d 636 (2003).

In a declaratory judgment action, the insurer was entitled to summary judgment on the parents' claim since the homeowners policy issued to the insured specifically excluded coverage for injury to the parents' son, who was shot and killed by the insured's son during an aggravated assault at a pizza restaurant; the exclusion authorized the trial court to find, as a matter of law, that a reasonable person in the insured's son's circumstances could expect bodily harm to result from the son's criminal actions. Tripp v. Allstate Ins. Co., 262 Ga. App. 93, 584 S.E.2d 692 (2003).

Absent an insurance clause showing mutual intent for a subcontractor's insurance to cover losses to the store and contractor, an indemnity clause was statutorily void and unenforceable; thus, summary judgment was properly denied. Federated Dep't Stores v. Superior Drywall & Acoustical, 264 Ga. App. 857, 592 S.E.2d 485 (2003).

Summary judgment in favor of cities and an insured in a declaratory judgment action brought by the insured's insurer was reversed; the underlying claim by the cities against the insured was for loss of grant monies arising from the alleged improper preparation of applications that did not fit into the policy definition of a property loss, and since the policy also excluded losses related to professional services, the insurer had no duty to defend. Nationwide Mut. Fire Ins. Co. v. City of Rome, 268 Ga. App. 320, 601 S.E.2d 810 (2004).

Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56(c) to an insured in the insured's breach of insurance contract claim against an insurer for the insurer's failure to pay a claim, arising from water and sewage damage to the insured's offices; heavy rains had seeped into a large pit that was excavated by the city, which then flowed into a pipe that overflowed into the insured's office, and such water was not within the well-accepted definition of "surface water," such that the policy's surface water exclusion was inapplicable. Selective Way Ins. Co. v. Litig. Tech., Inc., 270 Ga. App. 38, 606 S.E.2d 68 (2004).

In a mother's suit claiming that an insurer breached an insurance contract with the son by failing to defend the son in the mother's suit brought against the son arising out of a car accident occurring when the son was driving the mother's car, summary judgment was properly granted on the issue of insurance coverage under the policy, which obligated the insurer to pay damages for which the insured was legally liable because of damages arising out of an accident involving the insured car or a car which was not owned by a resident of the insured's household because, while the mother and the son lived in the same house, this was not determinative of the question of whether the mother was a resident of the son's household. The mother's proof showed that she and her son maintained distinct households under different management, in that they each were responsible for separate parts of the house, did not cook or clean for each other, and came and went independently; and the insurer offered no evidence to counter the mother's proof. Southern Gen. Ins. Co. v. Foy, 279 Ga. App. 385, 631 S.E.2d 419 (2006).

Because the trial court erred in construing an insurer's policy to its insured, and a fact question remained as to an issue of slander, summary judgment was inappropriately entered; but, the insurer was not required to provide specific, unambiguous reasons for denying coverage in its reservation of rights letter to the insured. Southern Gen. Ins. Co. v. Foy, 279 Ga. App. 385, 631 S.E.2d 419 (2006).

Because: (1) resolution of the issues raised in a petition filed by the Georgia Insurers Insolvency Pool were dependent upon a determination by the State Board of Workers' Compensation of the amount, if any, an injured employee was entitled to recover in the pending, unresolved claim for workers' compensation; and (2) after a notice to controvert was filed, the Board never held a hearing or issued any findings with regard to liability for the claim, the trial court lacked subject matter jurisdiction to determine the applicability of earlier provisions of O.C.G.A. § 33-36-14(a) to the Pool's claim against an insurer, after another carrier became insolvent, and hence, grant the Pool summary judgment in its declaratory judgment action. Royal Indem. Co. v. Ga. Insurers Insolvency Pool, 284 Ga. App. 787, 644 S.E.2d 279 (2007), cert. denied, No. S07C1207, 2007 Ga. LEXIS 639 (Ga. 2007).

Intent.

- In a declaratory judgment action by an insurance company asking for an interpretation of an insurance policy that excludes coverage for injuries expected or intended by the insured, because the insured, while intoxicated, shot and killed his son and daughter-in-law, the question of intent or expectation uniquely fits the pattern of those issues of material fact that are not appropriate issues for summary judgment but are decided by the trier of fact. State Farm Fire & Cas. Co. v. Morgan, 258 Ga. 276, 368 S.E.2d 509 (1988).

Summary judgment in corporate actions.

- Trial court properly granted summary judgment to a president of a corporation in the president's petition to remove a lis pendens, which alleged that the president purchased property with embezzled funds as the shareholder's allegation was used to support the shareholder's tort claims of, inter alia, conversion and breach of fiduciary duty; thus, a lis pendens was unauthorized and the president could not be charged with notice of it. Hudson v. Dobson, 260 Ga. App. 473, 580 S.E.2d 268 (2003).

Summary judgment in estate matters.

- In an action for conversion of the estate's assets relating to a joint account created under O.C.G.A. § 7-1-813 between the executrix and a half-sister, given that some evidence existed that the decedent's purpose in establishing a joint account between the executrix of decedent's estate and the half-sister was for the decedent's convenience, and not to effect a gift, summary judgment was erroneously granted to the half-sister. Gray v. Benton, 280 Ga. App. 339, 634 S.E.2d 86 (2006).

Summary judgment in matters involving a trust.

- In a declaratory judgment action between a settlor's offspring regarding an agreement signed by the settlor to reform a trust, the trial court properly granted summary judgment to one sibling over the other, upholding the agreement as validly reforming the trust in order to fully effectuate the settlor's intent that the offspring divide the remainder of a trust's proceeds equally between them, per stirpes; moreover, the trial court correctly ruled that the prevailing sibling could not rely on the defenses of laches and unclean hands as such were equitable doctrines not applicable in a declaratory judgment action. Briden v. Clement, 283 Ga. App. 626, 642 S.E.2d 318 (2007).

Laches.

- If it cannot be said as a matter of law that a plaintiff was dilatory in asserting a claim, the defense of laches is a question for the jury, and summary judgment cannot be granted for the defendant on such issue. Davidson Mineral Properties, Inc. v. Gifford-Hill & Co., 235 Ga. 176, 219 S.E.2d 133 (1975).

Mandamus actions.

- Fact that O.C.G.A. § 9-6-20 et seq. provides rules under which mandamus actions shall be tried would not make O.C.G.A. § 9-11-56 inapplicable in mandamus actions because there is no express conflict between the sections. Harrison v. Weiner, 226 Ga. 93, 172 S.E.2d 840 (1970).

Matters in abatement and in bar.

- Motion for summary judgment applies to the merits of a claim or to matters in bar, but not to matters in abatement. Boyd Motors, Inc. v. Radcliff, 128 Ga. App. 15, 195 S.E.2d 291 (1973); Larwin Mtg. Investors v. Delta Equities, Inc., 129 Ga. App. 769, 201 S.E.2d 187 (1973).

Defenses enumerated in O.C.G.A. § 9-11-12(b), except for failure to state a claim upon which relief can be granted, are matters in abatement, which are not within the scope of summary judgment procedure. Boyd Motors, Inc. v. Radcliff, 128 Ga. App. 15, 195 S.E.2d 291 (1973); Ogden Equip. Co. v. Talmadge Farms, Inc., 232 Ga. 614, 208 S.E.2d 459 (1974); International Indem. Co. v. Blakey, 161 Ga. App. 99, 289 S.E.2d 303 (1982); Kirkpatrick v. Mackey, 162 Ga. App. 876, 293 S.E.2d 461 (1982).

Motion for summary judgment cannot be granted on matters in abatement. Ogden Equip. Co. v. Talmadge Farms, Inc., 232 Ga. 614, 208 S.E.2d 459 (1974); Carlson v. Hall County Planning Comm'n, 233 Ga. 286, 210 S.E.2d 815 (1974); Walsey v. Lockhart, 136 Ga. App. 624, 222 S.E.2d 141 (1975); C.W. Matthews Contracting Co. v. Capital Ford Truck Sales, Inc., 149 Ga. App. 354, 254 S.E.2d 426 (1979); Primas v. Saulsberry, 152 Ga. App. 88, 262 S.E.2d 251 (1979); Safwat v. United States Leasing Corp., 154 Ga. App. 341, 268 S.E.2d 395 (1980); Bennett v. Fine Jewelers Atl. Guild, Inc., 194 Ga. App. 377, 390 S.E.2d 625 (1990).

Summary judgment involves an adjudication on the merits, and should not be used in ruling on a dilatory plea or plea in abatement. National Heritage Corp. v. Mount Olive Mem. Gardens, Inc., 244 Ga. 240, 260 S.E.2d 1 (1979).

Matters in abatement are raised and resolved under O.C.G.A. § 9-11-12, and are not proper subjects for a motion for summary judgment. Hight v. Blankenship, 199 Ga. App. 744, 406 S.E.2d 241 (1991).

As a determination whether compliance with the ante litem notice requirement of O.C.G.A. § 36-33-5 was met by property owners who asserted claims against a municipality was properly considered a matter in abatement, which should have been raised in a motion to dismiss under O.C.G.A. § 9-11-12, flexibility by the court was required; accordingly, consideration of the matter within the summary judgment context, pursuant to O.C.G.A. § 9-11-56, was proper because matters outside of the pleadings, including the owners' depositions, were considered. Davis v. City of Forsyth, 275 Ga. App. 747, 621 S.E.2d 495 (2005).

Peer review.

- Under the Health Care Quality Improvement Act of 1986, specifically 42 U.S.C. § 11112(a)(4), a professional review action is presumed to have met the requisite conditions for immunity unless the presumption is rebutted by a preponderance of the evidence; thus, in ruling on a motion for summary judgment under the Act, the trial court is required to determine, viewing the facts in the light most favorable to the plaintiff, whether a reasonable jury could conclude that the plaintiff has shown by a preponderance of the evidence that the peer review activities did not meet the standards set forth in the Act. Patton v. St. Francis Hosp., 260 Ga. App. 202, 581 S.E.2d 551 (2003).

Trial court properly granted summary judgment for a hospital in an action arising out of the refusal to reinstate a doctor's staff privileges, finding that the hospital had immunity under the Health Care Quality Improvement Act of 1986 (HCQIA), 42 U.S.C. § 11101 et seq., because: (1) letters allowing the doctor to resume seeing patients only if the doctor complied with the doctor's psychiatrist's plan were not peer review action; (2) if the letters were peer review action, the doctor was afforded adequate notice and fair process; (3) the doctor failed to rebut the presumption that the peer review process was reasonable; (4) the doctor failed to rebut the presumption that the doctor was afforded adequate notice and a hearing; and (5) any violation of the hospital's bylaws did not necessarily mean that the doctor was denied adequate notice and a hearing under the HCQIA. Taylor v. Kennestone Hosp., Inc., 266 Ga. App. 14, 596 S.E.2d 179 (2004).

Medical malpractice.

- If a motion for summary judgment is supported by evidence that there is no genuine issue for trial, as the medical doctor performed the entire procedure in a medically accepted and recognized manner and in so doing exercised the degree of care and skill that is generally employed by physicians under similar circumstances, it would be necessary that the plaintiff offer evidence showing that there is a genuine issue for trial. Swindell v. St. Joseph's Hosp., 161 Ga. App. 290, 291 S.E.2d 1 (1982); Bieling v. Battle, 209 Ga. App. 874, 434 S.E.2d 719 (1993).

Trial court erred in denying the appellants' motion for summary judgment on the patient's second action for medical malpractice, breach of contract, and failure to secure informed consent as the first action was against the same defendant, it was an adjudication on the merits, and the patient had a full and fair opportunity to litigate the first action. Simon v. Gunby, 260 Ga. App. 3, 578 S.E.2d 482 (2003).

Summary judgment pursuant to O.C.G.A. § 9-11-56 was properly granted to physicians in a medical malpractice action against the physicians in which the plaintiff patient claimed radiation damage to an arm that the doctors did not reveal until the expiration of the limitations period of O.C.G.A. § 9-3-71(a); however, the record revealed that the physicians had repeatedly informed the patient that such damage was one of the possible causes of the arm pain and there was no fraud found on the physicians' part which would have extended the time period pursuant to O.C.G.A. § 9-3-96. Price v. Currie, 260 Ga. App. 526, 580 S.E.2d 299 (2003).

Summary judgment was granted pursuant to O.C.G.A. § 9-11-56(c) to a hospital in an action brought by parents who alleged that the mother had received negligent pre-natal care at the hospital, which resulted in permanent injuries to her son; the obstetricians and residents who rendered care to the mother were found to be in private practice and were independent contractors who were not subject to any control over their judgments or decisions by the hospital, rather than employees of the hospital and, accordingly, there was no liability on the part of the hospital for the contractor's actions. Anderson v. Medical Ctr., Inc., 260 Ga. App. 549, 580 S.E.2d 633 (2003).

In a medical malpractice suit decided in favor of a doctor on the doctor's motion for summary judgment, res ipsa loquitur did not apply in a malpractice suit as an unintended result did not raise an inference of negligence; it was presumed that medical or surgical services were performed in an ordinarily skillful manner. Oakes v. Magat, 263 Ga. App. 165, 587 S.E.2d 150 (2003).

O.C.G.A. § 31-9-6.1(c) squarely places the responsibility for obtaining consent to surgical procedures on the shoulders of the "responsible physician," who is defined in O.C.G.A. § 31-9-6.1(h) as the physician who performs the procedure or the physician under whose direct orders the procedure is performed by a nonphysician; an assisting physician was not responsible for obtaining a patient's consent for a leg-nerve surgery, and summary judgment for the doctor in a malpractice case brought by the patient was affirmed. Duke v. Bachner, 266 Ga. App. 109, 596 S.E.2d 414 (2004).

Statute of repose in a medical malpractice claim ran from the date the negligent or wrongful act or omission occurred without regard to when the injury arising from the negligent act or omission occurred or was discovered; thus, a malpractice claim filed more than five years after the date on which the last negligent or wrongful act or omission attributable to the doctor and the medical center could have occurred was time barred, and summary judgment in favor of a doctor and a medical center in a patient's malpractice claim was affirmed. Christian v. Atha, 267 Ga. App. 186, 598 S.E.2d 895 (2004).

Trial court properly granted a surgeon's summary judgment motion and held that a patient's medical malpractice suit was barred by the two-year statute of limitations set forth in O.C.G.A. § 9-3-71(a), which began to run at the time of the alleged misdiagnosis, when a surgeon advised the patient that the patient did not have breast cancer but recommended close follow-up care; the case did not fall within the limited exception for subsequent injury cases as the patient's symptoms worsened over time. Harrison v. Daly, 268 Ga. App. 280, 601 S.E.2d 771 (2004).

In a negligence action filed by a decedent's administrator, summary judgment was properly granted to a doctor and a clinic for the post-op treatment of the decedent as: (1) both the doctor and the clinic remained immune from suit under O.C.G.A. § 51-1-29.1; (2) the doctor's treatment of the decedent's complications immediately following the decedent's surgery did not change the voluntary nature of the treatment as a whole; (3) it was reasonable to expect that a physician would continue to treat a patient following surgery; and (4) the appeals court viewed the doctor's voluntary treatment of the decedent as a whole, not divided into categories of preoperative, operative, and post-operative; moreover, because no evidence was presented that either the doctor or the clinic was a "charitable institution," and O.C.G.A. § 51-1-29.1 provided no such exception, waiver of any common-law charitable immunity through the doctor's procurement of liability insurance did not apply. Wells v. Rogers, 281 Ga. App. 473, 636 S.E.2d 171 (2006), cert. denied, 2007 Ga. LEXIS 101 (Ga. 2007).

Because a catheter intentionally placed in a patient's body was not a "foreign object" as contemplated by O.C.G.A. § 9-3-72, and the fact that the catheter might have been negligently placed did not alter this finding, absent evidence of a doctor's fraud or concealment of the fraud, summary judgment in a patient's medical malpractice suit was properly granted to a doctor and a clinic as the applicable two-year statute of limitation had expired by the time the action was filed. Pogue v. Goodman, 282 Ga. App. 385, 638 S.E.2d 824 (2006).

Trial court erred in denying partial summary judgment on a patient's medical malpractice and ordinary negligence claims, when, given evidence that the patient suffered an injury arising out of the misdiagnosis in January of 1999, when the patient was first seen by the doctor manifesting continuous symptoms of a moderate B-12 deficiency and the doctor failed to make the diagnosis and provide treatment, and the patient failed to file an action within the two years; but, because the patient's ordinary negligence and breach of fiduciary duty claims were essentially malpractice claims, subject to the same limitations period, summary judgment as to these claims was upheld. Stafford-Fox v. Jenkins, 282 Ga. App. 667, 639 S.E.2d 610 (2006).

On appeal from the grant of summary judgment in favor of a dentist in a patient's medical malpractice action, such was upheld based on the expiration of the statute of limitation and rejection of the continuous treatment doctrine by the Supreme Court of Georgia and because the exception for a subsequent injury did not apply. Bousset v. Walker, 285 Ga. App. 102, 645 S.E.2d 593 (2007).

In a medical malpractice action, because the record on appeal contained evidence creating a genuine issue of material fact as to the proximate cause of a patient's injuries, the trial court erred in granting a hospital summary judgment; moreover, the appeals court declined to hear the hospital's claim that the patient failed to comply with O.C.G.A. § 9-11-9.1. Renz v. Northside Hosp., Inc., 285 Ga. App. 882, 648 S.E.2d 186 (2007).

Trial court erred in granting a medical clinic's motion for summary judgment in a patient's medical malpractice action and in finding that an affidavit provided by a patient's expert did not sufficiently establish causation as the expert specifically explained the precautions that should have been taken by the employee administering a shot to the patient, and stated that the failure to take these precautions proximately caused the patient's injury; moreover, given the expert's past relevant experience as a nurse, the expert was competent to provide an opinion in the case. Allen v. Family Med. Ctr., P.C., 287 Ga. App. 522, 652 S.E.2d 173 (2007).

Because a medical care provider failed to assert an available defense in the underlying action which would have absolved the provider from any liability and prevented a default judgment from entering against the provider, the trial court did not err in entering summary judgment against the provider on the provider's claims for contribution and indemnity. Emergency Professionals of Atlanta, P.C. v. Watson, 288 Ga. App. 473, 654 S.E.2d 434 (2007), cert. denied, 2008 Ga. LEXIS 407 (Ga. 2008).

In a medical malpractice action, because the undisputed evidence showed that both the personal injury claims and a later-added wrongful death claim were timely filed, both in terms of O.C.G.A. § 9-3-71 and the relevant statute of repose, the doctors sued were properly denied summary judgment as to those claims. Cleaveland v. Gannon, 288 Ga. App. 875, 655 S.E.2d 662 (2007), aff'd, 284 Ga. 376, 667 S.E.2d 366 (2008).

In a couple's medical malpractice action, because: (1) the couple failed to follow the court's case management orders, which the couple selected and consented to; (2) the couple's only expert was properly excluded as a rebuttal witness; and (3) the couple failed to present any evidence of causation, the trial court properly entered summary judgment against the couple. Thomas v. Peachtree Orthopaedic Clinic, P.C., 290 Ga. App. 869, 660 S.E.2d 758 (2008), cert. denied, No. S08C1373, 2008 Ga. LEXIS 915 (Ga. 2008).

In a medical malpractice action, because the suing couple's failure to faithfully engage in discovery could not be remedied by the exclusion of probative trial evidence, specifically, the testimony from the couple's expert witness, the trial court erred in entering summary judgment against the couple. Hart v. Northside Hosp., Inc., 291 Ga. App. 208, 661 S.E.2d 576 (2008).

Trial court properly granted summary judgment to an eye doctor and a corporation as even though the type of eye surgery performed on the patient made the patient more vulnerable to an eye infection and even though an eye infection caused the patient's loss of sight, the patient was unable to show the medical malpractice element of causation since the patient did not show that anything the doctor did, or failed to do, caused the eye infection. Berrell v. Hamilton, 260 Ga. App. 892, 581 S.E.2d 398 (2003).

Doctor's liability for certifying patient "safe" for activity.

- Trial court properly granted summary judgment to a doctor on the administrator's wrongful death suit alleging that the doctor negligently certified the truck driver to drive a truck even though the doctor knew or should have known that the truck driver had a pre-existing heart condition as the truck driver three months later died while driving the truck which then struck the decedent's vehicle and killed the decedent; even giving the administrator the benefit of all reasonable doubt, and construing the evidence and inferences in the administrator's favor, the doctor was entitled to summary judgment because the doctor did not have the legal authority to restrain the truck driver for the benefit of the motoring public and, thus, the doctor did not owe a duty to the decedent. Houston v. Bedgood, 263 Ga. App. 139, 588 S.E.2d 437 (2003).

Apparent authority of doctor working in emergency room.

- Trial court erred in granting the hospital's motion for summary judgment on the issue of whether an emergency room doctor was an apparent employee of the hospital since the evidence failed to show that the hospital had sufficiently notified the patient that the doctor was not the hospital's employee by allegedly posting a sign or including a paragraph in a two page document so indicating. Cooper v. Binion, 266 Ga. App. 709, 598 S.E.2d 6 (2004).

Hospital's liability for doctor's actions.

- Trial court erred in granting summary judgment to the hospital on the issue of whether the doctor was an actual employee of the hospital because evidence showed, inter alia, that the doctor was hired to perform a service rather than accomplish a task, the hospital supplied the equipment used by the doctor, the hospital retained the right to control the doctor's hours of work, the doctor was paid by the hour, the doctor spent all working hours at the hospital, the hospital handled all the billing of patients, and the hospital paid the doctor's malpractice insurance. Cooper v. Binion, 266 Ga. App. 709, 598 S.E.2d 6 (2004).

Negligent credentialing.

- Surviving spouse's negligent credentialing suit against a hospital was properly dismissed on summary judgment as the undisputed evidence showed that the surgeon did not perform the prostatic cryosurgery negligently. The surviving spouse's own expert witness affirmatively stated that the rectal injury, which caused the deceased spouse's death, was not the result of the surgeon's negligence during the cryosurgery but was a complication that could have occurred during any prostate cancer surgery and in the absence of any negligence, and that the surgeon's negligence did not occur until five weeks later, during the surgeon's treatment of the deceased spouse following an emergency hospitalization. Ladner v. Northside Hosp., Inc., 314 Ga. App. 136, 723 S.E.2d 450 (2012).

Intentional infliction of emotional distress by medical staff.

- Trial court's grant of summary judgment, pursuant to O.C.G.A. § 9-11-56(c), to a hospital was proper in an action by a patient and her husband, alleging intentional infliction of emotional distress because there was no evidence to support a finding of intent or reckless disregard by an emergency room nurse, who had unsuccessfully attempted to search through the patient's clothing when she came in suffering a miscarriage; the fact that when the wife was home doing laundry, the intact fetus, still in the fetal sac, fell out of her pants could have been sufficient to support a finding that the nurse was negligent, but not more. Roddy v. Tanner Med. Ctr., Inc., 262 Ga. App. 202, 585 S.E.2d 175 (2003).

Legal malpractice.

- Trial court properly granted partial summary judgment to an attorney, the law firm partners, and the law firm on a client's breach of fiduciary duty and fraud claims as the claims were merely duplicative of the client's legal malpractice claim. Furthermore, even if the claims were not duplicative, the client's evidence that the attorney charged a grossly excessive fee, charged the client for estate planning software that the attorney retained for general use, failed to inform the client about the attorney's concerns, and misrepresented the attorney's ability would not have survived summary judgment. Griffin v. Fowler, 260 Ga. App. 443, 579 S.E.2d 848 (2003).

Trial court erred in granting summary judgment to the closing attorney on the alleged client's claims for legal malpractice and fraud as genuine issues about whether an attorney-client relationship existed and whether misrepresentations had been made precluded summary judgment, but the trial court properly granted summary judgment to the closing attorney on the alleged client's Georgia Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., claim because the alleged client did not show the required "pattern of racketeering" activity. Mays v. Askin, 262 Ga. App. 417, 585 S.E.2d 735 (2003).

Because the evidence showed that an attorney continued to represent a brother and sister as co-executors of an estate after conflicts of interest arose, that the attorney used information obtained from the brother to bring a collection action against the sister, and that the attorney retained another attorney to investigate more of the sister's debts, material issues of fact existed that precluded summary judgment on the sister's claims against the attorney for legal malpractice, breach of fiduciary duty, fraud, and conspiracy. Traub v. Washington, 264 Ga. App. 541, 591 S.E.2d 382 (2003).

Trial court properly granted summary judgment to an attorney after a client filed a legal malpractice claim against the attorney more than four years and 11 months after the attorney withdrew from representing the client in a bankruptcy matter as no genuine issue of material fact existed but that the client's claim was barred by the four-year limitations period and, thus, any act of malpractice on the attorney's part giving rise to the claim had to have occurred more than four years before the client filed the client's claim. Shores v. Troglin, 260 Ga. App. 696, 580 S.E.2d 659 (2003).

Attorneys' summary judgment motion in a legal malpractice case was properly denied as there was evidence that a nurse in the injured party's underlying negligence case deviated from the standard of care, and that but for the attorneys' negligence in dismissing the negligence case, intending to refile the case later, despite the passing of the time period limited by the statute of repose, the injured party would have won the underlying negligence case. Blackwell v. Potts, 266 Ga. App. 702, 598 S.E.2d 1 (2004).

In a legal malpractice action, because the attorneys' failure to exercise due diligence in procuring service of process constituted professional negligence, resulting in a loss of their clients' rights to pursue a claim against their own UM carrier, and conflicting evidence was presented as to the issue of whether the clients' rights under O.C.G.A. § 9-2-61 to pursue a claim against their own uninsured motorist insurance carrier were impeded by their attorneys' actions, summary judgment was reversed. Butler v. Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, P.L., 280 Ga. App. 207, 633 S.E.2d 614 (2006).

While an attorney was shielded from liability as to the issue of whether a breach occurred as to the duty of care owed to the clients by failing to verify the complaint pursuant to O.C.G.A. § 9-11-11.1(b), opting instead to dismiss the complaint and refile the complaint as a renewal action, summary judgment as to the issues of harm to the clients and a breach of the duty of ordinary care as a result of the attorney's failure to advise was reversed. Chatham Orthopaedic Surgery Ctr., LLC v. White, 283 Ga. App. 10, 640 S.E.2d 633 (2006).

Despite an attorney's claim that privity of contract with a decedent's widow was lacking, because the evidence supported a finding that the widow was an intended beneficiary of the decedent's will, the attorney owed the widow a similar duty to the one owed to the decedent, as the attorney's client, resulting in the attorney's liability upon a breach of that duty, making partial summary judgment in the widow's favor proper. Young v. Williams, 285 Ga. App. 208, 645 S.E.2d 624 (2007).

In a legal malpractice action, despite the fact that the trial court held that the client's failure to prove proximate causation supported an order granting summary judgment to the attorney and that attorney's law firm, the appeals court nevertheless held that summary judgment was properly granted to the attorney, under the "right for any reason" rule, as the suit was untimely filed. Moreover, the client's argument that the attorney could have amended the suit to add a damages claim up until the time of a pre-trial order, and that this later failure to act should be considered the triggering date for the malpractice action, was unavailing, as the attorney's failure to amend constituted a failure to avoid the effect of the earlier breach and a failure to mitigate damages, but was not a failure inflicting a new harm, thus triggering a new limitations period. Duke Galish, LLC v. Arnall Golden Gregory, LLP, 288 Ga. App. 75, 653 S.E.2d 791 (2007), cert. denied, No. S08C0416, 2008 Ga. LEXIS 212 (Ga. 2008).

Attorney contract claim reversed.

- Trial court's denial of a client's summary judgment motion was reversed as the oral contract between an attorney and the client was unenforceable in that: (1) there was no definition of what was to be considered the ultimate or logical conclusion of any given case assigned to the attorney, nor were there standards for determining if the attorney "didn't do the job"; (2) there was no stated duration of the agreement, and the public policy of Georgia was clear that, absent a definite term of employment, the contract was terminable at will under O.C.G.A. § 34-7-1; and (3) the attorney's claimed damages, the attorney's hourly rate times the number of hours it would have taken the attorney to bring each case to its ultimate or logical conclusion, were speculative and not objectively ascertainable from the oral contract. Furthermore, as to an attorney's breach of contract claim, the trial court failed to consider the public policy issues involved in the attorney-client relationship and should have granted summary judgment to the client; in Georgia, because of the fiduciary relationship between an attorney and a client, the client had the absolute right to discharge the attorney and terminate the relationship at any time, even without cause, and the client's freedom in ending the attorney-client relationship without financial penalty was favored over the attorney's right to enforce the damages provision in the attorney's retainer contract because requiring a client to pay damages for terminating the client's attorney's employment contract eviscerated the client's absolute right to terminate. Ga. Farm Bureau Mut. Ins. Co. v. Croley, 263 Ga. App. 659, 588 S.E.2d 840 (2003).

Ratification.

- When a company sued the company's accountants regarding the accountants' participation in a sale of the company's assets, summary judgment should have been granted in favor of the accountants because the company ratified the actions of the company's employee who had apparent authority to conduct the sale when the company retained the proceeds of the sale and accepted a return of the assets sold in settlement of another lawsuit. R.W. Holdco, Inc. v. Johnson, 267 Ga. App. 859, 601 S.E.2d 177 (2004).

Summary judgment was properly granted to an attorney in a former criminal client's legal malpractice action because the former client failed to establish any grounds to support the client's allegations of ineffective assistance and was merely relitigating the client's denied habeas petitions on which the attorney had represented the client. Cornwell v. Kirwan, 270 Ga. App. 147, 606 S.E.2d 1 (2004).

Denial of summary judgment affirmed.

- Trial court's denial of a client's summary judgment motion was affirmed as to an attorney's conversion claim because the issue of the attorney's consent to the removal of files from the attorney's office was not clear-cut. Ga. Farm Bureau Mut. Ins. Co. v. Croley, 263 Ga. App. 659, 588 S.E.2d 840 (2003).

Negligence.

- Even though the facts in the case are uncontradicted and uncontroverted, if the facts are such that there is room for a difference of opinion between reasonable persons as to whether or not negligence should be inferred, the right to draw the inference is peculiarly within the exclusive province of the jury. Yeager v. Jacobs, 111 Ga. App. 358, 141 S.E.2d 837 (1965);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

It is for a jury to decide in a negligence case whether the alleged acts constituted negligence and whether or not the acts were the proximate cause of the plaintiff's injuries, and the mere fact that it is shown without dispute that the plaintiff was guilty of certain acts that could be characterized as negligent would not authorize a grant of summary judgment for the defendant if reasonable minds could differ as to whether the plaintiff's acts amounted to negligence. Yeager v. Jacobs, 111 Ga. App. 358, 141 S.E.2d 837 (1965);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Questions necessitating a decision as to whether the facts show that lack of ordinary care for one's own safety, which will bar recovery, or only that comparative negligence, which will reduce it, are generally for the jury. Stukes v. Trowell, 119 Ga. App. 651, 168 S.E.2d 616 (1969).

In a negligence case, it must be plainly and palpably shown that the defendants in no way contributed to the proximate cause of damages incurred in order for the trial court to sustain a motion for summary judgment in their favor. Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90, 176 S.E.2d 487 (1970).

Issues of negligence, including the related issues of assumption of risk, lack of ordinary care for one's own safety, lack of ordinary care in avoiding the consequences of another's negligence, and comparative negligence, are ordinarily not susceptible of summary adjudication, whether for or against the plaintiff or the defendant, but must be resolved by trial. Reed v. Batson-Cook Co., 122 Ga. App. 803, 178 S.E.2d 728 (1970); Shuman Supply of Savannah, Inc. v. Skinner, 128 Ga. App. 431, 197 S.E.2d 152 (1973); North v. Toco Hills, Inc., 160 Ga. App. 116, 286 S.E.2d 346 (1981); Fort v. Boone, 166 Ga. App. 290, 304 S.E.2d 465 (1983).

Negligence, diligence, and contributory negligence are not ordinarily susceptible of adjudication on summary judgment. Lockhart v. Walker, 124 Ga. App. 241, 183 S.E.2d 503 (1971).

Party who moves for summary judgment in a case premised on negligence has a considerable burden, and if the defendant is the movant, sometimes summary judgment may not be obtained even though a directed verdict could be secured at trial. Turner v. Noe, 127 Ga. App. 870, 195 S.E.2d 463 (1973).

Questions involving negligence, and especially those involving whether, under the circumstances, the defendant exercised ordinary care, are properly for the jury. Lockhart v. Beaird, 128 Ga. App. 7, 195 S.E.2d 292 (1973).

Questions of negligence as to cause and proximate cause, and as to what negligence, and whose negligence, constitutes proximate cause of damages in tort cases are generally solely for the jury, except in plain and palpable cases. Summers v. Milcon Corp., 134 Ga. App. 182, 213 S.E.2d 515 (1975).

Summary judgment will not usually be as feasible in negligence cases, when the standard of the reasonable person must be applied to conflicting testimony, as it is in other kinds of litigation, since even if there is no dispute as to the facts, it is usually for the jury to say whether the conduct in question met the standard of the reasonable person. Epps Air Serv., Inc. v. DeKalb County, 147 Ga. App. 195, 248 S.E.2d 300 (1978); Jones v. Crown Constr. Co., 152 Ga. App. 578, 263 S.E.2d 460 (1979).

Unless no other conclusion is permissible, questions of negligence are matters for jury resolution and are not ordinarily susceptible to summary adjudication. Epps Air Serv., Inc. v. DeKalb County, 147 Ga. App. 195, 248 S.E.2d 300 (1978).

Questions of negligence and proximate cause are peculiarly questions for the jury except in clear, plain, palpable, and undisputed cases. Only in the rare case in which there is an admission of liability or an indisputable fact situation that clearly establishes liability should summary judgment be granted. Lozynsky v. Hutchinson, 159 Ga. App. 715, 285 S.E.2d 70 (1981).

Negligence in the workplace.

- In an action against the issuer of a property loss policy covering a boiler involved in an explosion, the defenses that the death of the decedent was the result of the negligence of others and that the decedent and the decedent's employer knew of the defective condition in the subject boiler and did not rely on inspections, did not require affirmative pleading and involved questions of fact, precluding a grant of partial summary judgment. Cleveland v. American Motorists Ins. Co., 163 Ga. App. 748, 295 S.E.2d 190 (1982).

If the facts conclusively show by plain, palpable, and undisputed evidence that the defendant was not at fault, including a case involving contentions of negligence, contributory negligence, or exercise of ordinary care for one's own safety, the case properly may be resolved as a matter of law through the vehicle of summary judgment. Fort v. Boone, 166 Ga. App. 290, 304 S.E.2d 465 (1983).

Issues of negligence, assumption of risk, contributory negligence, and comparative negligence are not susceptible of summary adjudication except in plain, palpable, and indisputable cases. Malvarez v. Georgia Power Co., 166 Ga. App. 498, 304 S.E.2d 542 (1983).

When issues of negligence, diligence, and contributory negligence are involved, it is necessary that such issues be resolved by a jury rather than by summary adjudication. Georgia Power Co. v. Knighton, 169 Ga. App. 416, 312 S.E.2d 872 (1984).

In an automotive negligence action, because the materials relied upon by the defendant pierced the plaintiff's pleadings, the plaintiff's failure to set forth specific facts showing there was a genuine issue for trial warranted an award of summary judgment for the defendant. Butler v. Huckabee, 209 Ga. App. 761, 434 S.E.2d 576 (1993).

In a negligence action, questions of proximate cause are peculiarly reserved for jury determination except in clear, plain, and undisputed cases. Coweta County v. Adams, 221 Ga. App. 868, 473 S.E.2d 558 (1996).

Because the plaintiff failed to present any evidence that raised a question of fact as to whether the defendant was negligent, the plaintiff's contentions regarding what might have happened disappeared in light of the uncontradicted witness testimony as to what did happen, and the trial court correctly granted summary judgment to the defendant. Etheredge v. Kersey, 236 Ga. App. 243, 510 S.E.2d 544 (1998).

Because the plaintiff in a negligence case failed to make a showing that the defendant's negligence caused the plaintiff's injuries, but could only speculate that a greasy substance caused the plaintiff to slip and fall, summary judgment was properly awarded to the defendant. Christopher v. Donna's Country Store, 236 Ga. App. 219, 511 S.E.2d 579 (1999).

Resolution of an employer's obligation to indemnify a manufacturer with regard to a claim brought by an employee did not turn on whether the employer was negligent but instead hinged on whether the manufacturer was solely negligent, and since the manufacturer submitted evidence creating a fact issue as to whether the employee failed to exercise ordinary care for the employee's own safety, the trial court erred when the court granted partial summary judgment to the employer on the manufacturer's contractual indemnification claim; the manufacturer failed to show that the employer did not adequately train the employee, so summary judgment as to that issue was affirmed, and the trial court did not err in denying partial summary judgment to the employer on the manufacturer's claim for a defense. Nat'l Gypsum v. Ploof Carriers Corp., 266 Ga. App. 565, 597 S.E.2d 597 (2004).

Even though later damage to a gas line left exposed in a home was an intervening act that led to a fatal gas fueled fire in the home, the liability of a corporation for the negligence of the corporation's employees in leaving the gas line exposed was still allowed if the employees could have reasonably anticipated or foreseen the intervening act as a consequence of the original negligence; as the evidence would have allowed a jury to find that the natural and probable consequence of leaving a line exposed was that the line would have been damaged, the issue of proximate cause should have been decided by a jury, and summary judgment in favor of the corporation in a wrongful death action brought by the decedent's children was reversed. Beasley v. A Better Gas Co., 269 Ga. App. 426, 604 S.E.2d 202 (2004).

Trial court properly granted summary judgment against an employee, in a third-party action against two contractors and a consultant, because: (1) the employee failed to present sufficient evidence that the alleged negligence by these third parties caused excessive clogging of the conveyor as the employee was injured and forced the employer to operate a conveyor without its cover; and (2) even if the employee established a factual issue as to whether these third parties were negligent in failing to install an emergency pull-cord on the conveyor or in failing to put a second light switch in the tunnel, the employee was still required to show that such was a proximate cause of the injury, which the employee failed to do; moreover, none of the third parties could have reasonably anticipated or foreseen that the employer would negligently seal off the access where the tunnel light switch was located and disregard the manufacturer's warnings and OSHA regulations by running the conveyor with a section of the cover removed. Cieplinski v. Caldwell Elec. Contrs., Inc., 280 Ga. App. 267, 633 S.E.2d 646 (2006).

Because any duty a construction site owner and various contractors had to warn a construction worker of the buried electrical lines was satisfied by notice to that worker's supervisor, who admitted to notice and knowledge of the buried lines, the trial court properly entered summary judgment against the worker in a negligence action filed against them as no other duties existed; moreover, the worker's denial as to being informed by the supervisor of the existence and location of the buried lines in the area worked on was neither relevant nor material to the issue of any duty owed to the worker, and was not a genuine issue of material fact that would have precluded summary judgment. McKinney v. Regents of the Univ. Sys. of Ga., 284 Ga. App. 250, 643 S.E.2d 736 (2007), cert. denied, 2007 Ga. LEXIS 497 (Ga. 2007).

Negligence from sporting event.

- Trial court properly granted summary judgment to a professional baseball player and the player's team, and against a baseball fan, in the latter's negligence suit as the fan voluntarily assumed the risk of injury from an errantly thrown baseball, and thus failed to come forth with specific evidence giving rise to a triable issue of fact. Dalton v. Jones, 260 Ga. App. 791, 581 S.E.2d 360 (2003).

Contractor's negligence.

- Trial court properly granted partial summary judgment to a contractor, the contractor's business, and a subcontractor under O.C.G.A. § 9-11-56(c) because: (1) a party was injured while attempting to put out a fire allegedly caused by the contractor's negligence, injuring the party's leg and foot; (2) despite being prescribed a removable cast and crutches, the injured party walked to the bathroom without the cast and crutches and fell, injuring the party's shoulder; (3) the treating physician testified that if the injured party was not experiencing pain, the injured party could walk short distances without the cast and crutches, however, the injured party had been experiencing pain; and (4) the injured party's own intervening act broke the chain of causation for the shoulder injury. Hynes v. Cagle, 264 Ga. App. 367, 590 S.E.2d 770 (2003).

Summary judgment is appropriate in negligence cases when, viewing all the facts and reasonable inferences from those facts in a light most favorable to the plaintiff, the evidence does not create a triable issue on the question of proximate cause; although the question of proximate cause is ordinarily for the jury to decide, plain and indisputable cases may be decided by the court as a matter of law and the inquiry in such cases is whether the causal connection between the defendant's conduct and the injury is too remote for the law to countenance a recovery. Brown v. All-Tech Inv. Group, Inc., 265 Ga. App. 889, 595 S.E.2d 517 (2004).

Negligence in auto accident.

- Summary judgment was properly entered for a trucker in a third-party negligence action brought by a driver who turned into a truck to avoid a head-on collision while the driver was attempting a pass that was illegal under O.C.G.A. § 40-6-42; there was nothing to show that the trucker knew, or in the exercise of ordinary care should have known, that the driver was likely to attempt an illegal pass and the trucker was complying with the traffic regulations at the time of the accident. Rios v. Norsworthy, 266 Ga. App. 469, 597 S.E.2d 421 (2004).

Trial court correctly rejected a res ipsa loquitur claim brought against a car owner by a passenger injured in an accident that occurred when the car suffered a sudden steering malfunction since there was evidence that negligent driving may have caused the accident and since the malfunction could have occurred for reasons other than negligent maintenance or repair; however, the trial court erred in denying the car owner's summary judgment motion on the injured passenger's negligence claims since the car owner showed that the owner diligently repaired and maintained the car for over two years until the accident here, since the injured person's evidence did not support a reasonable inference that the malfunction resulted from negligent repair or maintenance and since negligence by the owner could not have been reasonably inferred solely because the owner had repaired and maintained a car that suffered a malfunction. Ken Thomas of Ga., Inc. v. Halim, 266 Ga. App. 570, 597 S.E.2d 615 (2004).

Trial court properly granted summary judgment to a vehicle driver on the vehicle passenger's negligence action against the driver and a second driver after the second driver pulled into the intersection and caused a collision with the vehicle driven by the first driver; the passenger could not show that the first driver breached any duty owed to the passenger or that the first driver's actions were the proximate cause of the passenger's injuries. McQuaig v. Tarrant, 269 Ga. App. 236, 603 S.E.2d 751 (2004).

Trial court properly denied a driver's summary judgment motion in a police officer's personal injury action against the driver as the officer's suit was not barred by the Fireman's Rule given that the alleged negligence that occurred to cause the accident which injured the officer had nothing to do with the officer's presence at the scene. Davis v. Pinson, 279 Ga. App. 606, 631 S.E.2d 805 (2006).

Conclusion of the expert's testimony as to the cause of an auto accident was speculative and could not support summary judgment as the credibility of the expert and the weight to be given to the opinion were matters to be addressed by the jury; moreover, if the expert's opinion was based upon inadequate knowledge, this fact did not mandate the exclusion of the opinion but, rather, presented a jury question as to the weight which should be assigned to the opinion. Layfield v. DOT, 280 Ga. 848, 632 S.E.2d 135 (2006).

In a negligence action stemming from an auto accident between a driver and a farmer's cow, the trial court properly granted summary judgment on the driver's claim for consequential damages, which was sought for a "ruined vacation," as the driver failed to show any evidence of a physical injury which was a necessary element on a claim premised on ordinary negligence. Hoeflick v. Bradley, 282 Ga. App. 123, 637 S.E.2d 832 (2006).

In a personal injury action arising from a child's injuries as a pedestrian, because conflicting testimony was presented to the trial court as to the issue of a driver's negligence as well as a parent's comparative negligence and apportionment of fault, if any, the trial court properly denied the driver's motion for summary judgment. Sutton v. Justiss, 290 Ga. App. 565, 659 S.E.2d 903 (2008).

In a negligence action arising from a vehicular accident, the trial court did not err in denying summary judgment to the driver of the other car and its owner, because the injured party's testimony supplied a reasonable basis to conclude that the injuries were more likely than not the result of the impact of the collision with the car's driver. Wilson v. Allen, 272 Ga. App. 172, 612 S.E.2d 39 (2005).

In a personal injury action against a vehicle's owner filed by an injured passenger based on the negligence of the vehicle's driver, the trial court properly granted summary judgment to the owner, finding no liability under the family purpose doctrine because: (1) the driver was not a member of the owner's immediate household; and (2) the passenger failed to present competent evidence in response to the owner's summary judgment motion as neither hearsay or evidence of conjecture and speculation was sufficient. Patterson v. Lopez, 279 Ga. App. 840, 632 S.E.2d 736 (2006).

In a personal injury action filed by a husband and wife against a driver and that driver's employer, a negligent entrustment claim asserted against the employer was properly disposed of on summary judgment, but because the motion did not include both their negligent hiring and respondeat superior claims, and the husband and wife were not given full and fair notice that those claims were to be included in the motion, those claims also survived. Parker v. Silviano, 284 Ga. App. 278, 643 S.E.2d 819 (2007).

Circumstantial evidence on causation of food poisoning sufficient to withstand summary judgment.

- In an action by rehearsal dinner guests against a caterer alleging food poisoning, summary judgment for the caterer was error; the caterer's circumstantial evidence of the absence of causation (others did not become ill, the guests consumed other food and drink, and did not become ill until days later) was contradicted by other evidence. There was no special element required to be shown in food poisoning cases. Patterson v. Kevon, LLC, 304 Ga. 232, 818 S.E.2d 575 (2018).

Gross negligence.

- Summary judgment was properly entered for the storage companies on an owner's gross negligence claim because: (1) assuming the owner's allegations were true, the storage companies' actions would only be ordinary negligence; (2) the storage companies owed no duty to the owner; and (3) the storage companies were not liable under Georgia's Good Samaritan Doctrine, as the companies did not assume a duty to conduct a vehicle count in the companies' operations manual, the owner was not aware of the manual until after the owner filed suit, and were the storage companies required to conduct a vehicle count, their failure to do so would not have increased the risk of theft as daily counts could only detect that a theft might have occurred after the theft had already occurred. Liberty v. Storage Trust Props., L.P., 267 Ga. App. 905, 600 S.E.2d 841 (2004).

Negligence by independent contractor.

- Although exculpatory clauses signed by a pilot and a safety pilot who flew an aircraft company's plane and engaged in simulated aerial combat were not against public policy under O.C.G.A. § 1-3-7, they were not enforceable if the company was found to have been grossly negligent or to have engaged in willful misconduct, which was an issue to be resolved by the jury; additionally, a jury issue remained as to whether one of the pilots was an independent contractor for purposes of the company's liability under O.C.G.A. § 51-2-5(5), and, accordingly, a grant of summary judgment pursuant to O.C.G.A. § 9-11-56 to the company was error. McFann v. Sky Warriors, Inc., 268 Ga. App. 750, 603 S.E.2d 7 (2004).

To establish a negligence claim, a plaintiff must come forward with specific facts establishing the elements of negligence as to each defendant, including proximate causation, and may not rest upon generalized allegations. Summary judgment was properly granted to a construction company and an architectural firm in an action alleging construction work near the intensive care unit where a patient was being treated stirred up a fatal fungus that caused the patient's death because: (1) it was not established that the construction company performed the work; (2) no medical evidence supported a finding that any alleged construction work was the proximate cause of the transmission of the fungus; (3) the architectural firm was not responsible for deciding when or how the work would be performed; and (4) the architectural firm was not responsible for the hospital's decisions regarding patient treatment, treatment locations, or timing of treatment. Piedmont Hosp., Inc. v. Reddick, 267 Ga. App. 68, 599 S.E.2d 20 (2004).

Negligence by a restaurant.

- In a case brought by an injured person against a restaurant seeking damages arising from the injured person's slip and fall in a restroom, summary judgment for the restaurant was reversed; the restaurant failed to show that the restaurant lacked superior knowledge of the water condition in the restroom because the restaurant knew that a toilet in an adjacent restroom had overflown onto the floor, a restaurant employee had pushed water from the adjoining restroom into the restroom at issue, the restaurant was notified by the injured person's sister that there was water everywhere, the sister's warning to the injured person stopped short of expressly extending to the inside of the restroom, and there was no warning cone placed at either the door of or inside the restroom in question. Belcher v. Ky. Fried Chicken Corp., 266 Ga. App. 556, 597 S.E.2d 604 (2004).

Summary judgment, pursuant to O.C.G.A. § 9-11-56(c), was properly granted to a restaurant by a trial court in an action by a restaurant patron, alleging emotional distress when the patron discovered two blood spots on the french fry container, fearing that the patron would contract HIV or hepatitis, because the patron failed to provide evidence of more than the patron's "fear" of exposure to the diseases; accordingly, the patron's claims for negligence, negligence per se, and breach of the implied warranty of merchantability, under O.C.G.A. §§ 11-2-314 and51-1-23, failed due to the patron's failure to meet the damages requirement. Wilson v. J & L Melton, Inc., 270 Ga. App. 1, 606 S.E.2d 47 (2004).

Administrative errors as negligent act.

- When a retired police officer, to whom a city paid more retirement benefits than the officer was entitled, sued the city for negligence when the city corrected the error, the city was entitled to summary judgment because the city had no authority to pay the officer more retirement benefits than were provided in the officer's retirement plan, and the officer's alleged "early retirement," based on a city clerk's representation that the officer would receive the higher benefit amount the officer was erroneously paid was not an injury for purposes of a negligence cause of action. Dodd v. City of Gainesville, 268 Ga. App. 43, 601 S.E.2d 352 (2004).

Assumption of risks.

- Summary judgment in favor of a skate center was affirmed in a claim brought by a skater who was injured when another skater collided with the skater on an ice rink; it was found that the skater assumed the risks of ice skating, which, by the skater's own admissions, were known to the skater. Fowler v. Alpharetta Family Skate Ctr., LLC, 268 Ga. App. 329, 601 S.E.2d 818 (2004).

Negligence by railroad.

- Appellate court erred in concluding that the trial court's denial of summary judgment to the town and railway on the estate representative's claim that they failed to keep a railroad right-of-way free of visual obstructions caused by overgrown vegetation should be reversed; genuine issues of material fact remained with respect to two separate, independent duties that they may have owed the decedent, whose tractor-trailer was struck by a train as the decedent drove the tractor-trailer across the town's railroad tracks, with one duty arising under the common law and one duty arising under O.C.G.A. § 32-6-51 if there was an absence of any governmental authorization that allegedly obstructed decedent's view. Fortner v. Town of Register, 278 Ga. 625, 604 S.E.2d 175 (2004).

Trial court erroneously denied summary judgment pursuant to O.C.G.A. § 9-11-56(c) to a railroad in a negligence action by an injured car driver, whose car was hit in the rear by a drunk driver, propelling the driver's vehicle forward into a train, as the injured car driver was unable to establish proximate cause between the accident and the negligence of the railroad in maintaining the crossing; whether the reflectorized crossbuck was at the wrong height or not was irrelevant as the drunk driver's intervening act broke the chain of causation. CSX Transp., Inc. v. Deen, 269 Ga. App. 641, 605 S.E.2d 50 (2004).

Simple negligence by medical professionals.

- While the trial court erred in granting summary judgment against a patient in a medical malpractice action based on a failure to attach an expert affidavit pursuant to O.C.G.A. § 9-11-9.1 because the complaint could be construed as alleging claims of ordinary negligence, to the extent the complaint could be read to allege professional malpractice claims, summary judgment was proper; moreover, there were instances in which actions performed by a professional were nevertheless not professional acts constituting professional malpractice, but, rather, were acts of simple negligence which would not require proof by expert evidence. Brown v. Tift County Hosp. Auth., 280 Ga. App. 847, 635 S.E.2d 184 (2006).

Farmer's negligence.

- In a negligence action, summary judgment entered against a driver on a property damages claim was reversed, based on the collateral source rule, defendant farmer's failure to prove the existence of a subrogation agreement, and the issue of the farmer's liability to the driver, if any, was a jury question. Hoeflick v. Bradley, 282 Ga. App. 123, 637 S.E.2d 832 (2006).

Negligence of D.O.T.

- Because alternative grounds in a negligence action arising out of the construction and resurfacing of a road, specifically, whether competent evidence showed that there were any defects in the roadway and whether the Department of Transportation's acceptance of the paving project exonerated the contractor, presented questions of fact for a jury to decide, the Supreme Court of Georgia's reversal of an order granting summary judgment to the Department and the contractor was adopted. Layfield v. DOT, 283 Ga. App. 151, 640 S.E.2d 618 (2006).

Trial court's summary judgment order in a negligence suit was properly entered against a couple, and in favor of a parent, as: (1) the family purpose doctrine did not apply to the couple's lawsuit; (2) the parent's child was not a member of the parent's household; and (3) upon a review of the record, after the parent came forward with sufficient evidence to support the motion, the couple as the non-moving party failed to come forward with evidence in opposition to the motion. Hicks v. Newman, 283 Ga. App. 352, 641 S.E.2d 589 (2007).

Because the undisputed facts presented before the trial court showed that the insurer of the leased premises owed no duty to those who leased the premises, and did not undertake any duty itself or through the insurer's claims adjuster, the trial court erred in denying the insurer's summary judgment motion on the lessees' negligence claim filed against the lessee. GuideOne Mut. Ins. Co. v. Hunter, 286 Ga. App. 852, 650 S.E.2d 424 (2007).

Negligence based on breach of duty.

- In a lessee's negligence action against a lessor, because questions of fact remained regarding the lessor's breach of a duty owed to the lessee in reporting the recovery of a previously stolen rental trailer, and as to whether a breach of that duty proximately caused the lessee to become arrested for being in possession of stolen property and remained detained for a lengthy period of time, those issues could not be resolved as a matter of law; thus, an order granting the lessor summary judgment had to be reversed. Halilovic v. Penske Truck Leasing, 287 Ga. App. 215, 651 S.E.2d 160 (2007).

Negligence by court clerk.

- Because a litigant could not utilize a theory known as "outsider reverse veil-piercing" to support a claim of negligence against a superior court clerk to satisfy a judgment owed to that litigant by a third party, and because the litigant failed to present any other viable proximate cause argument, the clerk was entitled to complete summary judgment as to the issue. Lollis v. Turner, 288 Ga. App. 419, 654 S.E.2d 229 (2007).

Negligence by bus accident.

- In a negligence action between an injured bus passenger and a bus company, because the passenger failed to present evidence regarding the cause of the injuries the passenger sustained while walking in a field after disembarking from the bus after the bus had pulled over, and because the cause remained a matter of pure speculation or conjecture, the trial court had a duty to grant summary judgment to the bus company. Greyhound Lines, Inc. v. Williams, 290 Ga. App. 450, 659 S.E.2d 867 (2008).

Negligence in felling tree.

- In a civil action for damages caused by felling of a tree under the doctrine of respondeat superior, the trial court erroneously denied the homeowner's motion for summary judgment as an independent contractor was hired to fell the tree and the homeowner had no control over the contractor's actions, and the act of felling the tree was not wrongful in itself; moreover, the homeowner's single suggestion or comment that the contractor could proceed with felling the tree as an entire unit did not necessarily have to be followed and did not create liability on the homeowner's part, but was simply confirming the freedom of the contractor to fell the tree as that contractor deemed appropriate. Whatley v. Sharma, 291 Ga. App. 228, 661 S.E.2d 590 (2008).

Good Samaritan law and negligence action.

- In a negligence action filed by the parents on behalf of their injured son, because jury questions remained as to whether a doctor had to provide immediate "emergency care at the scene of an accident or emergency" to the son within the meaning of the Good Samaritan statute, O.C.G.A. § 51-1-29, as well as the employer-hospital's immunity from any vicarious liability, summary judgment was erroneously entered against the parents and in favor of both the doctor and the hospital. Gilley v. Hudson, 283 Ga. App. 878, 642 S.E.2d 898 (2007).

Premises liability to licensee.

- Trial court properly entered summary judgment for a radio station in an injured party's negligence action as the injured party was a licensee and the station did not wilfully or wantonly injure the injured party by maintaining in a perfectly level condition the floor upon which the injured party fell. Howard v. Gram Corp., 268 Ga. App. 466, 602 S.E.2d 241 (2004).

Liability for hunter's death who was licensee on property.

- Premises owner and its operator were properly granted summary judgment in an action filed against them by a decedent's administrator, as the decedent, who was granted permission to hunt on the property without a permit, was not shown to be anything other than a licensee, no breach of any duty owed to the decedent as a licensee was presented, and an intervening illegal act by a third party was the proximate cause of the decedent's death; moreover, because the evidence showed that there had never been an accidental shooting of one hunter by another on the premises, no basis existed for holding that the owners or operator should have foreseen that a third party would come onto the property and illegally shoot at a target which the third party could not identify. Hadden v. ARE Props., LLC, 280 Ga. App. 314, 633 S.E.2d 667 (2006).

Premises liability to lessee.

- In a wrongful death action filed by a decedent-lessee's administrator in which the decedent was killed when crossing a public highway that the lessor did not control, the lessor was properly granted summary judgment as the administrator failed to show that the lessor was negligent per se or that the lessor breached either a common law or private duty owed to the lessee. Walton v. UCC X, Inc., 282 Ga. App. 847, 640 S.E.2d 325 (2006).

Trial court properly granted summary judgment to the homeowners, in a personal injury action filed by a caretaker who worked in the home, as the caretaker's equal knowledge of the improper construction of the stairs in the home barred recovery, despite the fact that the construction violated the applicable building code; moreover, the caretaker's claim was not saved by an admission of contributory negligence. Argo v. Chitwood, 282 Ga. App. 156, 637 S.E.2d 865 (2006).

In a premises liability action arising from a slip and fall on ice by an injured lessee, because jury issues existed as to whether the party exercised the requisite care, and as to the premises owner's knowledge of the hazard, the trial court erred in granting summary judgment to the owner and an insurer and in reasoning that the lessee failed to exercise due care. Little v. Alliance Fire Prot., Inc., 291 Ga. App. 116, 661 S.E.2d 173 (2008).

Appraisers were properly granted summary judgment on the buyers' professional negligence claim, alleging that the appraisers grossly over-inflated the value of the subject property, since the appraisers were not manifestly aware of the use to which the information was to be put and did not intend that the information be so used; despite the fact that the mortgagees were listed among the class of persons to whom the report could have been distributed, the appraisers were clearly unaware that one occupying such status would rely on the appraisal in purchasing the property. Martha H. West Trust v. Mkt. Value of Atlanta, Inc., 262 Ga. App. 90, 584 S.E.2d 688 (2003).

Negligent infliction of emotional distress.

- Trial court properly entered summary judgment under O.C.G.A. § 9-11-56 for the owner of a truck and the truck owner's employee in a train engineer's suit for the negligent infliction of emotional distress arising out of an accident between a train and a truck as the engineer was not physically injured in the accident, and the engineer did not have a property interest injury resulting in a pecuniary loss arising out of the engineer's inability to continue working as the engineer was an at-will employee; the employee's argument that the zone of danger rule should be adopted in negligent infliction of emotional distress actions was rejected. Shores v. Modern Transp. Servs., 262 Ga. App. 293, 585 S.E.2d 664 (2003).

Because an injured party alleged a physical impact and physical injuries, but did not claim that these injuries caused the party mental suffering or emotional distress, the party's mental distress claim was barred by Georgia's impact rule; hence, the trial court erred in denying summary judgment to the driver of the other car involved in the accident and the owner of the car. Wilson v. Allen, 272 Ga. App. 172, 612 S.E.2d 39 (2005).

Trespass.

- Summary judgment was properly entered for a realtor as to a landowner's trespass claim; the landowner never determined that the offending silt fence was actually on the landowner's property, and the realtor testified that the fence was located on a public right-of-way. Sorrow v. Hadaway, 269 Ga. App. 446, 604 S.E.2d 197 (2004).

Person who rented space in a cousin's apartment without the landlord's knowledge or consent was a trespasser, and the trial court properly dismissed an action that the person filed against the landlord and a company that managed the apartment complex seeking damages for injuries the person sustained when the person slipped and fell, because the evidence showed that neither the landlord nor the property manager breached their duty not to willfully or wantonly injure trespassers. Gomez v. Julian LeCraw & Co., 269 Ga. App. 576, 604 S.E.2d 532 (2004).

Imputed liability for acts of independent contractor.

- Summary judgment was properly entered for a realtor and a developer as to a landowner's claim that the realtor and the developer were liable under O.C.G.A. §§ 51-2-4 and51-2-5 for failing to ascertain the location of the boundary between the realtor's lot and the landowner's lot and communicate the boundary line to an independent contractor hired by the developer to brush the realtor's; the developer testified that a creek and a transformer had been used as landmarks for the boundary line in instructing the contractor, and the landowner did not challenge the use of the landmarks. Sorrow v. Hadaway, 269 Ga. App. 446, 604 S.E.2d 197 (2004).

Contractors and subcontractors.

- Summary judgment was properly granted in favor of the home center company on the homeowners' negligence claim because welding was not an intrinsically dangerous activity for which the company remained responsible for its subcontractors; the company was not restricted by the contract in subcontracting the break down and removal of the trade-in mobile home, and was therefore not liable if this were done negligently. Luther v. Wayne Frier Home Ctr. of Tifton, Inc., 264 Ga. App. 827, 592 S.E.2d 470 (2003).

Since a cause of action alleging that a subcontractor had negligently installed wiring in a house accrued on the date of substantial completion of the house for purposes of damage to the realty, a trial court erred in denying the subcontractor's motion for summary judgment, which asserted that the case, filed more than four years after substantial completion of the house, was time barred as to damage to the real property; however, since the cause of action for damage to personal property damaged in the fire accrued on the date of the fire and not the date of substantial completion, the claim for damage to personalty was not time barred, and summary judgment as to that claim was properly denied. Stamschror v. Allstate Ins. Co., 267 Ga. App. 692, 600 S.E.2d 751 (2004).

Trial court properly granted summary judgment to the materialman on an action to recover on a lien release bond after an electrical subcontractor did not pay for materials supplied to the subcontractor by the materialman, and despite the claim of the general contractor and surety that the materialman did not comply with a lien statute notice requirement; the lien statute notice requirement was meant to protect prospective purchasers from unknowingly buying property encumbered by liens and did not apply to the materialman's situation because the materialman, acting as a lien claimant, was attempting to recover on a lien discharge bond that the general contractor and the surety had filed to discharge the lien against the electrical contractor. Washington Intl Ins. Co. v. Hughes Supply, Inc., 271 Ga. App. 50, 609 S.E.2d 99 (2004).

There was no such thing as a default summary judgment, and even if a building owner failed to respond to a subcontractor's summary judgment motion, the subcontractor was required to show that summary judgment was appropriate; summary judgment for the subcontractor against the building owner was reversed because there was no claim that the building owner was liable under the contract, no claim that the building owner received money to which the subcontractor was entitled, and no evidence that allowing the building owner to retain heat pumps supplied by the subcontractor violated some principle of equity, and the circumstances were insufficient to authorize summary judgment based on an implied constructive trust. Tabar, Inc. v. D & D Servs., 267 Ga. App. 659, 601 S.E.2d 143 (2004).

Contractor's suit against a homeowner seeking over $33,000 for remodeling services was subject to summary judgment; the contract was void and unenforceable under O.C.G.A. § 43-41-17(b) because the contract provided for electrical and plumbing work and the contractor did not have licenses for electrical and plumbing work as required by O.C.G.A. § 43-14-8. It was inconsequential whether the contractor met the definition of a "specialty contractor" in O.C.G.A. § 43-41-2(12). Restor-It, Inc. v. Beck, 352 Ga. App. 613, 835 S.E.2d 398 (2019).

Enforcement of materialman's liens.

- Because a notice under O.C.G.A. § 44-14-361.1(a)(3) was not filed within 14 days of a lien claimant's suit being initiated, the lien was unenforceable, and the trial court did not err in granting a developer's motion for partial summary judgment against the lien claimant; while the appeals court sympathized with the lien claimant's argument that the claimant received a file-stamped copy and as a result believed no fee was due, ultimately it was the responsibility of the plaintiff and plaintiff's counsel to see that the appropriate fees were paid in a timely manner. Kendall Supply, Inc. v. Pearson Cmtys., Inc., 285 Ga. App. 863, 648 S.E.2d 158 (2007).

Fair Business Practices Act.

- Pursuant to O.C.G.A. § 10-1-401(a)(1), an action under the Fair Business Practices Act (FBPA), O.C.G.A. § 10-1-390 et seq., cannot be brought more than two years after the person bringing the action knew or should have known of the occurrence of the alleged violation; since the alleged contradictory language in a construction contract on which an FBPA claim was based was present when the contract was signed, the statute of limitations began running when the contract was signed; thus, an FBPA suit filed against a homebuilder more than two years after the date of the contract was untimely, and the trial court's summary judgment in favor of the homebuilder was affirmed. Tiismann v. Linda Martin Homes Corp., 268 Ga. App. 787, 603 S.E.2d 45 (2004).

Misappropriation of trade secrets.

- Because: (1) the trial court erred in holding that mere suspicion of a possible misappropriation of an employer's trade secrets by one of its former employees amounted to objectively reasonable notice sufficient to trigger the running of the statute; and (2) a fact issue existed as to whether the suspicions reflected in the employer's letters to the former employee's counsel were sufficient to cause a reasonable person to investigate whether its trade secrets had been misappropriated, the trial court erred in granting the former employee partial summary judgment on the basis of the five-year statute of limitations under O.C.G.A. § 10-1-766. Porex Corp. v. Haldopoulos, 284 Ga. App. 510, 644 S.E.2d 349 (2007), cert. denied, 2007 Ga. LEXIS 498 (Ga. 2007).

Fair Credit Reporting Act.

- Because the record evidence showed that a customer failed to file suit alleging claims under the Fair Credit Reporting Act within the two years after a wireless service provider reported the customer's outstanding debt to one credit agency, as required by 15 U.S.C. § 1681p, the suit was properly dismissed via summary judgment as time-barred. Lamb v. Verizon Wireless Servs., LLC, 284 Ga. App. 696, 644 S.E.2d 412 (2007).

General premises liability for commercial entities.

- In a customer's premises liability action, because factual issues existed as to whether a retailer knew or should have known of a hazardous condition when it left a rolled-up carpet mat leaning on its end in the produce department, and whether the retailer could foresee that it would be knocked over and become a tripping hazard, summary judgment in favor of the retailer, and against the customer, was reversed. Freeman v. Wal-Mart Stores, Inc., 281 Ga. App. 132, 635 S.E.2d 399 (2006).

In a wrongful death action against a church as a premises owner, because the decedent's husband, as administrator of the estate, failed to raise a material fact question of the church's liability for allowing its parishioners to park on the side of the roadway, and thus, obstruct the decedent's view of the adjacent intersection, causing the decedent to collide with an oncoming northbound vehicle, the church was properly granted summary judgment. Gay v. Redland Baptist Church, 288 Ga. App. 28, 653 S.E.2d 779 (2007).

Trial court properly granted summary judgment to a retailer, in a customer's negligence action filed against the retailer for injuries sustained when a tomato tower punctured an eye, as the customer's injury arose out of a third party's actions which the retailer did not and could not have foreseen, and hence no evidence was presented that the retailer breached a duty owed to the customer. Thomas v. Home Depot, U.S.A., Inc., 284 Ga. App. 699, 644 S.E.2d 538 (2007).

In a customer's personal injury action, a property owner was properly granted summary judgment as the owner had no duty to foresee any danger from the owner's criminally damaged pay phone falling on the customer's head, the way the injury occurred was not reasonably expected, and due to the fact that such could not occur except from the customer's unexpected acts. McAfee v. ETS Payphones, Inc., 283 Ga. App. 756, 642 S.E.2d 422 (2007).

Because: (1) the undisputed evidence presented to the trial court was that a retailer had no knowledge of a hazard posed by a previously loaded BB gun placed on an open display shelf and accessible to children; and (2) a parent failed to show that it was reasonably foreseeable that the parent's child would take the gun and shoot the child's sibling, the trial court did not err in granting the retailer summary judgment as to the issue of the retailer's liability. Roberts v. Wal-Mart Stores, Inc., 287 Ga. App. 316, 651 S.E.2d 464 (2007).

In a premises liability action, the trial court properly granted summary judgment to a participant in a contest held by a licensee, without considering the question of whether the participant assumed the risk of falling by participating in a jump-rope in a suit and dress shoes, as that participant failed to show that the licensee had control over the condition of the premises where the contest was held, and had superior knowledge of the hazard or defect which allegedly caused the participant's injuries. Dixon v. Infinity Broad. East, Inc., 289 Ga. App. 71, 656 S.E.2d 211 (2007).

Because a party injured in a fall admitted to having actual knowledge not only of the alleged hazard which caused the fall, but of the specific danger the hazard presented, and as a result appreciated the danger involved, the trial court erred in denying summary judgment to the premises owner as to the issue of liability, given that based on the foregoing, the party should have avoided any injury in the exercise of ordinary care. Callaway Gardens Resort, Inc. v. Bierman, 290 Ga. App. 111, 658 S.E.2d 895 (2008).

Because a skating rink patron failed to present sufficient evidence showing that the rink owners breached a duty by failing to have identifiable floor guards on duty at the time of the patron's fall, and that the breach proximately caused the patron's injuries, but instead, the unequivocal evidence showed that a floor guard was on duty at that time of the fall, the trial court properly granted summary judgment to the owners as to the issue of the owner's liability. Moreover, testimony from other management personnel, who were not at the rink at the time of the fall, did not contradict the assistant manager's positive assertions or written report and did not create a material issue of fact. Evans v. Sparkles Mgmt., LLC, 290 Ga. App. 458, 659 S.E.2d 860 (2008).

General premises liability for homeowners, landlords, and others.

- Summary judgment in favor of homeowners was affirmed in a premises liability claim based on an injury to a four-year-old child on a trampoline in the homeowners' yard because there was no showing that the homeowners willfully or wantonly led the child into a hidden peril on the homeowners' premises and, therefore, did not breach the duty of care owed to the homeowners' social guest; however, when jury questions existed as to whether the homeowners undertook the supervision of the child and whether the homeowners used reasonable care to protect the child from injury, summary judgment on a negligent supervision claim was reversed. Nunn v. Page, 265 Ga. App. 484, 594 S.E.2d 701 (2004).

In a personal injury action, because an injured party failed to show that the landlords could not have had constructive notice of the deteriorated condition of the steps upon which that party fell and was injured, the landlords were not liable for the landlords' failure to keep the premises in repair. Thus, the landlords were properly granted summary judgment as to the issue of liability for the party's injuries. Stelter v. Simpson, 288 Ga. App. 402, 655 S.E.2d 237 (2007).

In a premises liability action filed by a repairman arising from injuries suffered while repairing a roof, because the trial court properly found that an out-of-possession landlord and its tenants who surrendered control of the owned premises did not ratify the repairman's employer's actions in not providing safety equipment, and did not have superior knowledge of the dangers involved, the out-of-possession landlord and its tenants were properly granted summary judgment in the repairman's premises liability action. Saunders v. Indus. Metals & Surplus, Inc., 285 Ga. App. 415, 646 S.E.2d 294 (2007), cert. denied, 2007 Ga. LEXIS 624 (Ga. 2007).

Trial court properly granted summary judgment to an apartment complex owner, and against the decedent's personal representative, in the latter's premises liability action against the former as: (1) evidence was lacking that the vacant apartment where the decedent was murdered was negligently left unlocked; and (2) despite the criminal history of the area where the apartment was located, the owner had no reasonable belief to anticipate that a murder would have occurred on the owner's premises. Moreover, guesses or speculation which raised merely a conjecture or possibility were insufficient to create even an inference of fact for consideration on summary judgment. Wojcik v. Windmill Lake Apts., Inc., 284 Ga. App. 766, 645 S.E.2d 1 (2007), cert. denied, 2007 Ga. LEXIS 637 (Ga. 2007).

Because a painter failed to show that a homeowner's knowledge of an electrical wiring defect was superior to that of the painter, the homeowner was entitled to summary judgment as to the issue of the homeowner's liability. Schuessler v. Bennett, 287 Ga. App. 880, 652 S.E.2d 884 (2007), cert. denied, No. S08C0398, 2008 Ga. LEXIS 230 (Ga. 2008).

Landlord liability in guest's premises liability lawsuit.

- Trial court properly granted summary judgment to a landlord on the guest's premises liability lawsuit as the pleadings, affidavits, depositions, and other material on file did not establish a genuine issue of material fact and the landlord was entitled to judgment as a matter of law; the guest did not show that the guest lacked knowledge of the hazard presented by descending a steep stairway to reach the tenant's basement apartment since the guest had descended the stairway on four occasions without incident before being injured in a fall, and the guest also did not show that the steep stairway was the only way to access the apartment. Yon v. Shimeall, 257 Ga. App. 845, 572 S.E.2d 694 (2002).

Slander of title.

- Petition that a husband and wife filed against an attorney seeking $50,000 "for humiliation and embarrassment" they experienced because an attorney initiated a foreclosure action after they refused to pay a promissory note did not state a claim for special damages, and the state supreme court held that the trial court properly granted the attorney's motion for summary judgment on the husband and wife's claim alleging slander of title, even though the trial court dismissed the claim on other grounds. Latson v. Boaz, 278 Ga. 113, 598 S.E.2d 485 (2004).

Negligent inspection claim.

- Trial court properly granted summary judgment dismissing a home buyers' claim of professional negligence against an engineering firm that performed an allegedly negligent inspection of the home because the buyers had no privity with the firm and none of the exceptions to this requirement applied. Smiley v. S & J Inves., Inc., 260 Ga. App. 493, 580 S.E.2d 283 (2003).

Summary judgment was properly entered for a railroad as to an injured party's premises liability claim based on a premises owner's non-delegable duty to keep the premises safe for the protection of invitees. The railroad neither owned nor occupied the sidetrack that was the site of the accident. Assuming that the railroad did own the sidetrack, there was no evidence that the railroad had any knowledge of the defective condition that was the result of its lessee's use of a defective iron grate. The injured party conceded that the defective grate was not readily apparent and the injured party failed to show that the railroad would have discovered the defect had the railroad conducted a reasonable inspection. Mixon v. Ga. Cent. Ry., L.P., 266 Ga. App. 365, 596 S.E.2d 807 (2004).

Landlord and tenant actions.

- Summary judgment under O.C.G.A. § 9-11-56 for an owner, a manager, and a lessor of an apartment was properly entered in a tenant's action for trespass arising out of the tenant's eviction; the entry of the writ of possession was proper, on the writ's face, under O.C.G.A. § 44-7-50. Vickers v. Merry Land & Inv. Co., 263 Ga. App. 316, 587 S.E.2d 816 (2003).

Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56(c) to a lessor in a lessee's breach of contract action; pursuant to a lease for roof space to be used for a billboard, the lessee defaulted by interfering with a cellular antenna already placed on the roof, and the lessor provided the proper notice of termination. Tower Projects, LLC v. Marquis Tower, Inc., 267 Ga. App. 164, 598 S.E.2d 883 (2004).

Summary judgment was properly granted to a landlord in the landlord's dispossessory action against a tenant because: (1) the tenant failed to pay the rent timely on at least two prior occasions within the 12 months preceding the payment at issue; (2) the tenant mailed the rent payment on July 10th; (3) although the lease did not specifically state that the rent was to be paid and received by 5:00 p.m., "paid" did not mean "tendered," and the terms "normal hours of business" and "by 5:00 p.m." also implied that receipt of the rent was necessary, rather than just the rent's tender; (4) the lease provided that written notice of the lease's cancellation would be given after three late payments; and (5) a claimed conflict between the executive director's affidavit and a newsletter did not create an issue of material fact as the tenant's payment was mailed after the deadline set forth in the newsletter. Baker v. Hous. Auth. of Waynesboro, 268 Ga. App. 122, 601 S.E.2d 350 (2004).

Trial court properly entered summary judgment for a landlord against a tenant and a guarantor because the tenant admitted that the tenant withheld rent for over one year and the outstanding balances due under the lease and the guaranty were undisputed; the trial court was not required to wait until discovery was completed under O.C.G.A. § 9-11-56(a) as the matter was ripe for a ruling. Vick v. Tower Place, L.P., 268 Ga. App. 108, 601 S.E.2d 348 (2004).

After applying the rules of contract construction under O.C.G.A. §§ 13-2-2 and13-2-3, the Court of Appeals of Georgia upheld an order granting summary judgment to a lessee as the lessee was not required to pay the lessee's portion of the security related costs under the terms of the lease, according to the Common Area Costs formula contained therein; hence, the lessee was authorized to refuse to pay those costs without being in breach of the lease agreement. Covington Square Assocs., LLC v. Ingles Mkts., Inc., 283 Ga. App. 307, 641 S.E.2d 266 (2007).

In a case involving a commercial lease, because the tenant failed to prove all the elements of the tenant's constructive eviction defense, the landlord was properly granted summary judgment on the landlord's claim for rent and late fees; but because genuine fact issues remained as to the tenant's diminution of rent counterclaim when the landlord terminated the water service and for the time period the tenant was without water, as well as regarding the issue of whether the landlord waived a requirement that the tenant install a submeter, the landlord was not entitled to summary judgment regarding these issues. Delta Cleaner Supply Co. v. Mendel Drive Assocs., 286 Ga. App. 227, 648 S.E.2d 651 (2007).

While the trial court properly granted summary judgment to a lessee regarding the enforcement of a lease provision barring removal of certain improvements to the leasehold originally made by the lessor's predecessor-in-interest, despite the lessor's demand that such be removed, given a non-waiver provision in the lease, and the fact that a demand for reimbursement for insurance premiums paid over the life of the lease could be made at any time, the landlord was entitled to the premiums. Ranwal Props., LLC v. John H. Harland Co., 285 Ga. App. 532, 646 S.E.2d 730 (2007).

Specific performance of land sales contract.

- In a buyer's suit seeking specific performance of a land sales contract that contained a clear and unambiguous clause stating that time was of the essence, the trial court properly granted summary judgment against the buyer, due to the buyer's failure to timely tender additional earnest money, and because that action amounted to a breach authorizing the sellers to terminate the agreement. Chowhan v. Miller, 283 Ga. App. 749, 642 S.E.2d 428 (2007).

Because the evidence presented at trial made it clear that a lessor conveyed no ownership interest to a tenant, leaving that tenant with only a right to possess and use the leased property, and more specifically, a usufruct, the tenant did not own an interest in the property, and thus could not pursue an easement by necessity under O.C.G.A. § 44-9-40; hence, summary judgment in the lessor's favor as to this issue was upheld on appeal. Read v. Ga. Power Co., 283 Ga. App. 451, 641 S.E.2d 680 (2007).

In an action seeking specific performance of a land sales contract, because genuine issues of material fact existed as to whether the $45,000 sales price was adequate in relation to the fair market value of the subject property, and whether enforcement of the contract was equitable, the trial court erred in granting the buyers of that land summary judgment. Weeks v. Rowell, 289 Ga. App. 507, 657 S.E.2d 881 (2008).

Class action suit for breach of lease.

- Trial court properly dismissed a class action suit arising out of a breach of a lease agreement and filed by a group of uninsured patients against a hospital for failure to state a claim upon which relief could be granted, which the court converted to a motion for summary judgment, as the class members: (1) failed to timely object to the merits of the oral motion; (2) acquiesced to the evidence in support of the motion; and (3) failed to show they were third-party beneficiaries of the agreement, with sufficient standing to sue upon a breach of the agreement's terms. Davis v. Phoebe Putney Health Sys., 280 Ga. App. 505, 634 S.E.2d 452 (2006).

Commercial lease agreements.

- In a lessor's action to enforce the provisions of a commercial lease pursuant to O.C.G.A. § 13-1-11, because a lessee's predecessor-in-interest failed to strictly comply with a cancellation option in the lease, and time was of the essence, the trial court erred in ruling otherwise, resulting in an expiration of the option due to the failure to timely exercise the option; thus, on remand the lessor was entitled to summary judgment on the lessor's possession claim and to the past rent due under the lease for the term sought. Piedmont Ctr. 15, LLC v. Aquent, Inc., 286 Ga. App. 673, 649 S.E.2d 733 (2007), cert. denied, 2007 Ga. LEXIS 749 (Ga. 2007).

Equipment lease agreements.

- In an action arising out of its lessee's breach of an equipment lease, the lessor was properly granted summary judgment, as a claim that an affidavit from the lessor's valuation expert was raised for the first time on appeal and thus was not addressed, and the lessee could not complain that the equipment or delivery was defective, as the lessee took the equipment under the lease "as is." Locke's Graphic & Vinyl Signs, Inc. v. Citicorp Vendor Fin., Inc., 285 Ga. App. 826, 648 S.E.2d 156 (2007).

Injunctive relief against housing authority.

- Since there was no evidence of a continuing trespass and since a housing authority had an adequate remedy at law, summary judgment granting an injunction barring entry on the housing authority's property by a husband and wife was reversed. Strange v. Hous. Auth. of Summerville, 268 Ga. App. 403, 602 S.E.2d 185 (2004).

Owners and occupiers of land.

- Homeowners' summary judgment motion should have been granted as the homeowners had no actual or constructive notice of a problem with a deck that collapsed, injuring the injured party; the home had been inspected one year earlier, and no problem with the deck was identified, although the inspection report indicated that the deck was not bolted to the house. Nailing a deck to a house was acceptable at the time of the inspection. Wingo v. Harrison, 268 Ga. App. 156, 601 S.E.2d 507 (2004).

Summary judgment on zoning issue.

- Because no evidence was presented regarding the content of the relevant county zoning ordinance at the time a landowner purchased the land in question, and whether the use of the property as a landfill was prohibited by the ordinance, and because laches did not apply against the state in which a zoning issue was involved, summary judgment was improperly granted in favor of a landowner. Further, the trial court erred in finding that the landfill was grandfathered as a non-conforming use under that zoning ordinance. Flippen Alliance for Cmty. Empowerment, Inc. v. Brannan, 267 Ga. App. 134, 601 S.E.2d 106 (2004).

Breach of warranty of title.

- In a breach of warranty of title action, the trial court did not err in granting summary judgment in favor of the title insurance company despite the company's failure to object to title within 30 days of the date the sales contract was executed since the sales contract provided that no provisions survived closing, including the title-objection; thus, after the closing, the provisions of the warranty deed superceded any time limitations regarding objections to the title in the contract. Weiss v. Old Republic Nat'l Title Ins. Co., 262 Ga. App. 120, 584 S.E.2d 710 (2003).

Quiet title actions.

- In quiet title actions initiated by each party regarding the same parcel of residential property, the trial court properly adopted a special master's order granting summary judgment in favor of a bank, who was the assignee of the holder of the loan secured by the property, finding that fee simple title vested in the bank, as the transfer of the property to the assignee of the holder of the security deed was valid when the deed under power was recorded; in the absence of any court order invalidating or setting aside that deed, the deed legally vested title in the property in the assignee of the holder of the security deed, and thus in the bank. Vereen v. Deutsche Bank Nat'l Trust Co., 282 Ga. 284, 646 S.E.2d 667 (2007), cert. denied, 552 U.S. 1143, 128 S. Ct. 1089, 169 L. Ed. 2d 811 (2008).

Action against partners for payment of judgment against another partner.

- In a case in which the plaintiff sued a limited partnership and two of its general partners for payment of a judgment gained against another general partner (a corporation), the trial court properly granted the defendants' motion for summary judgment because they were not parties to the prior suit. Hartley v. Shenandoah, Ltd., 170 Ga. App. 868, 318 S.E.2d 508 (1984).

Breach of fiduciary duty.

- When a company sued a company's accountants for breach of fiduciary duty regarding a sale of the company's assets, summary judgment was properly granted in favor of the accountants because the evidence was insufficient to create a factual dispute as to whether the accountants exercised a controlling influence over the will, conduct, and interest of the company as required under O.C.G.A. § 23-2-58 for a fiduciary relationship to arise. R.W. Holdco, Inc. v. Johnson, 267 Ga. App. 859, 601 S.E.2d 177 (2004).

Breach of settlement agreement.

- Trial court properly entered summary judgment for a company, the company's subsidiary, and an employee in an injured party's claim that the company breached its settlement agreement with the injured party by adding a term barring the injured party from the company's premises as the company's desire to keep the injured party off of the company's property was independent of the settlement agreement and did not change or vary the terms of the settlement agreement; a private property owner may at any time restrict persons from coming onto its property. Batayias v. Kerr-McGee Corp., 267 Ga. App. 848, 601 S.E.2d 174 (2004).

Issue of nonmaterial fact in beneficiary's suit for mishandling of funds.

- Although there was a genuine issue of fact as to whether a savings and loan association had knowledge of a court order requiring court permission before encroaching upon the corpus of a trust, it was not a material fact because, even if the association had such knowledge, the association was permitted by O.C.G.A. § 7-1-190 to pay out the funds on the order of the trustee under the presumption that the trustee was acting in compliance with the trustee's fiduciary duties, so summary judgment was properly granted in favor of the association in the beneficiaries' suit for mishandling of the trust. Chelena v. Georgia Fed. Sav. & Loan Ass'n, 256 Ga. 336, 349 S.E.2d 180 (1986).

Misappropriation of trade secrets.

- Because a doctor's patient list was not a trade secret within the meaning of the Georgia Trade Secrets Act, O.C.G.A. § 10-1-761(4)(A), and because an attorney the doctor sued for misappropriation was not in the same industry as the doctor, the attorney's possession of the list did not reduce the doctor's competitive advantage in the field, which was the main purpose of protecting a trade secret; thus, the attorney was entitled to summary judgment on the doctor's claim of misappropriation. Vito v. Inman, 286 Ga. App. 646, 649 S.E.2d 753 (2007), cert. denied, 2007 Ga. LEXIS 770 (Ga. 2007).

Promissory estoppel and reasonable reliance.

- Because promissory estoppel involves reasonable reliance, and questions of reasonable reliance are usually for the jury to resolve, the grant of summary judgment to the defendant was improper because jury issues remained on the plaintiff's promissory estoppel claim. Ambrose v. Sheppard, 241 Ga. App. 835, 528 S.E.2d 282 (2000).

Tortious interference with business relations.

- Trial court properly granted a hospital's summary judgment motion pursuant to O.C.G.A. § 9-11-56 as to a doctor's claims for tortious interference with business relations because the doctor's claim was precluded as a matter of law by the stranger doctrine. Mulligan v. Brunswick Mem'l Hosp. Auth., 264 Ga. App. 39, 589 S.E.2d 851 (2003).

In an action alleging both tortious interference with business relations and a tortious interference with contract filed by an uncle against a nephew and the nephew's wife, summary judgment was properly entered against the uncle, as the evidence in support of the claims failed to show that the nephew had an improper purpose; more specifically, as regarding the former claim, the evidence amounted to either hearsay or double hearsay, and as to the second claim, the nephew could act with privilege with regards to the contract at issue. Kirkland v. Tamplin, 285 Ga. App. 241, 645 S.E.2d 653 (2007), cert. denied, 2007 Ga. LEXIS 616 (Ga. 2007); 552 U.S. 1297, 128 S. Ct. 1750, 170 L. Ed. 2d 541 (2008).

Tortious interference with employment relationship.

- Summary judgment was properly entered for a company, the company's subsidiary, and the company's employee in an injured party's tortious interference with employment relationship claim as the injured party was an at-will employee of a contractor working at the company's plant, and the action of requesting that the injured party leave the premises was not malicious and did not fit within the definition of wrongful conduct. Batayias v. Kerr-McGee Corp., 267 Ga. App. 848, 601 S.E.2d 174 (2004).

Tortious interference with contracts.

- Buyer's tortious interference with contracts claims were properly disposed of on summary judgment as: (1) all parties to an interwoven contractual arrangement were not liable for tortious interference with any of the contracts or business relationships; and (2) a claim for tortious interference with contractual relations could not be predicated upon an allegedly improper filing of a lawsuit. BKJB P'ship v. Moseman, 284 Ga. App. 862, 644 S.E.2d 874, cert. denied, 2007 Ga. LEXIS 558 (Ga. 2007).

Business relationship.

- Proof that a defendant was no stranger to the business relations at issue is fatal to a claim of tortious interference with business relations. By offering the services of off-duty police officers to provide private security at baseball games, a security company brought a city and the city's police department into the business relationship. The stranger doctrine foreclosed the security company's tortious interference with a business relationship claim brought against the city and police supervisors based on the supervisors' decision to deny permission to the off-duty officers to provide private security through the security company, and summary judgment in favor of the city and the police supervisors was affirmed. Cox v. City of Atlanta, 266 Ga. App. 329, 596 S.E.2d 785 (2004).

Storage facility owner's duty of care.

- Disputed facts regarding whether a storage facility owner fulfilled the owner's duty of exercising ordinary care in keeping its approaches safe by providing a walk board with no means of securing the board to a loading dock or moving van precluded summary judgment. McGinnis v. Admiral Moving & Storage Co., 223 Ga. App. 410, 477 S.E.2d 841 (1996).

Usury.

- Trial court properly granted summary judgment to a water company in the purchaser's complaint that a late fee for unpaid water bills was a cloak for a usurious loan as there was no evidence giving rise to a triable issue regarding the agreement to provide water. Mallard v. Forest Heights Water Works, Inc., 260 Ga. App. 750, 580 S.E.2d 602 (2003).

Pending action.

- Motion for summary judgment will lie on the ground of pendency of the former original action, in a second action brought by the same plaintiff against the same defendant and involving the same cause of action as in the former action. Reeves Transp. Co. v. Gamble, 126 Ga. App. 165, 190 S.E.2d 98 (1972).

Interspousal immunity doctrine barred a suit by a husband's estate against a wife's estate for injuries sustained by the husband in an auto accident in which the wife was driving the auto occupied by the husband; the danger was that the wife's estate could have conceded fault to get insurance proceeds for both estates, and the trial court's summary judgment in favor of the wife's estate was affirmed. Larkin v. Larkin, 268 Ga. App. 127, 601 S.E.2d 487 (2004).

Intentional infliction of emotional distress.

- Trial court properly entered summary judgment against an uncle, and in favor of the uncle's nephew and the nephew's wife, on the uncle's intentional infliction of emotional distress claim, as the complained of statements amounted to common expressions from family members and a common vicissitude of ordinary life, though given in a threatening tone of voice, and were not extreme and outrageous. Kirkland v. Tamplin, 285 Ga. App. 241, 645 S.E.2d 653 (2007), cert. denied, 2007 Ga. LEXIS 616 (Ga. 2007); 552 U.S. 1297, 128 S. Ct. 1750, 170 L. Ed. 2d 541 (2008).

Because an employee failed in the burden of showing that the conduct and behavior of the employee's former manager did not, as a matter of law, qualify as extreme and outrageous conduct, the trial court properly granted summary judgment as to the issue of liability to the employee's former employer and former manager; moreover, while comments made within the context of one's employment might be horrifying or traumatizing, the comments were generally considered a common vicissitude of ordinary life. Wilcher v. Confederate Packaging, Inc., 287 Ga. App. 451, 651 S.E.2d 790 (2007).

Official immunity.

- Trial court properly granted summary judgment to a county school board and the board's superintendent in a parents negligence action arising out of an attack on school grounds that injured their daughter as the board and the superintendent presented sufficient evidence that a school safety plan was in place at the elementary school at the time the child was attacked, entitling the board and the superintendent to official immunity barring the parents' negligence claims. Leake v. Murphy, 284 Ga. App. 490, 644 S.E.2d 328 (2007), cert. denied, 2007 Ga. LEXIS 671 (Ga. 2007).

In a tort action for personal injuries and property damage arising from an auto collision filed against a city and the city's police officer, the trial court properly granted summary judgment to the officer, given that the officer was engaged in a discretionary function of responding to an emergency situation at the time the accident at issue occurred. Weaver v. City of Statesboro, 288 Ga. App. 32, 653 S.E.2d 765 (2007), cert. denied, No. S08C0421, 2008 Ga. LEXIS 221 (Ga. 2008).

Personal injury.

- Because the plaintiff was injured in a restaurant by an exploding bottle, the fact that the plaintiff 's evidence did not prove definitively which of the two manufacturers supplied the particular bottle - or, indeed, that the bottle's disintegration and the plaintiff's subsequent injuries were due to fault on the part of either manufacturer - was of no significance in determining whether summary judgment should be granted against the plaintiff. Scott v. Owens-Illinois, Inc., 173 Ga. App. 19, 325 S.E.2d 402 (1984).

Defendant insurer was properly granted summary judgment on a claim by the plaintiffs, a postal worker and spouse, for underinsured motorist benefits in a case in which the plaintiffs received $95,554 from the tortfeasor who injured the postal worker, representing the tortfeasor's cumulative policy limits of $100,000 less $4,445 that was paid to the postal service for damage to a postal truck, because, even though $34,666 of the $95,554 went to a workers' compensation program and a health insurer on their subrogation claims, the subrogation sums represented money that the postal worker had already recovered in the form of workers' compensation and health benefits coverage for some of the worker's damages; thus, the subrogation claims did not constitute "payment of other claims or otherwise" that reduced the tortfeasor's available coverage. The plaintiffs recovered more than their available $75,000 in uninsured/underinsured motorist coverage, and the trial court was correct that the tortfeasor was not underinsured for purposes of O.C.G.A. § 33-7-11(b)(1)(D)(ii). Thurman v. State Farm Mut. Auto. Ins. Co., 260 Ga. App. 338, 579 S.E.2d 746 (2003).

Trial court properly granted summary judgment to the amusement park operator on the injured party's personal injury claim after the party was struck in the face with a lap restraint bar as the party did not show that the ride was a perilous instrumentality, that the amusement park operator had a superior knowledge of the hazard, or that the amusement park operator was in exclusive control of the car the party was getting into at the time of the accident such that the party should have been allowed to apply the doctrine of res ipsa loquitur to the party's case. Harrelson v. Wild Adventures, Inc., 263 Ga. App. 569, 588 S.E.2d 341 (2003).

Summary judgment was properly granted to a warehouse corporation because the record did not reflect a genuine issue of material fact as to causation in a worker's claim for an injury suffered in the warehouse since there was no evidence the worker actually tripped. Pennington v. Wjl, 263 Ga. App. 758, 589 S.E.2d 259 (2003).

Trial court properly granted summary judgment in favor of a sheriff's deputy who was sued by a motorist who was injured when the motorist's car was struck by a car being driven by a suspect fleeing from police. Standard v. Hobbs, 263 Ga. App. 873, 589 S.E.2d 634 (2003).

Summary judgment in favor of a trading firm and a security company on a personal injury action was affirmed because the action was based on damages to victims of a shooting rampage by a former customer of the trading company; the shooter's criminal act was an intervening cause to any possible foreseeable injury the firm might have created, and the security company did not owe any of the victims of the rampage a duty. Brown v. All-Tech Inv. Group, Inc., 265 Ga. App. 889, 595 S.E.2d 517 (2004).

Trial court erred in granting summary judgment for a school board in an injured party's personal injuries claim based on the injured party's failure to present evidence that the injuries were actually caused by a defective condition in a slide as the argument was not presented in the school board's motion and the injured party had no opportunity to respond to it; the injured party did not have a full and final opportunity to meet and controvert the ground for summary judgment upon which the trial court relied, and the summary judgment could not be affirmed under the right for any reason rule. Hart v. Appling County Sch. Bd., 266 Ga. App. 300, 597 S.E.2d 462 (2004).

Summary judgment in favor of a ranch owner was affirmed in a case brought against the owner by an injured person who believed that the injured person had been hit by bullet shrapnel at a shooting range on the ranch owner's property but did not see the object after the bullet struck the injured person, did not know what had happened to the bullet, did not know who had shot the rifle, and did not know what type of rifle the person had used or the caliber of bullet involved; the injured person was unaware of anyone else being hit with any debris, and the injured person's expert testified to not having an opinion of what struck the injured person and could not say whether any particular target at the range would have caused a bullet to ricochet to the spot on which the injury occurred. Hobday v. Galardi, 266 Ga. App. 780, 598 S.E.2d 350 (2004).

In a personal injury action against a utility and the utility's independent contractor, the trial court properly granted summary judgment against a cable installer finding that: (1) the utility was not vicariously liable to the installer for the allegedly negligent acts of the utility's contractor; (2) the utility's right to inspect the work did not render the utility liable for the contractor's negligence as that right was intended for the limited purpose of making sure the contractor competently carried out the terms of the contract; (3) the utility was not liable for the utility's failure to flag a power line trench in which the installer fell and was injured, as surface markings showing the path of the trench would not have informed the installer of the danger, and the installer was not injured as a result of excavating or blasting; and (4) the High-voltage Safety Act, O.C.G.A. § 46-3-30 et seq., did not apply to afford the installer a remedy. Perry v. Georgia Power Co., 278 Ga. App. 759, 629 S.E.2d 588 (2006).

Retailer was properly granted summary judgment in a personal injury action filed against the retailer by one of the retailer's customers under the doctrine of res ipsa loquitur as the customer failed to show that the retailer retained exclusive control over the box that fell from a stationary position on a shelf and allegedly caused the customer's injuries, and the customer conceded that there was no evidence that the retailer had superior knowledge of an allegedly dangerous condition; further, the retailer was not required to show that the retailer's employees carried out an inspection of the shelved items within a reasonable time period before the incident. Aderhold v. Lowe's Home Ctrs., Inc., 284 Ga. App. 294, 643 S.E.2d 811 (2007).

In a personal injury action arising from the electrocution of two construction workers while operating a crane leased by a buyer and seller of heavy equipment, the trial court properly denied summary judgment to the buyer/seller of the crane as material fact issues remained as to the condition of the crane when the crane left the buyer/seller's possession, and as to the element of causation; moreover, the learned intermediary doctrine did not apply. Dozier Crane & Mach., Inc. v. Gibson, 284 Ga. App. 496, 644 S.E.2d 333 (2007).

In a personal injury action arising from a fall suffered by a lessee's visitor from a pull-down staircase, because no questions of fact remained as to an out-of-possession landlord's liability for failure to repair, defective construction, or failure to warn, the landlord was properly granted summary judgment as to those issues. Gainey v. Smacky's Invs., Inc., 287 Ga. App. 529, 652 S.E.2d 167 (2007).

Because a driver failed to present sufficient record evidence that a city received timely ante litem notice that the driver sustained a personal injury, much less the nature, character, or particularities of any such injury, but the notice submitted merely established that the driver sustained property damage, the driver did not substantially comply with O.C.G.A. § 36-33-5(b); thus, the trial court properly granted the city summary judgment on that issue. Harris-Jackson v. City of Cochran, 287 Ga. App. 722, 652 S.E.2d 607 (2007).

Recreational Property Act.

- Trial court did not err in granting summary judgment to a city on allegations of negligence asserted against the city by an injured motorcycle driver as the Recreational Property Act (Act), O.C.G.A. § 51-3-20 et seq., prevented the driver from recovering from the city based on allegations of simple negligence; moreover, the Act clearly applied because it was undisputed that the injuries occurred when the driver collided with the cable fence on the city's recreational property, and the city permitted the general public to use the park and open field where the accident occurred for recreational purposes without charge. Carroll v. City of Carrollton, 280 Ga. App. 172, 633 S.E.2d 591 (2006).

Wrongful death action brought by parent.

- Despite evidence of a parent's cruel treatment of the decedent, the trial court erred in finding that the parent forfeited parental rights, and thus lost the status as a parent and, in so doing, lost the right to recover as an heir of the decedent's estate as the loss of parental power did not necessarily result in a parent's loss of a right to inherit as an heir from the estate of that parent's child, short of having the parent's rights terminated prior to the child's death; hence, summary judgment against the parent on the issue was reversed. Blackstone v. Blackstone, 282 Ga. App. 515, 639 S.E.2d 369 (2006).

Wrongful death.

- In a wrongful death action, because the employer of a driver was not responsible for the personal activities the employee was involved in at the time of the fatal accident that killed the decedent, and the special mission exception did not apply, the employer was properly granted summary judgment in a suit filed against the employer by the decedent's estate and survivors. Banks v. AJC Intl., Inc., 284 Ga. App. 22, 643 S.E.2d 780 (2007).

In a wrongful death action filed against a county sheriff's deputy and the county, the administrator's claim that the deputy failed to report an accident and failed to render aid, in violation of both O.C.G.A. §§ 40-6-270(a)(3) and40-6-273 were rejected, and the deputy and the county were erroneously denied summary judgment as the evidence showed that: (1) the deputy radioed for officer assistance; (2) the two officers looked for a second vehicle that might have been involved in the accident, to no avail; and (3) based on the results of the investigation, no evidence existed that the deputy breached the duty imposed by § 40-6-273 Purvis v. Steve, 284 Ga. App. 116, 643 S.E.2d 380, cert. denied, No. S07C1063, 2007 Ga. LEXIS 517 (Ga. 2007).

In a wrongful death action filed on behalf of a deceased employee, because jury questions remained as to whether the defenses of assumption of the risk and equal knowledge of danger barred the claims of negligence, negligence per se, respondeat superior, and premises liability, and as to whether the claims were barred by the exclusive remedy provision of the Workers' Compensation Act, summary judgment to the decedent's employer was reversed. Champion v. Pilgrim's Pride Corp. of Del., Inc., 286 Ga. App. 334, 649 S.E.2d 329 (2007), cert. denied, 2008 Ga. LEXIS 83 (Ga. 2008).

Because the trial court properly found that a decedent's son, as a sole heir, could recover at least a portion of a settlement under 45 U.S.C. § 51 for the wrongful death of the decedent, and because the decedent father's widow validly waived a claim under 45 U.S.C. § 59, pursuant to a prenuptial agreement, the court did not err in granting partial summary judgment to the heir. But, the matter was remanded for the trial court to determine how the proceeds at issue should be divided between the survival and wrongful death claims. Tadlock v. Tadlock, 290 Ga. App. 568, 660 S.E.2d 430 (2008).

Wrongful death in workplace.

- Because a subsidiary had no ownership interest in the equipment that killed an employee, and to the extent that the subsidiary was acting in concert or in a joint enterprise with the employer/owner, O.C.G.A. § 34-9-11 of the Workers' Compensation Act barred the spouse's wrongful death suit; consequently, the trial court did not err in granting summary judgment to the subsidiary pursuant to O.C.G.A. § 9-11-56(c). Jones v. Macon Soils, Inc., 270 Ga. App. 298, 606 S.E.2d 316 (2004).

Dog bite cases.

- In a plaintiff's suit against the dog owners to recover for injuries sustained from a dog bite, summary judgment against the plaintiff was improper because the plaintiff 's evidence that the owners' dog had bitten another person on the hand before the incident, that one of the owners had made a statement that the owner did not allow the dog in the house with guests because the dog could bite somebody, and that the same owner had admitted to the plaintiff's mother that the owner should have warned the plaintiff to stay away from the dog raised a jury question as to whether the owners knew that the dog had a propensity to bite; moreover, the evidence did not show that the plaintiff assumed the risk as a matter of law by ignoring the dog's growl; since a dog's growl does not put a dog owner on notice of the dog's propensity to bite, it is not plain evidence that a third party actually knew about and appreciated the danger that the dog might bite. Raith v. Blanchard, 271 Ga. App. 723, 611 S.E.2d 75 (2005).

Premises liability and injuries by animals.

- True ground of premises liability is the landowner's or occupier's superior knowledge of the perilous condition and the danger therefrom to persons coming upon the property; a trial court's summary judgment dismissing claims against real estate agents and brokers for injuries arising from a dog bite while the injured person was viewing listed property for sale was affirmed because there was no showing that the real estate agents and brokers had any knowledge that the dogs were dangerous. Gibson v. Rezvanpour, 268 Ga. App. 377, 601 S.E.2d 848 (2004).

In an action to enjoin enforcement of a judgment, the trial court improperly entered, sua sponte, summary judgment in favor of the judgment creditors because the trial court's judgment was based on an issue not previously raised by the parties, and judgment was entered without giving the judgment debtor a full opportunity to respond to the issues raised. Studenic v. Birk, 260 Ga. App. 364, 579 S.E.2d 788 (2003).

Trial court erred in granting summary judgment to the dog owners on the worker's negligence claim after the worker was knocked down allegedly by the dog owners' dog as a genuine issue of material fact existed about whether the one dog owner voluntarily undertook a duty to restrain the dogs on the owner's premises and, if so, whether that voluntary undertaking was negligently performed. Osowski v. Smith, 262 Ga. App. 538, 586 S.E.2d 71 (2003).

When premises owner was deemed to have superior knowledge of the hazard that was alleged to have caused the slip and fall, based on the testimony of the injured patron's daughter that the owner had actual knowledge of the hazard, summary judgment in the owner's favor was unauthorized, and the appeals court erred in finding otherwise. Dickerson v. Guest Servs. Co., 282 Ga. 771, 653 S.E.2d 699 (2007).

Slip and fall by pedestrian in pothole.

- Trial court erred in denying summary judgment to both a city and the Department of Transportation, in a slip and fall case filed against them by a pedestrian, as: (1) the pedestrian conceded that the pedestrian was a licensee with equal constructive knowledge of any hazard posed by potholes; (2) the pothole in which the pedestrian fell was not a concealed or camouflaged danger; and (3) no evidence was presented that the pothole was maintained wilfully or wantonly. Ga. DOT v. Strickland, 279 Ga. App. 753, 632 S.E.2d 416 (2006).

Normal household items causing fall by licensee in home.

- In a licensee's personal injury action, the trial court properly found that a homeowner was entitled to summary judgment as a matter of law as the homeowner owed no duty to the licensee to warn of the obviousness of a broom handle, tools on the floor, or the couch corner, which the licensee alleged caused a fall, as such were plainly visible and not hidden perils. Ellis v. Hadnott, 282 Ga. App. 584, 639 S.E.2d 559 (2006).

Slip and fall in businesses.

- In a slip and fall case based on an injured party's fall in a truck stop's shower, the truck stop owner was not entitled to summary judgment because the owner's admitted lack of a regular inspection procedure created a genuine issue of material fact as to whether the owner had constructive knowledge of the condition that caused the injured party to fall, and it was not shown that the injured party failed to exercise care for the party's own safety as the injured party removed two used bars of soap from the shower floor. Pylant v. Samuels Inc., 262 Ga. App. 358, 585 S.E.2d 696 (2003).

In a slip and fall case brought by an injured person who alleged that the fall was caused by a newly waxed tile floor in a golf course clubhouse, the trial court erred in finding, based on some deposition responses, that the injured person had abandoned the claim that the wax had caused the fall and was claiming only that the tile floor, not the wax on the floor, caused the fall, and that the injured person knew walking on a tile floor with spikes was risky; the injured person's complaint and the evidence offered that the injured person had not unequivocally conceded that the wax on the floor did not cause the fall, and the trial court's summary judgment in favor of the premises owner was reversed. Berson v. Am. Golf Corp., 265 Ga. App. 772, 595 S.E.2d 622 (2004).

In a slip and fall case, an injured person's knowledge of uneven, unlit steps at the place where the injured person fell, obtained from ascending the steps once in the dark, did not equal a hotel's knowledge from sweeping the area daily and maintaining the steps regularly; thus, a trial court's denial of the hotel's summary judgment motion was affirmed. Mac International-Savannah Hotel, Inc. v. Hallman, 265 Ga. App. 727, 595 S.E.2d 577 (2004).

Summary judgment for a grocery store in a slip and fall case was proper because an injured person slipped in water caused by another customer and the grocery store had no actual or constructive knowledge of the water. Mock v. Kroger Co., 267 Ga. App. 1, 598 S.E.2d 789 (2004).

Mere fact that an injured person slipped and fell while on a department store's premises did not give rise to liability absent some evidence that a foreign substance was present; a department store in a slip and fall case was entitled to summary judgment, and a trial court's denial of the department store's summary judgment motion was reversed because an injured person did not see or touch anything on the floor that caused the injured person to fall but was merely supposing or hypothesizing that there was some sort of substance on the ground that caused the injured person to fall, and a department store employee testified that the floor was clean and dry, and that no foreign substance was on the floor after the fall. Belk Dep't Store of Charleston, S.C., Inc. v. Cato, 267 Ga. App. 793, 600 S.E.2d 786 (2004).

Trial court erred in denying a corporation's motion for summary judgment on a customer's claim seeking damages for injuries the customer sustained by slipping and falling on a wet floor after entering a restaurant because the customer was aware of the hazard and the evidence did not show that people who worked at the restaurant possessed superior knowledge that the floor was wet and posed a hazard to customers. Flagstar Enters., Inc. v. Burch, 267 Ga. App. 856, 600 S.E.2d 834 (2004).

Summary judgment for a restaurant in a slip and fall case was proper and was affirmed because there was no showing that the restaurant had actual or constructive knowledge of the grease which allegedly caused the slip and fall that was superior to that of the injured person; an inspection by the restaurant manager only 5 to 10 minutes before the incident was sufficient, as a matter of law, to establish that the restaurant exercised ordinary care under O.C.G.A. § 51-3-1 to inspect the premises and keep the premises safe. Markham v. Schuster's Enters., Inc., 268 Ga. App. 313, 601 S.E.2d 712 (2004).

In a customer's slip and fall action against a store, because genuine issues of material fact existed as to whether the store had superior knowledge of the alleged water on the floor where the customer allegedly fell, summary judgment was erroneously entered in the store's favor. Durham v. Patel, 282 Ga. App. 437, 638 S.E.2d 851 (2006).

In a slip and fall action filed by a mall patron against the mall's owner and the mall's cleaning contractor, summary judgment was properly granted to the latter as no evidence was presented that the contractor wrongfully failed to clean the spot on which the patron slipped; however, summary judgment in the owner's favor was reversed as the owner failed to present evidence of any reasonable inspection procedures, giving the patron the benefit of an inference of the owner's constructive knowledge of a hazard. Prescott v. Colonial Props. Trust, Inc., 283 Ga. App. 753, 642 S.E.2d 425 (2007).

Because the trial court correctly determined that the parking lot in which a customer fell was owned and maintained by the grocery store's landlord, not by the grocery store, and was not an "approach" to the premises for purposes of O.C.G.A. § 51-3-1, the grocery store was properly granted summary judgment as to the issue of liability in a customer's personal injury suit filed against the store. Robinson v. Kroger Co., 284 Ga. App. 488, 644 S.E.2d 316 (2007).

Because an injured employee testified that the rain, and not any sloping surface, caused the slip and fall at issue, the employee was charged with equal knowledge of the rainy day conditions, and as a result no evidence was presented that the hospital exposed the employee to any unreasonable risk of harm; thus, the trial court erred in denying the employer's motion for summary judgment. Sunlink Health Sys. v. Pettigrew, 286 Ga. App. 339, 649 S.E.2d 532 (2007).

In a slip and fall case filed by a retailer's patron alleging a breach of the retailer's duty to keep the retailer's premises reasonably safe, the trial court properly granted summary judgment to the retailer on the issue of whether the retailer's nearby employees were in a position to discover the hazard on which the patron slipped, specifically a grape on the floor; however, in the absence of clear evidence of how long the grape was present on the floor, and in the absence of evidence that the retailer actually carried out its inspection procedures, the retailer could not show as a matter of law that the retailer lacked constructive knowledge of the hazard which caused the patron's fall. Blocker v. Wal-Mart Stores, Inc., 287 Ga. App. 588, 651 S.E.2d 845 (2007).

Court of appeals upheld an order granting summary judgment to a janitorial services company on claims filed against the company by a premises owner's invitee for damages sustained by the invitee resulting from a slip and fall on the owner's premises as the janitorial services company was an independent contractor and not an owner occupier of the premises where the invitee fell, and hence owed no contractual duty to the invitee. Taylor v. AmericasMart Real Estate, LLC, 287 Ga. App. 555, 651 S.E.2d 754 (2007).

In a personal injury action arising out of a slip and fall, because jury questions existed as to whether a premises owner's inspection procedure was reasonable, the appeals court refused to say that the owner lacked constructive knowledge of a hazard that allegedly caused a slip and fall as a matter of law. Thus, summary judgment entered in favor of the owner was reversed. Gibson v. Halpern Enters., 288 Ga. App. 790, 655 S.E.2d 624 (2007).

In a premises liability action against a retailer, because the patron failed to show proof that a single employee of the retailer was in the immediate area of the spill that allegedly caused the patron's fall, and could have easily seen and removed the spill prior to the slip and fall, or proof that the liquid had been there for a sufficient length of time that the retailer should have discovered and removed the spill during a reasonable inspection and: (1) inasmuch as the purported hazard was not readily visible to the patron; and (2) the patron failed to establish that the retailer's employees, who were at least 20 to 30 feet away, could have easily seen and removed the spill, or that the liquid had been on the retailer's floor long enough that the retailer should have discovered and removed the spill during a reasonable inspection, the trial court erred in denying the retailer's motion for summary judgment as to the retailer's liability to the patron. Kmart Corp. v. McCollum, 290 Ga. App. 551, 659 S.E.2d 913 (2008).

Because genuine material fact issues remained as to whether a supermarket's inspection procedures in the area in which a customer fell were reasonable and whether a reasonable inspection procedure would have detected a mixture of blood and water on the floor, summary judgment in favor of the supermarket was reversed; moreover, the appeals court rejected the supermarket's claim that the customer had equal knowledge of the hazard since the customer had previously walked down the aisle before the customer fell there. Food Lion, LLC v. Walker, 290 Ga. App. 574, 660 S.E.2d 426 (2008).

Summary judgment was proper because no evidence showed an office park knew of, or caused, material to collect at the place a pedestrian slipped on steps, there was no breach of a duty to discover the leaves, and the pedestrian did not show that handrails were required on the steps. Porter v. Omni Hotels, Inc., 260 Ga. App. 24, 579 S.E.2d 68 (2003).

Owner of a grocery store was erroneously granted summary judgment in a negligence suit by a store patron who slipped on a grape and fell as the testimony regarding the manager's unobstructed view of the area in which the fall occurred, the manager's admission that the manager could have seen the grape, and the evidence that the manager and two other employees were in the immediate vicinity and could easily have removed the hazard had they seen it, all revealed that there was a genuine issue of material fact as to whether the store owner had constructive knowledge of the dangerous condition. Dix v. Kroger Co., 257 Ga. App. 19, 570 S.E.2d 89 (2002).

Summary judgment should have been granted to a property owner in a customer's suit to recover for injuries sustained when the customer slipped and fell on a bean on the floor of the owner's store because the owner did not have actual notice of the bean, and the evidence was insufficient to show that the owner had constructive notice of the bean, in that no bean was seen during an inspection of the area in which the customer fell five minutes before the fall, and no evidence showed that the owner's employees were in the immediate vicinity of the fall. Kroger Co. v. Williams, 274 Ga. App. 177, 617 S.E.2d 160 (2005).

Store owner was entitled to summary judgment in an action brought by a client who fell upon an allegedly slippery sidewalk because the plaintiff did not show that the sidewalk was negligently painted, and the record proved exactly the contrary. Caven v. Warehouse Home Furnishings Distribs., Inc., 209 Ga. App. 706, 434 S.E.2d 532 (1993).

Slip and fall in other cases.

- Executive Committee of the Baptist Convention was not entitled to summary judgment on the injured party's claim arising out of injuries sustained when the injured party fell in a pothole while attending a women's conference sponsored by the church because whether the injured party's failure to observe the defect amounted to a lack of reasonable care was a jury question. Thomas v. Exec. Comm. of the Baptist Convention, 262 Ga. App. 315, 585 S.E.2d 217 (2003).

Trial court erred in granting an owner's summary judgment motion in a slip and fall case brought by an injured party, as questions remained as to the owner's liability because: (1) the owner was on constructive notice as to the condition of a drainage culvert; (2) a reasonable inspection would have revealed that the cement surrounding the drainage culvert was slanted and had not been painted to alert pedestrians to any danger; (3) the injured party could not have seen the dramatic slope of the culvert from the injured person's vantage point on the median and could not appreciate the danger involved; (4) that the rough uneven pavement was a static condition did not automatically absolve the owner; and (5) the failure of the injured party to watch every step did not require summary judgment against the injured person. Hagadorn v. Prudential Ins. Co., 267 Ga. App. 143, 598 S.E.2d 865 (2004).

Premises owner was properly granted summary judgment in an occupant's personal injury action filed against it as the uneven and unstable brick-paved walkway where the occupant fell was an open and obvious static condition which the occupant was presumed to have knowledge of, given that the occupant had successfully traversed the area before; moreover, while the occupant might have disagreed with the trial court's application of the law to the facts presented, that disagreement did not warrant reversal. Nemeth v. RREEF Am., LLC, 283 Ga. App. 795, 643 S.E.2d 283 (2007).

Trial court did not err in granting summary judgment to a seller in a buyer's personal injury action alleging negligence and nuisance as: (1) speculation as to what caused the buyer's fall was insufficient to sustain the former; and (2) evidence was lacking that the seller created, continued, or maintained the alleged nuisance, or controlled the release of a discharge on the property that allegedly caused the buyer's slip and fall. Grinold v. Farist, 284 Ga. App. 120, 643 S.E.2d 253 (2007).

In a slip and fall case, the trial court properly granted summary judgment to a premises owner on grounds that: (1) no material issue of fact remained as to whether a roof repair contractor's injuries were caused by the owner's failure to keep the subject premises safe; (2) the contractor failed to present any evidence that a foreign substance or any unusual hazard on the roof surface caused the fall; (3) it was not raining on the day of the fall; and (4) prior to the fall, the contractor inspected the roof by walking the length of the roof and looking at the roof from below, satisfied that the area was safe. Hardnett v. Silvey, 285 Ga. App. 424, 646 S.E.2d 514 (2007).

Slip and fall in homes.

- Evidence that showed: (1) that a caretaker who was hired to care for a homeowner's invalid wife used stairs in the homeowner's house six to eight times before the caregiver was injured when the caregiver's knee buckled while carrying laundry down the stairs; (2) that the caregiver did not slip on a foreign substance that was on the stairs; and (3) that the stairs were properly manufactured and maintained, warranted summary judgment for the homeowner on the caretaker's claim alleging negligence, and the trial court's judgment denying the homeowner's motion for summary judgment was reversed. Duvall v. Green, 262 Ga. App. 669, 586 S.E.2d 369 (2003).

In a patron's slip and fall action filed against a home seller, the trial court properly found that the seller was entitled to summary judgment as a matter of law because the patron could not show that the seller's knowledge of the condition which allegedly caused the patron's fall, specifically, loose gravel on the ground immediately adjacent to unbuffered metal trailer tongues, was superior to the patrons. Whitley v. H & S Homes, LLC, 279 Ga. App. 877, 632 S.E.2d 728 (2006).

In a slip and fall action between a daughter and the daughter's mother, because the evidence showed that the daughter was a mere social guest or licensee in the mother's home at the time of the daughter's injury, present only in the home for the daughter's convenience, and the mother did not act with any intent to harm the daughter, the mother was properly granted summary judgment on the issue of liability for the daughter's personal injuries resulting from a slip and fall. Behforouz v. Vakil, 281 Ga. App. 603, 636 S.E.2d 674 (2006).

Summary judgment for the tortfeasor was affirmed because the injured party failed to show a genuine issue of material fact as to the existence of a slippery floor, the tortfeasor's knowledge of the condition, or that the tortfeasor's knowledge of the condition was superior to the knowledge of the injured party, given the injured party's use of the hallway, and the injured party's responsibility to see that the tortfeasor did not fall as the injured party was the care giver to the alleged tortfeasor. Sudduth v. Young, 260 Ga. App. 56, 579 S.E.2d 7 (2003).

Drunk driving.

- Trial court properly granted the hosts' motion for summary judgment in an injured party's action under the Georgia Dram Shop Act, O.C.G.A. § 51-1-40(b), because: (1) the intoxicated driver's brother testified that the driver was not noticeably intoxicated at the party; (2) at the request of the brother, the driver agreed to stay with the hosts after the party because the driver had been drinking; (3) because there was direct evidence that the driver agreed not to drive soon, contrary knowledge could not be imputed to the hosts. Hodges v. Erickson, 264 Ga. App. 516, 591 S.E.2d 360 (2003).

When proof of spoliation present following drunk driving accident.

- Given proof of spoliation under former O.C.G.A. § 24-2-22 in an action filed against a tavern pursuant to Georgia's Dram Shop Act, O.C.G.A. § 51-1-40(b), the trial court erred in granting summary judgment to an injured party's guardian, as the tavern's manager was aware of the potential for litigation and failed to preserve whatever videotaped evidence might have been captured as to whether one of the tavern's intoxicated patron's would soon be driving; hence, a rebuttable presumption arose against the tavern that the evidence destroyed would have been harmful to the tavern, rendering summary judgment inappropriate. Baxley v. Hakiel Indus., 282 Ga. 312, 647 S.E.2d 29 (2007).

Summary judgment was properly granted dismissing the motorists' suit against a restaurant under the Dram Shop Act, O.C.G.A. § 51-1-40(b), for injuries sustained in a collision with one of the restaurant's patrons because the evidence did not present a question of fact as to whether the restaurant knew that the patron would be driving soon after the patron left the premises. Sugarloaf Cafe, Inc. v. Willbanks, 279 Ga. 255, 612 S.E.2d 279 (2005).

Under the voluntary departure rule, if an invitee voluntarily departed from the route designated and maintained by the owner/occupier for the invitee's safety and convenience, the invitee assumed the risk of those hazards existent in the selected route as the conditions did not constitute a hazard when the traversed property was used for its intended purpose unless the hazard was common to both areas or the owner had notice that the unauthorized route was being regularly used improperly; because an injured person voluntarily departed from a sidewalk and fell on a partially exposed drainage pipe, and there was no evidence that the unauthorized route was being used improperly on a regular basis, summary judgment for a landlord in the injured person's premises liability case was affirmed. Chamblee v. Grayco, Inc., 266 Ga. App. 154, 596 S.E.2d 683 (2004).

Railroad not liable for railroad crossing fatality.

- Railroad and the town were entitled to summary judgment in a survivor's action claiming damages from the survivor's decedent's fatal collision with a train because the survivor failed to show that the allegedly vision-obstructing vegetation was planted or maintained in violation of any statute, code, or local ordinance, and although railroads could be liable under common law negligence principles, the failure to maintain a railroad right of way was addressed by the Georgia Code of Public Transportation, specifically by O.C.G.A. § 32-6-51. Town of Register v. Fortner, 262 Ga. App. 507, 586 S.E.2d 54 (2003).

Delivery drivers.

- In a personal injury action filed by an injured driver, the trial court granted summary judgment to a bus delivery courier on grounds that the delivery person who the driver alleged caused the accident was an independent contractor, and not the courier's employee as: (1) the courier did not control how the delivery person carried out the delivery of the bus, or what route to take in making the delivery; (2) the delivery person was required to comply with all governmental requirements, was required to maintain log books, and was required to pay all incidental fees and taxes; and (3) a requirement that the bus be delivered the next day was placed on the delivery person by the buyer, and not the courier. Larmon v. CCR Enters., 285 Ga. App. 594, 647 S.E.2d 306 (2007).

Uninsured motorist coverage.

- Insurer was properly granted summary judgment in an insured's action for uninsured motorist coverage because there was no evidence of actual physical contact between the insured and an unknown driver, who allegedly struck either a manhole cover or the bottom of a construction barrel that then struck the insured's car, nor was there any corroborating eyewitness evidence. Hambrick v. State Farm Fire & Cas. Co., 260 Ga. App. 266, 581 S.E.2d 299 (2003).

Teenager driving past curfew.

- In a case in which the injured parties sought punitive damages from a motorist who collided with their vehicle because the motorist was a minor whose license did not allow the minor to drive after 1:00 a.m., and the collision occurred after 1:00 a.m., the minor was entitled to partial summary judgment dismissing the punitive damages claim because the time the motorist was driving did not proximately cause the accident, nor was the motorist's action part of a pattern or policy of dangerous driving, such as driving while intoxicated or speeding excessively. Brooks v. Gray, 262 Ga. App. 232, 585 S.E.2d 188 (2003).

Pending cross action.

- Motion for summary judgment will lie on the ground of pendency of substantially the same cross-claim filed against the party in a former action. Reeves Transp. Co. v. Gamble, 126 Ga. App. 165, 190 S.E.2d 98 (1972).

Summary judgment proper notwithstanding failure to show factual issues when counterclaim could not stand on own.

- Because a housing authority failed to show that factual issues regarding the counterclaim brought by a husband and wife alleging violations of the Open Records Act, O.C.G.A. § 50-18-70 et seq., must have been decided in its favor, the trial court erred in granting summary judgment in favor of the authority on this claim; but since the husband and wife did not appeal the summary judgment for the authority on their slander claim, and since the civil conspiracy claim could not stand without this underlying tort, summary judgment for the authority on this issue was proper. Strange v. Hous. Auth. of Summerville, 268 Ga. App. 403, 602 S.E.2d 185 (2004).

Oral contract to make a will.

- Trial court properly granted summary judgment for an executor in a suit by a child of the decedent alleging that the decedent orally contracted to leave a portion of the decedent's estate to the child as: (1) the validity of an agreement to make a will was a substantive matter for choice of law purposes, so Florida law applied; (2) oral contracts to make a will were invalid under Fla. Stat. ch. 732.701(1); and (3) the decedent's child failed to identify any terms in an earlier will made by the decedent that stemmed from a contract to leave a portion of the estate to the child. Harper v. Harper, 267 Ga. App. 553, 600 S.E.2d 659 (2004).

Probate of will.

- If the evidence authorizes it, a superior court is empowered to grant summary judgment probating a will in solemn form so as to administer a decedent's estate. Taylor v. Donaldson, 227 Ga. 496, 181 S.E.2d 340, cert. denied, 404 U.S. 805, 92 S. Ct. 163, 30 L. Ed. 2d 38 (1971).

On appeal to the superior court from the probate court of a proceeding to probate a will, under O.C.G.A. § 9-11-56, either party may move for summary judgment. Tony v. Pollard, 248 Ga. 86, 281 S.E.2d 557 (1981).

Trial court properly granted the widow's and the co-executor's motion for summary judgment and denied the family members' motion against the decedent's widow and the co-executor for partial summary judgment in the family members' lawsuit seeking their alleged share of the portion of the decedent's estate that the decedent inherited under the decedent's father's will, because of the transfer documents from a family settlement that occurred under the father's will and because the decedent left a lineal descendent surviving the descendent in decedent's adopted child. Haley v. Regions Bank, 277 Ga. 85, 586 S.E.2d 633 (2003).

Summary judgment, pursuant to O.C.G.A. § 9-11-56, was reversed because a genuine issue of material fact remained as to whether a transfer of money to the decedent's child before the decedent died was an advancement on the child's inheritance, and whether the child breached a fiduciary duty as a result. Walters v. Stewart, 263 Ga. App. 475, 588 S.E.2d 248 (2003).

Trial court erred in granting summary judgment pursuant to O.C.G.A. § 9-11-56 to will caveators in a will propounder's action seeking to probate a decedent's will because the decedent had sufficiently signed the will on the signature line of the self-proving clause, pursuant to O.C.G.A. § 53-2-40.1, and there existed two competent witness signatures, which were sufficient for attestation purposes; accordingly, the statutory requirements for proper execution of a will under O.C.G.A. § 53-2-40 appeared to have been met and a jury issue was raised as to whether, in fact, the requirements were met. Miles v. Bryant, 277 Ga. 362, 589 S.E.2d 86 (2003).

Will provision did not require the executors to fund a marital trust with non-publicly traded stock, and did not conflict with the executor's power to fund the trust with assets the executor deemed advisable; since the will empowered the executors to sell the estate's assets and did not require them to fund the trust with the specific stock, the parol evidence rule barred use of an affidavit of the attorney who prepared the will to shed light on the testator's intent, and summary judgment in favor of a wife and against the executors was reversed. Reynolds v. Harrison, 278 Ga. 495, 604 S.E.2d 184 (2004).

In a probate action, because the testatrix's older four children failed in their burden of showing undue influence at the time that the will was executed, and an affidavit submitted by one of the testatrix's older children did not change this result, as such consisted of inadmissible hearsay, the superior court properly granted summary judgment to the testatrix's youngest child. Barber v. Holmes, 282 Ga. 768, 653 S.E.2d 448 (2007).

Co-executors' conduct in an estate administration.

- Trial court erred in granting summary judgment to the co-executors in claims of breach of fiduciary duty and constructive fraud or conspiracy filed by the beneficiaries of an estate because it was necessary for a jury to decide whether the co-executors breached their fiduciary duties to the beneficiaries or committed constructive fraud or engaged in a conspiracy through their actions due to the factual questions that arose regarding the co-executors' actions. Bloodworth v. Bloodworth, 260 Ga. App. 466, 579 S.E.2d 858 (2003).

Processioning proceeding.

- When the protestant in a processioning proceeding pleaded a defense of res judicata and moved for summary judgment on this ground, the supporting motion with the record of a prior processioning proceeding between the same parties concerning the same issue of boundary, and in which the protestant obtained judgment, and the applicant made no contrary showing, a motion for summary judgment was properly granted. Souther v. Kichline, 124 Ga. App. 111, 183 S.E.2d 87 (1971).

Promissory note.

- Ordinarily, summary judgment offers a speedy and efficient disposition of a case if there is an executed promissory note and the sole question is how much, if any, is due. Pollard v. First Nat'l Bank, 169 Ga. App. 598, 313 S.E.2d 785 (1984).

Because a guarantor's daughter and son-in-law's bankruptcy plan did not identify the guarantor's obligation on promissory notes that the guarantor co-signed in favor of a bank, the inquiry mandated by 11 U.S.C. § 1322(b)(1) was not performed, the guarantor's liability to the bank was not discharged by the bankruptcy court's judgment, the bank was entitled to recover principal and interest due on the promissory notes in an action filed in state court, and the state trial court properly granted the bank's motion for summary judgment against the guarantor. Hampton v. Bank of Lafayette, 259 Ga. App. 677, 578 S.E.2d 486 (2003).

In an action filed by a trust on a promissory note and guaranty against a guarantor, the trial court properly granted the trust summary judgment as the guarantor's unsworn affidavit did not qualify as competent evidence creating a factual issue as to the issue of whether the guarantor was entitled to a setoff; moreover, the court disagreed that the guaranty showed that the guarantor signed the guaranty in a representative capacity. Keane v. Annice Heygood Trevitt Support Trust, 285 Ga. App. 155, 645 S.E.2d 641 (2007).

Former member of a golf club was not entitled to summary judgment in the club's suit on a promissory note for an installment plan of a non-refundable membership as the member breached the note by failing to pay the final two installments, the club was entitled to keep the sums paid as liquidated damages, consideration was adequate, the fees paid for initiation were not contingent on the continuation of a membership, and nothing in the record showed that the membership contract was ever rescinded. Bonem v. Golf Club of Ga., Inc., 264 Ga. App. 573, 591 S.E.2d 462 (2003).

After obtaining consent from the probate court to sell construction equipment an executrix's decedent secured with a promissory note, the executrix was entitled to summary judgment as to the tort claims alleged against the decedent's corporation, after the corporation wrongfully retained possession of the equipment, converted two certificates of deposit, and the decedent's liability on the notes was extinguished under a provision of a stock sales agreement; furthermore, evidence was presented that the corporation's failure to release the equipment prevented the equipment's sale to third parties and thereby constituted a breach of a duty to mitigate damages. Midway R.R. Constr. Co. v. Beck, 281 Ga. App. 412, 636 S.E.2d 110 (2006).

In an action to recover on two promissory notes, because material fact issues remained regarding the consideration given for the promissory notes, creating an ambiguity for which parol evidence was admissible, and as to whether the notes were signed as part of the same transaction, summary judgment to either the lender or the debtor was inappropriate. Foreman v. Chattooga Int'l Techs., Inc., 289 Ga. App. 894, 658 S.E.2d 470 (2008).

Negotiable instruments.

- Trial court did not err in granting summary judgment to a bank and a credit union on claims of conversion, civil conspiracy, and for attorney fees and punitive damages as: (1) no probative evidence existed that the buyer received delivery of the check, and thus, it never became a holder of the instrument at issue or entitled to enforce it; (2) no evidence was presented that the bank and credit union acted in concert against the buyer; (3) no evidence of misconduct or bad faith on the part of the bank or the credit union was presented; but, the trial court properly found that a genuine issue of material fact existed as to whether the bank and the credit union were holders in due course. Hartsock v. Rich's Emples. Credit Union, 279 Ga. App. 724, 632 S.E.2d 476 (2006).

Debtor and creditors.

- Trial court erred in entering summary judgment for a creditor in a debtor's suit seeking to quiet title as: (1) a co-debtor paid the creditor's note in full, which extinguished the debt; (2) once the note was paid, the collateral should have been released; (3) the creditor could not assign the note to the co-debtor; (4) the co-debtor had only a right to contribution as there was no indication that the co-debtor was a surety under the co-debtor's agreement with the debtor; and (5) O.C.G.A. § 9-13-78 was inapplicable as the statute pertained to co-defendants against whom a judgment had been obtained. Johnson v. AgSouth Farm Credit, 267 Ga. App. 567, 600 S.E.2d 664 (2004).

In an action to recover the balance of the money owed under a loan, because the guarantor of the loan failed to show the lack of an adequate foundation for the admitted evidence, a claim that the trial court erred in admitting the loan history report as a business record failed; hence, the proponent bank was properly granted summary judgment on the issue. Ishak v. First Flag Bank, 283 Ga. App. 517, 642 S.E.2d 143 (2007).

Trial court's order granting summary judgment to a collection company, and against a debtor, in the former's deficiency action, was upheld on appeal as it was not based on inadmissible hearsay, but upon records admissible under the business records exception to the hearsay rule, and was dispositive of the debtor's counterclaims, which arose out of the company's request for a deficiency judgment. Boyd v. Calvary Portfolio Servs., 285 Ga. App. 390, 646 S.E.2d 496 (2007).

Because genuine material fact issues remained as to a portion of the indebtedness owed to a creditor by a debtor, the creditor was not entitled to summary judgment as to that portion; moreover, the debtor was not entitled to a credit for the debtor's payment to the creditor as one of the signatories on the account admitted that such was made on behalf of another corporation the debtor's president and vice-president owned. Sweet Water Tree Farm, Inc. v. J. Frank Schmidt & Son, Inc., 287 Ga. App. 455, 651 S.E.2d 787 (2007).

Action to collect unpaid credit card debt.

- Because an action filed by a creditor to collect unpaid credit card charges was based on a written contract, and not an open account, the trial court properly held that the six-year limitations period under O.C.G.A. § 9-3-24 applied, supporting summary judgment in the creditor's favor; moreover, because the transaction at issue was a written contract, the form of the debtor's acceptance was immaterial. Hill v. Am. Express, 289 Ga. App. 576, 657 S.E.2d 547 (2008), cert. denied, No. S08C1008, 2008 Ga. LEXIS 490 (Ga. 2008).

Actions against financial institutions.

- In an action filed by a bank customer's son after the bank paid the customer the proceeds of a certificate of deposit (CD) the customer purchased in both the customer's name and the son's name, alleging violations of the son's rights in the CD, the appellate court held that the bank was protected from liability by O.C.G.A. §§ 7-1-816 and7-1-820 because the customer's telephone request for redemption was made in accordance with conditions of the customer's account and the bank's regulations, and the appellate court affirmed the trial court's judgment granting summary judgment for the bank. South v. Bank of Am., 260 Ga. App. 91, 579 S.E.2d 80 (2003).

When a debtor who purchased credit disability insurance sued a creditor for wrongful repossession, the trial court erroneously granted summary judgment to the creditor, under O.C.G.A. § 9-11-56(c), because the creditor had an obligation to look to the credit disability insurance first before repossessing the debtor's vehicle. Corbin v. Regions Bank, 258 Ga. App. 490, 574 S.E.2d 616 (2002).

Bankruptcy.

- In a Chapter 7 bankruptcy proceeding, a debtor's failure to remit lottery proceeds from the debtor's retail store to the Georgia Lottery Corporation satisfied the defalcation while acting in a fiduciary capacity exception to the discharge provision under § 523(a)(4) of the Bankruptcy Code, 11 U.S.C. § 523(a)(4); thus, summary judgment in favor of the Corporation on the issue of liability was proper. Georgia Lottery Corp. v. Thompson (In re Thompson), 296 Bankr. 563 (Bankr. M.D. Ga. 2003).

Re-acceptance of vehicle after alleged revocation.

- Buyer's acts of ownership over a truck after informing the buyer's creditor that the buyer would be returning the truck constituted, as a matter of law, re-acceptance of the vehicle; therefore, there was no genuine issue of fact with respect to the buyer's revocation of acceptance and the trial court did not err in granting summary judgment. Olson v. Ford Motor Co., 258 Ga. App. 848, 575 S.E.2d 743 (2002).

Repossession of vehicle.

- Trial court properly granted summary judgment to an auto dealer, a mortgage broker, and a lender on the accused person's claim for tortious interference with business relations; even if it was assumed that the accused person had established all the other elements of tortious interference regarding the repossession of a vehicle another person bought using the accused person's name, the accused person did not offer any proof that they acted maliciously by reporting the repossession. Blakey v. Victory Equip. Sales, Inc., 259 Ga. App. 34, 576 S.E.2d 38 (2002).

Summary judgment was properly entered for a credit union on an owner's claim for wrongful possession as the owner defaulted on the agreement with the credit union by failing to pay the storage fees for the car which resulted in a garageman's lien; under O.C.G.A. § 11-9-601(a), as the owner was in default, the credit union could, pursuant to O.C.G.A. § 11-9-609(a), take possession of the collateral, and under O.C.G.A. § 11-9-610, the credit union could sell the collateral. Endsley v. Robins Fed. Credit Union, 267 Ga. App. 512, 600 S.E.2d 441 (2004).

In a civil action arising from a creditor's repossession of a debtor's vehicle, summary judgment on a debtor's conversion and punitive damages claims against a creditor was reversed as the trial court erroneously found that the debtor's failure to demand that the creditor return the subject vehicle was fatal to the claim, given that the creditor wrongfully repossessed and then sold the car subject to the parties' finance agreement, and hence no demand was necessary; but, as the debtor did not challenge summary judgment on the debtor's emotional distress claim, the judgment was upheld. Williams v. Nat'l Auto Sales, Inc., 287 Ga. App. 283, 651 S.E.2d 194 (2007).

Duty to warn in products liability action.

- Because the trial court granted summary judgment to a spine plate manufacturer pursuant to O.C.G.A. § 9-11-56, based on the doctrine of learned intermediary, in the patient's failure to warn claim, it was clear that the trial court determined that the warning given by the manufacturer to the physician was adequate or reasonable as a matter of law and, accordingly, the Court of Appeals should have reviewed the patient's arguments on that doctrine in the patient's appeal. McCombs v. Synthes, 277 Ga. 252, 587 S.E.2d 594 (2003).

Real-party-in-interest objection.

- Summary judgment cannot properly be granted to a defendant on the basis of a real-party-in-interest objection. Warshaw Properties v. Lackey, 170 Ga. App. 101, 316 S.E.2d 482 (1984).

Since a real-party-in-interest objection is a matter in abatement and does not go to the merits of an action, such an objection cannot be disposed of by means of summary judgment but is properly disposed of pursuant to a motion to dismiss. Fleming v. Caras, 170 Ga. App. 579, 317 S.E.2d 600 (1984).

Trial court erred in granting summary judgment pursuant to O.C.G.A. § 9-11-56 to a boat owner in an action arising from a boat/jet ski accident; although the plaintiffs were not proper parties to the action, as the plaintiffs did not own the jet ski and did not hold any valid subrogation claim, a real party in interest defense pursuant to O.C.G.A. § 9-11-17 was not a proper subject for summary judgment, and the trial court should have dismissed the action. Franco v. Cox, 265 Ga. App. 514, 594 S.E.2d 717 (2004).

Third-party beneficiaries.

- When an attorney sued a former client's ex-spouse to enforce a lien on the former client's former marital residence, which was titled in the ex-spouse's name, the attorney was entitled to summary judgment because the ex-spouse's separation agreement with the former client provided for the satisfaction of liens against the former client, and the attorney was an unnamed third-party beneficiary of that separation agreement. Northen v. Tobin, 262 Ga. App. 339, 585 S.E.2d 681 (2003).

RICO.

- Because the plaintiffs, in neither the complaint nor the evidence in opposition to a motion for summary judgment, produced any evidence raising the issue that the defendants committed two predicate criminal acts indictable under state or federal law and within one of the categories allowing an action under the federal Racketeer Influenced and Corrupt Organization statute, 18 U.S.C. § 1961 et seq., summary judgment for the defendant was proper. Roth v. Connor, 235 Ga. App. 866, 510 S.E.2d 550 (1998).

Court properly denied the defendants' motion for summary judgment in a bank's state RICO action because a genuine issue of fact remained as to the defendants' participation in a pattern of racketeering activity sufficient to ground liability under O.C.G.A. § 16-14-4(a); the jury could also reasonably find that the defendants were knowing and voluntary participants in a racketeering enterprise sufficient to establish liability under O.C.G.A. § 16-14-4(b). Faillace v. Columbus Bank & Trust Co., 269 Ga. App. 866, 605 S.E.2d 450 (2004).

Termination of employment.

- Because a decision to terminate the plaintiff was made after the plaintiff had tendered a resignation, which resignation triggered a provision in the plaintiff's Buy-Sell Agreement that required the repurchase of the plaintiff's stock, the price for which would decrease if the plaintiff was fired for cause, and because the evidence, construed in the plaintiff's favor, supported an inference that the president's stated reasons for terminating the plaintiff were contrived, there was some evidence from which a jury could infer a lack of good faith on the part of the president, and the trial court erred in granting partial summary judgment on the issue of whether the plaintiff was fired for good cause. Phillips v. Key Servs., Inc., 235 Ga. App. 564, 510 S.E.2d 304 (1998).

Summary judgment pursuant to O.C.G.A. § 9-11-56(c) was properly granted to the defendants, a city, a city mayor, and a city council, in a police chief's action alleging wrongful termination and tortious interference with business relations as the defendants acted within the defendants' authority in discharging the police chief for falsifying another police officer's application for training; further, the chief was an at-will employee and, accordingly, the chief's employment was terminable at will and such action did not give rise to a claim for alleged wrongful termination. Wilson v. City of Sardis, 264 Ga. App. 178, 590 S.E.2d 383 (2003).

Sexual harassment and retaliation.

- Although the supervisor's isolated attempt to kiss the employee was clearly inappropriate and reprehensible, alone it was insufficient to create a jury question regarding the employee's claim of sexual harassment from a hostile work environment; thus, summary judgment was appropriately granted. Furthermore, the employer was entitled to summary judgment on the employee's retaliation claim after the employee resigned; the employee could not show that the employer took any adverse employment action against the employee by requiring the employee to leave on the original date the employee chose. Liebno v. Drexel Chem. Co., 262 Ga. App. 517, 586 S.E.2d 67 (2003).

Battery.

- Grant of partial summary judgment pursuant to O.C.G.A. § 9-11-56 to a physician in a patient's action alleging breach of fiduciary duty and battery arising from an alleged failure to obtain valid consent prior to performing a medical procedure was erroneous because the physician had represented to the patient that the patient's orthopedic surgeon had been made aware of the treatment plans and had approved the plans, but there was no direct evidence that the surgeon had actually received the plans and had been aware of the plans and approved of the plans; accordingly, the jury could have found that the physician misrepresented that situation with an intent to deceive pursuant to O.C.G.A. § 51-6-2(b), which would have constituted sufficient fraud to have vitiated the consent. Petzelt v. Tewes, 260 Ga. App. 802, 581 S.E.2d 345 (2003).

Employee's claim of battery.

- Grant of summary judgment in favor of the employee on the employee's claim of battery was reversed because there were factual issues regarding whether a co-worker's conduct constituted an offensive touching and whether the touching was intentional. Vasquez v. Smith, 259 Ga. App. 79, 576 S.E.2d 59 (2003).

Public employee's freedom of speech.

- Summary judgment was properly granted to the defendants on the employee's claim that the employee was dismissed for exercising the constitutional right to free speech, in violation of 42 U.S.C. § 1983, because the employee's speech, made during an internal investigation of university officers, was made primarily in the employee's role as an employee and not as a citizen; thus, the speech was not constitutionally protected. Jones v. Bd. of Regents of the Univ. Sys. of Ga., 262 Ga. App. 75, 585 S.E.2d 138 (2003).

Local government personnel issues.

- Because a county tax commissioner's employees were within the county's civil service system, the county was properly granted summary judgment and, hence, the county's personnel director was authorized to refuse to implement raises to the employees as the commissioner sought; moreover, the commissioner's reliance on O.C.G.A. § 36-1-21 did not change the result as that statute expressly applied only to civil service systems created by county governing authorities, and the civil service system at issue was created by the Georgia General Assembly. Ferdinand v. Bd. of Comm'rs, 281 Ga. 643, 641 S.E.2d 787 (2007).

Exclusivity doctrine of the Georgia Workers' Compensation Act.

- Trial court properly granted summary judgment in favor of a co-worker and an employer as the exclusivity doctrine of the Georgia Workers' Compensation Act, specifically O.C.G.A. § 34-9-11(a), barred an employee's assault and battery and intentional infliction of emotional distress claims against a co-worker, and the employee's negligent retention and respondeat superior claims against the employer as the claims were ancillary to a physical occurrence arising in the course of employment; the injuries were incurred when the co-worker inflicted a minor punch or poke on the employee, not an incidental contact, which showed some level of physical harm. Lewis v. Northside Hosp., Inc., 267 Ga. App. 288, 599 S.E.2d 267 (2004).

In a wrongful death action, the trial court erred in denying an employer's motion for summary judgment against the claims filed by the decedent's parents, as those claims were limited by the exclusivity provisions of the Georgia Workers' Compensation Act, given evidence that the decedent's death arose out of and in the course of employment, pursuant to O.C.G.A. § 34-9-1(4). Burns Int'l Sec. Servs. Corp. v. Johnson, 284 Ga. App. 289, 643 S.E.2d 800 (2007).

State preemption of county ordinance.

- Because the plain language of O.C.G.A. § 16-11-173 expressly precluded a county from regulating the carrying of firearms in any manner, a county ordinance attempting to regulate the carrying of firearms was preempted by the statute; thus, the trial court erred in concluding otherwise and by denying summary judgment to a citizen and advocacy group on those grounds. GeorgiaCarry.Org, Inc. v. Coweta County, 288 Ga. App. 748, 655 S.E.2d 346 (2007).

Whistleblowers.

- Summary judgment was erroneously granted to the board of regents on the employee's claim under O.C.G.A. § 45-1-4, the "whistleblower" statute, because a jury issue existed regarding whether "action" was taken against the employee for purposes of § 45-1-4; the record contained at least some circumstantial evidence that the employee was dismissed in reprisal for the employee's investigation into the university's officers and for disclosing information of fraud in connection with the investigation. Jones v. Bd. of Regents of the Univ. Sys. of Ga., 262 Ga. App. 75, 585 S.E.2d 138 (2003).

Breach of implied warranties of merchantability and fitness for particular purpose.

- Seller was denied summary judgment on the customer's action alleging breach of implied warranties of merchantability and fitness for a particular purpose; the customer's failure to serve the seller with notice of the defect in the product until two years and three days after the customer suffered an injury was, by itself, not enough of a delay to prejudice the seller and bar relief. Wal-Mart Stores, Inc. v. Wheeler, 262 Ga. App. 607, 586 S.E.2d 83 (2003).

Conversion.

- Denial of summary judgment as to a claim that funds were allegedly converted to the defendants' personal use was reversed because there was no evidence in the record to support such a claim. Harris v. Gilmore, 265 Ga. App. 841, 595 S.E.2d 651 (2004).

Consignment.

- While a buyer of a motor home on consignment was entitled to summary judgment after the dealer never paid the consignors, when the consignors refused to execute an assignment and warranty of title when the buyer sought the same, the buyer was entitled to damages, including reasonable attorney's fees under O.C.G.A. § 40-3-32(a) caused thereby. Smith v. Hardeman, 281 Ga. App. 402, 636 S.E.2d 106 (2006).

Debtor/creditor issues.

- Summary judgment under O.C.G.A. § 9-11-56(c) was properly granted to a creditor in the creditor's action seeking to collect on a debt since the debtor's defense consisted of a claim in recoupment, pursuant to O.C.G.A. §§ 13-7-2 and13-7-13, based on personal injuries the debtor suffered from the negligent conduct of the creditor; the court ruled that such a defense was not applicable to the creditor's claim because the claims were legally distinct. Long v. Reeves Southeastern Corp., 259 Ga. App. 257, 576 S.E.2d 641 (2003).

Desecration of cemetery.

- Summary judgment for the secretary of a land company was affirmed in a case brought by family members claiming that acts committed by the land company allegedly desecrated the family members' family cemetery because affidavits submitted by the secretary attested to the fact that the secretary never acted outside of the scope of the secretary's authority as an officer of the land company, did not personally direct, supervise, or control the operator who cleared the land in question, and did not personally direct, supervise, or directly take part in the land clearing that allegedly resulted in the desecration; the burden shifted to the family members, who put forth no affidavits or other evidence that demonstrated the secretary's individual liability for the alleged tortious acts. Ceasar v. Shelton, Ga. App. , S.E.2d (Mar. 15, 2004).

Georgia Recreational Purposes Act defense.

- Trial court erred in granting summary judgment for a school board as to an injured party's personal injury claim based on the Georgia Recreational Purposes Act, specifically O.C.G.A. §§ 51-3-22 and51-3-23, as the school board presented no evidence that the playground was open to the public and the injured party presented evidence that the playground: (1) was fenced-in; (2) was only for the use of children enrolled in the school; and (3) was not open to any segment of the general public. Hart v. Appling County Sch. Bd., 266 Ga. App. 300, 597 S.E.2d 462 (2004).

Tort action.

- One spouse's claim for damages for a motorcycle accident against the other spouse involved only a tort claim, and was not a divorce case within the meaning of Ga. Const. 1983, Art. VI, Sec. VI, Para. III(6), even though the spouse sought a divorce in another count of the complaint, and the Supreme Court of Georgia did not have jurisdiction over the interlocutory appeal of the denial of the other spouse's motion to dismiss, which had been treated as a motion for summary judgment; the spouse claimant's argument that the appeal fell within the Supreme Court of Georgia's appellate jurisdiction over constitutional issues was rejected as no allegedly unconstitutional statutes were specified, and argued only that the interspousal tort immunity doctrine, as codified in O.C.G.A. § 19-3-8, was unconstitutional as applied. Gates v. Gates, 277 Ga. 175, 587 S.E.2d 32 (2003).

Trial court did not err in granting summary judgment to the defendants in a tort action, based on a bankruptcy court's order confirming their Chapter 11 plan, which discharged the tort claim and barred the plaintiffs from continuing their suit as the plaintiffs did not dispute that their tort claim was within the scope of the defendants' discharge in bankruptcy; further, the trial court correctly concluded that such constituted a defense which barred the plaintiffs' tort action to collect the discharged claim. Roy v. Garden Ridge, L.P., 283 Ga. App. 74, 640 S.E.2d 665 (2006).

In a parent's suit as a next friend to the parent's daughter, the trial court erred in denying summary judgment to a retailer and the retailer's employees on the parent's claim of tortious misconduct as no evidence was presented that the child victim was the retailer's business invitee, but was merely a licensee under both O.C.G.A. §§ 51-3-1 and51-3-2 as the child merely entered the business with the sole intent to use the restroom; however, summary judgment was properly denied as to the invasion of privacy, intentional infliction of emotional distress, false imprisonment, false arrest, and damages claims filed by the parent against the defendants. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008).

Tort claim arising from flooding.

- Trial court properly granted summary judgment to the city on the claimant's tort claims arising from the back up of a sewer that flooded the claimant's home as no genuine dispute existed that the claimant did not file a written ante litem notice with the city within six months of the happening of the event that gave rise to the claim, the first flooding. The claimant was required to file written notice within that time even though the claimant alleged the flooding was a continuing nuisance as the city was entitled to notice arising from the first flooding so the city could attempt to fix the problem, and the claimant's failure to timely give the city written notice meant the city could not be held liable. Cundy v. City of Smyrna, 264 Ga. App. 535, 591 S.E.2d 447 (2003).

Slander claims.

- In a suit between feuding neighbors, the trial court properly held that the words spoken by one against the other, which the latter alleged were disparaging against America's loss on September 11, 2001, were not slanderous as the words were an expression of pure opinion, which was neither provable as true nor as false; as a result, the neighbor who uttered the allegedly slanderous comments was entitled to summary judgment on the other's claim of slander per se. Bullard v. Bouler, 286 Ga. App. 218, 649 S.E.2d 311 (2007).

Stalking arising to invasion of privacy.

- Because: (1) evidence was presented that the appellee denied the intent required under the stalking statute, O.C.G.A. § 16-5-90; and (2) a motion quashing a subpoena for the appellee's cell phone records was proper as those cell phone records were not reasonably calculated to lead to the discovery of admissible evidence or information relevant to the intrusiveness of the appellee's behavior, the trial court properly denied partial summary judgment on the appellant's stalking claim and entered an order quashing a subpoena for appellee's cell phone records; but, because the appellee's alleged repeated actions of following the appellant and taking pictures arose to an invasion of privacy, summary judgment was inappropriate. Anderson v. Mergenhagen, 283 Ga. App. 546, 642 S.E.2d 105 (2007).

Action brought by auctioneer for tort of auction company.

- When an auctioneer sought damages from the auction company for whom the auctioneer worked and the principal because the auctioneer was arrested in another state for contracting and advertising for an auction without a license, the auction company and principal were entitled to summary judgment because the auctioneer did not show the auction company or principal violated any duty owed the auctioneer that caused the auctioneer's injury, as the auctioneer knew, when the auctioneer advertised and contracted for the auction in the other state; further, the auction company did not have a license to conduct an auction in that state so the auctioneer did not establish the elements necessary to recover for the auction company's or principal's alleged tortious conduct under O.C.G.A. § 51-1-1. Morris v. Gavin, Inc., 268 Ga. App. 771, 603 S.E.2d 1 (2004).

Products liability.

- Under the learned intermediary doctrine, a warning included with a plate surgically implanted into a consumer by the consumer's physician stating that the plate could break when subjected to the increased loading associated with delayed union or non-union, and such occurred to the consumer, was adequate and reasonable under the circumstances of the case; thus, summary judgment against the consumer was properly entered. McCombs v. Synthes (U.S.A.), 266 Ga. App. 304, 596 S.E.2d 780 (2004).

Because: (1) a couple failed to present sufficient evidence to show an original manufacturing defect in their used car at the time the car left the car's manufacturer; (2) two product recalls did not apply to the vehicle; and (3) the doctrine of res ipsa loquitur did not apply, summary judgment was properly granted to the car's manufacturer on the couple's negligent manufacturing, failure to warn, and one of the spouse's loss of consortium claim; moreover, even if the trial court erred in considering the affidavits submitted by the manufacturer's expert, such did not amount to reversible error. Miller v. Ford Motor Co., 287 Ga. App. 642, 653 S.E.2d 82 (2007).

Privileged communications.

- Attorney's statements regarding a doctor made in the form of two phone messages to the doctor's patients were privileged as the statements were made in anticipation of a lawsuit the attorney was preparing to file, were not slanderous, and did not interfere with the doctor's business relations; thus, the attorney was entitled to summary judgment on the doctor's claims of slander and tortious interference with business relations. Vito v. Inman, 286 Ga. App. 646, 649 S.E.2d 753 (2007), cert. denied, 2007 Ga. LEXIS 770 (Ga. 2007).

Creation of easement by implication.

- Trial court erred in granting summary judgment, pursuant to O.C.G.A. § 9-11-56, to a property owner who sought an easement by implication of law pursuant to O.C.G.A. § 44-9-1 over an adjoining property owners' land as the record was insufficient to support such a determination; the parties' accounts of how the land was divided upon foreclosure from the original grantor differed greatly and there were no deeds, deed assignments, dates, or foreclosure information provided in the record in order to properly determine if such an easement was created. Boyer v. Whiddon, 264 Ga. App. 137, 589 S.E.2d 709 (2003).

Condemnation actions.

- In a condemnation action, partial summary judgment was properly granted in favor of the Georgia Department of Transportation because an owner was unable to recover losses for business damages as the evidence showed that the owner was not actually conducting a business on the condemned land, despite the fact that a lease agreement between the owner and a lessee gave the owner some control over the business operations of a service station and store located on the property. Davis Co. v. DOT, 262 Ga. App. 138, 584 S.E.2d 705 (2003).

Statutes of limitations.

- Motion for summary judgment is the proper procedure by which to secure a ruling on the statute of limitations. Houston v. Doe, 136 Ga. App. 583, 222 S.E.2d 131 (1975).

Although the act that originally caused the nuisance might not have been committed within the period of limitations of the action, the defendant presented some evidence that the groundwater contamination was a continuing tort that continued to inflict damages in the four years prior to the suit; therefore, summary judgment was inappropriate when based upon the suit being time barred. Tri-County Inv. Group v. Southern States, Inc., 231 Ga. App. 632, 500 S.E.2d 22 (1998).

Trial court properly granted summary judgment to a driver in the victim's action stemming from a vehicular collision on the basis that service did not relate back to the time of filing the complaint as the victim did not ensure that the suit was being filed in the proper county. Williams v. Bragg, 260 Ga. App. 377, 579 S.E.2d 800 (2003).

In a medical malpractice action, because the trial court erroneously applied the five-year statute of repose contained in O.C.G.A. § 9-3-71(b), and not O.C.G.A. § 9-3-73, in finding that the parents' amended negligence complaint against certain doctors and nurses was time-barred, the trial court erred in entering summary judgment against the parents; further, the trial court also erred in finding that the doctors and nurses were rendering care to only the mother, and not the mother and the newborn child. Johnson v. Thompson, 286 Ga. App. 810, 650 S.E.2d 322 (2007), cert. denied, No. S07C1840, 2008 Ga. LEXIS 90 (Ga. 2008).

Because a sublessee failed to file its claims under a divisible sublease within the six-year period after the claims arose, pursuant to the requirements of O.C.G.A. § 9-3-24, and a different limitations period applicable to construction contracts and express warranties did not apply, partial summary judgment to the sublessor as to the time-barred claims was properly entered. New Morn Foods, Inc. v. B & B Egg Co., 286 Ga. App. 29, 648 S.E.2d 428 (2007).

Because a belated claim in a breach of contract action filed against an alleged homebuilder's partner did not relate back to the date of the original complaint, as required by O.C.G.A. § 9-11-15(c), summary judgment in favor of the homebuilder was correctly granted based on the expiration of the six-year limitation period under O.C.G.A. § 9-3-24. Wallick v. Lamb, 289 Ga. App. 25, 656 S.E.2d 164 (2007).

Tree limb hitting vistor to property.

- In a case brought against a property owner by an injured person who was hurt when a limb fell from a tree in the property owner's yard and struck the injured person, summary judgment for the property owner was affirmed because the property owner's expert signed an affidavit in which the expert stated that because there were green leaves growing on the limb, the average person would not have known that the limb was diseased and in which the expert also stated that the tree was healthy, with no visible signs of stress and no visible signs of existing hazards; there was no evidence that the tree was diseased or decayed, and thus there was no prior notice to the property owner that the tree may have constituted a dangerous condition. Klein v. Weaver, 265 Ga. App. 390, 593 S.E.2d 913 (2004).

Forfeiture.

- Massage parlor operator was entitled to summary judgment in a civil forfeiture action instituted by the State of Georgia in connection with a Georgia Racketeer Influenced and Corrupt Organizations Act action because the state merely rested on the state's allegations used to procure a search warrant and did not have admissible evidence, documentary or testimonial, to support the state's allegations that the operator had engaged in the predicate acts of prostitution, federal money laundering, mail fraud, and Travel Act violations, both individually and in conspiracy with others. Pabey v. State, 262 Ga. App. 272, 585 S.E.2d 200 (2003).

Inverse condemnation action.

- City was properly granted summary judgment in an inverse condemnation suit because the city's change in making a road a one-way street did not disturb the direct vehicular access existing from the owners' land to the abutting street; thus, there was no compensable taking, despite the fact that access was less convenient. Hanson v. City of Roswell, 262 Ga. App. 671, 586 S.E.2d 341 (2003).

Trial court properly granted partial summary judgment to a county in an action filed against the county by a competitor in the water supply business because a claim of inverse condemnation arising from the county's operation of a competing water supply system and resulting loss of business was not based on physical damage to the competitor's property, but rather left the claim extant, whether advanced under a theory of trespass or inverse condemnation. Jones v. Putnam County, 289 Ga. App. 290, 656 S.E.2d 912 (2008).

Immunity of city for death of fleeing suspect.

- Appellate court erred in denying a city's motion for summary judgment in a police pursuit case as the statute stating that a city could be held liable for injuries sustained during a police pursuit, under certain circumstances, applied only to innocent persons who were injured and not to fleeing suspects unless it was shown the officer intended to injure the suspect; since no such showing was made, the parents of the fleeing suspect who was killed trying to drive away from the officer could not recover from the city. City of Winder v. McDougald, 276 Ga. 866, 583 S.E.2d 879 (2003).

42 U.S.C.

§ 1983 action. - Janitorial service owner's 42 U.S.C. § 1983 claim against a police detective, a police chief, and a police department could not withstand summary judgment because the police detective properly relied upon a trustworthy source to establish probable cause to arrest the owner for a theft from a customer's spa without investigating. Means v. City of Atlanta Police Dep't, 262 Ga. App. 700, 586 S.E.2d 373 (2003).

Abusive litigation.

- Because a construction company's counterclaims alleging abusive litigation under O.C.G.A. §§ 9-15-14 and51-7-80 et seq., alleged in the pleading that the claims constituted "notice" to assert such claims under O.C.G.A. § 51-7-81, the trial court properly determined that the claims were not counterclaims and, accordingly, dismissed the claims for want of subject matter jurisdiction under O.C.G.A. § 9-11-12(h)(3); it was also found that the required notice provided in O.C.G.A. § 51-7-84(b) was not provided prior to the filing of a claim, nor was the prior litigation ended in the defendants' favor, both of which were requirements in order to bring such a claim, and disposing of the claim under a summary judgment analysis, pursuant to O.C.G.A. § 9-11-56, was proper. Langley v. Nat'l Labor Group, Inc., 262 Ga. App. 749, 586 S.E.2d 418 (2003).

Because the Court of Appeals of Georgia merely found in a prior action between the parties that an employer failed to prove the employer's claims against a former employee at trial, and that holding did not amount to a binding determination that those claims were without substantial justification or that the employer engaged in abusive litigation, the trial court properly granted summary judgment to the employer as to the former employee's abusive litigation claims; moreover, although questions of reasonableness were generally for the jury, given that the employer was successful at every stage of the litigation prior to the appeal, the trial court was authorized to determine as a matter of law that the company acted in good faith in filing and pursuing the company's claims. Bacon v. Volvo Serv. Ctr., Inc., 288 Ga. App. 399, 654 S.E.2d 225 (2007).

Punitive damages.

- When a company sued the company's accountants for punitive damages regarding their participation in a sale of the company's assets because they did not notify the company's principal of the sale, summary judgment was properly granted in favor of the accountants because the accountants' failure to inform the principal of the sale and their participation in the sale breached no duty the accountants owed the company and was attributable to the company's and principal's own failure to apprise the accountants that the corporation represented as the company's parent was no longer the parent and was not authorized to approve the sale. R.W. Holdco, Inc. v. Johnson, 267 Ga. App. 859, 601 S.E.2d 177 (2004).

Summary judgment was properly entered for a realtor and a developer as to a landowner's punitive damages claims as the realtor and the developer were entitled to summary judgment on the landowner's underlying claims. Sorrow v. Hadaway, 269 Ga. App. 446, 604 S.E.2d 197 (2004).

Because the appeals court found that other intentional tort claims survived summary judgment which would authorize the imposition of punitive damages if the jury were to find that a retailer and the retailer's employees acted with a wanton disregard of a nine-year-old child's rights, the trial court did not err by denying summary judgment on these grounds. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008).

In a legal malpractice action, because the evidence sufficiently showed that the client was precluded from seeking punitive damages in the underlying suit against the opposing party, the attorney being sued was properly granted summary judgment on the issue. Brito v. Gomez Law Group, LLC, 289 Ga. App. 625, 658 S.E.2d 178 (2008).

Tax issues.

- Summary judgment for a county board of tax assessors (BTA) in a taxpayer's suit seeking injunctive relief and a writ of mandamus compelling a board of equalization (BOE) to adjudicate its appeal of a reassessment for one tax year was reversed as: (1) there were no objective criteria in place for choosing businesses for audits when the taxpayer was chosen for a four-year audit; (2) there was evidence that the BTA attempted to thwart the taxpayer's statutory right to prompt adjudication of its appeal before the BOE under O.C.G.A. § 48-5-311; and (3) there was a jury question as to whether the audit was begun by an accounting firm or the BTA for an improper purpose in violation of O.C.G.A. § 48-5-299(a). Parisian, Inc. v. Cobb County Bd. of Tax Assessors, 263 Ga. App. 332, 587 S.E.2d 771 (2003).

County and the county tax commission were entitled to summary judgment as a matter of law in an action filed by a trucking company seeking a refund for ad valorem taxes the company paid as it was undisputed at trial that the company failed to timely file for either an apportionment in two subject years, as required by Ga. Comp. R. & Regs. r. 560-11-7-.02, and that the company did not appeal the company's ad valorem assessment within 45 days of the assessment in either year, pursuant to O.C.G.A. § 48-5-311; furthermore, O.C.G.A. § 48-5-380, which allowed a taxpayer to seek a refund up to three years after paying an erroneous or illegal tax, did not apply. Trans Link Motor Express, Inc. v. Dougherty County, 265 Ga. App. 10, 592 S.E.2d 859 (2003).

In a bench trial, in which an order was issued establishing the 1997 fair market value of the taxpayer's property at a value of $4,709,000, which was an amount greater than the value set by the board of equalization, but when the taxpayer paid taxes in 1997, 1998, and 1999, based on the board of equalization's 1997 valuation and when because the 1997 value of the taxpayer's property was finally determined to be $4,709,000, the taxpayer automatically returned the property in 1998 and 1999 at that value, the taxpayer underpaid taxes for the 1997, 1998, and 1999 tax years and the tax assessors were entitled to a summary judgment finding that the taxpayer had underpaid taxes and that the taxpayer owed additional sums; furthermore, the statutory notice requirements of O.C.G.A. § 48-5-306 did not preclude summary judgment. Pine Pointe Hous., L. P. v. Bd. of Tax Assessors, 269 Ga. App. 855, 605 S.E.2d 443 (2004).

Because taxpayer's assignee lacked standing to claim a refund of ad valorem taxes allegedly overpaid by the assignor, the trial court erred in finding that the assignee was entitled to the refund; as a result, the court also erred in denying the respective counties summary judgment on the issue. Clayton County v. HealthSouth Holdings, Inc., 288 Ga. App. 406, 654 S.E.2d 143 (2007).

Sovereign immunity.

- Trial court erred in granting a school board's motion for summary judgment as to an injured party's personal injury claim based on sovereign immunity as: (1) the trial court applied the wrong version of Ga. Const. 1983, Art. I, Sec. II, Para. IX(e), which was amended, prospectively, after the accident; (2) the applicable version of Ga. Const. 1983, Art. I, Sec. II, Para. IX(e) was that in effect at the time of the accident in 1990; and (3) the parties agreed that an insurance policy would have constituted a waiver of the board's sovereign immunity, which implied that a policy existed; the case was remanded so that the trial court could reconsider the court's decision in light of the correct law and any insurance policy. Hart v. Appling County Sch. Bd., 266 Ga. App. 300, 597 S.E.2d 462 (2004).

In an action arising out of an arrest, despite the way the arrestee was treated, the trial court properly dismissed a complaint against a county, and granted summary judgment on the same complaint against a city on sovereign immunity grounds because the arrestee failed to show that the immunity had been waived. Scott v. City of Valdosta, 280 Ga. App. 481, 634 S.E.2d 472 (2006).

In a tort action for personal injuries and property damage arising from an auto collision filed against a city, because the facts did not involve an officer's pursuit of a fleeing suspect, or damages caused by a fleeing suspect, O.C.G.A. § 40-6-6 did not apply to the action, and thus, the trial court erred in relying on the statute as a ground for granting summary judgment to the city on sovereign immunity grounds. Weaver v. City of Statesboro, 288 Ga. App. 32, 653 S.E.2d 765 (2007), cert. denied, No. S08C0421, 2008 Ga. LEXIS 221 (Ga. 2008).

Official immunity for discretionary acts.

- As a student's personal injury damages claims against three school employees were based on the employees negligent failure to supervise the student when the student was with a non-party, and that such failure allegedly led to the student being molested by the third-party, the supervisory decisions made were discretionary acts requiring personal deliberation and judgment; hence, any reliance on O.C.G.A. § 19-7-5 did not provide a basis for civil liability against the employees for a negligent breach of a ministerial duty, and the student's claims were barred by the doctrine of official immunity as a matter of law. Reece v. Turner, 284 Ga. App. 282, 643 S.E.2d 814 (2007).

Display of skeletal remains by state.

- Adult child's tort claims against a state university board of regents for the autopsy, study, and display of the parent's skeletal remains in a glass case in a medical school for decades were dismissed because the claims accrued no later than 1950, at which time sovereign immunity applied to Georgia and its agencies; thus, a trial court erred in denying the board's motions for summary judgment and dismissal. Bd. of Regents v. Oglesby, 264 Ga. App. 602, 591 S.E.2d 417 (2003).

Proceedings to renew judgment.

- While O.C.G.A. § 9-12-21 did not prevent the assignee of a judgment from seeking to enforce the judgment in the amount the assignee paid for the judgment, O.C.G.A. § 9-12-21 intended the transfer of an entire judgment so the assignment of a part interest in a judgment required the judgment debtor's consent in order to prevent the judgment debtor from being subjected to a multiplicity of suits arising from the same judgment; absent that consent, the assignee of a part interest in a judgment against the judgment debtor could not seek to renew the judgment so the assignee, in a suit to renew the judgment, was not entitled to summary judgment. Rathbone v. Ward, 268 Ga. App. 822, 603 S.E.2d 20 (2004).

Uninsured motorists.

- Trial court properly granted an insurer's summary judgment motion in an insured's suit for uninsured motorist benefits as the insured's suit against a deputy sheriff in the deputy's official capacity was barred by the statute of limitations; the insured could not establish that the insured was legally entitled to recover from the deputy, as required by O.C.G.A. § 33-7-11(a)(1). Soley v. State Farm Mut. Auto. Ins. Co., 267 Ga. App. 606, 600 S.E.2d 707 (2004).

Action to open intestate estate.

- Putative heir's action seeking an order opening the intestate estate was subject to the three-year statute of limitations contained in O.C.G.A. § 9-11-60(f), and the trial court erred when the court denied a motion for summary judgment that was filed on behalf of a widow who administered the estate because the heir's action was filed more than three years after the probate court issued an order discharging the widow as administrator. Moore v. Mack, 266 Ga. App. 847, 598 S.E.2d 525 (2004).

Frivolous litigation.

- In the absence of fact issues as to malice and lack of substantial justification, the trial court properly granted summary judgment to the attorney and the former client on a lawyer's frivolous litigation claim against them. Furthermore, the filing of the abusive litigation suit outside the statute of limitations was justified and proper given the absence of any clear authority under Georgia law as to precisely when the statute of limitations commenced under O.C.G.A § 51-7-84(b). Land v. Boone, 265 Ga. App. 551, 594 S.E.2d 741 (2004).

Premises liability.

- Summary judgment was properly entered for a railroad as to an injured party's premises liability claim based on a premises owner's non-delegable duty to keep the premises safe for the protection of invitees. The railroad neither owned nor occupied the sidetrack that was the site of the accident. Assuming that the railroad did own the sidetrack, there was no evidence that the railroad had any knowledge of the defective condition that was the result of its lessee's use of a defective iron grate. The injured party conceded that the defective grate was not readily apparent and the injured party failed to show that the railroad would have discovered the defect had the railroad conducted a reasonable inspection. Mixon v. Ga. Cent. Ry., L.P., 266 Ga. App. 365, 596 S.E.2d 807 (2004).

In a wrongful death action premised on both negligence and negligence per se filed on behalf of a mother's deceased minor son, a premises owner was properly granted summary judgment as the independent contractor that hired the decedent, and not the premises owner, had sole control over its personnel, and the son's hazardous occupation on the owner's premises for a third party did not in and of itself demonstrate that the owner was in violation of Georgia's child labor laws; thus, the appeals court declined to reach the issue of whether an owner who knew or had reason to know that the contractor's independent contractor was employing a minor under the age of 16 to perform a dangerous occupation on the owner's premises was in violation of O.C.G.A. § 39-2-2. Benson-Jones v. Sysco Food Servs. of Atlanta, LLC, 287 Ga. App. 579, 651 S.E.2d 839 (2007).

Reimbursement under indemnity agreement.

- Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56 to a surety company in the company's reimbursement action against indemnitors because the company met the company's burden of showing good-faith payments on the bonds and the indemnitors failed to meet their burden of showing bad faith by the company; issues as to the validity, reliability, and admissibility of supporting documents and affidavits lacked merit as the issue was not whether a factual dispute existed, but whether there was any evidence of bad faith on the part of the company for which nothing was offered by the indemnitors. Anderson v. United States Fid. & Guar. Co., 267 Ga. App. 624, 600 S.E.2d 712 (2004).

Order granting summary judgment to an LLC was upheld, when, under the plain terms of an indemnity provision between the LLC and one of its shareholders, the shareholder was liable for costs associated with defending claims made by its agent against the LLC; but, the shareholder was not liable for costs associated with a suit over the payment of commissions, as such did not relate to the marketing and sales efforts covered by the indemnity clause and undertaken by the shareholder. SRG Consulting, Inc. v. Eagle Hosp. Physicians, LLC, 282 Ga. App. 842, 640 S.E.2d 306 (2006).

Custody case could not determine other civil issues.

- Because the trial court relied upon documents other than the pleadings, a motion to dismiss should in fact have been treated as a motion for summary judgment; a juvenile court had no jurisdiction over claims of fraud, breach of contract, perjury, and defamation made by one former spouse against the other, and thus a custody case between the parties, which was litigated in juvenile court, was not an adjudication of the spouse's claim for purposes of res judicata. Litsky v. Schaub, 269 Ga. App. 254, 603 S.E.2d 754 (2004).

Divorce.

- Because questions pertaining to alimony, property, and all other issues of the marriage were intended to be covered by the parties' prior separation agreement in the event the parties divorced, and the wife freely entered into the agreement, her subsequent claim for alimony and an interest in the marital home were properly dismissed via summary judgment. D'Errico v. D'Errico, 281 Ga. 508, 640 S.E.2d 30 (2007).

Personal injury.

- Because the plaintiff, in a personal injury action, having failed to present some evidence that the defendant's security was inadequate or that any such inadequacy was the proximate cause of the plaintiff's injuries, summary judgment was properly granted to the defendant. Collins v. Shepherd, 212 Ga. App. 54, 441 S.E.2d 458 (1994).

Trial court did not abuse the court's discretion in granting the defendant motorist summary judgment based on a lack of timely service of process in an action by the plaintiffs, a driver and the driver's passenger, to recover damages for personal injuries and property damage because: (1) the renewal complaint was timely filed within the applicable limitation period, but there was no evidence that the motorist was served within five days after the applicable limitation periods of O.C.G.A. §§ 9-3-31 and9-3-33 for property damage and personal injury claims, respectively, expired, or that the motorist was served at all; and (2) the plaintiffs offered only the conclusory allegation of the plaintiffs' counsel in an affidavit that diligent efforts were made to serve the motorist after a failed attempt at service in one county led to the discovery that the motorist had apparently relocated to a different area in Georgia; the unsuccessful attempt alerted the plaintiffs to a problem with service, requiring the plaintiffs to exercise the greatest possible diligence in serving the motorist, but the plaintiffs failed in the plaintiffs' burden of proving such efforts by failing to offer specific details regarding what efforts the plaintiffs made to locate and serve the motorist. Carter v. McKnight, 260 Ga. App. 105, 578 S.E.2d 901 (2003).

Summary judgment was properly granted to dismiss a dump truck driver's insurer from a counterclaim arising in a motor vehicle accident case because the insurer was statutorily exempt from any direct action against the insurer. Morgan Driveaway, Inc. v. Canal Ins. Co., 266 Ga. App. 765, 598 S.E.2d 38 (2004).

Analyzing a personal injury action filed against an insured, and a declaratory judgment action subsequently filed by its insurer, the Court of Appeals of Georgia erred in holding that an insured was estopped from asserting compliance with its insurer's policy provisions regarding notice, and additionally erred, on that basis, in reversing the denial of summary judgment to the insurer in the insurer's declaratory judgment action as neither res judicata nor collateral estoppel barred inquiry into the question of whether the insureds' notice of a lawsuit to the insurer was timely. Karan, Inc. v. Auto-Owners Ins. Co., 280 Ga. 545, 629 S.E.2d 260 (2006).

Trespass.

- Trial court did not err in granting summary judgment to the plaintiff on the defendants' counterclaims for trespass to property, wrongful filing of a dispossessory action, and illegally acquiring title to the defendants' property because all of the counterclaims were based on the erroneous theory that the defendants were the owners of the property that the defendants had lost by foreclosure. Green v. Sommers, 254 Ga. App. 446, 562 S.E.2d 808 (2002).

Promissory notes.

- Trial court properly granted summary judgment to a bank and against the obligors on the promissory notes that the obligors executed and allegedly defaulted on, and on the obligors' counterclaim for intentional infliction of emotional distress as the evidence showed the obligors executed the notes, defaulted on the notes, had no defense, and did not show how modification agreements to which the obligors were not parties relieved the obligors of their obligations; furthermore, the obligors did not show that the attorney was acting for the bank when the attorney allegedly made a statement to a third party that the attorney was going to make life miserable for the obligors, and, thus, the obligors did not show an intentional infliction of emotional distress claim. Reece v. Chestatee State Bank, 260 Ga. App. 136, 579 S.E.2d 11 (2003).

Rights in life insurance policy.

- Insured was properly granted summary judgment in a lawsuit filed by a beneficiary to whom the insured assigned the right to collect the proceeds of a supplemental group life insurance policy because the insured did not die, and cancelled the assigned policy, as the terms of the viatical settlement allowed the beneficiary to have a vested right in a renewal of that policy, but not in a replacement policy. Livoti v. Aycock, 263 Ga. App. 897, 590 S.E.2d 159 (2003).

Inappropriate based on defect in expert's affidavit.

- Defect in an expert's affidavit attached to the complaint in a legal malpractice action should be attacked via motion to dismiss, and summary judgment on the basis of such defect was inappropriate. Freeman v. Pittman, 220 Ga. App. 672, 469 S.E.2d 543 (1996).

Action for return of earnest money.

- Trial court erred in granting summary judgment, pursuant to O.C.G.A. § 9-11-56(c), to a seller in an action to recover earnest money for the sale of a shopping center; the purchaser was entitled to the return of the money because the purchaser could not obtain financing, which was a condition for the return of the money under the terms of the contract, interpreted pursuant to O.C.G.A. §§ 13-2-1 and13-2-2. Ali v. Aarabi, 264 Ga. App. 64, 589 S.E.2d 827 (2003).

Prison nurse not entitled to summary judgment on prisoner's overdose claim.

- Trial court properly denied a prison nurse's motion for summary judgment on the estate administrators' 42 U.S.C. § 1983 claim against the nurse, following the death of an inmate by Tylenol overdose, because the administrators presented sufficient evidence that the nurse, who examined the decedent, refused to act despite knowledge of the substantial risk of harm to the decedent. Minor v. Barwick, 264 Ga. App. 327, 590 S.E.2d 754 (2003).

Prison officials not entitled to summary judgment.

- Trial court incorrectly denied a prison official's motion for summary judgment on the estate administrators' 42 U.S.C. § 1983 claim against the official, following an inmate's death from a Tylenol overdose because, although the official was aware that the decedent faced a substantial risk of serious harm, the administrators did not show that the official displayed deliberate indifference to the decedent's serious medical needs. Furthermore, the administrators failed to prove that the official was acting outside the scope of the person's official duties or employment; consequently, even if the official acted with malice or intent to injure the decedent, the official was immune from liability on the administrators' state law claims against the official. Minor v. Barwick, 264 Ga. App. 327, 590 S.E.2d 754 (2003).

Action for breach of lease.

- Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56(c) to a lessor in a lessee's breach of contract action; pursuant to a lease for roof space to be used for a billboard, the lessee defaulted by interfering with a cellular antenna already placed on the roof and the lessor provided the proper notice of termination. Tower Projects, LLC v. Marquis Tower, Inc., 267 Ga. App. 164, 598 S.E.2d 883 (2004).

Public nuisance.

- Trial court correctly entered summary judgment against the plaintiffs on the plaintiffs' public nuisance count because the evidence did not show that all members of the public who came into contact with the river were injured, and thus, the plaintiffs' public nuisance cause of action was effectively erased. During the decades prior to the deaths, no other person had ever drowned when entering the river via the boat ramp, whether during power generation or otherwise, and the other six boys who accompanied the decedents into the water on the ramp that day were uninjured. White v. Ga. Power Co., 265 Ga. App. 664, 595 S.E.2d 353 (2004).

No evidence for jury in inadvertent distribution of pornographic material.

- Summary judgment was properly granted to the video store on the parent's suit against the store after the parent discovered that a children's video contained explicit pornographic material, as the intervening criminal act of an unknown third party who recorded explicit pornographic material on the store's children's videotape was not reasonably foreseeable; thus, the store met the store's burden under O.C.G.A. § 9-11-56(c) by establishing that there was no evidence to create jury issues on the essential elements of the parent's case. Davis v. Blockbuster, Inc., 258 Ga. App. 677, 575 S.E.2d 1 (2002).

Defendants' negligence in allowing gun to be accessible prevented summary judgment.

- Although at trial the burden of proof as to each element of negligence would be upon the plaintiff, on summary judgment the burden is upon the defendants as movants to negate at least one of the elements, and if the defendants' evidence fails to conclusively refute the plaintiff's allegations of their negligence in allowing a gun to remain in a place accessible to a trustee who robbed and raped the plaintiff, the defendants' motion for summary judgment should be denied, as a jury could reasonably conclude that the trustee's criminal action was foreseeable and that the defendants were negligent by knowingly allowing a gun to be kept in an unlocked drawer in an area where a convicted criminal was authorized to be in the performance of the criminal's duties. Tolbert v. Tanner, 180 Ga. App. 441, 349 S.E.2d 463 (1986).

Summary judgment awarded to bank.

- Since two affidavits presented by a bank's risk operations officer averred that a business card application filed by both debtors represented the agreement that they would both be jointly and severally liable for the full account in the event of default, the bank was entitled to summary judgment. Nugent v. SunTrust Bank, 263 Ga. App. 730, 589 S.E.2d 298 (2003).

Recoupment from attorney.

- Partial summary judgment was properly granted to a client in the client's contribution action to recoup the attorney's portion of the judgment the client satisfied since the evidence in the record proved the client paid the judgment in full by entering into a release agreement with the prevailing party, and the attorney failed to point to any evidence in the record to prove otherwise. Gerschick v. Pounds, 262 Ga. App. 554, 586 S.E.2d 22 (2003), overruled on other grounds by VATACS Group, Inc. v. HomeSide Lending, Inc., 281 Ga. 50, 635 S.E.2d 758 (2006).

Propriety of Summary Judgment

Seventh amendment right to jury.

- Summary judgment is authorized if there are no issues of material fact in dispute; in such circumstances the jury, as trier of fact, has no role, and the opposing party's Seventh Amendment rights are not infringed. Barrett v. Independent Order of Foresters, 625 F.2d 73 (5th Cir. 1980).

Intended scope of summary judgment.

- If a motion for summary judgment were to be denied in every instance in which an issue appears in the pleadings by allegation and denial, there would be little or no use or need for summary judgment as there would be no functional difference between a motion therefor and the traditional system of taking advantage of defects in the pleadings by demurrers; it is obvious that the General Assembly intended summary judgment to have a greater and more beneficial scope. Scales v. Peevy, 103 Ga. App. 42, 118 S.E.2d 193 (1961);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Summary judgment is an extreme remedy and should be awarded only when the truth is quite clear. Watkins v. Nationwide Mut. Fire Ins. Co., 113 Ga. App. 801, 149 S.E.2d 749 (1966);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Courts cautious in granting summary judgment.

- Since summary judgment is a peremptory method of disposing of a case once and for all on its merits, courts will be cautious about foreclosing parties from a valid defense. Simmons v. State Farm Mut. Auto. Ins. Co., 111 Ga. App. 738, 143 S.E.2d 55 (1965);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Trial essential if genuine issue exists.

- If there is a genuine issue as to any material fact, a trial under the normal process is absolutely essential. Davis v. Holt, 105 Ga. App. 125, 123 S.E.2d 686 (1961);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Absence of genuine issue and entitlement to judgment are prerequisites.

- Because the strategies by a county and the municipalities within the county under the Service Delivery Strategic Act, O.C.G.A. § 36-70-20 et seq., had nothing to do with a developer's actions, given that it was not the decision of the developer, or any individual property owner, to control the property owner's supplier of water, the developer was properly granted summary judgment in a city's action for declaratory and injunctive relief. Also, the city's quest to overturn the May 2005 service delivery strategy was rendered moot by the enactment of later strategy. City of Demorest v. Town of Mt. Airy, 282 Ga. 653, 653 S.E.2d 43 (2007).

In a suit filed by the car owner against a lienholder for wrongful repossession and conversion of the subject vehicle, summary judgment to the lienholder and partial summary judgment to the owner was inappropriate given that questions of fact remained as to whether the vehicle was on a lienholder's debtor's lot for repairs, or if the vehicle had been sold or consigned to the debtor, and was thus subject to the lienholder's security interest. Gavahi-Kashani v. Auto. Fin. Corp., 286 Ga. App. 69, 648 S.E.2d 672 (2007).

Because material fact questions remained regarding the quality of a utility company's inspection and whether the company had constructive knowledge of an electrical wiring defect outside of a homeowner's home, summary judgment was properly denied. Schuessler v. Bennett, 287 Ga. App. 880, 652 S.E.2d 884 (2007), cert. denied, No. S08C0398, 2008 Ga. LEXIS 230 (Ga. 2008).

Res judicata and collateral estoppel did not bar a second suit.

- In a suit arising out of the winding up of an LLC, neither res judicata nor collateral estoppel barred the non-managing member's breach of contract and fiduciary duty counterclaims involving the sale of the LLC property based on a prior suit between the same parties because the current claims related to conduct occurring after the first trial. Further, factual issues remained as to whether the manager's loan to the LLC breached the contract or a fiduciary duty to the non-managing member. Eichenblatt v. Piedmont/Maple, LLC, 341 Ga. App. 761, 801 S.E.2d 616 (2017).

Lack of jury issue.

- Because the evidence was not such as to raise a jury issue, the trial court therefore properly granted summary judgment in favor of the plaintiff. Davison's Auto Serv. Co. v. Security Ins. Co., 187 Ga. App. 220, 369 S.E.2d 538 (1988).

Trial court properly granted summary judgment to a relative after the home healthcare agency sued the relative for a balance due on a contract the relative signed to have nursing services provided to the relative's father. The relative clearly signed in a representative capacity the contract that the home healthcare agency drafted and provided for the relative to sign, the principal, the relative's father, was clearly named in the document as such, and it was evident that the contract was substantially in the name of the principal; accordingly, there was no issue for the jury to decide because the contract obligated the father, not the relative, to pay. Associated Servs. of Accountable Prof'ls, Ltd. v. Workman, 265 Ga. App. 348, 593 S.E.2d 882 (2004).

Because there was no dispute that: (1) the owner sold the property to a tenant obtained by the realty firm and that the sale occurred during the lease term; and (2) the realty firm satisfied the precedent terms under its commission agreement with the owner entitling the firm to a full commission and prejudgment interest thereon, the trial court erred in denying the realty firm summary judgment on this claim. Tommy McBride Realty v. Nicholson, 286 Ga. App. 135, 648 S.E.2d 468 (2007).

In an action arising from the sale of a condominium unit, because there was no issue of material fact as to whether the declaration of condominium's "lender" exception applied to the sale of the unit to the buyer, the trial court erred in concluding that the issue was for the jury. Quality Foods, Inc. v. Smithberg, 288 Ga. App. 47, 653 S.E.2d 486 (2007), cert. denied, No. S08C0437, 2008 Ga. LEXIS 316 (Ga. 2008).

Regulatory investigation.

- Trial court properly dismissed a declaratory judgment action brought by a bank and a cash advance lender, which was operating as an agent for the bank, to stop the Georgia Industrial Loan Commissioner from conducting an investigation of their lending activities because the Commissioner was authorized to conduct an investigation of the two entities' loan activities, in spite of the lender's claim that the bank and the lender were operating under the authority of federal banking law. BankWest, Inc. v. Oxendine, 266 Ga. App. 771, 598 S.E.2d 343 (2004).

Directed verdict compared.

- Grant of summary judgment may be improper even though, at trial, a grant of directed verdict may be proper. Southern Bell Tel. & Tel. Co. v. Beaver, 120 Ga. App. 420, 170 S.E.2d 737 (1969); Kroger Co. v. Cobb, 125 Ga. App. 310, 187 S.E.2d 316 (1972).

Summary judgment for the defendant is not necessarily authorized merely because under the evidence adduced the defendant might be entitled to a directed verdict on trial. Continental Assurance Co. v. Rothell, 121 Ga. App. 868, 176 S.E.2d 259 (1970), aff'd in part and rev'd in part on other grounds, 227 Ga. 258, 181 S.E.2d 283, vacated on other grounds, 123 Ga. App. 423, 181 S.E.2d 541 (1971); Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90, 176 S.E.2d 487 (1970).

Grant of summary judgment may be improper even though, at trial, a grant of a directed verdict may be proper, if the party making the motion for summary judgment is not required to carry the burden on the trial of the case. Central of Ga. Ry. v. Woolfolk Chem. Works, Ltd., 122 Ga. App. 789, 178 S.E.2d 710 (1970); Ray v. Webster, 128 Ga. App. 217, 196 S.E.2d 175 (1973).

Summary judgment may be granted on evidence that would compel direction of a verdict and should be denied when a directed verdict would be improper. Eiberger v. West, 247 Ga. 767, 281 S.E.2d 148 (1981).

Trial court properly granted summary judgment to the tax sale purchaser and other parties, and properly denied the summary judgment motion filed by the tax sale challengers as the purported sale of the property by the bankrupt party to one of the tax sale challengers was void ab initio since the sale was conducted in violation of the bankruptcy court's automatic stay and the bankrupt party did not first obtain permission from the bankruptcy court to sell the property to one of the tax sale challengers. As a result, the tax sale challengers did not have standing to challenge the tax sale of the property at issue. Edwards v. Heartwood 11, Inc., 264 Ga. App. 354, 590 S.E.2d 734 (2003).

Failure to state a claim compared.

- Because the Georgia superior court should not have exercised the court's equitable jurisdiction when the property owners failed to exhaust the owners' administrative remedies under O.C.G.A. § 48-5-311 through the county board of equalization, the superior court's judgment for declaratory relief in favor of the property owners at summary judgment was reversed; instead, the superior court should have dismissed the property owners' suit for failing to state a claim. Chatham County Bd. of Assessors v. Jepson, 261 Ga. App. 771, 584 S.E.2d 22 (2003).

Absence of reasonable explanation in medical malpractice case.

- Summary judgment in favor of a doctor in a medical malpractice case was affirmed because a patient failed to point to any damage flowing from the doctor's single alleged failure to communicate a correct diagnosis that was not time barred; additionally, the patient admitted in a deposition that the doctor did tell the patient of the diagnosis, although this contradicted the patient's own affidavit testimony, and because the favorable portion of a party's self-contradictory testimony was the only evidence of such party's right of recovery, the opposing party was entitled to summary judgment in the absence of a reasonable explanation. Oliver v. Sutton, 265 Ga. App. 787, 595 S.E.2d 598 (2004).

Summary judgment should be granted only in cases in which undisputable, plain, and palpable facts exist on which reasonable minds could not differ as to the conclusion to be reached. Stuckes v. Trowell, 119 Ga. App. 651, 168 S.E.2d 616 (1969); Indian Trail Village, Inc. v. Smith, 139 Ga. App. 691, 229 S.E.2d 508 (1976).

Absence of genuine issue and entitlement to judgment are prerequisites.

- Genuine issue as to a material fact is required in order to preclude summary judgment. Dillard v. Brannan, 217 Ga. 179, 121 S.E.2d 768 (1961);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Summary judgment cannot deprive a party of the opportunity to have a trial of a genuine issue as to any material fact; however, a shadowy semblance of an issue is not enough to defeat the motion. Holland v. Sanfax Corp., 106 Ga. App. 1, 126 S.E.2d 442 (1962);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

It is permissible to grant a motion for summary judgment only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Malcom v. Malcolm, 112 Ga. App. 151, 144 S.E.2d 188 (1965);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

On summary judgment, the inquiry must be whether there remains any genuine issue of fact after consideration of the pleading and supporting evidence. Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 195 S.E.2d 277 (1972).

If evidence produced in a motion for summary judgment pierces the allegations of the pleadings and shows that there is no genuine issue of material fact, a summary judgment motion should be sustained. Crawford v. McDonald, 125 Ga. App. 289, 187 S.E.2d 542 (1972).

Essence of a motion for summary judgment is that there is no genuine issue of material fact to be resolved by the trier of facts. Turner v. Noe, 127 Ga. App. 870, 195 S.E.2d 463 (1973).

Grant of a motion for summary judgment is not "appropriate" within the meaning of subsection (e) of O.C.G.A. § 9-11-56 unless the moving party is entitled to judgment as a matter of law. Southern Protective Prods. Co. v. Leasing Int'l, Inc., 134 Ga. App. 945, 216 S.E.2d 725 (1975).

If the record has been fully developed by depositions and affidavits, and construing all the facts and inferences to be drawn therefrom in favor of the nonmovant, such party would not be entitled to have a jury verdict stand, a grant of summary judgment is proper. Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976).

Summary judgment should be granted only in cases in which undisputable, plain, and palpable facts exist on which reasonable minds could not differ as to the conclusion to be reached. Stuckes v. Trowell, 119 Ga. App. 651, 168 S.E.2d 616 (1969); Indian Trail Village, Inc. v. Smith, 139 Ga. App. 691, 229 S.E.2d 508 (1976).

If there is no genuine dispute of material fact and the admitted facts point to the right of one party to a judgment as a matter of law, then summary judgment is the proper remedy. Sands v. Lamar Properties, Inc., 159 Ga. App. 718, 285 S.E.2d 24 (1981).

In a motion for summary judgment, the decision is made based upon the pleadings and evidence of record as to whether there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Southeastern Fid. Ins. Co. v. Tesler, 159 Ga. App. 60, 282 S.E.2d 703 (1981).

While the party opposing a motion for summary judgment is entitled to the benefit of all favorable inferences, if, after this is done, the record still shows no genuine issue of a material fact, summary judgment for the moving party is authorized. Shockley v. Henslee, 122 Ga. App. 163, 176 S.E.2d 470 (1970); Cole v. Jordan, 161 Ga. App. 409, 288 S.E.2d 260 (1982); Gurley v. Ford Motor Credit Co., 163 Ga. App. 875, 296 S.E.2d 171 (1982).

Subsection (c) of O.C.G.A. § 9-11-56 allows summary judgment only if there is no genuine issue as to any material fact, and the evidence shows that the movant is entitled to judgment as a matter of law. Pugh v. Frank Jackson Lincoln-Mercury, Inc., 165 Ga. App. 292, 300 S.E.2d 227 (1983).

If there is no evidence presented that would create a genuine issue on any material fact, the trial court does not err in granting summary judgment. Houser v. Tilden Fin. Corp., 166 Ga. App. 710, 305 S.E.2d 440 (1983).

If the nonexistence of any genuine issue of material fact is established by such credible evidence that on the facts and law the movant is entitled to judgment as a matter of law, the motion should be granted, unless the respondent shows good reason why the respondent is at the time of the hearing unable to present facts in opposition to the motion. Fort v. Boone, 166 Ga. App. 290, 304 S.E.2d 465 (1983).

If allegations of pleadings are pierced and there is no issue of material fact, so that a party is entitled to judgment, it is incumbent on the court to grant a motion for summary judgment. Gregory v. Vance Publishing Corp., 130 Ga. App. 118, 202 S.E.2d 515 (1973), overruled on other grounds, Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651, 334 S.E.2d 188 (1985); McGee v. Gillis, 171 Ga. App. 47, 318 S.E.2d 521 (1984).

Motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and evidence that the party so moving is entitled to prevail. McGivern v. First Capital Income Properties, Ltd., 188 Ga. App. 716, 373 S.E.2d 817 (1988).

It is permissible to grant a motion for summary judgment only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. International Bhd. of Boilermakers v. Newman, 116 Ga. App. 590, 158 S.E.2d 298 (1967); Weekes v. Parker, 120 Ga. App. 549, 171 S.E.2d 660 (1969); Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90, 176 S.E.2d 487 (1970); Metco Plumbing & Heating, Inc. v. Southeastern Plumbing Supply Co., 124 Ga. App. 584, 184 S.E.2d 670 (1971); Smith v. Sandersville Prod. Credit Ass'n, 229 Ga. 65, 189 S.E.2d 432 (1972); Galloway v. Banks County, 139 Ga. App. 649, 229 S.E.2d 127 (1976); McCraw v. Watkins, 242 Ga. 452, 249 S.E.2d 202 (1978); Jackson v. First Bank, 150 Ga. App. 182, 256 S.E.2d 923 (1979); Myers v. McLarty, 150 Ga. App. 432, 258 S.E.2d 56 (1979); Jimerson v. Republic Land & Inv. Co., 234 Ga. App. 417, 506 S.E.2d 920 (1998).

Because a customer did not present an issue of fact as to whether a store had equal or superior knowledge of a dangerous condition, the trial court did not err in granting the store's summary judgment motion. Ergas v. Home Depot, Inc., 260 Ga. App. 734, 580 S.E.2d 684 (2003).

Evidence should demand verdict.

- If no evidence is offered that would form a basis for the conclusions contained in the affidavit, it is error to grant a motion for summary judgment as the proof did not demand as a matter of law, a finding in the plaintiff's favor. Bob's Dairy Barn & Restaurant, Inc. v. I.D.S. Leasing Corp., 135 Ga. App. 227, 217 S.E.2d 462 (1975).

Test under subsection (a) of O.C.G.A. § 9-11-56 is not merely that the evidence supports a verdict for the moving party, but that the evidence demands the verdict. Custom Coating, Inc. v. Parsons, 188 Ga. App. 506, 373 S.E.2d 291 (1988).

Single outcome must appear without dispute.

- Summary judgments should only be granted if, construing all inferences against the movant, it yet appears without dispute that the case can have but a single outcome. Lawrence v. Gardner, 154 Ga. App. 722, 270 S.E.2d 9 (1980); Bragg v. Missroon, 186 Ga. App. 803, 368 S.E.2d 564 (1988).

Improper if genuine issue exists.

- On consideration of a motion for summary judgment, the evidence adduced thereon in the form of depositions, affidavits, etc., should be construed most strongly against the movant, and if under any view of the case there appears to be a dispute as to any material issue of fact, summary judgment should not be granted. King v. Schaeffer, 115 Ga. App. 344, 154 S.E.2d 819, aff'd, 223 Ga. 468, 155 S.E.2d 815 (1967).

It is error to grant a motion for summary judgment if the pleadings, depositions, and affidavits do not show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. McChargue v. Black Grading Contractors, 119 Ga. App. 35, 166 S.E.2d 43 (1969).

Summary judgment cannot deprive a party of the opportunity to have a trial of a genuine issue as to any material fact. Weekes v. Parker, 120 Ga. App. 549, 171 S.E.2d 660 (1969).

Summary judgment should not be granted if there is the slightest doubt as to the facts. Woodford v. Kinney Shoe Corp., 369 F. Supp. 911 (N.D. Ga. 1973).

It was error for the trial judge to grant the plaintiff summary judgment as to the issue of settlement because there remained a genuine issue as to a material fact. Ravan v. Stephens, 243 Ga. 289, 253 S.E.2d 753 (1979).

Summary judgment is improper if there is a genuine issue as to any material fact. Piano & Organ Ctr., Inc. v. Southland Bonded Whse., Inc., 139 Ga. App. 480, 228 S.E.2d 615 (1976); Griffin v. Bremen Steel Co., 161 Ga. App. 768, 288 S.E.2d 874 (1982).

Trial court properly denied an employer's motion for summary judgment in a personal injury action brought against the employer by an auto accident victim because a jury issue existed as to whether the employer's employee was calling the employer on the employee's cell phone while driving on the way to work at the time of the auto accident. Clo White Co. v. Lattimore, 263 Ga. App. 839, 590 S.E.2d 381 (2003).

Summary judgment was properly denied on a broker's claim for attorney fees under O.C.G.A. § 13-6-11 because there was no evidence that the client made the contract, agreeing to pay commission on the sale of the home to the broker, in bad faith or that the client's breach was the result of a sinister motive as a matter of law; issues of fact existed as to whether the client was stubbornly litigious because there was a factual dispute as to the client's understanding of the client's obligations. Steel Magnolias Realty, LLC v. Bleakley, 276 Ga. App. 155, 622 S.E.2d 481 (2005).

Because the record revealed that a family's action for trespass, continuing trespass, intentional infliction of emotional distress, and declaratory judgment was timely filed, and jury questions remained as to the issues of abandonment and the family's standing to bring the family's suit against a developer who allegedly destroyed the family's cemetery, summary judgment was erroneously awarded to the developer. Ceasar v. Shelton Land Co., 285 Ga. App. 421, 646 S.E.2d 689 (2007).

In an action to invalidate an allegedly forged quitclaim deed filed by a husband, which transferred an interest in certain property to the husband's wife, summary judgment was erroneously granted to the husband, as a bankruptcy trustee presented sufficient evidence of disputed issues of material fact concerning the husband's equitable claim; hence, the matter was remanded for further proceedings under the Quiet Title Act, O.C.G.A. § 23-3-60 et seq. Hurst v. Evans, 284 Ga. App. 274, 643 S.E.2d 824 (2007).

Because a genuine dispute precluded the recovery of attorney fees from the attorney by the client based upon the client's claim of stubborn litigiousness, summary judgment was reversed. Brito v. Gomez Law Group, LLC, 289 Ga. App. 625, 658 S.E.2d 178 (2008).

Because an actual and ongoing controversy existed regarding the rights of competing parties to a condominium unit, specifically the unit's owners and the unit's buyer and disputes concerning ownership of or right of access to land were classic candidates for resolution via declaratory judgment, the trial court correctly denied the owners' motion for summary judgment on the buyer's counterclaim for declaratory judgment. Quality Foods, Inc. v. Smithberg, 288 Ga. App. 47, 653 S.E.2d 486 (2007), cert. denied, No. S08C0437, 2008 Ga. LEXIS 316 (Ga. 2008).

If the facts are heatedly contested, with both sides supporting their contentions with affidavits and depositions, it cannot be said that there is no genuine issue as to any material fact. Pritchard v. Neal, 139 Ga. App. 512, 229 S.E.2d 18 (1976).

Evidence does not pierce defenses.

- When the plaintiff's evidence does not in any way address or pierce the defenses to the action, it is error to grant the plaintiff's motion for summary judgment. Jones v. Howard, 153 Ga. App. 137, 264 S.E.2d 587 (1980).

Failure to eliminate every issue.

- If there are substantial issues of fact, it is error for the court to grant summary judgment. Caldwell v. Mayor of Savannah, 101 Ga. App. 683, 115 S.E.2d 403 (1960);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

If a defendant fails to eliminate every genuine issue of material fact, the judge errs in granting a motion for summary judgment. Smithwick v. No. 2 D Curtis Mock Assocs., 127 Ga. App. 749, 195 S.E.2d 271 (1972).

If the defendant fails to carry the burden of showing that there is no genuine issue as to any material fact and that the defendant is entitled to judgment as a matter of law as to all matters for which relief is sought, the denial of a motion for summary judgment is correct. P.F. Collier, Inc. v. Dreesen, 128 Ga. App. 64, 195 S.E.2d 766 (1973).

If more than one inference can be drawn from the evidence, the duty of solving the mystery should be placed upon the jury and not the trial judge; this is true with respect to circumstantial evidence as well as direct evidence. McCarty v. National Life & Accident Ins. Co., 107 Ga. App. 178, 129 S.E.2d 408 (1962);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

It was error to grant summary judgment in favor of an anesthesiologist association group and a doctor in an action by an independent anesthesiologist and a professional corporation that claimed conspiracy to restrain trade and tortious interference stemming from an arrangement in which the independent anesthesiologist was permitted to provide services at a hospital served by the group because it was for the jury to determine whether the group improperly manipulated the surgery schedule, the assignment of cases, and first call duty so that the independent anesthesiologist and two colleagues were not used or preferred by the doctors and hospital staff. Mulligan v. Alta Anesthesia Assocs. of Ga., P.C., 260 Ga. App. 727, 580 S.E.2d 678 (2003).

Denial may be proper even absent responsive affidavit.

- Because a summary judgment motion was not adequately supported by the evidence, it was appropriate for the trial court to deny the motion even in the absence of a responsive affidavit. Beard v. McDowell, 174 Ga. App. 793, 331 S.E.2d 104 (1985).

Conflicting affidavits.

- If the affidavits in the record are in conflict as to material facts, the court does not err in denying summary judgment since there remain substantial issues to be determined. W.J. Bremer, Inc. v. United Bonding Ins. Co., 122 Ga. App. 183, 176 S.E.2d 633 (1970).

Grant of motion on basis of admissions.

- If a party fails to answer a request for admissions within the requisite time, and the admissions remove all issues of fact, the other party is entitled to a grant of that party's motion for summary judgment. Moore Ventures Ltd. Partnership v. Stack, 153 Ga. App. 215, 264 S.E.2d 725 (1980).

Denial in face of offsetting counterclaim.

- Trial court may, in the court's discretion, deny summary judgment in the face of a valid, pending counterclaim, if there is a reasonable probability that the plaintiff's recovery will be greatly mitigated or even offset by the defendant's recovery on trial of the counterclaim. Mock v. Canterbury Realty Co., 152 Ga. App. 872, 264 S.E.2d 489 (1980).

There is no sound reason to conclude that, if there is a pending valid counterclaim, the trial court must deny a persuasive and valid motion for summary judgment, or alternatively, that it is error per se to grant a motion for summary judgment if there is a pending, valid counterclaim. Williams v. Church's Fried Chicken, Inc., 158 Ga. App. 26, 279 S.E.2d 465 (1981).

Trial court does not commit error per se by granting summary judgment in a case with a valid pending counterclaim. Ackerman v. First Nat'l Bank, 239 Ga. App. 304, 521 S.E.2d 221 (1999).

Error to deny judgment if ultimate result is clear.

- It is error to deny a trial when there is a genuine dispute of facts, but it is just as much error, or perhaps more in cases of hardship or if the impetus is given to strike suits, to deny or postpone judgment if the ultimate legal result is clearly indicated. Maxey-Bosshardt Lumber Co. v. Maxwell, 127 Ga. App. 429, 193 S.E.2d 885 (1972).

Dispute over irrelevant or de minimus matters.

- Because not every detail of sundry disputed factual matters was conclusively resolved in the pleadings or through discovery procedures, but examination of the record indicated that such disputed matters were either irrelevant or, at best, de minimis, the evidence clearly indicated that there remained in the case no genuine issues of material fact that would preclude an award of summary judgment, and the court below did not err in granting the plaintiff 's motion for summary judgment. James v. Ford Motor Credit Corp., 166 Ga. App. 879, 305 S.E.2d 604 (1983).

Failure to exhaust administrative remedies.

- Trial court properly granted summary judgment to the industrial loan commissioner after the loan companies sought a declaratory judgment that the industrial loan commissioner did not have jurisdiction over its business practice of using an out-of-state bank to make loans through the loan companies; since the industrial loan commissioner had not ruled on whether the practice violated the Georgia Industrial Loan Act, O.C.G.A. § 7-3-1 et seq., the loan companies had not exhausted their administrative remedies under the Act and, thus, were not entitled to seek declaratory relief from the courts. USA Payday Cash Advance Ctrs. v. Oxendine, 262 Ga. App. 632, 585 S.E.2d 924 (2003).

Summary judgment improper if possible to infer acting within scope of employment.

- In a personal injury case in which an employee was involved in a collision during the employee's day off, but because the employee regularly made deliveries on that day between the employer and affiliated companies, summary judgment for the employer was improper because a jury could have inferred that the employee was acting within the scope of employment at the time; summary judgment for the affiliates was proper because the employee was acting, at most, as an independent contractor with respect to them. Thompson v. Club Group, Ltd., 251 Ga. App. 356, 553 S.E.2d 842 (2001).

Summary judgment for plaintiff.

- Mere want of knowledge does not prevent summary judgment in favor of the plaintiff; it should be a sufficient ground of defense only when it appears that a thorough investigation has been made and that ignorance persists after genuine efforts to ascertain facts about the validity of the plaintiff's claim. Berrien v. Avco Fin. Servs., Inc., 123 Ga. App. 862, 182 S.E.2d 708 (1971).

Upon a motion for summary judgment, if the defenses set up in an answer are pierced by the plaintiff 's affidavits and the defendant fails to respond with specific facts showing a genuine issue for trial, summary judgment is properly granted. Soni v. Coppedge, 159 Ga. App. 889, 285 S.E.2d 604 (1981).

Trial court properly granted summary judgment to sellers on the sellers' suit for non-payment of purchase-money promissory notes as the buyers waived the buyers' defense of fraud by not electing to pursue a remedy regarding it and, instead, continuing to pay on the notes, and the buyers did not show that the sellers' suit was filed beyond the applicable six-year statute of limitations. Little Sky, Inc. v. Rybka, 264 Ga. App. 744, 592 S.E.2d 154 (2003).

Summary judgment when statute inapplicable.

- Trial court did not have to consider the testing company's summary judgment motion regarding whether the company and others had a right to a refund of the unlawful collection of excessive fees as the court properly granted the state environmental agency's motion to dismiss because the statute under which the testing company sought the refund, O.C.G.A. § 48-2-35, did not apply because the state revenue commissioner did not collect or administer the fee for which the testing company and others sought the refund, and that statute only applied to the illegal collection of tax or license made by the state revenue commissioner. Ga. Emission Testing Co. v. Reheis, 268 Ga. App. 560, 602 S.E.2d 153 (2004).

Trial court properly granted summary judgment to the county on the telecommunications company's challenge to the county's ordinance imposing a one-time permit fee on telecommunications companies applying to use the county's public rights-of-way. Due to state statutory law, no question existed that the county had the right to enforce the county's ordinance imposing the permit fee as the fee was reasonably related to the county's attempt to recoup the county's administrative cost for processing the permit; furthermore, the telecommunications company did not show that application of the ordinance violated the company's equal protection rights. BellSouth Telecomms., Inc. v. Cobb County, 277 Ga. 314, 588 S.E.2d 704 (2003).

Because the defendant offered nothing to refute the plaintiff's proof, a grant of summary judgment was demanded under subsection (e) of O.C.G.A. § 9-11-56. General Am. Ins. Co. v. Boyens, 125 Ga. App. 414, 188 S.E.2d 172 (1972).

If the plaintiff on a motion for summary judgment makes a prima facie case, and there is no evidence in rebuttal, the plaintiff is entitled to summary judgment. Continental Assurance Co. v. Rothell, 121 Ga. App. 868, 176 S.E.2d 259 (1970), aff'd in part and rev'd in part on other grounds, 227 Ga. 258, 181 S.E.2d 283, vacated on other grounds, 123 Ga. App. 423, 181 S.E.2d 541 (1971).

If a party is the sole witness in the party's own behalf and so has naturally presented the case in its most favorable light, and the presentation discloses that the defense has no legal validity, it is incumbent upon the court to rule adversely to the party without further ado. Maxey-Bosshardt Lumber Co. v. Maxwell, 127 Ga. App. 429, 193 S.E.2d 885 (1972);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

If the plaintiff moving for summary judgment introduces evidence showing that there is no genuine issue of material fact and that the plaintiff is entitled to prevail on the undisputed facts, and the defendant rests on the pleadings without offering any evidence to suggest any remaining factual issue, the trial court's grant of a motion for summary judgment is correct. Cox v. Frost, 147 Ga. App. 429, 249 S.E.2d 695 (1978).

Because the plaintiff established a prima facie right to recover on notes and the defendant did not establish a legally sufficient defense, the plaintiff was entitled to summary judgment. Area v. Cagle, 148 Ga. App. 769, 252 S.E.2d 655 (1979).

Summary judgment for defendant.

- To prevail on a motion for summary judgment a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence; once the defendant pierces the pleading of the plaintiff and shows the court that one essential element, under any theory, is lacking and incapable of proof, the defendant-movant is entitled to summary judgment as a matter of law, irrespective of any issues of fact with regard to other essential elements. Holiday Inns, Inc. v. Newton, 157 Ga. App. 436, 278 S.E.2d 85 (1981).

Consideration of defendant's affidavits.

- Trial court properly considered a motion for judgment on the pleadings as one for summary judgment because matters outside of the pleadings were presented and considered; such other documents included affidavits filed by the defendant, which the plaintiff moved to strike, but never obtained a ruling on the motion. Premier/Georgia Mgmt. Co. v. Realty Mgmt. Corp., 272 Ga. App. 780, 613 S.E.2d 112 (2005).

Strict liability for injury caused by animal.

- In a wrongful death action based on the death of an infant caused by a dog, the dog owner was entitled to summary judgment on the strict liability claim because the parents were required to proffer more than a subject belief regarding the animal; the parents failed to present evidence that the animal was ferae naturae or an animal of wild nature or disposition. Harper v. Robinson, 263 Ga. App. 727, 589 S.E.2d 295 (2003).

If the evidence introduced by the movant pierces the pleadings and discloses an absence of a right to recover, the grant of summary judgment is proper and should follow. Brown v. J.C. Penney Co., 123 Ga. App. 233, 180 S.E.2d 364 (1971).

Defendant who has cast upon the plaintiff the burden of responding with evidence to create or preserve a genuine issue of fact is entitled to prevail by summary judgment in the absence of any rebuttal evidence. Walker v. Hall, 123 Ga. App. 457, 181 S.E.2d 508 (1971).

If the defendant, as the movant for summary judgment, produces evidence conclusively establishing a fact or facts that negate one or more essential elements of the plaintiff's action, it is useless to present the case to a jury, and the defendant is entitled to summary judgment as a matter of law. Laite v. Baxter, 126 Ga. App. 743, 191 S.E.2d 531 (1972).

Once a defendant who is moving for summary judgment pierces the pleadings of the plaintiff and shows the court that one essential element under any theory of recovery is lacking and incapable of proof, the defendant is entitled to summary judgment as a matter of law, irrespective of any issues of fact with regard to the other essential elements. Waldrep v. Goodwin, 230 Ga. 1, 195 S.E.2d 432 (1973); Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976).

Defendant is entitled to summary judgment if the defendant produces evidence conclusively establishing facts that negate one or more essential elements of the plaintiff's action. Reed v. Ed Taylor Constr. Co., 198 Ga. App. 595, 402 S.E.2d 346 (1991).

Plaintiff, having received nothing for a claimed homestead exemption, commenced an action against the clerk of the superior court for the amount of the homestead exemption, alleging that the loss thereof was because the defendant had failed to record the deeds, but the plaintiff had no aggregate interest in the property against which to assert the claimed homestead exemption, and the plaintiff therefore had no claim upon which relief could be granted, and the defendant was entitled to summary judgment as a matter of law. Wallis v. Clerk, Superior Court, 166 Ga. App. 775, 305 S.E.2d 639 (1983).

If the defendant, as movant for summary judgment, produces evidence conclusively establishing a fact or facts that negate one or more essential elements of the plaintiff's action, it is useless to present the case to a jury, and the defendant movant is entitled to summary judgment as a matter of law. Calhoun v. Eaves, 114 Ga. App. 756, 152 S.E.2d 805 (1966);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Summary judgment upon motion therefor by the defendant should never be entered except if the defendant is entitled to its allowance beyond all doubt. To warrant its entry, the facts conceded by the plaintiff or demonstrated beyond reasonable question to exist should show the defendant's right to judgment with such clarity as to leave no room for controversy, and they should show affirmatively that the plaintiff would not be entitled to recover under any discernible circumstances. Watkins v. Nationwide Mut. Fire Ins. Co., 113 Ga. App. 801, 149 S.E.2d 749 (1966).

Because the plaintiff's petition, as a matter of law, set forth a cause of action, unless depositions set forth as exhibits to the defendant's motion for summary judgment showed without dispute that the plaintiff was not entitled to recover, the motion for summary judgment should have been denied. McGeeney v. Robertson, 102 Ga. App. 318, 116 S.E.2d 252 (1960);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Summary judgment for plaintiff and defendant.

- Trial court can grant judgment for both the plaintiff and the defendant on their respective claims, even when only the plaintiff moves for summary judgment. Massey v. Consolidated Equities Corp., 120 Ga. App. 165, 169 S.E.2d 672 (1969).

Summary judgment can be granted to a nonmoving party provided that the grant is proper in all other respects. Golston v. Garigan, 245 Ga. 450, 265 S.E.2d 590 (1980); Eiberger v. West, 247 Ga. 767, 281 S.E.2d 148 (1981).

Trial court may grant summary judgment to a nonmoving party if filing would be a pure formality. Cruce v. Randall, 152 Ga. App. 183, 262 S.E.2d 488 (1979), aff'd, 245 Ga. 669, 266 S.E.2d 486 (1980).

Order granting partial summary judgment motion properly enforced.

- Trial court properly granted the limited partners' motion seeking to enforce an order granting the limited partners' motion for partial summary judgment against the general partner, which required that the limited partners be paid their preferred returns before the general partner could charge management fees to the books, as the general partner's affidavit stated that management fees had been paid, the general partner's counsel stated at the hearing that management fees had been paid, and the limited partners' expert testified that the partnership had generated sufficient revenue to pay the limited partners' preferred returns. Kellett v. Klein, 267 Ga. App. 749, 600 S.E.2d 686 (2004).

Summary judgment for less than amount sued for.

- Motion for summary judgment may be granted for less than the total amount sued for if there is no material issue of fact as to such amount. Friend v. Bank of Eastman, 112 Ga. App. 756, 146 S.E.2d 110 (1965);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Mere possibility of causation in a negligence case is not enough, and when the matter remained one of pure speculation or conjecture, or the probabilities were at best evenly balanced, it became the duty of a court to grant summary judgment for the defendant; because the homeowners' own expert deposed that the expert could not determine the cause of an explosion and fire at the homeowners' house, summary judgment should have been granted to a furnace installer in a case brought by the homeowners claiming that the installer had acted negligently in installing or repairing the furnace, causing the furnace to explode. Denson Heating & Air Conditioning Co. v. Oglesby, 266 Ga. App. 147, 596 S.E.2d 685 (2004).

Genuine issue of material fact found.

- Plaintiff moved for summary judgment, contending that the parties had agreed to a settlement of the case in which the defendant by and through the defendant's attorney had agreed to pay in full the claim of the plaintiff, but the letters from the defendant's attorney, although expressing a general inclination towards adaptation of a written agreement for settlement of the case, contained conditional language that the record did not show to have been satisfied, and an affidavit of the plaintiff 's attorney was ambiguous, if not self-contradictory, as to whether there was an agreement that the defendant pay the plaintiff 's entire claim, genuine issues of material fact remained for jury resolution, and summary judgment against the defendant was reversed. Tedoff v. Moncrief Unique Indoor Comfort, Inc., 166 Ga. App. 426, 304 S.E.2d 529 (1983).

Because material fact issues regarding a guarantor's waiver and estoppel defenses existed, a creditor was erroneously granted summary judgment in the creditor's suit against the guarantor regarding a debtor's underlying open account. Everts v. Century Supply Corp., 264 Ga. App. 218, 590 S.E.2d 199 (2003).

No genuine issue of material fact was found. See Dozier v. Wallace, 169 Ga. App. 126, 311 S.E.2d 839 (1983); Koets, Inc. v. Benveniste, 169 Ga. App. 352, 312 S.E.2d 846 (1983), aff'd, 252 Ga. 520, 314 S.E.2d 912 (1984).

Because the plaintiff insured had two policies covering all-risk personal property coverage, one of which was expressly "for direct physical loss of, or damage to" covered property and the second of which specified that the policy was for "direct physical loss or damage to" such property if caused by or the result of a peril not otherwise excluded, the trial court properly denied the insured's motion for summary judgment on the insured's claim for a declaration that the insured was insured for remediation costs incurred in converting the insured's computer systems from two-digit to four-digit date recognition capability to avoid Y2K (year 2000) computer problems; the policies clearly contemplated an actual change due to an accident or other fortuitous event acting directly upon the property causing the property to become unsatisfactory for future use or requiring repairs to make it fit. Since the insured admitted that the deficiency in the computer systems existed from the time the systems were created and the insured avoided problems by undertaking the remediation program, no change in the systems by direct physical loss of, or damage thereto, as a result of a fortuitous event was alleged, and the insured, thus, failed to provide any evidence to give rise to a genuine issue of material fact supportive of the insured's claim for coverage and failed to make a prima facie claim for recovery. AFLAC Inc. v. Chubb & Sons, Inc., 260 Ga. App. 306, 581 S.E.2d 317 (2003).

Since the parties stipulated that the county tax assessors board denied the taxpayer an exemption from ad valorem taxation of certain tangible personal property based on an undervaluation of its inventory, since the taxpayer properly filed for the exemption, and because statutory law stated that the exemption was waived for failing to report inventory, and not an undervaluation of inventory, the trial court properly granted summary judgment to the taxpayer on the issue of whether the county equalization board properly determined that the taxpayer was entitled to the exemption. Gwinnett County Bd. of Tax Assessors v. Std. Distrib. & Supply, 263 Ga. App. 128, 587 S.E.2d 262 (2003).

Trial court properly granted summary judgment to a city on a parent's negligence claim against the city stemming from a child's serious automobile accident at a known dangerous intersection that was inappropriately signaled because the city was immune from suit as to whether to install a traffic signal at the intersection, which was a discretionary act, entitling the city to sovereign immunity; further, a successful tax referendum to fund a new traffic light did not create a duty to install a traffic light at the intersection before completing other projects. Riggins v. City of St. Marys, 264 Ga. App. 95, 589 S.E.2d 691 (2003).

Malicious prosecution.

- Summary judgment, under O.C.G.A. § 9-11-56(c), was properly granted dismissing a parent and child's suit against a neighbor for malicious prosecution because: (1) the parent showed no evidence that the underlying criminal prosecution had been terminated in the parent's favor; and (2) the child's evidence that the prosecution against the child had been terminated as a result of mediation was not evidence that the prosecution had been terminated in the child's favor, so neither the parent nor the child were able to prove an element of a cause of action for malicious prosecution. Smith v. Lewis, 259 Ga. App. 548, 578 S.E.2d 220 (2003).

No facts establishing breach of duty.

- Summary judgment was properly entered against an injured party because the party's evidence merely established that an unfortunate event occurred and the party was injured, without specific facts establishing a breach of duty, as well as the other elements of negligence; the presentation of hearsay and affidavits that contained information that lacked the affiant's personal knowledge, and was based on the best of the affiant's knowledge and belief, was nothing more than opinion without any demonstrated basis. Hodges v. Putzel Elec. Contrs., 260 Ga. App. 590, 580 S.E.2d 243 (2003).

Medical malpractice.

- Trial court properly granted the defendants, an orthodontist and an orthodontic corporation, summary judgment in a medical malpractice action by the plaintiffs, a patient and the patient's parents, for misdiagnosis and mistreatment of the patient, as the complaint was filed more than two years after the patient last saw the orthodontist for treatment, no new injury occurred subsequent to the last day of treatment, and the plaintiffs failed to provide evidence to support the plaintiffs' claim that fraud tolled the running of the limitation period; thus, the action was time-barred under the two-year limitation period of O.C.G.A. § 9-3-71 for medical malpractice actions. Kane v. Shoup, 260 Ga. App. 723, 580 S.E.2d 555 (2003).

Summary judgment was properly granted to sublessors, pursuant to O.C.G.A. § 9-11-56, in a sublessee's multi-claim action arising from agreements entered into between the parties with respect to concert promotion at a particular venue, which was done in order to satisfy a minority business enterprise participation minimum that was imposed by the city; based on the terms of the various documents signed between the parties, there was no legal partnership pursuant to O.C.G.A. § 14-8-1 and no joint venture since the sublessors did not share control of the concert promotions, did not share profits or liabilities, the terms used in the agreements were not dispositive on the issue, and the sublessee's assistance was titular only. Jerry Dickerson Presents, Inc. v. Concert/Southern Chastain Promotions, 260 Ga. App. 316, 579 S.E.2d 761 (2003).

Negligence in failing to maintain smoke detectors.

- Summary judgment was properly entered for a landlord and a property manager (appellees) in a negligence suit filed by an injured party as the appellees complied with state law as to the installation of smoke detectors contained in O.C.G.A. § 25-2-40(a)(2), and as evidence of any failure to maintain the detectors was inadmissible under § 25-2-40(g); as § 25-2-40(a)(2) was more specific, it governed over any conflicting statutory or common law duty of care, such as those contained in O.C.G.A. §§ 44-7-13 and51-3-1 and as § 25-2-40(g) was enacted more recently than the older statutes, it controlled. Hill v. Tschannen, 264 Ga. App. 288, 590 S.E.2d 133 (2003).

Taxpayers' challenge to county's detectors.

- Summary judgment was properly awarded to a county on an action by county residents who were challenging, through injunction, mandamus, and declaratory judgment, whether a county commission's decision to enter a lease purchase agreement was either constitutional under Ga. Const. 1983, Art. IX, Sec. V, Para. I(a) or in compliance with O.C.G.A. § 36-60-13; the agreement did not create a debt under the constitution that was subject to a county vote, and the lease, as written, did not create any county obligations that were not in compliance with the statute. Bauerband v. Jackson County, 278 Ga. 222, 598 S.E.2d 444 (2004).

Lease violation.

- Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56(c) to the defendants in an action for breach of a lease by the successor in interest to the lessor as the defendants admitted that the defendants had defaulted on the lease and that the successor was owed back rent. Gilco Invs., Inc. v. Stafford Cordele, LLC, 267 Ga. App. 167, 598 S.E.2d 889 (2004).

Violations of implied trust in property.

- Summary judgment was properly granted to a husband in an action regarding the existence of an implied trust pertaining to certain property, as he quitclaimed any interest he had in that property to the wife as part of a divorce settlement. Whiten v. Murray, 267 Ga. App. 417, 599 S.E.2d 346 (2004).

In an equitable action regarding the existence of an implied trust, because a resulting trust arose in favor of the wife through monthly payments to the financing company and taxes, because the husband quitclaimed his entire interest in the property at issue to her, and because the alleged bona fide purchasers had notice of the wife's interest by filing suit to have a mobile home on the property removed and also had a duty to make inquiry as to the wife's rights in the premises, summary judgment entered against the wife was reversed. Whiten v. Murray, 267 Ga. App. 417, 599 S.E.2d 346 (2004).

Breach of fiduciary claims.

- Trial court properly granted summary judgment to the claims administrator and medical utilization review provider for an employee benefit health plan on an estate administrator's breach of fiduciary duty claims, as they owed no fiduciary duties to the estate administrator, and the appellate court refused to recognize a cause of action for aiding and abetting a breach of fiduciary duty. Monroe v. Bd. of Regents of the Univ. Sys., 268 Ga. App. 659, 602 S.E.2d 219 (2004).

Construction contracts.

- Summary judgment was properly awarded to a city as a HUD lender to homeowners who needed an emergency home improvement loan in a case in which the homeowners' action was based on alleged construction problems by the contractor chosen to perform the work. The city, as lender, was not a party to the construction contract, was not liable on the contract, and was explicitly excluded in the contract as a liable party for any construction problems; since the city did not assume any duty to the homeowners to inspect the property, summary judgment was properly awarded to the city. Waller v. Econ. & Cmty. Dev. Dep't, 269 Ga. App. 129, 603 S.E.2d 442 (2004).

When a county contracted with a landfill construction company to relocate parts of a landfill, and the contract provided for a certain method of compensating the company, and when the county orally agreed to make interim payments to the company using a different method, with the final payment to be adjusted according to the payment method specified in the contract, the company was not entitled to summary judgment in the company's breach of contract suit against the county for not using a method other than that stated in the contract to determine the company's compensation, because there was no evidence that the parties mutually agreed to depart from this contract provision so as to require notice, pursuant to O.C.G.A. § 13-4-4, that one party insisted on strict compliance with the original contract terms; thus, the county was entitled to summary judgment. Handex of Fla., Inc. v. Chatham County, 268 Ga. App. 285, 602 S.E.2d 660 (2004), overruled on other grounds by Georgia Department of Labor v. RTT Associates, Inc., 2016 Ga. LEXIS 392 (Ga. 2016).

Mechanic's lien.

- Trial court did not err by granting partial summary judgment to a buyer on the buyer's claim that the seller's mechanic's lien was invalid for failure to record an affidavit for the commencement of an action so as to establish the lien as required by O.C.G.A. § 44-14-361.1(a)(3). Krut v. Whitecap Hous. Group, LLC, 268 Ga. App. 436, 602 S.E.2d 201 (2004).

Real estate sales contract.

- When a buyer claiming the buyer was fraudulently sold real estate argued, on appeal, that the trial court's summary dismissal of the buyer's complaint under O.C.G.A. §§ 9-11-12(b)(6) and9-11-56 deprived the buyer of the right to a jury trial, this claim had no merit because, when the opposing parties filed an affidavit with their motion for summary judgment claiming that the misrepresentation alleged in the buyer's complaint did not occur, and the buyer did not respond to that motion, the evidence in the record was undisputed that the misrepresentation, which was the crux of the buyer's claims, did not happen, so there was no fact-finding role for a jury to perform. Crane v. Samples, 267 Ga. App. 895, 600 S.E.2d 624 (2004), cert. denied, 544 U.S. 927, 125 S. Ct. 1650, 161 L. Ed. 2d 488 (2005).

Duty arising to supervise adult son out on bond.

- Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56(c) to a grandmother of an adult grandson who shot and killed his girlfriend as there was no showing that the grandmother had any duty to supervise the grandson, nor did she own the premises on which the shooting occurred, such that a claim of premises liability could stand under O.C.G.A. § 44-7-1(a); summary judgment to the mother of the adult son was also proper on the negligent supervision claim as she only had a duty to supervise the son, who was out on bond, during her non-working hours, and the son committed the killing during her work hours. Spivey v. Hembree, 268 Ga. App. 485, 602 S.E.2d 246 (2004).

Summary judgment was properly granted, dismissing an unjust enrichment claim brought by the purchasers of a home against the seller because the doctrine of unjust enrichment did not apply in that the undisputed evidence showed that the purchasers acted with the intention of personally benefiting from the repairs and additions the purchasers made to the house and without any expectation that the seller would be responsible for the cost; further, since the purchasers failed to exercise the purchase option in accordance with the contract, title was not transferred, and the trial court did not err in failing to treat the transaction as a sale with a mortgage. Morris v. Britt, 275 Ga. App. 293, 620 S.E.2d 422 (2005).

Driver operating vehicle on personal mission.

- Summary judgment dismissing an administrator's suit against a corporation to recover for the death of the administrator's decedent, who was struck by a car operated by a driver and given to the driver by a corporation, was proper because the evidence showed that the driver operated the restaurant as an independent contractor, there was no evidence to show that the corporation had the authority to control the operation of either the restaurant or the truck, and the undisputed evidence showed that the driver was driving the truck at the time of the accident on a purely personal mission. Williams v. Chick-fil-A, Inc., 274 Ga. App. 169, 617 S.E.2d 153 (2005).

Summary judgment improperly granted as burden of proof different in civil and criminal cases.

- Summary judgment was improperly granted to a beneficiary in an insurer's interpleader action to determine whether the beneficiary was entitled to the life insurance policy proceeds of the insured, the beneficiary's wife, because evidence that the insured died of a gunshot wound while in Mexico, that the beneficiary was carrying a gun while in Mexico, and that the beneficiary lied about the insured's cause of death created a genuine issue of fact as to whether the beneficiary's recovery was barred under O.C.G.A. § 33-25-13; the fact that the beneficiary had been acquitted of the insured's murder had no impact on the outcome of the civil case because the civil case had a different burden of proof. Cantera v. Am. Heritage Life Ins. Co., 274 Ga. App. 307, 617 S.E.2d 259 (2005).

Improper when genuine issue exists.

- Summary judgment for a ship owner and a charterer in a longshoreman's negligence claim brought pursuant to the Longshore Harbor Worker's Compensation Act, 33 U.S.C. § 905(b), was reversed because there were fact issues as to ballast and roll issues, the safety of the ship at turnover, the officers' and crew's active involvement in the cargo operations, whether the ship owner's actions were negligent, the ship owners' duty to intervene, whether the International Safety Management Code was violated, and whether that proximately caused the longshoreman's injuries. Kyles v. E. Car Liners, Inc., 266 Ga. App. 784, 598 S.E.2d 353 (2004).

When questions remain summary judgment properly denied.

- City's motion for summary judgment was properly denied as the employee was terminated because, due to the employee's physical limitations, there were no assignments for which the employee was qualified, which created an issue of fact as to the basis for termination. Additionally, Barnesville, Ga., City Ordinance art. II, § 16(a)(1) could not be read to mean that, at the time of termination, the employee had already met Social Security Administration (SSA) disability entitlement, there was an issue of fact as to whether the employee's application to the city for disability retirement was timely and, if untimely, whether any delay was caused by a pendency of a disability determination by the SSA, and there was evidence that the employee's physical disability began on a specific date while the employee was employed by the city and that the employee was awarded SSA benefits based upon that physical disability. City of Barnesville v. Littlejohn, 264 Ga. App. 185, 590 S.E.2d 376 (2003).

Summary judgment improperly awarded when party unable to read.

- Trial court erred in granting summary judgment to the defendant in the face of the plaintiff's uncontroverted assertion that the plaintiff could not read with any degree of proficiency or understand and was tricked into signing a release while under a disability and in considerable pain and under medication. Mallard v. Jenkins, 179 Ga. App. 582, 347 S.E.2d 339 (1986).

Trial court improperly granted summary judgment in an action under O.C.G.A. § 16-12-31 [repealed] to forfeit monies, because the defendants set forth specific facts advancing a genuine issue for trial through documentation evidencing saving withdrawals, a loan repayment, a back pay award, a legal settlement and, their long-time accumulation of coins. Wilson v. State, 206 Ga. App. 599, 426 S.E.2d 192 (1992).

Failure to negate element of prima facie case.

- Trial court erred in granting a motion for summary judgment because evidence was insufficient to negate any element of the plaintiff's prima facie case. Huntington v. Fishman, 212 Ga. App. 27, 441 S.E.2d 444 (1994).

Failure to timely designate appraiser.

- Because an insurer denied coverage since the insureds did not designate an appraiser within the policy's time limits, summary judgment was improper; there was evidence from which a trier of fact could determine that the insurer waived strict compliance with the time limit in which to designate an appraiser. Gilbert v. Southern Trust Ins. Co., 252 Ga. App. 109, 555 S.E.2d 69 (2001).

Racial discrimination.

- Lower courts erred in granting summary judgment to a poultry integrator whom a black poultry grower accused of racial discrimination, breach of contract, and intentional infliction of emotional distress as the grower provided sufficient allegations to overcome summary judgment. Blockum v. Fieldale Farms Corp., 275 Ga. 798, 573 S.E.2d 36 (2002).

Excessive fee collection by local government.

- Fact that the county increased the county's fees for building permits and other real estate development fees when the county had accumulated a two million dollar surplus from those fees was evidence that the fees may have exceeded the reasonable cost of the county's regulatory activity, and summary judgment for the county was reversed in a case alleging a violation of O.C.G.A. § 48-13-9. Home Builders Ass'n of Savannah v. Chatham County, 276 Ga. 243, 577 S.E.2d 564 (2003).

Since a jury issue existed as to the extent of the accord and satisfaction of a hospital's claims for treatment provided to a company's employees, and the company's liability for any remaining claims for the employees, summary judgment was improperly granted to the company. Hosp. Auth. v. Pyrotechnic Specialties, Inc., 263 Ga. App. 886, 589 S.E.2d 644 (2003).

Employment termination dispute.

- Because an employment agreement did not specifically define what was meant by the word "due," as such term was used in determining what compensation the employee was entitled to through the effective date of the employee's termination, summary judgment on the employee's breach of contract claim regarding what amount of compensation the employee was to receive was erroneously entered. Reichman v. Southern Ear, Nose & Throat Surgeons, P.C., 266 Ga. App. 696, 598 S.E.2d 12 (2004).

Impact of failure to submit sworn statements.

- Vacation and remand of the denial of a motion for summary judgment by the principals of a corporation was appropriate because the trial court denied the motion for the reason that the principals did not present sworn statements to negate alleged facts, but the court did not consider the issues pertaining to the ground that was asserted by the principals in the motion. Meredith v. Thompson, 312 Ga. App. 697, 719 S.E.2d 592 (2011).

Lack of personal jurisdiction.

- Trial court erred in denying summary judgment pursuant to O.C.G.A. § 9-11-56 to a guarantor in a company's action to collect on a promissory note; the guarantor was not subject to personal jurisdiction in Georgia pursuant to O.C.G.A. § 9-10-91 as the guarantor was a resident of Illinois and was never in Georgia during the course of the negotiations, the guarantor did not initiate or solicit the sale of a restaurant to the guarantor's son, and the guarantor agreed to guaranty the note only after a company requested the guaranty as a condition of the sale, and therefore the guarantor did not purposefully take advantage of the privilege of doing business in Georgia. Stuart v. Peykan, Inc., 261 Ga. App. 46, 581 S.E.2d 609 (2003).

Subject matter jurisdiction is a matter in abatement to be resolved pursuant to

§ 9-11-12(b). - Because subject matter jurisdiction is a matter in abatement, jurisdiction had to be resolved on a motion pursuant to O.C.G.A. § 9-11-12(b), and not by a motion for summary judgment. First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883, 655 S.E.2d 605 (2008).

Proper if no independent claim to support attorney fee claim.

- Because there were no viable independent counterclaims remaining in a construction company's claims against a labor supplier, the construction company could no longer assert a claim for attorney fees and litigation costs under O.C.G.A. § 13-6-11 and, accordingly, summary judgment under O.C.G.A. § 9-11-56 to the supplier was proper. Langley v. Nat'l Labor Group, Inc., 262 Ga. App. 749, 586 S.E.2d 418 (2003).

Conversion from motion to dismiss.

- Because the trial court, without objection, considered a contract between the parties and both parties relied heavily on the contract language before the trial court, the movant's motion to dismiss was converted to a motion for summary judgment. Cox v. Athens Reg'l Med. Ctr., Inc., 279 Ga. App. 586, 631 S.E.2d 792 (2006).

Partial summary judgment.

- In an action between a car dealer and the dealer's customer, the trial court did not err in granting partial summary judgment to the former, on the latter's claims for fraud, willful misrepresentation, theft, conversion, compensatory and punitive damages, and travel expenses as the claims would have ultimately failed at the bench trial; thus, the propriety of the trial court's partial summary judgment order on these claims was a moot question and was not addressed by the court. Rise v. GAPVT Motors, Inc., 288 Ga. App. 246, 653 S.E.2d 320 (2007).

Because: (1) evidence demonstrating an agency relationship between the grantees and the grantor of a security deed was lacking, and (2) the mere lapse of time was insufficient to establish the affirmative defense of laches, partial summary judgment was properly entered in the trustee's favor on that claim based on mutual mistake as well as an order invalidating the foreclosure sale upon the deed. Harvey v. Bank One, N.A., 290 Ga. App. 55, 658 S.E.2d 824 (2008).

Burdens on Motion for Summary Judgment

1. In General

Duty of each party to present case in full.

- It is the duty of each party at a hearing on a motion for summary judgment to present that party's case in full. Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974); Thomas v. Allstate Ins. Co., 133 Ga. App. 193, 210 S.E.2d 361 (1974); HFC v. Rogers, 137 Ga. App. 315, 223 S.E.2d 462 (1976); Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976); Colodny v. Dominion Mtg. & Realty Trust, 141 Ga. App. 139, 232 S.E.2d 601 (1977); Hip Pocket, Inc. v. Levi Strauss & Co., 144 Ga. App. 792, 242 S.E.2d 305 (1978); Walsey v. American Fletcher Nat'l Bank & Trust Co., 151 Ga. App. 104, 258 S.E.2d 760 (1979); DOT v. Garrett, 154 Ga. App. 104, 267 S.E.2d 643 (1980).

Grounds of motion need not be specified.

- Motion for summary judgment is not subject to dismissal for failure to specify grounds upon which the motion relies. Shockley v. Zayre of Atlanta, Inc., 118 Ga. App. 672, 165 S.E.2d 179 (1968).

Insufficient evidence of assumption of risk.

- Summary judgment was properly denied to an electric installation company in an action by a restaurant employee who suffered a severe shock when the employee touched a heated table, which was allegedly caused by a plug that was not grounded and by a loose electrical wire as the company did not prove that the employee assumed the risk of the injury as a matter of law when the employee put the employee's hands on the table after a customer informed the employee that the customer received a mild shock; whether the employee appreciated the risk of the injury was an issue for jury determination as it was not established that the employee fully appreciated the risk faced by touching the table, given the information. D & S Elec., Inc. v. Batson, 270 Ga. App. 210, 606 S.E.2d 37 (2004).

Speculation insufficient evidence.

- Trial court properly granted summary judgment to the company on the widow's wrongful-death claim as the widow did not present any evidence that the actions of the driver of the company's truck in running over her husband caused his death. The husband had been lying in the middle of the roadway after he was thrown from his motorcycle while traveling at a high rate of speed when it was struck by a truck that suddenly pulled out into the middle of the road, and witnesses could not tell if the husband was alive or dead at the time the company's truck drove over him less than a minute after the first accident, which meant that only speculation, not proof, was involved in whether he was dead by the time the company's truck accidentally drove over him while trying to avoid his motorcycle in the road. Mobley v. Nabisco, Inc., 264 Ga. App. 352, 590 S.E.2d 741 (2003).

2. Burden on Movant Generally

Movant must pierce opponent's affirmative defense.

- Party moving for summary judgment has the burden of piercing the opponent's affirmative defense. Peppers v. Siefferman, 153 Ga. App. 206, 265 S.E.2d 26 (1980); Olympic Dev. Group, Inc. v. American Druggists' Ins. Co., 175 Ga. App. 425, 333 S.E.2d 622 (1985); First Union Nat'l Bank v. J. Reisbaum Co., 190 Ga. App. 234, 378 S.E.2d 317 (1989).

Movant must establish absence of defenses.

- On a motion for summary judgment, the burden is on the movant to conclusively establish the absence or nonexistence of any defense. Fletcher v. Ford, 189 Ga. App. 665, 377 S.E.2d 206 (1988), cert. denied, 189 Ga. App. 912, 377 S.E.2d 206 (1988).

Burden of showing lack of genuine issue and entitlement to judgment.

- Burden of showing the absence of a genuine issue of any material fact rests on the party moving for summary judgment. Shadix v. Dowdney, 117 Ga. App. 720, 162 S.E.2d 245 (1968); Sullivan Enters., Inc. v. Stockton, 118 Ga. App. 542, 164 S.E.2d 336 (1968); Matthews v. North Cobb Tire Co., 120 Ga. App. 269, 170 S.E.2d 57 (1969); Anderson v. Redwal Music Co., 122 Ga. App. 247, 176 S.E.2d 645 (1970); Lockhart v. Walker, 124 Ga. App. 241, 183 S.E.2d 503 (1971); Mitchell v. Calhoun, 229 Ga. 757, 194 S.E.2d 421 (1972); Benson Paint Co. v. Williams Constr. Co., 128 Ga. App. 47, 195 S.E.2d 671 (1973); Whitehead v. Capital Auto. Co., 239 Ga. 460, 238 S.E.2d 104 (1977); Southern Trust Ins. Co. v. Clark, 148 Ga. App. 579, 251 S.E.2d 823 (1978); Taylor v. Taylor, 243 Ga. 506, 255 S.E.2d 32 (1979); Scroggins v. Whitfield Fin. Co., 152 Ga. App. 8, 262 S.E.2d 168 (1979); Romanik v. Buitrago, 153 Ga. App. 886, 267 S.E.2d 301 (1980); Edwards v. McTyre, 246 Ga. 302, 271 S.E.2d 205 (1980); Jonesboro Tool & Die Corp. v. Georgia Power Co., 158 Ga. App. 755, 282 S.E.2d 211 (1981); Hanover Ins. Co. v. Nelson Conveyor & Mach. Co., 159 Ga. App. 13, 282 S.E.2d 670 (1981); Mallard v. Jenkins, 179 Ga. App. 582, 347 S.E.2d 339 (1986).

Burden is on the movant for summary judgment to establish contentions relied on to authorize such judgment by proper affidavits or other permitted evidence when such contentions are controverted by the pleadings of the adverse party. Massey v. National Homeowners Sales Serv. Corp., 225 Ga. 93, 165 S.E.2d 854 (1969).

In summary judgment proceedings, the burden is on the movant to demonstrate the lack of a substantial factual issue. Brown v. Sheffield, 121 Ga. App. 383, 173 S.E.2d 891 (1970); Gregory v. Vance Publishing Corp., 130 Ga. App. 118, 202 S.E.2d 515 (1973), overruled on other grounds, Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651, 334 S.E.2d 188 (1985).

Burden of proof is on the movant to establish an entitlement to summary judgment by proper affidavits and other permitted evidence. Mica-Top Fixture Co. v. Frank G. Shattuck Co., 124 Ga. App. 100, 183 S.E.2d 15 (1971).

Burden is upon the movant to affirmatively show that there is no genuine issue of material fact and that the movant is entitled to summary judgment. Smith v. Sandersville Prod. Credit Ass'n, 229 Ga. 65, 189 S.E.2d 432 (1972); Lawson Prods., Inc. v. Rousey, 132 Ga. App. 726, 209 S.E.2d 125 (1974); Peachtree Bottle Shop, Inc. v. Bessemer Sec. Corp., 134 Ga. App. 729, 215 S.E.2d 692 (1975); Stratton & McLendon, Inc. v. Cameron-Brown Co., 140 Ga. App. 430, 231 S.E.2d 447 (1976); Cumberland Assocs. v. Market Assistants, Inc., 142 Ga. App. 483, 236 S.E.2d 109 (1977).

Burden of establishing the nonexistence of any genuine issue of fact is upon the moving party on a motion for summary judgment, and all doubts are to be resolved against the movant. Lansky v. Goldstein, 136 Ga. App. 607, 222 S.E.2d 62 (1975); Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976).

Movant has the burden to prove the nonexistence of any genuine issue of material fact, and in so determining, the court will treat the respondent's paper with considerable indulgence. Fletcher v. Ford, 189 Ga. App. 665, 377 S.E.2d 206, cert. denied, 189 Ga. App. 912, 377 S.E.2d 206 (1988).

Because an insurer carried the insurer's burden of showing that the representation of an insured's business was false, and that the representation was material in that the representation changed the nature, extent, or character of the insurance coverage risk, the trial court did not err in granting the insurer summary judgment. Marchant v. Travelers Indem. Co., 286 Ga. App. 370, 650 S.E.2d 316 (2007).

When burden shifts.

- Burden of showing the absence of a genuine issue of material fact rests on the party moving for summary judgment; the burden does not shift until the pleadings are pierced. Allen & Bean, Inc. v. American Bankers Ins. Co., 153 Ga. App. 617, 266 S.E.2d 295 (1980).

On a motion for summary judgment, the burden of proof is squarely on the moving party, and does not shift to the respondent unless the movant, by affidavits or other evidence, shows a prima facie right to such judgment. Ramseur v. American Mgt. Ass'n, 155 Ga. App. 340, 270 S.E.2d 880 (1980).

Burden of proof is shifted when the moving party makes a prima facie showing that the movant is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against that party. Trust Co. Bank v. Stubbs, 203 Ga. App. 557, 417 S.E.2d 373, cert. denied, 203 Ga. App. 908, 417 S.E.2d 373 (1992).

Prima facie case not established.

- In an action based on a personal guaranty because the guaranty agreement left blank the name of the principal debtor, it was unnecessary for the appellants to present rebuttal evidence or respond to the motion because the evidence the appellee presented did not establish a prima facie case entitling the appellee to summary judgment. Ellis v. Curtis-Toledo, Inc., 204 Ga. App. 704, 420 S.E.2d 756 (1992).

In an action to collect on a debt filed by a creditor's assignee, the trial court erroneously granted summary judgment in the amount of the debt owed, plus interest because the assignee failed to attach to either the motion for summary judgment or affidavit prepared by the legal account manager the necessary documents that purported to establish the debt owed by the debtor. Powers v. Hudson & Keyse, LLC, 289 Ga. App. 251, 656 S.E.2d 578 (2008).

Burden is upon the movant to establish a lack of a genuine issue of fact and the right to judgment as a matter of law, and any doubt as to the existence of such an issue is resolved against the movant. Holland v. Sanfax Corp., 106 Ga. App. 1, 126 S.E.2d 442 (1962);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Movant must negate at least one essential element.

- Moving party has the burden of negating at least one of the essential elements of the opponent's case, and of establishing that no genuine issues of material fact remain. Vizzini v. Blonder, 165 Ga. App. 840, 303 S.E.2d 38 (1983); Progressive Ins. Co. v. Kelly, 181 Ga. App. 181, 351 S.E.2d 544 (1986).

Best way to preserve a party's fundamental right to a jury trial is to require the moving party to negate by proof an essential element of the nonmoving party's claim. Hepner v. Southern Ry., 182 Ga. App. 346, 356 S.E.2d 30 (1987).

Uncontradicted evidence required.

- Burden is on the moving party to establish every element necessary to sustain a grant of the motion by uncontradicted evidence. Berrien v. Avco Fin. Servs., Inc., 123 Ga. App. 862, 182 S.E.2d 708 (1971).

Plaintiff is entitled to summary judgment only if it appears without contradiction that there is no genuine issue of fact, and the burden is on the plaintiff to establish every element necessary to sustain a grant of the motion by uncontradicted evidence. Berrien v. Avco Fin. Servs., Inc., 123 Ga. App. 862, 182 S.E.2d 708 (1971).

Evidence must be of necessary certitude.

- On a motion for summary judgment by the plaintiff, the burden is upon the plaintiff to produce evidence of the necessary certitude, that is, that demands a finding as a matter of law that the defenses pled are untrue. Hurston v. Dealer Serv. Plan, Inc., 141 Ga. App. 148, 232 S.E.2d 641 (1977); Sun First Nat'l Bank v. Gainesville 75, Ltd., 155 Ga. App. 70, 270 S.E.2d 293 (1980).

Evidence must conclusively eliminate all material issues.

- To prevail on a motion for summary judgment, the movant has the burden to produce the evidence that conclusively eliminates all material issues in the case. Kohlmeyer & Co. v. Bowan, 130 Ga. App. 386, 203 S.E.2d 630 (1973); Fountain v. World Fin. Corp., 144 Ga. App. 10, 240 S.E.2d 558 (1977).

Movant must show truth of essential matters.

- It is the obligation of the movant for summary judgment to show positively the truth of the matters that are essential to a judgment in the movant's behalf. Watkins Prods., Inc. v. England, 123 Ga. App. 179, 180 S.E.2d 265 (1971).

Defendant movant's evidence must refute plaintiff's allegations and show truth.

- In order to pierce allegations of material fact contained in the plaintiff's petition, evidence offered by the defendant on a motion for summary judgment must unequivocally refute those allegations and must clearly show what is the truth of the matter alleged. Watkins v. Nationwide Mut. Fire Ins. Co., 113 Ga. App. 801, 149 S.E.2d 749 (1966);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

It is not sufficient if evidence merely preponderates toward the defendant's theory rather than the plaintiff's, or if it does no more than disclose circumstances under which satisfactory proof of the plaintiff's case on trial will be highly unlikely. Watkins v. Nationwide Mut. Fire Ins. Co., 113 Ga. App. 801, 149 S.E.2d 749 (1966);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Shifting of burden to plaintiff respondent to produce rebuttal evidence.

- When the defendant has made a motion for summary judgment, which motion is supported by affidavits, depositions, or other evidentiary matter showing a prima facie right on the part of the defendant to have summary judgment rendered in the defendant's favor, duty is cast upon the plaintiff to produce rebuttal evidence at the hearing thereof, by introduction of depositions or affidavits sufficient to show to the court that there is a genuine issue of fact to be decided by the jury. Cochran v. Southern Bus. Univ., Inc., 110 Ga. App. 666, 139 S.E.2d 400 (1964);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Burden is upon the movant to establish a lack of a genuine issue of fact and a right to summary judgment as a matter of law, and any doubt as to the existence of such an issue is resolved against the movant. Georgia Mut. Ins. Co. v. Morgan, 115 Ga. App. 520, 154 S.E.2d 720 (1967); Chapman v. Turnbull Elevator, Inc., 116 Ga. App. 661, 158 S.E.2d 438 (1967); Boston Ins. Co. v. Barnes, 120 Ga. App. 585, 171 S.E.2d 626 (1969); Lawson v. Duke Oil Co., 155 Ga. App. 363, 270 S.E.2d 898 (1980).

Burden is upon the party moving for summary judgment, and the party opposing the motion is given benefit of all favorable inferences that may be drawn from the evidence. International Bhd. of Boilermakers v. Newman, 116 Ga. App. 590, 158 S.E.2d 298 (1967); Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969); Carr v. Young, 120 Ga. App. 464, 170 S.E.2d 834 (1969), overruled on other grounds, Stanger v. Cato, 182 Ga. App. 498, 356 S.E.2d 97 (1987).

Burden is upon the movant to pierce the pleadings and to establish a lack of a genuine issue of fact and the movant's right to judgment as a matter of law; any doubt as to the existence of such issue or issues is resolved against the movant, and the opposing party is given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. Caldwell v. Gregory, 120 Ga. App. 536, 171 S.E.2d 571 (1969); Connors v. City Council, 120 Ga. App. 499, 171 S.E.2d 578 (1969); Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90, 176 S.E.2d 487 (1970).

Party moving for summary judgment has the burden of showing the absence of a genuine issue of any material fact; and if the trial court is presented with a choice of inferences to be drawn from the facts, all inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the opposing party. Fountain v. World Fin. Corp., 144 Ga. App. 10, 240 S.E.2d 558 (1977).

Burden when movant does not have burden of proof at trial.

- Movant for summary judgment has the burden of proof even as to issues upon which the opposing party would have the trial burden. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969); Lansky v. Goldstein, 136 Ga. App. 607, 222 S.E.2d 62 (1975); Danny's Cabinet Shop, Inc. v. G & M Fire Extinguisher Sales & Serv., Inc., 149 Ga. App. 215, 253 S.E.2d 802 (1979).

On motion for summary judgment, the burden of establishing the nonexistence of any genuine issue of fact is upon the moving party, and all doubts are to be resolved against the movant; the movant has that burden even as to issues upon which the opposing party would have the trial burden. Ham v. Ham, 230 Ga. 43, 195 S.E.2d 429 (1973); Black v. Hamilton, 133 Ga. App. 881, 212 S.E.2d 449 (1975); Piano & Organ Ctr., Inc. v. Southland Bonded Whse., Inc., 139 Ga. App. 480, 228 S.E.2d 615 (1976).

Burden to show that there is no genuine issue of material fact rests on the party moving for summary judgment, whether the moving party or the opposing party would at trial have the burden of proof on the issue concerned, and rests on the moving party whether the moving party is required to show existence or nonexistence of facts. Southern Bell Tel. & Tel. Co. v. Beaver, 120 Ga. App. 420, 170 S.E.2d 737 (1969); Central of Ga. Ry. v. Woolfolk Chem. Works, Ltd., 122 Ga. App. 789, 178 S.E.2d 710 (1970); Kroger Co. v. Cobb, 125 Ga. App. 310, 187 S.E.2d 316 (1972).

If the party upon whom the burden of proof upon trial does not lie, makes motion for summary judgment, all the evidence adduced on that motion, including testimony of the party opposing the motion, is construed most strongly against the movant. Burnette Ford, Inc. v. Hayes, 227 Ga. 551, 181 S.E.2d 866 (1971), overruled on other grounds, Tri-Cities Hosp. Auth. v. Sheats, 247 Ga. 713, 279 S.E.2d 210 (1981); Hospital Auth. v. AGN Mfg., Inc., 124 Ga. App. 159, 183 S.E.2d 58 (1971); Burnette Ford, Inc. v. Hayes, 124 Ga. App. 65, 183 S.E.2d 78 (1971); Epps Air Serv., Inc. v. DeKalb County, 147 Ga. App. 195, 248 S.E.2d 300 (1978); Roberson v. Home Ins. Co., 149 Ga. App. 590, 254 S.E.2d 908 (1979); Brooks v. Douglas, 154 Ga. App. 54, 267 S.E.2d 495 (1980); Combs v. Adair Mtg. Co., 155 Ga. App. 432, 270 S.E.2d 828 (1980); Aiken v. Drexler Shower Door Co., 155 Ga. App. 436, 270 S.E.2d 831 (1980); Pugh v. Frank Jackson Lincoln-Mercury, Inc., 165 Ga. App. 292, 300 S.E.2d 227 (1983).

On motion for summary judgment by a party on whom the burden of proof does not lie on the trial of the case, all the evidence must be construed against the movant and in favor of the party opposing the motion. Pugh v. Frank Jackson Lincoln-Mercury, Inc., 165 Ga. App. 292, 300 S.E.2d 227 (1983).

To prevail at summary judgment under O.C.G.A. § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff's case. If there is no evidence sufficient to create a genuine issue as to any essential element of the plaintiff's claim, that claim tumbles like a house of cards. Lee v. Dep't of Natural Res. of Ga., 263 Ga. App. 491, 588 S.E.2d 260 (2003).

Allegation of incapacity in the plaintiff's complaint must be met by some evidentiary matter in order for the defendant movant to pierce the pleadings on a motion for summary judgment. Keith v. McLanahan, 147 Ga. App. 342, 249 S.E.2d 128 (1978).

Hospital entitled to summary judgment in personal injury action.

- Hospital was entitled to summary judgment in an action brought by one of the hospital's physicians, who was injured after tripping in the staff parking lot, when the physician was unable to link the cause of the injury and the hospital's responsibility for that cause. Baldwin County Hosp. Auth. v. Martinez, 204 Ga. App. 840, 420 S.E.2d 760, cert. denied, 204 Ga. App. 921, 420 S.E.2d 760 (1992).

If evidence insufficient, timely responsive brief irrelevant.

- Because the evidence relied upon by the movant was insufficient to support the movant's motion for summary judgment, regardless of the timeliness of the brief in response to the motion, the movant was not entitled to summary judgment. Hill v. Loren, 187 Ga. App. 71, 369 S.E.2d 260, cert. denied, 187 Ga. App. 907, 369 S.E.2d 260 (1988).

Movant asserting forgery as defense.

- Movant who asserts forgery as a defense has the burden of proof that the signature is not authentic and, if so, not authorized, even though the respondent holder in due course would have such burden at trial. Southtrust Bank v. Parker, 226 Ga. App. 292, 486 S.E.2d 402 (1997).

Burden not met.

- In response to the defendant's motion for partial summary judgment, the plaintiff did not come forward with any specific evidence in support of the plaintiff's claim that the defendant wrongfully, illegally, or fraudulently calculated the plaintiff's premiums; therefore, the defendant was entitled to summary judgment on that portion of the counterclaim. T & R Custom, Inc. v. Liberty Mut. Ins. Co., 227 Ga. App. 144, 488 S.E.2d 705 (1997).

3. Burden on Nonmovant

No conflict exists between this rule and the mandate of Superior Court Rule 6.5; rather, that rule's requirement of filing a statement of material facts in issue is in addition to and not contrary to the Code provision. Mills v. J.E. Sharber Oil Co., 181 Ga. App. 81, 351 S.E.2d 275 (1986).

Options of respondent to motion.

- Respondent may resist a motion for summary judgment by doing nothing, relying on the failure of the movant to remove all issues of fact from the case, or by presenting evidence showing an issuable fact. Benefield v. Malone, 110 Ga. App. 607, 139 S.E.2d 500 (1964), later appeal, 112 Ga. App. 408, 145 S.E.2d 732 (1965); Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 195 S.E.2d 277 (1972);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

One page response inadequate.

- Summary judgment was not authorized merely because a defendant filed a one-page response that contained no substantive argument and failed to comply with Ga. Unif. Super. Ct. R. 6.5. Milk v. Total Pay & HR Solutions, Inc., 280 Ga. App. 449, 634 S.E.2d 208 (2006).

Upon a wife's request for year's support, because a son never presented argument or evidence to contest the amount sought by the wife, never sought a hearing on the issue, and failed to rebut the wife's claim of entitlement to that support, the son's claims of error on appeal from an order granting the wife summary judgment in the superior court lacked merit. In re Estate of Avery, 281 Ga. App. 904, 637 S.E.2d 504 (2006).

Opposing party not required to refute evidence until burden carried.

- No duty devolves upon the opposing party to produce rebuttal evidence until a prima facie showing is made by the movant. Matthews v. North Cobb Tire Co., 120 Ga. App. 269, 170 S.E.2d 57 (1969); Lockhart v. Walker, 124 Ga. App. 241, 183 S.E.2d 503 (1971); Houston v. Doe, 136 Ga. App. 583, 222 S.E.2d 131 (1975); Lawrence v. Gardner, 154 Ga. App. 722, 270 S.E.2d 9 (1980).

Burden of proof always lies with the movant for summary judgment, and this burden must be carried by the movant before the opposing party is required to refute evidence submitted by the movant. Guthrie v. Monumental Properties, Inc., 141 Ga. App. 21, 232 S.E.2d 369 (1977).

If a prima facie showing is made that the moving party is entitled to judgment as a matter of law, the opposite party must come forward with rebuttal evidence at that time or suffer judgment against the opposing party. Meade v. Heimanson, 239 Ga. 177, 236 S.E.2d 357 (1977).

Opposing party in a summary judgment proceeding is under no duty to present counter evidence in opposition to the motion for summary judgment until the moving party has produced evidence demanding that judgment. Peoples Bank v. Austin, 159 Ga. App. 223, 283 S.E.2d 81 (1981); Horton v. Wombles, 182 Ga. App. 214, 355 S.E.2d 124 (1987).

Although it is true that on motion for summary judgment, the burden of establishing the nonexistence of any genuine issue of fact is upon the moving party, the burden of proof is shifted when the moving party makes a prima facie showing that the movant is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against the party. Leonaitis v. State Farm Mut. Auto. Ins. Co., 186 Ga. App. 854, 368 S.E.2d 775, cert. denied, 186 Ga. App. 918, 368 S.E.2d 775 (1988).

Once the moving party for summary judgment has carried the movant's burden of making out a prima facie case, the burden shifts and the opposite party must come forward with rebuttal evidence or suffer judgment against the opposing party. Hinkley v. Building Material Merchants Ass'n, 187 Ga. App. 345, 370 S.E.2d 201 (1988).

Once the party moving for summary judgment has made a prima facie showing that the movant is entitled to judgment as a matter of law, the burden shifts to the nonmovant, who must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact. Weldon v. Del Taco Corp., 194 Ga. App. 174, 390 S.E.2d 87 (1990); Southern Gen. Ins. Co. v. Davis, 205 Ga. App. 274, 421 S.E.2d 780 (1992).

Until the moving party produces evidence or materials that prima facie pierce the pleadings of the opposing party, no duty rests upon the opposing party to produce any counter evidence or materials in affirmative support of its side of the issue as made by the pleadings. Southern Bell Tel. & Tel. Co. v. Beaver, 120 Ga. App. 420, 170 S.E.2d 737 (1969); Guthrie v. Monumental Properties, Inc., 141 Ga. App. 21, 232 S.E.2d 369 (1977); Sun First Nat'l Bank v. Gainesville 75, Ltd., 155 Ga. App. 70, 270 S.E.2d 293 (1980).

Until the movant produces proof that pierces the pleadings, there is no requirement that the opposing party offer counterproof. Anderson v. Redwal Music Co., 122 Ga. App. 247, 176 S.E.2d 645 (1970); Sapp v. ABC Credit & Inv. Co., 243 Ga. 151, 253 S.E.2d 82 (1979).

Respondent has no burden whatever; the burden of proving a right to summary judgment lies with the movant. Watkins Prods., Inc. v. England, 123 Ga. App. 179, 180 S.E.2d 265 (1971).

Until movant shows absence of material issue.

- Respondent in summary judgment proceeding is not ever required to rebut a motion until the movant has carried the burden of showing no material issue. Ginn v. Morgan, 225 Ga. 192, 167 S.E.2d 393 (1969); Mica-Top Fixture Co. v. Frank G. Shattuck Co., 124 Ga. App. 100, 183 S.E.2d 15 (1971).

Entitlement to judgment.

- On motion for summary judgment, the respondent has no burden at all until the movant has first shown that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law on the basis of the pleadings and the affidavits. Doughty v. Associates Com. Corp., 152 Ga. App. 575, 263 S.E.2d 493 (1979).

Until such time as judgment is demanded, the defendant respondent to the plaintiff's motion for summary judgment is not required to produce any evidence. Maxwell v. Columbia Realty Venture, 155 Ga. App. 289, 270 S.E.2d 704 (1980).

By proper affidavits and permitted evidence.

- It is only when a motion for summary judgment is supported by proper affidavits or other permitted evidence that the adverse party had a duty to produce evidence of fact. Massey v. National Homeowners Sales Serv. Corp., 225 Ga. 93, 165 S.E.2d 854 (1969).

Burden shifts to nonmovant when prima facie showing made.

- If a motion for summary judgment is supported by affidavits, depositions, or other evidentiary matter showing a prima facie right in the movant to have judgment rendered in the movant's favor, the duty is cast upon the opposing party to produce rebuttal evidence at the hearing sufficient to show existence of a genuine issue of fact. Germaine v. Webster's Shopping Ctr., Inc., 116 Ga. App. 547, 158 S.E.2d 682 (1967); Stephens County v. Gaines, 128 Ga. App. 662, 197 S.E.2d 424 (1973); Lawyers Title Ins. Corp. v. Noland Co., 140 Ga. App. 114, 230 S.E.2d 102 (1976).

One opposing a motion for summary judgment must present the essence of the party's case or else suffer judgment. Meade v. Heimanson, 239 Ga. 177, 236 S.E.2d 357 (1977).

Burden is on moving party to show that no material issues of fact exist; burden of proof can be shifted, however, when a prima facie showing is made that the moving party is entitled to judgment as a matter of law, and the opposite party must come forward with rebuttal evidence at that time, or suffer judgment against the opposing party. Skinner v. Humble Oil & Ref. Co., 145 Ga. App. 372, 243 S.E.2d 732 (1978); Herman v. Walsh, 154 Ga. App. 712, 269 S.E.2d 535 (1980).

Summary judgment in workers' compensation case.

- Pretermitting whether the trial court correctly determined that no benefits had been paid under Georgia's Workers' Compensation Act, and thus the employer had no right of subrogation to the tort claim settlement proceeds, the trial court's order granting partial summary judgment to the employee extinguishing the employer's subrogation lien had to be affirmed as the employer failed to carry the employer's burden of showing that the injured employee was fully and completely compensated within the meaning of O.C.G.A. § 34-9-11.1(b). Paschall Truck Lines, Inc. v. Kirkland, 287 Ga. App. 497, 651 S.E.2d 804 (2007).

Nonmovant must present alternative theories.

- If the movant for summary judgment presents evidence that shows that there is no genuine issue of material fact, the movant has met the movant's burden, and the burden then shifts to the opposite party to present any alternative theories, if such exist, which would support the opposing party's action and within which genuine issues of fact remain. Culwell v. Lomas & Nettleton Co., 148 Ga. App. 478, 251 S.E.2d 579 (1978).

Nonmovant must meet and controvert specific facts set forth by the moving party. Stone Mt. Mem. Ass'n v. Herrington, 225 Ga. 746, 171 S.E.2d 521 (1969); Hartline-Thomas, Inc. v. H.W. Ivey Constr. Co., 161 Ga. App. 91, 289 S.E.2d 296 (1982); City of Cordele v. Turton's, Inc., 163 Ga. App. 327, 293 S.E.2d 560 (1982).

Summary judgment in favor of a consulting group was proper since an entertainment club, which presented evidence on the club's behalf, failed to present evidence that refuted the consulting group's evidence establishing the entertainment club's breach of a contract and the amount of damages due to the consulting group as a consequence of that breach of contract. Oasis Goodtime Emporium I, Inc. v. Crossroads Consulting Group, LLC, 255 Ga. App. 375, 565 S.E.2d 573 (2002).

Nonmoving party must set forth specific facts showing genuine issue.

- If the party moving for summary judgment has presented evidence of the necessary servitude, the opposing party must, in opposing affidavits, set forth specific facts showing a genuine issue to be decided by the jury. Hyman v. Horwitz, 148 Ga. App. 647, 252 S.E.2d 74 (1979).

When a motion for summary judgment is made, the adverse party may not rest upon the allegations of the pleadings, but must set forth specific facts showing there is a genuine issue for trial. Oliver v. Thomas, 158 Ga. App. 388, 280 S.E.2d 416 (1981); Curtis v. J.L. Todd Auction Co., 159 Ga. App. 863, 285 S.E.2d 596 (1981).

When a motion for summary judgment is submitted and supported by evidence, the adverse party may not rest upon the case as made, but must set forth specific facts and present the case in full in order to show there is a genuine issue for trial. Alghita v. Universal Inv. & Mfg. Co., 167 Ga. App. 562, 307 S.E.2d 99 (1983).

Opposing affidavits must set forth specific facts.

- Mere conclusions are not sufficient to overcome allegations or admissions in an opposing motion for summary judgment, if the moving party has presented evidence of the necessary certitude; the opposing party must, in the opposing affidavits, set forth specific facts showing a genuine issue to be decided by a jury. Scroggins v. Whitfield Fin. Co., 152 Ga. App. 8, 262 S.E.2d 168 (1979).

Mere statement of conclusion insufficient.

- Adverse party must set forth "specific facts"; the opposing party cannot merely state a conclusion. Norris v. Kunes, 166 Ga. App. 686, 305 S.E.2d 426 (1983).

When motion to dismiss is converted.

- When matters outside the pleadings are considered by the trial court on a motion to dismiss for failure to state a claim, the motion is converted to a motion for summary judgment pursuant to O.C.G.A. § 9-11-56, and the trial court has the burden of informing the party opposing the motion that the court will consider matters outside the pleadings and that, if the opposing party so desires, the party has no less than 30 days to submit evidence in response to the motion for summary judgment; moreover, when patients in a class action suit against a hospital acquiesced in the hospital's submission of evidence in support of their motion to dismiss, and in effect, requested that the motion be converted into one for summary judgment by submitting evidence and by urging the trial court and the appeals court to consider it, the patients waived the right to any formal 30-day notice from the trial court. Davis v. Phoebe Putney Health Sys., 280 Ga. App. 505, 634 S.E.2d 452 (2006).

"Plaintiff breached the contract" insufficient response.

- In a suit on account, the trial court does not err in granting the plaintiff 's motion for summary judgment while reserving ruling on the defendant's counterclaim, if the defendant does nothing other than allege generally in the defendant's answer that "plaintiff breached the contract." Concert Promotions, Inc. v. Haas & Dodd, Inc., 167 Ga. App. 883, 307 S.E.2d 763 (1983).

Because the plaintiff failed to carry the burden of piercing the defendant's defense of release, it was not necessary that the defendant come forward with evidence sufficient to show the release, and since the plaintiff was not entitled to judgment as a matter of law, the trial court did not err by denying the court's motion for summary judgment. Howell Mill/Collier Assocs. v. Gonzales, 186 Ga. App. 909, 368 S.E.2d 831 (1988).

Imputing liability to owner of car.

- In a passenger's personal injury action against an owner of another vehicle that had been negligently driven by another, causing it to collide with the car in which the passenger was riding, summary judgment was properly granted to the owner under O.C.G.A. § 9-11-56 since the passenger did not offer evidence to support the passenger's claim for imputing liability on the owner, pursuant to O.C.G.A. § 51-2-2, beyond the passenger showing that the owner owned and insured the vehicle; it was noted that the true test of liability for imputing liability was not the title or ownership, but rather the agency. Collins v. Hamilton, 259 Ga. App. 52, 576 S.E.2d 42 (2002).

Punitive damages.

- In a case in which the defendant filed interrogatories requesting that the plaintiffs give "each and every fact" upon which the plaintiffs relied in support of their general allegations that the defendant's "wilful and wanton" conduct authorized a recovery of punitive damages and the plaintiffs responded that the plaintiffs were relying upon the fact that the defendant was physically unable to drive an automobile and had continued to drive notwithstanding the defendant's limitations, but the defendant, in support of the motion for summary judgment, submitted the defendant's own affidavit, as well as that of a physician, both of which were to the fact that, at the time of the collision, the defendant was physically capable of driving safely and without restriction, and in opposition, the plaintiffs submitted only the affidavit of a witness who stated that, on one prior occasion, the witness had seen the defendant drive dangerously and recklessly as to speed and following too closely, but without injurious result, the plaintiffs failed to produce specific facts that would rebut the defendant's evidence of the lack of aggravating circumstances so the trial court correctly granted the defendant partial summary judgment on the issue of punitive damages. Currie v. Haney, 183 Ga. App. 506, 359 S.E.2d 350, cert. denied, 183 Ga. App. 905, 359 S.E.2d 350 (1987).

Affidavit showing refusal to cohabit.

- If the party moving for summary judgment files an affidavit setting forth evidentiary facts showing refusal to cohabit and the lack of any prospects for reconciliation, summary judgment will be granted unless there is an opposing affidavit showing that the movant has not refused to cohabit or has shown prospects for reconciliation. Bryan v. Bryan, 248 Ga. 312, 282 S.E.2d 892 (1981).

Reference to depositions filed after summary judgment motion not permitted.

- Because depositions relied upon by a husband and wife in their personal injury and loss of consortium action were not filed prior to the time a motion for summary judgment was ruled upon, their reference to the testimony contained therein could not be considered, and their brief in opposition to the summary judgment motion citing the testimony was not proper evidence for opposing the motion. Parker v. Silviano, 284 Ga. App. 278, 643 S.E.2d 819 (2007).

Failure to present evidence of actual knowledge supporting negligent entrustment claim.

- In a personal injury action asserting negligent entrustment, because the injured party failed in the burden of presenting evidence that a passenger in the opposing vehicle had actual knowledge of the incompetent driving of that vehicle's driver, or of facts from which such knowledge could be inferred, due to that driver's intoxication, summary judgment in the passenger's favor was properly entered; the injured party failed to prove an essential element of the entrustment claim. Williams v. Ngo, 289 Ga. App. 44, 656 S.E.2d 193 (2007).

4. Burdens When Defendant Is Movant

Burden on the defendant's motion for summary judgment is on the defendant to pierce the pleadings and to show conclusively that the plaintiff has no right to recover. Reed v. Batson-Cook Co., 122 Ga. App. 803, 178 S.E.2d 728 (1970).

Movant defendant must effectively pierce any state of facts contained in the plaintiff's complaint or those that may be proved in connection therewith so as to preclude as a matter of law the plaintiff's right to prevail under any theory alleged. Morton v. Stewart, 153 Ga. App. 636, 266 S.E.2d 230 (1980).

When the movant is the defendant, the movant has the additional burden of piercing the plaintiff's pleadings and affirmatively negating one or more essential elements of the complaint. Corbitt v. Harris, 182 Ga. App. 81, 354 S.E.2d 637 (1987).

If a motion for summary judgment is made by a defendant, that defendant shoulders the burden of disproving the plaintiff's case, that is, the defendant must affirmatively disprove the case by uncontroverted evidence that demands a finding that no genuine issue as to any material fact remains, and the defendant is entitled to a judgment as a matter of law. Equitable Life Assurance Soc'y v. Reynolds, 186 Ga. App. 608, 367 S.E.2d 879 (1988).

When the defendant moves for summary judgment, the defendant has the burden of piercing the pleadings and affirmatively negating one or more essential elements of the plaintiff's case. Church v. SMS Enters., 186 Ga. App. 791, 368 S.E.2d 554 (1988).

Defendant may demonstrate that there is no genuine issue of material fact to be decided by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff's case. Brown v. Brewer, 237 Ga. App. 145, 513 S.E.2d 10 (1999).

Defendant must unequivocally refute allegations.

- In order to pierce allegations of material fact contained in the plaintiff's petition, evidence offered by the defendant on a motion for summary judgment must unequivocally refute those allegations and must clearly show what is the truth of the matter alleged. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969); Matthews v. North Cobb Tire Co., 120 Ga. App. 269, 170 S.E.2d 57 (1969); Supreme Oil Co. v. Brock, 129 Ga. App. 863, 201 S.E.2d 659 (1973).

Movant's evidence must be of necessary certitude.

- On a motion for summary judgment in favor of the defendant on the ground that the plaintiff has no valid claim, the defendant has the burden of producing evidence of the necessary certitude that negates the plaintiff's claim. Central of Ga. Ry. v. Woolfolk Chem. Works, Ltd., 122 Ga. App. 789, 178 S.E.2d 710 (1970); Kroger Co. v. Cobb, 125 Ga. App. 310, 187 S.E.2d 316 (1972).

Movant's evidence must negate one essential element under every theory of recovery.

- In order for the defendant to prevail on a motion for summary judgment, pleadings, uncontradicted evidence, or admission must negate an essential element of recovery. Seligman & Latz of Atlanta, Inc. v. Grant, 116 Ga. App. 539, 158 S.E.2d 483 (1967).

Burden is on the defendant who moves for summary judgment to produce evidence that conclusively negates at least one essential element entitling the plaintiff to recover under every theory fairly to be drawn from pleadings and evidence. Goodwin v. Mullins, 122 Ga. App. 84, 176 S.E.2d 551 (1970); Central of Ga. Ry. v. Woolfolk Chem. Works, Ltd., 122 Ga. App. 789, 178 S.E.2d 710 (1970); Reed v. Batson-Cook Co., 122 Ga. App. 803, 178 S.E.2d 728 (1970); Lockhart v. Beaird, 128 Ga. App. 7, 195 S.E.2d 292 (1973); Turner v. Noe, 127 Ga. App. 870, 195 S.E.2d 463 (1973); Moss v. Central of Ga. R.R., 135 Ga. App. 904, 219 S.E.2d 593 (1975); Horner v. Savannah Valley Enters., Inc., 138 Ga. App. 117, 225 S.E.2d 458 (1976).

To entitle the defendant to summary judgment, undisputed facts, as disclosed by the pleadings and evidence, must negate at least one essential element entitling the plaintiff to recovery and under every theory fairly drawn from the pleadings and evidence and, if necessary, prove the negative or nonexistence of an essential element affirmatively asserted by the plaintiff. Epps Air Serv., Inc. v. DeKalb County, 147 Ga. App. 195, 248 S.E.2d 300 (1978); Lawrence v. Gardner, 154 Ga. App. 722, 270 S.E.2d 9 (1980); Waller v. Transworld Imports, Inc., 155 Ga. App. 438, 271 S.E.2d 1 (1980).

Burden is on the defendant who moves for summary judgment to produce evidence that conclusively negates the essential elements entitling the respondent to recover under any theory that may be drawn fairly from the pleadings and the evidence. Fort v. Boone, 166 Ga. App. 290, 304 S.E.2d 465 (1983).

To prevail on a motion for summary judgment, a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. Reed v. Adventist Health Systems/Sunbelt, 181 Ga. App. 750, 353 S.E.2d 523 (1987); Trust Co. Bank v. Stubbs, 203 Ga. App. 557, 417 S.E.2d 373, cert. denied, 203 Ga. App. 908, 417 S.E.2d 373 (1992).

When the defendant is the movant, the defendant has the burden of negating conclusively at least one of the essential elements of the plaintiff's case. Ryder Truck Rental, Inc. v. Carter, 189 Ga. App. 43, 374 S.E.2d 830 (1988).

Defendant may meet the burden for summary judgment under O.C.G.A. § 9-11-56 by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff's case; if there is no evidence sufficient to create a genuine issue as to any essential element of the plaintiff's claim, that claim tumbles like a house of cards, and all of the other disputes of fact are rendered immaterial. Sudduth v. Young, 260 Ga. App. 56, 579 S.E.2d 7 (2003).

Defendant's burden not carried by failure of evidence to prove plaintiff's case.

- Defendant, on whom burden of proof at trial does not lie, and who on motion for summary judgment in the defendant's favor does not pierce the issues made by the pleadings or disprove one or more of the essential elements of the plaintiff's case, does not carry the defendant's burden merely because evidence submitted fails to prove the plaintiff's case. Continental Assurance Co. v. Rothell, 121 Ga. App. 868, 176 S.E.2d 259 (1970), aff'd in part and rev'd in part on other grounds, 227 Ga. 258, 181 S.E.2d 283, vacated on other grounds, 123 Ga. App. 423, 181 S.E.2d 541 (1971).

Burden discharged by pointing out absence of evidence.

- Defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out, by reference to the affidavits, depositions, and other documents in the record, that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991); Brown v. Buffington, 203 Ga. App. 402, 416 S.E.2d 883 (1992).

Contrary to the plaintiff's argument, a driver and the driver's passenger, in opposing the defendant motorist's summary judgment motion in the plaintiffs' action to recover for personal injuries and property damage, the motorist was not required to produce evidence to support the motorist's assertion that the motorist was never served with process; rather, the motorist met the summary judgment burden by pointing out in the record that there was an absence of evidence to support the plaintiffs' case in that regard and, specifically, that there was evidence that the sheriff's office had been unable to serve the motorist. Carter v. McKnight, 260 Ga. App. 105, 578 S.E.2d 901 (2003).

Affirmative showing that plaintiff not entitled to recovery required.

- To warrant entry of summary judgment in favor of the defendant, undisputed facts should show the right of the defendant to judgment with such clarity as to leave no room for controversy, and should show affirmatively that the plaintiff would not be entitled to recover under any discernible circumstances. Lockhart v. Walker, 124 Ga. App. 241, 183 S.E.2d 503 (1971); Buford-Clairmont, Inc. v. Jacobs Pharmacy Co., 131 Ga. App. 643, 206 S.E.2d 674 (1974); Allen & Bean, Inc. v. American Bankers Ins. Co., 153 Ga. App. 617, 266 S.E.2d 295 (1980).

Evidence that merely preponderates toward the defendant's theory rather than the plaintiff's, or if it does no more than disclose circumstances under which satisfactory proof of the plaintiff's case on trial will be highly unlikely. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969); Matthews v. North Cobb Tire Co., 120 Ga. App. 269, 170 S.E.2d 57 (1969); Supreme Oil Co. v. Brock, 129 Ga. App. 863, 201 S.E.2d 659 (1973).

Burden on nonmovant plaintiff.

- If the defendant moves for summary judgment, there is no burden on the plaintiff to come forward with proof of the plaintiff's case until evidence adduced prima facie disproves an essential element of the plaintiff's theory of recovery. Continental Assurance Co. v. Rothell, 121 Ga. App. 868, 176 S.E.2d 259 (1970), aff'd in part and rev'd in part on other grounds, 227 Ga. 258, 181 S.E.2d 283, vacated on other grounds, 123 Ga. App. 423, 181 S.E.2d 541 (1971).

If the movant defendant's showing on a summary judgment motion pierces material issues made by the pleadings, an evidentiary response by the plaintiff respondent is required for the plaintiff to avoid an adverse summary judgment. Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 195 S.E.2d 277 (1972).

When the defendant makes a motion for summary judgment under O.C.G.A. § 9-11-56, which motion is supported by affidavits, depositions, or other evidentiary matters showing a prima facie right on the part of the defendant to have summary judgment rendered in the defendant's favor, the duty is then cast upon the plaintiff to produce rebuttal evidence at the hearing on the motion, by the introduction of depositions, affidavits, or other evidence sufficient to show to the court that there is a genuine issue of fact to be decided by the jury. Rehak v. Mathis, 239 Ga. 541, 238 S.E.2d 81 (1977).

Plaintiff need not produce evidence until the defendant's evidence pierces the plaintiff's pleadings and demands a finding in the defendant's favor on the particular issue of fact made by the pleadings. Fort v. Boone, 166 Ga. App. 290, 304 S.E.2d 465 (1983).

Plaintiff is not required to respond to issues that are not raised in the defendant's motion for summary judgment or to present the plaintiff's entire case on all allegations in the complaint; thus, until the defendant pierced the allegations of the complaint on a particular issue, the plaintiff was not required to respond to the motion on that issue. Hodge v. Sada Enters., Inc., 217 Ga. App. 688, 458 S.E.2d 876 (1995).

If the defendant hospital makes a motion for summary judgment and the attending physician gives a medical affidavit that states a medical opinion that the alleged deviation from the standard of care has no causal connection with the injury or aggravated a pre-existing condition, such motion has pierced the plaintiff's pleadings, refuted causation, and shifted the burden to the plaintiff of coming forward with some evidence to create a material issue of fact. Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 505 S.E.2d 232 (1998).

Once the defendant has carried burden of showing an absence of a genuine issue of fact, the plaintiff is required to offer refuting evidence, and if the plaintiff has failed to produce refuting evidence, the trial court's grant of summary judgment is proper. Gilbert v. Jones, 187 Ga. App. 303, 370 S.E.2d 155 (1988).

Standard for defendant's burden.

- When the defendant moving for summary judgment presents evidence apparently destroying the plaintiff's cause of action, the defendant meets the burden; the burden then shifts to the plaintiff to present any alternative theories, if such exist, which would support the action and within which genuine issues of fact remain. Gerald v. Ameron Automotive Ctrs., 145 Ga. App. 200, 243 S.E.2d 565 (1978), rev'd on other grounds, 245 Ga. 5, 262 S.E.2d 895 (1980).

Nonmovant plaintiff need not prove entitlement to relief.

- In opposing a motion for summary judgment, it is not necessary for the plaintiff to produce sufficient evidence to show that the plaintiff is entitled to the relief sought. Wall v. Georgia Farm Bureau Mut. Ins. Co., 238 Ga. 275, 232 S.E.2d 555 (1977); Thomas v. McGee, 242 Ga. 441, 249 S.E.2d 242 (1978).

If the movant defendant has pierced the allegations of the pleadings and shown the truth to the court, the defendant may receive a grant of summary judgment if there is no genuine issue of material fact considering the pleadings and available evidence. Fort v. Boone, 166 Ga. App. 290, 304 S.E.2d 465 (1983).

Plaintiff's options of producing counterproof or doing nothing.

- If the defendant moves for summary judgment, the plaintiff has the choice of producing counterproof and thus making an issue of fact, or doing nothing, that is, creating no issue of fact and suffering judgment. Brown v. J.C. Penney Co., 123 Ga. App. 233, 180 S.E.2d 364 (1971).

If the defendant alleges that cashing of check and retaining proceeds constitutes accord and satisfaction, regardless of any protest, oral or written, and regardless of whether the other party is given notice of protest or any purported reservation of rights, the defendant thus undertakes to discharge a treble burden: not only that ordinarily imposed upon the proponent of an affirmative defense, but a second burden that requires the movant for summary judgment to establish that there exist no material issues of fact in the case, and yet a third that requires the movant who is also the defendant affirmatively to negate one or more essential elements of the case made out by the plaintiff. Wallace v. Harrison, 166 Ga. App. 461, 304 S.E.2d 487 (1983).

In a "slip and fall" case, on a motion for summary judgment the burden was on the defendant store owner, as movant, to come forward with evidence tending to show that the defendant did not have constructive knowledge of the presence of the alleged hazard. Shiver v. Singletary, 186 Ga. App. 746, 368 S.E.2d 523, cert. denied, 186 Ga. App. 918, 368 S.E.2d 523 (1988).

In a slip and fall case, if the plaintiff has alleged that the defendant had actual knowledge of a defect, the defendant-movant must proffer some evidence that the defendant did not know of the defect, in order to proceed toward summary judgment. Baldwin County Hosp. Auth. v. Coney, 188 Ga. App. 339, 373 S.E.2d 252 (1988).

Defendant's motion granted absent testimony negating allegation.

- In a product liability action, given the plaintiff's continued inability or unwillingness to cite any specific instances of the manufacturer's alleged negligence in the design and manufacture of a van, the trial court was authorized under such circumstances to conclude that no such conduct had in fact occurred and that no material issue of fact remained to be tried with respect to this claim, even in the absence of sworn testimony affirmatively negating the allegation that such conduct had occurred. Collins v. Byrd, 204 Ga. App. 893, 420 S.E.2d 785, cert. denied, 204 Ga. App. 921, 420 S.E.2d 785 (1992).

Evidence on Motion

1. In General

Purpose of summary judgment procedures would not be advanced by artificial blockades against production of facts helpful in a determination of whether or not a jury issue exists, and this includes both oral and documentary evidence. Kiker v. Pinson, 120 Ga. App. 784, 172 S.E.2d 333 (1969).

Conversion from motion to dismiss.

- When matters outside the pleadings are considered by the trial court on a motion to dismiss for failure to state a claim, the motion is converted to a motion for summary judgment pursuant to O.C.G.A. § 9-11-56, and the trial court has the burden of informing the party opposing the motion that the court will consider matters outside the pleadings and that, if the opposing party so desires, the party has no less than 30 days to submit evidence in response to the motion for summary judgment. Morrell v. Wellstar Health Sys., Inc., 280 Ga. App. 1, 633 S.E.2d 68 (2006).

List of forms of evidence not exclusive.

- Forms of evidence listed in O.C.G.A. § 9-11-56 are not exclusive means of presenting evidence on a motion for summary judgment; the trial court may consider any material which would be admissible or usable at trial. Benton Bros. Ford Co. v. Cotton States Mut. Ins. Co., 157 Ga. App. 448, 278 S.E.2d 40 (1981).

Court will consider all materials which meet standards of this section.

- Court is obliged to take account of the entire setting of the case on a summary judgment motion, and the court will consider all papers of record, as well as any material prepared for the motion that meets the standard prescribed in subsection (e) of O.C.G.A. § 9-11-56. Glisson v. Morton, 203 Ga. App. 77, 416 S.E.2d 134 (1992).

Introduction of items in subsection (c).

- There is no requirement under subsection (c) of this section that the items listed be introduced into evidence. Thompson v. Abbott, 226 Ga. 353, 174 S.E.2d 904 (1970), overruled on other grounds, Ogden Equip. Co. v. Talmadge Farms, Inc., 232 Ga. 614, 208 S.E.2d 459 (1974).

Introduction of evidence not prerequisite to consideration.

- Trial court properly considered defendant's answers to interrogatories in passing on a motion for summary judgment, even though such answers were not introduced into evidence, as introduction of evidence is not a necessary condition for consideration of such evidence on summary judgment. Ford v. Georgia Power Co., 151 Ga. App. 748, 261 S.E.2d 474 (1979).

Subsection (c) limits certain evidence considered on motion.

- Subsection (c) of O.C.G.A. § 9-11-56 requires that only supporting material which is "on file" at least 30 days before the hearing shall be considered for the movant. Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631, 278 S.E.2d 377 (1981).

Complaint is not evidence, and thus may not be considered in deciding a motion for summary judgment. Clements v. Hendi, 182 Ga. App. 118, 354 S.E.2d 700 (1987).

Patient's complaint was not evidence and thus could not be considered in deciding a motion for summary judgment. Wellstar Health Sys. v. Painter, 288 Ga. App. 659, 655 S.E.2d 251 (2007).

Improper legal standard in withdrawal of admissions.

- Because the trial court applied the wrong legal standard in refusing to allow the defendants to withdraw the defendants' admissions, and should have applied the standard set forth in O.C.G.A. § 9-11-36(b) and considered whether withdrawal would serve the presentation of the merits and whether it would prejudice the plaintiffs, summary judgment was improper; moreover, the trial court erroneously held that summary judgment was proper because the defendants had shown no excuse for their former counsel's failure to respond to the plaintiffs request for admissions as the defendants were not required to make such a showing. Sayers v. Artistic Kitchen Design, LLC, 280 Ga. App. 223, 633 S.E.2d 619 (2006).

Documentary evidence.

- Subsection (c) of this section does not preclude use of documentary evidence in a summary judgment proceeding. Kiker v. Pinson, 120 Ga. App. 784, 172 S.E.2d 333 (1969).

Statement of facts.

- Statement of facts submitted pursuant to Uniform Superior Court Rule 6.5 is not evidence for purposes of a motion for summary judgment. Rapps v. Cooke, 234 Ga. App. 131, 505 S.E.2d 566 (1998).

Additional evidence.

- O.C.G.A. § 9-11-56 does not prohibit successive motions for summary judgment based on additional evidence. Conversely, the statute does not prohibit the filing of additional evidence once a motion for summary judgment is denied. If a deficiency in evidence can be cured short of trial, then the obvious expedient of a motion more fully supported will achieve final resolution more quickly and inexpensively for all concerned. Hogans v. Food Giant, Inc., 185 Ga. App. 645, 365 S.E.2d 496 (1988); NeSmith v. Ellerbee, 203 Ga. App. 65, 416 S.E.2d 364 (1992).

Competent and admissible evidence required.

- "Genuine issue" test is not met unless evidence offered is competent and admissible. General Ins. Co. of Am. v. Camden Constr. Co., 115 Ga. App. 189, 154 S.E.2d 26 (1967);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Case must be provable by competent evidence.

- Depositions or affidavits offered in support of the plaintiff's case and in opposition to the defendant's motion for summary judgment must affirmatively show that the plaintiff's case is provable by competent evidence. Cochran v. Southern Bus. Univ., Inc., 110 Ga. App. 666, 139 S.E.2d 400 (1964);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Deposition improperly excluded because it was an unsigned copy.

- In a parents' action against a care home arising out of the death of their adult son, the trial court erred in refusing to consider a copy of the deposition of the parents' expert because it was not an original and had not been signed by the deponent; the copy contained the court reporter's signed certification that the transcript was a true and complete record of the evidence given by the expert. Blake v. KES, Inc., 329 Ga. App. 742, 766 S.E.2d 138 (2014).

Speculation insufficient.

- Speculation which raises merely a conjecture or possibility is not sufficient to create even an inference of fact for consideration on summary judgment. Emory Univ. v. Smith, 260 Ga. App. 900, 581 S.E.2d 405 (2003).

Showing of competency to testify required.

- Affidavit which fails to show affirmatively that the affiant is competent to testify to matters stated therein fails to comply with subsection (c) of this section as to evidence under motions for summary judgment. Watkins Prods., Inc. v. England, 123 Ga. App. 179, 180 S.E.2d 265 (1971).

Evidence in support of or in opposition to a motion for summary judgment, whether by deposition, affidavit, interrogatory, or otherwise, must show affirmatively that the affiant is competent to testify to matters stated therein. Crawford v. McDonald, 125 Ga. App. 289, 187 S.E.2d 542 (1972).

Incompetent complainant.

- When the complainant's affidavit affirmatively revealed that the complainant was not competent to testify as to the matters stated therein, the affidavit would not support a motion for summary judgment. Ireland v. Matthews, 120 Ga. App. 510, 171 S.E.2d 387 (1969).

Competence to testify as to law of foreign state.

- When there is no showing that the defendant is competent to testify as to the law of the foreign state, the affidavit of the defendant as to such matters is without probative value on a motion for summary judgment. Ryle v. Ryle, 130 Ga. App. 680, 204 S.E.2d 339 (1974).

Subsection (e) does not change proof required to defeat motion for summary judgment, when evidence submitted therewith has pierced the pleadings; it is merely a statutory amendment to reflect what has already been decided judicially as to the opposing evidence required. Prudential Ins. Co. of Am. v. Seagraves, 117 Ga. App. 480, 160 S.E.2d 912 (1968).

Enactment of subsection (e) of this section did not eliminate requirement that pleadings be pierced. Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 195 S.E.2d 277 (1972).

Consideration of entire setting of case.

- Court is obliged to take account of the entire setting of a case on a motion for summary judgment; in addition to the pleadings, it will consider all papers of record as well as any material prepared for the motion that meets the standard prescribed in subsection (e) of this section. Union Circulation Co. v. Trust Co. Bank, 146 Ga. App. 612, 247 S.E.2d 197 (1978).

Court is obligated to take account of entire setting of case on a motion for summary judgment. Smith v. Jones, 154 Ga. App. 629, 269 S.E.2d 471 (1980).

Trial judge should always search entire record before granting motion for summary judgment, and should not be limited to evidence introduced at hearing. Thompson v. Abbott, 226 Ga. 353, 174 S.E.2d 904 (1970), overruled on other grounds, Ogden Equip. Co. v. Talmadge Farms, Inc., 232 Ga. 614, 208 S.E.2d 459 (1974); Jackson v. Couch Funeral Home, 131 Ga. App. 695, 206 S.E.2d 718 (1974); Realty Contractors, Inc. v. Citizens & S. Nat'l Bank, 146 Ga. App. 69, 245 S.E.2d 342 (1978); Union Circulation Co. v. Trust Co. Bank, 146 Ga. App. 612, 247 S.E.2d 197 (1978); Sacks v. Bell Tel. Labs., Inc., 149 Ga. App. 799, 256 S.E.2d 87 (1979).

In ruling on motion for summary judgment, particularly one based upon a contract which is controlling, it is axiomatic that the court must search the entire record and consider all papers of record properly before the court. American Mut. Fire Ins. Co. v. Llewellyn, 142 Ga. App. 824, 237 S.E.2d 227 (1977).

On consideration of summary judgments, trial court must look at the entire record. Lawson v. Duke Oil Co., 155 Ga. App. 363, 270 S.E.2d 898 (1980).

Completion of discovery not required before ruling on motion.

- In an action by the children of a decedent against the operators of a nursing home, the trial court was not required to allow the children to complete discovery before ruling on the operators' motion for summary judgment. If the children needed additional discovery for their response to the motion, the children should have invoked O.C.G.A. § 9-11-56(f). Carr v. Kindred Healthcare Operating, Inc., 293 Ga. App. 80, 666 S.E.2d 401 (2008).

Additional evidence may be ordered by judge.

- If there is doubt in the trial judge's mind as to whether the movant has carried the burden of showing there is no substantial issue of material fact, the judge may require such additional evidence as the judge deems advisable and prescribe the method by which additional evidence must be presented. Benefield v. Malone, 110 Ga. App. 607, 139 S.E.2d 500 (1964), later appeal, 112 Ga. App. 408, 145 S.E.2d 732 (1965);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Parties need not formally offer outside matter as evidence or have the evidence marked as an exhibit at a hearing on the motion. Union Circulation Co. v. Trust Co. Bank, 146 Ga. App. 612, 247 S.E.2d 197 (1978); Smith v. Jones, 154 Ga. App. 629, 269 S.E.2d 471 (1980); Bimbo Bldrs., Inc. v. Stubbs Properties, Inc., 158 Ga. App. 280, 279 S.E.2d 730 (1981).

Personal affidavit sufficient to raise jury issue.

- When a party resisting a motion for summary judgment offers nothing more than the party's own personal affidavit, even if assumed to be self-serving, the conflicting allegation in the parties' competing affidavits may be enough to defeat the motion and require jury resolution. Shalom Farms, Inc. v. Columbus Bank & Trust Co., 169 Ga. App. 145, 312 S.E.2d 138 (1983).

Affidavit based on information not in record.

- When an affidavit offered by the plaintiff was based solely on information not part of the record in the case, the affidavit had no probative value in response to the motion for summary judgment. Nettles v. Laws, 172 Ga. App. 241, 322 S.E.2d 546 (1984).

Affidavit from an out-of-state expert, whose conclusions were based on medical records not attached to the affidavit and not otherwise in the record, filed in opposition to a motion for summary judgment, was inadmissible under O.C.G.A. § 9-11-56. Oakes v. Magat, 263 Ga. App. 165, 587 S.E.2d 150 (2003).

Court should not exclude affidavit when documents on file.

- Although the documents referred to in an affidavit are not attached to the affidavit, as required by subsection (e) of O.C.G.A. § 9-11-56, the trial court should not exclude the affidavit when all of the documents are filed in the case. Hughey v. Emory Univ., 168 Ga. App. 239, 308 S.E.2d 558 (1983).

Deposition need only be on file to be considered.

- Deposition need not be introduced in evidence in order to be considered in ruling upon a motion for summary judgment as the law only requires that the deposition be on file. GMC v. Walker, 244 Ga. 191, 259 S.E.2d 449 (1979); Porter Coatings v. Stein Steel & Supply Co., 157 Ga. App. 260, 277 S.E.2d 272, aff 'd, 247 Ga. 631, 278 S.E.2d 377 (1981).

Depositions must be filed 30 days before the hearing to be considered on behalf of the movant for summary judgment. Lynch v. Georgia Power Co., 180 Ga. App. 178, 348 S.E.2d 719 (1986).

Trial judge is bound to consider pleadings, including amended complaint, in ruling on a motion for summary judgment. Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 195 S.E.2d 277 (1972).

Amended pleadings filed after summary judgment hearing but before rendition of judge's order are to be considered in passing on motion for summary judgment. Haskins v. Jones, 142 Ga. App. 153, 235 S.E.2d 630 (1977).

In addition to the pleadings, court will consider all papers of record, as well as any material prepared for the motion that meets the standard prescribed in subsection (e) of this section as submitted by both parties. Smith v. Jones, 154 Ga. App. 629, 269 S.E.2d 471 (1980).

Examination of materials extraneous to pleadings.

- On motion for summary judgment, the court is authorized to examine proffered materials extraneous on the pleadings, not for the purpose of trying an issue, but to determine whether there is a genuine issue of material fact to be tried; such extraneous matter most often consists of depositions, answers to interrogatories, admissions on file, and affidavits, if any, but also among matters which may be considered are oral testimony, judicial notice, presumptions, stipulations, concessions of counsel, certified transcript of a court, exhibits, and other papers that have been identified by affidavit or otherwise made admissible in evidence or useable at trial. Bodrey v. Cape, 120 Ga. App. 859, 172 S.E.2d 643 (1969).

Interrogatories and answers may be considered.

- Even when the movant based the movant's motion on the pleadings and the depositions of the plaintiffs, nevertheless the court was authorized to also consider the interrogatories and answers thereto. Stone Mt. Mem. Ass'n v. Herrington, 225 Ga. 746, 171 S.E.2d 521 (1969).

Indication of review by judge sufficient.

- If a trial judge in the judge's order recites that the judge has considered each affidavit, deposition, and document submitted, there will not be a reversal on appeal on the ground that the judge did not do so. Vaughn & Co. v. Saul, 143 Ga. App. 74, 237 S.E.2d 622 (1977).

If the trial court indicates in an order granting a motion for summary judgment that such motion is being granted after review of the record, the appellate court will not hold that the trial court failed to review the relevant portions of a deposition simply because the original on file remained sealed and was not opened until after the order granting the motion was entered. GMC v. Walker, 244 Ga. 191, 259 S.E.2d 449 (1979).

Order of trial court indicating that record was reviewed was sufficient showing of review of documents, even though the depositions were still sealed. Smith v. Jones, 154 Ga. App. 629, 269 S.E.2d 471 (1980).

Evidence adduced at former trial and judgment of appellate court may be relied upon by the movant as well as pleadings and other forms of evidence specifically mentioned in this section. Goldsmith v. American Food Servs., Inc., 123 Ga. App. 353, 181 S.E.2d 95 (1971).

Introduction of record of former case on different cause.

- In an entirely new case not constituting continuation of a previous case based on same cause of action, record adduced on former case could be introduced in support of the motion for summary judgment; this record would be of no greater weight than other affidavits, depositions, and other documentary evidence in support or in opposition to the motion. Miller v. Douglas, 235 Ga. 222, 219 S.E.2d 144 (1975).

Copy of transcript of prior hearing of same case.

- When evidence adduced upon prior hearing of the same case is relied upon to support a motion for summary judgment, a transcript of such evidence must be attached to or introduced in support of such motion. Reid v. Wilkerson, 223 Ga. 751, 158 S.E.2d 241 (1967).

Transcript of probate proceeding.

- When a transcript of a probate proceeding is certified by a court reporter and transmitted from a probate court to a superior court, the transcript can be relied upon to support or oppose a motion for summary judgment. Tony v. Pollard, 248 Ga. 86, 281 S.E.2d 557 (1981).

Vacation of summary judgment and new hearing set.

- When a summary judgment is vacated and a new hearing set, in the absence of an express order, the matter is reopened for all purposes including the subsequent filing of affidavits, depositions, etc., until the date of the new hearing. Bishop v. Stephens, 164 Ga. App. 45, 296 S.E.2d 250 (1982).

Premising of judgment on document not in record and not in evidence before court.

- Trial court's order granting summary judgment, premised entirely upon a document not in the record, not in evidence before the trial court, and not appearing in the record before the appellate court must be reversed. Nelson v. Smothers, 164 Ga. App. 112, 296 S.E.2d 414 (1982).

Deposition testimony quoted in brief.

- Since a brief in support of a motion for summary judgment is not proper evidence upon which summary judgment can be granted, deposition testimony as quoted in the movant's brief could not serve as the basis for summary judgment. Lynch v. Georgia Power Co., 180 Ga. App. 178, 348 S.E.2d 719 (1986).

Requests for admissions.

- When both defendants asserted that the lease was altered, the failure of one defendant to file a separate denial of requests to admit did not remove all issues of fact and entitle the plaintiff to judgment. Freeway Junction Bakery, Inc. v. Krupp Cash Plus III, 202 Ga. App. 703, 415 S.E.2d 312 (1992), overruled on other grounds, 287 Ga. 358, 695 S.E.2d 586 (2010).

Judicial notice of separate action.

- In a suit on two promissory notes, the trial court erred in taking judicial notice of the evidence presented in a separate declaratory judgment action on the notes in granting summary judgment. Kaplan v. Krosco, Inc., 167 Ga. App. 197, 306 S.E.2d 88 (1983).

Inconsistent statements constituted "direct" contradiction.

- When a customer fell from a raised platform in a store, the customer's statement in a deposition that the customer was distracted by the need to summon assistance from a clerk was directly contradicted by the customer's subsequent statement in an affidavit that the customer was distracted by a need to negotiate the customer's way around boxes, thereby justifying the trial court in disregarding the affidavit. Simone v. Hancock Textile Co., 175 Ga. App. 191, 332 S.E.2d 669 (1985).

Suggestion of vague defense by opposing party inadequate.

- Purpose of this section would be defeated if the party opposing the motion for summary judgment was permitted to defeat the motion by suggesting so vague a defense as to prevent the movant or court from ascertaining the theory behind the motion. Meade v. Heimanson, 239 Ga. 177, 236 S.E.2d 357 (1977); Goodman v. St. Joseph's Infirmary, Inc., 144 Ga. App. 614, 241 S.E.2d 487 (1978); Reuben v. First Nat'l Bank, 151 Ga. App. 476, 260 S.E.2d 498 (1979).

When the plaintiff in an action to enforce an indemnity agreement made a prima-facie showing of the indebtedness and moved for summary judgment, the defendant's general assertion of partial failure of consideration, unsupported by specific facts or arguments, was insufficient to avoid judgment. Thomasson v. Pineco, Inc., 173 Ga. App. 794, 328 S.E.2d 410 (1985).

Inference from circumstantial evidence without probative value.

- In passing on a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. Ussery v. Koch, 115 Ga. App. 463, 154 S.E.2d 879 (1967), overruled on other grounds, Raven v. Dodd's Auto Sales & Serv., Inc., 117 Ga. App. 416, 160 S.E.2d 633 (1968); Mullis v. Merit Fin. Co., 116 Ga. App. 582, 158 S.E.2d 415 (1967); Brewer v. Southeastern Fid. Ins. Co., 147 Ga. App. 562, 249 S.E.2d 668 (1978); Withrow Timber Co. v. Blackburn, 244 Ga. 549, 261 S.E.2d 361 (1979).

In an action based on respondeat superior, after an alleged employee and employer gave direct and positive testimony that at the time of the accident the employee was not acting within the scope of the employee's employment, the plaintiff must show, in addition to the presumption that the employee driving the employer's automobile is acting within the scope of employment, some other fact indicating that the employee was so acting; if this other fact is direct evidence, that is sufficient to allow the case to go to the jury, but if the other fact is circumstantial evidence, it must be inconsistent with the defendant's evidence, or if consistent, it must demand a finding of fact on the issue in favor of the plaintiff. Withrow Timber Co. v. Blackburn, 244 Ga. 549, 261 S.E.2d 361 (1979).

Nature of admission made by motion.

- While it is frequently said that a motion admits certain allegations of the opponent, this admission is purely for the sake of argument and to enable the court to arrive at the law uncluttered with questions of face; it is a temporary negative admission, that is to say, mere failure to deny for an immediate purpose, and does not constitute a positive admission or estoppel for later phases of the case. Worlds v. Worlds, 154 Ga. App. 850, 270 S.E.2d 68 (1980).

Time for objection to evidence.

- There is no specific time limit for objection to evidence offered on a motion for summary judgment. Area v. Cagle, 148 Ga. App. 769, 252 S.E.2d 655 (1979).

Untimely submission of nonmovant's evidence.

- When a debtor, faced with a creditor's motion for summary judgment supported by an affidavit, did not timely respond with an affidavit or other evidence placing the facts supported by the creditor's affidavit in dispute, the debtor waived the right to present evidence in opposition to the motion, and the trial court did not abuse the court's discretion in declining to consider the untimely affidavits submitted by the debtor. Gerben v. Beneficial Ga., Inc., 283 Ga. App. 740, 642 S.E.2d 405 (2007).

2. Admissibility of Evidence

Admissibility governed by rules of evidence.

- In considering evidence submitted in connection with and in opposition to a motion for summary judgment, the court should apply applicable rules of evidence and, after having done so, construe the evidence as the evidence then stands in favor of the party opposing the motion. Chandler v. Gately, 119 Ga. App. 513, 167 S.E.2d 697 (1969).

Admissibility of evidence on motion for summary judgment is governed by rules relating to form and admissibility of evidence generally so that evidence inadmissible on a hearing of the case is inadmissible on a motion for summary judgment. Matthews v. Wilson, 119 Ga. App. 708, 168 S.E.2d 864 (1969); Crawford v. McDonald, 125 Ga. App. 289, 187 S.E.2d 542 (1972); Ryle v. Ryle, 130 Ga. App. 680, 204 S.E.2d 339 (1974); Thomasson v. Trust Co. Bank, 149 Ga. App. 556, 254 S.E.2d 881 (1979); Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 280 S.E.2d 842 (1981).

Rules as to admissibility of evidence are applicable in summary judgment proceedings. Wheat v. Montgomery, 130 Ga. App. 202, 202 S.E.2d 664 (1973).

Evidence which would be admissible on a hearing of the case would generally be admissible on a motion for summary judgment. Thomasson v. Trust Co. Bank, 149 Ga. App. 556, 254 S.E.2d 881 (1979).

Court cannot consider hearsay, opinions, and conclusions in affidavits submitted. Davis v. Haupt Bros. Gas Co., 131 Ga. App. 628, 206 S.E.2d 598 (1974).

Affidavit must set forth admissible facts.

- Affidavit filed in support of a motion for summary judgment must contain evidentiary matter which would be admissible under the rules of evidence if the affiant were in court and testifying. Bell v. Bell, 114 Ga. App. 507, 151 S.E.2d 880 (1966);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Affidavits in support of or in opposition to motions for summary judgment must set forth such facts as would be admissible in evidence at trial. Mullis v. Merit Fin. Co., 116 Ga. App. 582, 158 S.E.2d 415 (1967);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

This section requires that an affidavit set forth such facts as would be admissible in evidence to show that charges are in good faith controverted. Resolute Ins. Co. v. Norbo Trading Corp., 118 Ga. App. 737, 165 S.E.2d 441 (1968).

Affidavit may contain all evidentiary matter which, if the affiant were in court and testifying on the witness stand, would be admissible under the rules of evidence as part of the affiant's testimony. Resolute Ins. Co. v. Norbo Trading Corp., 118 Ga. App. 737, 165 S.E.2d 441 (1968);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

When an affidavit contains conclusions which would not be admissible in evidence, the conclusions are to be disregarded in considering the affidavit in connection with the motion for summary judgment. Dews v. Ratterree, 246 Ga. App. 324, 540 S.E.2d 250 (2000).

Evidence rule applicable to depositions, interrogatories, and other evidence.

- Subsection (e) of O.C.G.A. § 9-11-56 requires application of evidence rules to affidavits in support of or in opposition to a motion for summary judgment, and if such rules are applied to affidavits those rules must also be applied to depositions and interrogatories which may be submitted. Chandler v. Gately, 119 Ga. App. 513, 167 S.E.2d 697 (1969).

Rule that affidavits shall set forth such facts as would be admissible in evidence also applies to depositions, interrogatories, and other evidence submitted on a motion for summary judgment. Matthews v. Wilson, 119 Ga. App. 708, 168 S.E.2d 864 (1969).

Inadmissible evidence may not be considered.

- All hearsay, unsupported conclusions, contemporaneous oral agreements contrary to an unambiguous written contract, and the like, as well as favorable portions of a party's self-conflicting evidence, must be stricken or eliminated from consideration. Chandler v. Gately, 119 Ga. App. 513, 167 S.E.2d 697 (1969).

Since the document upon which the plaintiffs relied to prove the plaintiffs' tort claim was inadmissible as evidence, there was no genuine issue of material fact, and the entry of judgment in favor of the defendant was proper. Davidson v. American Fitness Ctrs., Inc., 171 Ga. App. 691, 320 S.E.2d 824 (1984).

When an injured party sued the owner and the manager of a shopping mall for injuries suffered when the party was shot in the mall's parking lot, a printout of crimes at the mall for the previous 30 months and police incident reports, neither of which were certified or authenticated, could not be considered in ruling on the owner's and manager's summary judgment motion as the rules of evidence applicable to a trial of the case also applied to a hearing on the summary judgment motion. Baker v. Simon Prop. Group, Inc., 273 Ga. App. 406, 614 S.E.2d 793 (2005).

Inadmissible hearsay.

- Ride safety checklist had not been authenticated as a business record and thus was merely inadmissible hearsay that could not be considered as evidence in support of a motion for summary judgment. Valentin v. Six Flags Over Ga., L.P., 286 Ga. App. 508, 649 S.E.2d 809 (2007).

Burden not satisfied by inadmissible evidence.

- Party resisting summary judgment, in addition to coming forward with evidence which is sufficient to create a genuine issue of material fact, must present some credible warrant for admissibility, and the trial court did not err in awarding summary judgment when the court perceived the resisting party's evidence to be inadmissible. Wilson v. Nichols, 253 Ga. 84, 316 S.E.2d 752 (1984).

Judge bound by uncontradicted evidence in affidavits irrespective of improper material therein.

- Affidavits on motion for summary judgment are no place for opinions, ultimate facts, and conclusions of law, and should be restricted to admissible evidentiary facts, but the trial judge may consider such affidavits, and is bound by the uncontradicted evidentiary matter in such affidavits, irrespective of the opinions, ultimate facts, and conclusion of law stated therein. Harvey v. C.W. Matthews Contracting Co., 114 Ga. App 866, 152 S.E.2d 809 (1966); Caldwell v. Gregory, 120 Ga. App. 536, 171 S.E.2d 571 (1969);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Discovery material.

- Filing those portions of discovery material necessary to motions for summary judgment is not error. Jacobsen v. Muller, 181 Ga. App. 382, 352 S.E.2d 604 (1986).

Interrogatories and answers thereto may properly be considered when ruling on a motion for summary judgment. Benefield v. Malone, 110 Ga. App. 607, 139 S.E.2d 500 (1964); Atlantic Coast Line R.R. v. Daugherty, 116 Ga. App 438, 157 S.E.2d 880 (1967);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Movant cannot rely on evidence while invoking inadmissibility of evidence.

- Movant cannot rely on evidence to support motion for summary judgment and at the same time invoke rule of inadmissibility of the evidence. Jordan v. Ailstock, 230 Ga. 67, 195 S.E.2d 425 (1973).

Respondent is not limited to mere rebuttal of movant's affirmations; respondent's range of resistance to motion for summary judgment is limited only by the pleadings, and the respondent may show anything properly within their ambit which portrays an issuable fact. Benefield v. Malone, 110 Ga. App. 607, 139 S.E.2d 500 (1964), later appeal, 112 Ga. App. 408, 145 S.E.2d 732 (1965);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Highest and best evidence required.

- Affidavit of an attorney that the attorney checked the property records in the clerk's office and that the chain of title including the described deeds failed to meet the requirement of subsection (e) of this section that affidavits submitted in support of motions for summary judgment shall set forth such facts as would be admissible in evidence as the deeds themselves would be the highest and best evidence. Green v. Wright, 225 Ga. 25, 165 S.E.2d 843 (1969).

Certified copy of a court transcript is one of the items a trial court is authorized to examine on a motion for summary judgment to determine whether there is a genuine issue of material fact to be tried. Abalene Pest Control Serv., Inc. v. Orkin Exterminating Co., 196 Ga. App. 463, 395 S.E.2d 867 (1990).

Testimony by a witness given under oath in the form of a transcript to an earlier criminal proceeding was admissible on a motion for summary judgment in a subsequent civil action. Abalene Pest Control Serv., Inc. v. Orkin Exterminating Co., 196 Ga. App. 463, 395 S.E.2d 867 (1990).

Uncertified office records produced and authenticated by the defendant's physician and placed in the record were sufficient support to the plaintiffs' opposing affidavit as to satisfy the requirements of subsection (e) of O.C.G.A. § 9-11-56. Paulin v. Okehi, 264 Ga. 625, 449 S.E.2d 291 (1994).

Ordinance.

- When the plaintiffs, in opposition to a motion for summary judgment, filed a number of affidavits, but a tendered ordinance was neither a certified copy nor accompanied by an appropriate affidavit authenticating the ordinance as a duly enacted ordinance, the requirements of O.C.G.A. § 9-11-56 were not satisfied. Roth v. Connor, 235 Ga. App. 866, 510 S.E.2d 550 (1998).

Copies of police arrest reports and federal drug enforcement agency investigation reports were properly admitted in support of a motion for summary judgment, and certification was not required since the copies were not referred to in an affidavit. Freeman v. City of Atlanta, 195 Ga. App. 641, 394 S.E.2d 784, cert. denied, 195 Ga. App. 641, 394 S.E.2d 784 (1990).

Criminal conviction.

- Since a criminal conviction cannot be taken as evidence in a civil action to establish the truth of the facts on which the conviction was rendered and since only admissible evidence should be considered in ruling on a motion for summary judgment, the fact that the plaintiff was found guilty of driving without a taillight was not before the court, although the defendant averred such conviction in the defendant's affidavit supporting the defendant's motion for summary judgment. Myers v. Barnard, 180 Ga. App. 192, 348 S.E.2d 733 (1986).

Medical narrative reports.

- In a wrongful death suit brought by a minor son's parents, alleging negligence and police misconduct arising out of an incident in which emergency surgery on their son was delayed due to police detention of the doctor who was to perform the surgery, summary judgment was improperly granted to the hospital, the hospital's security officer, and the police officer on a finding that there was no issue of fact as to causation; the medical narrative report prepared by the doctor was admissible evidence under former O.C.G.A. § 24-3-18(a) (see now O.C.G.A. § 24-8-826) and could be considered in opposition to a motion for summary judgment under O.C.G.A. § 9-11-56(c), in that the doctor's opinion in the report that the son, "in all likelihood," would have survived had the doctor not been prevented from caring for the son constituted a properly expressed medical opinion. Dalton v. City of Marietta, 280 Ga. App. 202, 633 S.E.2d 552 (2006).

Requirement that pleadings be considered does not make pleadings evidence.

- Requirement that pleadings must be considered on a hearing does not make the pleadings evidence, but merely shows the causes alleged, in order that by comparison with the evidence it can be determined if the movant should prevail. Butterworth v. Pettitt, 223 Ga. 355, 155 S.E.2d 20 (1967);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

When excerpts from plaintiff's personnel file met the standards prescribed in subsection (e) of O.C.G.A. § 9-11-56, the trial court did not err in considering the documents filed in support of the defendant's motion for summary judgment. Glisson v. Morton, 203 Ga. App. 77, 416 S.E.2d 134 (1992).

Causation of injuries was matter of pure speculation or conjecture.

- In an accident in which driver one struck the victims' car, causing the car to spin into driver two's car, summary judgment was proper as to two of the victims' claims against driver two for injuries that occurred in the second collision based on the driver's following an ambulance too closely, because there was only speculative conjecture as to whether these two victims' injuries were caused by the first or second collision. Elder v. Hayes, 337 Ga. App. 826, 788 S.E.2d 915 (2016), cert. denied, No. S16C1897, 2017 Ga. LEXIS 143 (Ga. 2017).

Proof of agency.

- When there was no evidence that a principal authorized someone to act as the principal's agent, agency could not have been proven by declarations of the alleged agent, and a summary judgment affidavit describing statements made by a payee's attorney which had allegedly accelerated a note was properly excluded when the only evidence that the attorney was the payee's agent was the affidavit itself. McManus v. Turner, 266 Ga. App. 5, 596 S.E.2d 201 (2004).

3. Conclusory Statements

Determining whether genuine issues exist.

- In considering depositions and affidavits in support of or in opposition to a motion for summary judgment, facts contained therein, and not conclusions stated, determine whether genuine issue of fact exists. Matthews v. Wilson, 119 Ga. App. 708, 168 S.E.2d 864 (1969); Fannin v. Fannin, 133 Ga. App. 681, 212 S.E.2d 16 (1975).

Ultimate or conclusory facts and conclusions of law cannot be utilized on summary judgment motion. Belcher v. Logan, 150 Ga. App. 249, 257 S.E.2d 299 (1979); Morton v. Stewart, 153 Ga. App. 636, 266 S.E.2d 230 (1980).

General conclusory statement in pleadings to the effect that the contract was breached, in the face of an instrument attached to those pleadings showing that no contract existed which could be breached, failed to state a cause of action sufficient to withstand a motion for summary judgment. Levine v. First Bank, 154 Ga. App. 730, 270 S.E.2d 20 (1980).

Conclusions may not generally be used in affidavits to support or oppose summary judgment motions. Holloway v. Dougherty County Sch. Sys., 157 Ga. App. 251, 277 S.E.2d 251 (1981).

Conclusory allegations by the plaintiff are insufficient, in the absence of substantiating facts or circumstances, to raise a material issue for trial. Sherwood v. Boshears, 157 Ga. App. 542, 278 S.E.2d 124 (1981).

Allegations, conclusory facts, and conclusions of law cannot be utilized to support or defeat motions for summary judgment. Peterson v. Midas Realty Corp., 160 Ga. App. 333, 287 S.E.2d 61 (1981).

When although an affidavit recites that the affidavit was made on personal knowledge, the affidavit sets forth only contentions and conclusions without reference to any factual basis for them, the affidavit is insufficient to demonstrate the absence of a genuine issue as to any material fact. Parlato v. Metropolitan Atlanta Rapid Transit Auth., 165 Ga. App. 758, 302 S.E.2d 613 (1983).

Conclusory allegations are insufficient, in absence of substantiating fact or circumstances, to raise a material issue for trial. Cornell Indus., Inc. v. Colonial Bank, 162 Ga. App. 822, 293 S.E.2d 370 (1982).

Statement in an affidavit that "neither I nor my wife owe the plaintiff anything" was not one of fact, but a conclusion or allegation of the ultimate fact which was not sufficient to support a motion for summary judgment. Sullivan v. Fabe, 198 Ga. App. 824, 403 S.E.2d 208 (1991), cert. denied, 198 Ga. App. 899, 403 S.E.2d 208 (1991).

Statements in affidavit that "none of the debts alleged in the complaint would be the responsibility of these defendants" were conclusions, and not statements of specific fact sufficient to support a motion for summary judgment. Sullivan v. Fabe, 198 Ga. App. 824, 403 S.E.2d 208 (1991), cert. denied, 198 Ga. App. 899, 403 S.E.2d 208 (1991).

Property owner's defamation of title action under O.C.G.A. § 51-9-11 failed because the owner's conclusory allegations that the owner had fully paid a surveyor's bill for work done, although sworn to, did not, without more, create a material issue of fact regarding the falsity of statements in a surveyor's lien; thus, the owner failed to establish an essential element of defamation of title and summary judgment in favor of the surveyor was appropriate. Simmons v. Futral, 262 Ga. App. 838, 586 S.E.2d 732 (2003).

Buyer, who adduced only one conclusory affidavit, failed to create any genuine issue of material fact regarding the nexus between an alleged arson, a defamation claim, and a community club; accordingly, summary judgment in favor of the club was proper. Smith v. Jones, 278 Ga. 661, 604 S.E.2d 187 (2004).

In a medical malpractice action, a physician's affidavit submitted by the nonmovants was properly struck as being merely conclusory as the affidavit referred to the standard of care but did not state what the standard of care was; an affidavit that stated no particulars was not sufficient to rebut a motion for summary judgment. Whitley v. Piedmont Hosp., Inc., 284 Ga. App. 649, 644 S.E.2d 514 (2007), cert. denied, 2007 Ga. LEXIS 626, 651 (Ga. 2007).

Bare legal conclusions in affidavits in support of a motion for summary judgment are insufficient to show either absence of any material issue of fact or to create an issue of fact. Mica-Top Fixture Co. v. Frank G. Shattuck Co., 124 Ga. App. 100, 183 S.E.2d 15 (1971).

In an insurer's interpleader action to determine whether the beneficiary of an insured's three life insurance policies was entitled to the proceeds of the policies, the beneficiary's statements in an affidavit that the beneficiary did not kill the wife and did not know who caused the death were not competent evidence in support of the motion for summary judgment because the statements were conclusions or allegation of the ultimate fact, there were no substantiating facts, and the affidavit was self-serving. Cantera v. Am. Heritage Life Ins. Co., 274 Ga. App. 307, 617 S.E.2d 259 (2005).

Statements made on information and belief.

- Ultimate or conclusory facts and conclusions of law, as well as statements made on belief or on information and belief, cannot be utilized on summary judgment motion. Cel-Ko Bldrs. & Developers, Inc. v. BX Corp., 136 Ga. App. 777, 222 S.E.2d 94 (1975); Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977).

Statement only amounting to denial of allegation by other party.

- Because the defendant's statement by affidavit that the defendant mailed the application "as soon as practicable" did no more than meet the plaintiff 's allegation that the plaintiff "had a duty to forward the application as soon as practical," the defendant's statement in the defendant's affidavit has no more effect than the denial of the allegation in the defendant's answer, and as the issue is still very much in dispute, summary judgment was improper. Stewart v. Boykin, 165 Ga. App. 868, 303 S.E.2d 50 (1983).

Denial of existence of agency relationship as statement of fact.

- Bare denial of existence of an agency relationship, made by a purported party thereto, is a statement of fact sufficient to support a motion for summary judgment in an action based on the doctrine of respondeat superior. Withrow Timber Co. v. Blackburn, 244 Ga. 549, 261 S.E.2d 361 (1979).

4. Affidavits

A. In General

Three requirements for affidavit.

- To constitute a complete affidavit, three essential features are requisite: first, the written oath embodying the facts sworn to by the affiant; second, the signature of the affiant thereto; and, third, the jurat or attestation, by an officer authorized to administer the oath, that the affidavit was actually sworn to and subscribed before the officer by the affiant. Glenn v. Metropolitan Atlanta Rapid Transit Auth., 158 Ga. App. 98, 279 S.E.2d 481 (1981).

Affidavits permitted but not required.

- O.C.G.A. § 9-11-56 permits motions for summary judgment to be supported by affidavits, but does not require the affidavits. English Restaurant, Inc. v. A.R. II., Inc., 194 Ga. App. 639, 391 S.E.2d 462 (1990).

Affidavits not required when question is one of law only.

- If there is no genuine issue as to any material fact and the pleadings show the question to be one of law only, affidavits are not essential prerequisites to the granting of summary judgment. Dillard v. Brannan, 217 Ga. 179, 121 S.E.2d 768 (1961);(decided under Ga. L. 1959, p. 234, § 1 et seq.)

Showing that no jury issue existed is sufficient.

- There was no merit to a customer's argument that because a corporation and employee did not file any affidavits or other sworn testimony, summary judgment could not be granted in their favor; they simply had to show that no jury issue existed as to an essential element of the customer's claim. Kirkland v. Earth Fare, Inc., 289 Ga. App. 819, 658 S.E.2d 433 (2008).

Affidavits under O.C.G.A.

§ 9-11-12(b). - Affidavits made in support of Ga. L. 1972, p. 689, §§ 4 and 5 (see now O.C.G.A. § 9-11-12(b)) motions must conform to the requirements of subsection (e) Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56). McPherson v. McPherson, 238 Ga. 271, 232 S.E.2d 552 (1977).

Applicability of subsection (e) to affidavits.

- Although requirements of subsection (e) of this section are not expressly applicable to affidavits in general, those requirements stand as a codification of the common-law requirements as to affidavits and hence are applicable as such. McPherson v. McPherson, 238 Ga. 271, 232 S.E.2d 552 (1977 (see now O.C.G.A. § 9-11-56)).

Contents must be admissible in evidence.

- Affidavit considered on motion for summary judgment must show that affiant has personal knowledge of facts stated therein, and must contain evidentiary matter which, if the affiant were in court and testified, would be admissible as part of the affiant's testimony. Chandler v. Gately, 119 Ga. App. 513, 167 S.E.2d 697 (1969).

Only facts within the personal knowledge of the witness and admissible in evidence may be considered on a motion for summary judgment or in opposition thereto. Summer v. Allison, 127 Ga. App. 217, 193 S.E.2d 177 (1972).

Partial summary judgment pursuant to O.C.G.A. § 9-11-56 was properly granted to a labor supplier in a construction company's counterclaim alleging tortuous interference with its contractual relations, based on an allegedly illegal lien filed by the supplier against a property, when no factual basis was found for the counterclaim and, accordingly, the counterclaim was dismissed; it was noted that the affidavit of the administrative manager of the company contained irrelevant matter which was properly excluded under former O.C.G.A. § 24-2-1 (see now O.C.G.A. §§ 24-4-402 and24-4-403) as the affidavit related to the supplier's failure to sign a lien waiver and the affidavit had no logical bearing to the material fact in issue and, further, it was found to be inadmissible hearsay under former O.C.G.A. § 24-3-1(a) (see now O.C.G.A. § 24-8-802). Langley v. Nat'l Labor Group, Inc., 262 Ga. App. 749, 586 S.E.2d 418 (2003).

Bare legal conclusions in affidavits create no issue of fact on motion for summary judgment. Resolute Ins. Co. v. Norbo Trading Corp., 118 Ga. App. 737, 165 S.E.2d 441 (1968);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Noncomplying affidavits.

- Affidavits not complying with this section must be disregarded. Oglesby v. Farmers Mut. Exch., 128 Ga. App. 387, 196 S.E.2d 674 (1973).

Because plaintiff's expert opinion was based on medical records that were not attached to the affidavit nor otherwise made a part of the record, the affidavit was deficient and lacked probative value. Herndon v. Ajayi, 242 Ga. App. 193, 532 S.E.2d 108 (2000).

Only portions of affidavits in compliance to be considered.

- When affidavits are offered in support of a motion for summary judgment, only those portions which were made upon the personal knowledge of the affiant, which were not mere conclusions unsupported by facts, and which would be admissible under general rules of evidence upon trial should be considered. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 171 S.E.2d 782 (1969).

Unexplained contradictory portions of affidavits.

- Under contradictory testimony rule, unexplained contradictory portions of an affidavit must be eliminated. McCoy v. State Farm Ins. Co., 199 Ga. App. 675, 405 S.E.2d 743 (1991).

Rule in Georgia is that if, on a motion for summary judgment, a party offers self-contradictory testimony, the trial court must eliminate the favorable portions of the contradictory testimony unless a reasonable explanation is offered for the contradiction; if a contradiction is explained, then the issue is merely one of credibility of the witness. Any conflicting responses given by a principal of a seller later in the principal's deposition could have been reasonably explained by the principal's uncertainty whether the seller was seeking to recover the seller's lost profits and to confusion by both the principal and the supplier's attorney as to the content of a specific letter, and any conflict was a matter of credibility for the jury to resolve so the trial court erred in holding on entering summary judgment that the seller was not entitled to seek lost profits. Mitchell Family Dev. Co. v. Universal Textile Techs., LLC, 268 Ga. App. 869, 602 S.E.2d 878 (2004).

Trial court properly refused to consider contradictory testimony in the participant's affidavit submitted in opposition to a motion for summary judgment since statements in the affidavit contradicted the deposition testimony, and the record contained no explanation for those contradictions; while the trial court erred in excluding even the uncontradicted portions of the participant's affidavit, any error was harmless as the remaining portions of the affidavit were duplicative of the participant's deposition testimony, which was before the trial court. Liles v. Innerwork, Inc., 279 Ga. App. 352, 631 S.E.2d 408 (2006).

Propriety of motion to strike affidavit.

- Motion to strike an affidavit submitted on summary judgment is properly considered if such motion is properly and timely made. Ford v. Georgia Power Co., 151 Ga. App. 748, 261 S.E.2d 474 (1979).

Trial court did not abuse the court's discretion in denying a buyer's motion to strike the affidavit of an expert filed by the seller two days before oral argument on the seller's summary judgment motion because the buyer was offered a continuance but declined, thereby waiving the 30-day requirement in O.C.G.A. § 9-11-56(c). Ficklin v. Hyundai Motor Am., Inc., 272 Ga. App. 61, 611 S.E.2d 732 (2005).

Motion to strike affidavit.

- To the extent that an affidavit contains materials which would not be admissible in evidence, it is subject to a motion to strike. But a motion to strike must be timely or the objection is waived. Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 280 S.E.2d 842 (1981).

Striking affidavits as sanction.

- Sanctions provided for in O.C.G.A. § 9-11-56(g) do not authorize the trial court to strike or disregard the affidavits presented by a party as a sanction. Whitley v. Piedmont Hosp., Inc., 284 Ga. App. 649, 644 S.E.2d 514 (2007), cert. denied, 2007 Ga. LEXIS 626, 651 (Ga. 2007).

Untimely affidavits.

- In ruling on a motion for summary judgment, the trial court has discretion to consider untimely affidavits. United States Enters., Inc. v. Mikado Custom Tailors, 163 Ga. App. 306, 293 S.E.2d 533, rev'd on other grounds, 250 Ga. 415, 297 S.E.2d 290 (1982).

Court is vested with discretion whether to consider affidavits untimely served. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 397 S.E.2d 576 (1990).

In a summary judgment action, while O.C.G.A. § 9-11-6(b) permitted late service of affidavits in support of a motion, in giving such permission, the trial court was not required to make a written finding of excusable neglect; accordingly, the court was not required to state the court's basis for finding excusable neglect. Green v. Bd. of Dirs. of Park Cliff Unit Owners Ass'n, 279 Ga. App. 567, 631 S.E.2d 769 (2006).

Trial court erred in granting summary judgment to a dog owner in a neighbor's malicious prosecution suit without considering the neighbor's affidavit on the basis that the affidavit was not timely filed pursuant to Ga. Unif. Super. Ct. R. 6.2. O.C.G.A. § 9-11-56(c) required a trial court to consider opposing affidavits filed any time prior to the hearing. Woods v. Hall, 315 Ga. App. 93, 726 S.E.2d 596 (2012).

Copy not considered.

- Since an affidavit of one of the defendants' witnesses was not the original, but only a copy, the trial court could not consider the affidavit, and could not use the affidavit as evidence. Clauss v. Plantation Equity Group, Inc., 236 Ga. App. 522, 512 S.E.2d 10 (1999).

Unsworn document cannot be regarded as affidavit.

- Testimony of the plaintiff's counsel, in response to a motion for summary judgment, was presented in the form of an unsworn document, which could not be regarded as an affidavit, and thus failed under subsection (e) of O.C.G.A. § 9-11-56 to create a question of fact. Barrett v. Commercial Union Ins. Co., 188 Ga. App. 353, 373 S.E.2d 59 (1988).

Verified pleading should have no greater effect than affidavit.

- Subsection (e) of O.C.G.A. § 9-11-56 demands that both supporting and opposing affidavits be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. To the extent that a verified pleading meets that requirement then the verified pleading may properly be considered as equivalent to a supporting or opposing affidavit, as the case may be. Foskey v. Smith, 159 Ga. App. 163, 283 S.E.2d 33 (1981), cert. vacated, 249 Ga. 32, 289 S.E.2d 248 (1982).

Verified pleadings have been held equivalent to a supporting or opposing affidavit for purposes of raising an issue of fact on summary judgment. Harrison v. Harrison, 159 Ga. App. 578, 284 S.E.2d 83 (1981).

Verified pleading used in support of a motion for summary judgment had no greater effect than an affidavit tendered under O.C.G.A. § 9-11-56(e), and the pleading had to have been made on "personal knowledge;" when the contents of a deposition showed that the material parts of the deposition were statements of personal knowledge, the requirement as to personal knowledge was met although the jurat did not so state. Adcock v. Adcock, 259 Ga. App. 514, 577 S.E.2d 842 (2003).

Disavowal of authorship renders statements inadmissible.

- Verification of response to interrogatories stating that "the word usage and sentence structure may be that of the attorney" was language of disavowal of authorship and rendered the statements in the response inadmissible under subsection (e) of O.C.G.A. § 9-11-56. Johnson v. Hames Contracting, Inc., 208 Ga. App. 664, 431 S.E.2d 455 (1993).

Affidavit in contravention of motion for summary judgment must state more than mere conclusions; the affidavit must state specific adverse facts. Hyman v. Horwitz, 148 Ga. App. 647, 252 S.E.2d 74 (1979).

Conclusory opinion of defendant's negligence insufficient.

- Malpractice plaintiff as respondent on summary judgment cannot prevail on the motion merely by presenting a conclusory opinion that the defendant was negligent or failed to adhere to professional standards of conduct without stating the parameters of such conduct and the particulars of the defendant's deviation therefrom. Turner v. Kitchings, 199 Ga. App. 860, 406 S.E.2d 280 (1991).

Court may consider admissible parts of affidavit and ignore conclusions.

- Fact that affidavits contain certain averments which could be characterized as conclusions and hearsay does not prohibit the trial judge from considering the admissible parts thereof and from granting summary judgment if appropriate. Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 280 S.E.2d 842 (1981).

Affirmative defenses may not be raised by affidavit in support of motion for summary judgment. First Nat'l Bank v. McClendon, 147 Ga. App. 722, 250 S.E.2d 175 (1978).

When appellees did not raise failure of consideration as an affirmative defense in the appellee's pleadings, such a defense was waived and could not be raised by affidavit in support of a motion for summary judgment. Hanover Ins. Co. v. Nelson Conveyor & Mach. Co., 159 Ga. App. 13, 282 S.E.2d 670 (1981).

Cross-examination.

- Affidavits in support of summary judgment are not subject initially to cross-examination. Norton v. Georgia R.R. Bank & Trust, 248 Ga. 847, 285 S.E.2d 910 (1982), aff'd, 253 Ga. 596, 322 S.E.2d 870 (1984).

Affiant need not be subjected to cross-examination before the affiant's affidavit may be considered in support of a motion for summary judgment. Mustin v. Citizens & S. Nat'l Bank, 168 Ga. App. 549, 309 S.E.2d 822 (1983).

When, under discovery, the plaintiff had an opportunity to cross-examine the defendant on deposition, but failed to exercise such right, the affidavit was not subject to attack. Pass v. Bouwsma, 239 Ga. App. 902, 522 S.E.2d 484 (1999).

Inability to question defense witnesses precludes judgment.

- In a negligence action, the court erred in granting summary judgment before the plaintiff was able to question two key defense witnesses who avoided the plaintiff's discovery attempts, but who filed affidavits in support of the defendant's motion. This judgment deprived the plaintiff of an opportunity to develop proof which may have well given rise to triable issues of fact, and also overlooked the rule that, when a party fails to produce evidence, the charge or claim against the party is presumed to be well founded. Shipley v. Handicaps Mobility Sys., 222 Ga. App. 101, 473 S.E.2d 533 (1996).

Failure to object would constitute a waiver of any formal defects in an affidavit; however, when the deficiency is one of substance rather than form, the trial court errs in the court's grant of summary judgment even though the affidavit is not objected to. Parlato v. Metropolitan Atlanta Rapid Transit Auth., 165 Ga. App. 758, 302 S.E.2d 613 (1983).

Objections to affidavits presented by parties in support of or against a motion for summary judgment will not be entertained for the first time on appeal when such affidavits were considered by the trial judge, without objection, in ruling on motions for summary judgment. Chapman v. McClelland, 248 Ga. 725, 286 S.E.2d 290 (1982).

Because a family who filed suit against a driver after a collision did not object to any of the driver's affidavits supporting the driver's motion for summary judgment, the court would not entertain objections to the affidavits on appeal. Abimbola v. Pate, 291 Ga. App. 769, 662 S.E.2d 840 (2008).

B. Personal Knowledge

Personal knowledge required.

- Affidavit which shows that the affidavit is not made on personal knowledge of the affiant is insufficient to show to the court that there is a genuine dispute for the jury to decide. Cochran v. Southern Bus. Univ., Inc., 110 Ga. App. 666, 139 S.E.2d 400 (1964);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Affidavits must be made on personal knowledge. Wakefield v. A.R. Winter Co., 121 Ga. App. 259, 174 S.E.2d 178 (1970); Worley v. Pierce, 211 Ga. App. 863, 440 S.E.2d 749 (1994).

Affidavits not showing the affidavits were made on personal knowledge must be disregarded. When affidavits in support of a motion for summary judgment do not recite or show affirmatively that statements therein were made on personal knowledge of affiants, those the affidavits may not be considered. Mica-Top Fixture Co. v. Frank G. Shattuck Co., 124 Ga. App. 100, 183 S.E.2d 15 (1971).

When nowhere in an affidavit is it recited or shown affirmatively that the statement was made on personal knowledge and that the affiant is competent to testify as to matters stated in the affidavit, the affidavit fails to meet the personal knowledge requirement of subsection (e) of this section. Eaton Yale & Towne, Inc. v. Strickland, 228 Ga. 430, 185 S.E.2d 923 (1971); Lubbers v. Tharpe & Brooks, Inc., 160 Ga. App. 709, 288 S.E.2d 54 (1981).

If it appears that any portion of the affidavit was not made upon the affiant's personal knowledge, or if it does not affirmatively appear that it was so made, that portion is to be disregarded in considering the affidavit in connection with the motion for summary judgment. Morris-Bancroft Paper Co. v. Coleman, 188 Ga. App. 809, 374 S.E.2d 544, cert. denied, 188 Ga. App. 912, 374 S.E.2d 544 (1988).

When, in a malpractice action, defendant's own affidavit established by personal knowledge that the defendant met the appropriate standard of care, the defendant pierced the plaintiff's pleadings, and the plaintiff's expert's affidavit in opposition to summary judgment, based solely on medical records rather than the affiant's personal knowledge of the facts, was without probative value. Williams v. Hajosy, 210 Ga. App. 637, 436 S.E.2d 716 (1993).

Summary judgment, pursuant to O.C.G.A. § 9-11-56, was improperly granted to a store in a customer's slip and fall premises liability action, arising from the customer having slipped on a puddle of clear liquid on the floor of the store's center aisle, as the store manager's affidavit in support of the motion for summary judgment was found to be legally insufficient pursuant to § 9-11-56(e) in that the affidavit did not indicate that the affidavit was based on the manager's personal knowledge as to the specific inspection just prior to the incident and various other allegations made therein; further, the court found that jury issues were presented as to the reasonableness of the store's inspection program under the circumstances, and whether the customer had exercised reasonable care while in the store. Davis v. Bruno's Supermarkets, Inc., 263 Ga. App. 147, 587 S.E.2d 279 (2003).

Statement as to personal knowledge generally sufficient.

- Statement in affidavit that the affidavit is based upon personal knowledge generally is sufficient, especially when the affidavit's averments are supported by attachments to the affidavit. Whitaker v. Trust Co., 167 Ga. App. 360, 306 S.E.2d 329 (1983).

Showing of personal knowledge may be met by other evidence.

- Statement in the jurat that the affidavit is made upon personal knowledge is generally sufficient, but requirement of personal knowledge may be met by other material in evidence, at least when no objection to the form of the affidavit was made in the trial court. Wakefield v. A.R. Winter Co., 121 Ga. App. 259, 174 S.E.2d 178 (1970).

Requirement of personal knowledge may be met by other material in evidence, at least when no objection to the form of the affidavit was made in the trial court. Georgia Hwy. Express, Inc. v. W.D. Alexander Co., 124 Ga. App. 143, 183 S.E.2d 215 (1971).

Even though an affidavit did not expressly state that the affidavit was based on personal knowledge, the affidavit was sufficient when the affidavit clearly reflected that the affidavit's contents were rooted in the affiant's personal knowledge and observation. Edwards v. Campbell Taggart Baking Cos., 219 Ga. App. 806, 466 S.E.2d 911 (1996).

Statement in jurat or showing in deposition sufficient.

- Statement in the jurat to the effect that the affidavit is made upon personal knowledge is generally sufficient, and when the contents of the deposition show that the material parts of the deposition are statements of personal knowledge, the requirement as to personal knowledge is met even though the jurat does not so state. Holland v. Sanfax Corp., 106 Ga. App. 1, 126 S.E.2d 442 (1962);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Summary judgment not void for failure to make statement of personal knowledge.

- If there is no motion to strike or objection to the sufficiency of a motion for summary judgment based upon the invalidity of affidavits, a judgment entered thereon is not void because of a failure to state explicitly that this fact is within the personal knowledge of the deponent. Smith v. Ragan, 140 Ga. App. 33, 230 S.E.2d 89 (1976).

Noncompliance with "personal knowledge" requirement.

- Affiant's statement that "the following facts are true and correct to the best of the affiant's knowledge and belief" did not evince compliance with the "personal knowledge" requirement of subsection (e) of O.C.G.A. § 9-11-56. Morris-Bancroft Paper Co. v. Coleman, 188 Ga. App. 809, 374 S.E.2d 544, cert. denied, 188 Ga. App. 912, 374 S.E.2d 544 (1988).

Statement of affiant "upon information and belief" cannot be considered, as this evidence is not upon the personal knowledge of the affiant. Gann v. Mills, 124 Ga. App. 238, 183 S.E.2d 523 (1971).

Basis for professional expert's opinion must be shown.

- Expert's affidavit in opposition to a motion for summary judgment in a malpractice suit must state the particulars; the affidavit must establish the minimum requirements of professional conduct applicable to the various professional categories of the defendants involved, and set forth how or in what way the various defendants deviated therefrom. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 397 S.E.2d 576 (1990).

Unsworn allegations made on best of lawyer's knowledge not evidence.

- Unsworn allegations are not evidence, nor do they rise to that level when accompanied by an affidavit made, not upon personal knowledge, but upon "the best of [lawyer's] knowledge," which is just a variation of "information and belief." Heavey v. Security Mgt. Co., 129 Ga. App. 83, 198 S.E.2d 694 (1973).

Personal knowledge held shown.

- Although the attached verification did not state that the allegations of the complaint were made upon the plaintiff's personal knowledge, as required in order to be considered on a motion for summary judgment, the allegation that the defendant did not give the plaintiff proper notice of foreclosure was sufficient to affirmatively indicate that such allegation was within the plaintiff's personal knowledge. Rapps v. Cooke, 234 Ga. App. 131, 505 S.E.2d 566 (1998).

Appellee's affidavit regarding the profits of a business satisfied the personal knowledge requirement of O.C.G.A. § 9-11-56(e). The affidavit showed that the appellee was the manager of the business, that the appellee was familiar with its records and accounts, and that the appellee's statements concerning the business's financial statements were based on the appellee's personal knowledge. Ellison v. Hill, 288 Ga. App. 415, 654 S.E.2d 158 (2007), cert. denied, 2008 Ga. LEXIS 282 (Ga. 2008).

Bank officer's affidavit attesting to the authenticity of a line of credit agreement, note, and guaranties, confirming the occurrence of default, and setting out the outstanding indebtedness, was sufficiently made on personal knowledge despite the creditors' objections that the officer had no personal involvement in the transactions. Windham & Windham, Inc. v. Suntrust Bank, 313 Ga. App. 841, 723 S.E.2d 70 (2012).

On a lessor's motion for summary judgment on a lease and guaranty, although the lessor successor's assistant general counsel's initial affidavit was not made on personal knowledge and demonstrated no familiarity with the lessor's business records, the deficiencies were cured in a second affidavit filed eight months before the trial court's decision. Triple T-Bar, LLC v. DDR Southeast Springfield, LLC, 330 Ga. App. 847, 769 S.E.2d 586 (2015).

Personal knowledge held not shown.

- Affidavit did not meet requirements of subsection (e) of O.C.G.A. § 9-11-56 when, although the affiant indicated that the affiant had personal knowledge of the codefendant's prior conduct, the affidavit did not reflect that the affiant was even present at the time of the alleged battery, or that the affiant had any personal knowledge of the codefendant's conduct at that time or the circumstances of the battering by the defendant upon the plaintiff. Johnson v. Crews, 165 Ga. App. 43, 299 S.E.2d 99 (1983).

Doctor's statements in medical records constituted hearsay and, although the records were attached to an affidavit, the relevant information was not within the affiant's personal knowledge. Georgia Farm Bureau Mut. Ins. Co. v. Allen, 228 Ga. App. 607, 492 S.E.2d 339 (1997).

C. Records and Supporting Documentation

Records should be attached to affidavit.

- When records relied upon and referred to in an affidavit are neither attached to the affidavit nor included in the record and clearly identified in the affidavit, the affidavit is insufficient. Pratt v. Tri City Hosp. Auth., 193 Ga. App. 473, 388 S.E.2d 69 (1989).

In a medical malpractice action, because it was undisputed that the record on appeal failed to include the medical records on which the parents' expert's conclusions were based, the parents failed to comply with O.C.G.A. § 9-11-56(e), hence, the trial court did not err when the court granted summary judgment against the parents on this basis. Conley v. Children's Healthcare of Atlanta, Inc., 279 Ga. App. 792, 632 S.E.2d 409 (2006).

Attorney-in-fact for the entity serving as manager of a lender's assignee could authenticate the business records of the lender and the assignee in support of an action to collect on three promissory notes, pursuant to O.C.G.A. § 24-8-803(6); however, as to the third note, the affidavit failed to attach the payment history and that claim failed. Ware v. Multibank 2009-1 RES-ADC Venture, LLC, 327 Ga. App. 245, 758 S.E.2d 145 (2014).

Attachment of all records not required.

- When depositions of doctors and documents identified and referred to by the doctors provided a sufficient factual basis for an expert's opinions as to the care provided by the defendants, the fact that other records listed by the expert were not in the record was not fatal to the expert's affidavit. Washington v. Georgia Baptist Medical Ctr., 223 Ga. App. 762, 478 S.E.2d 892 (1996), aff'd in part and rev'd in part, Porquez v. Washington, 268 Ga. 649, 492 S.E.2d 665 (1997).

Sufficiency of affidavit relating to records made in regular course of business.

- Affidavit submitted in support of a motion for summary judgment which satisfies the requirements of Ga. L. 1952, p. 177, §§ 1-3 (see now O.C.G.A. § 24-8-803), relating to records made in the regular course of business, likewise meets the requirement of subsection (e) of Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56). Thomasson v. Trust Co. Bank, 149 Ga. App. 556, 254 S.E.2d 881 (1979).

Absent preliminary proof required to qualify under Ga. L. 1952, p. 177, §§ 1-3 (see now O.C.G.A. § 24-8-803), relating to records made in the regular course of business, the affiant's statements as to facts, knowledge of which the affiant obtained from records not personally kept by the affiant, were hearsay and had no probative value. Thomasson v. Trust Co. Bank, 149 Ga. App. 556, 254 S.E.2d 881 (1979).

When the plaintiff's affidavit referred to certain business records purportedly supporting the plaintiff's motion, but the records were not attached to the affidavit, the references to the business records cannot be used to support the motion. Val Preda Motors v. National Uniform Serv., 195 Ga. App. 443, 393 S.E.2d 728 (1990).

Expert's affidavit may not rely on unintroduced documents.

- Court may not consider an expert's affidavit which is based solely upon documentation which is neither a part of the record nor attached to the affidavit. Landers v. Georgia Baptist Medical Ctr., 175 Ga. App. 500, 333 S.E.2d 884 (1985); Augustine v. Frame, 206 Ga. App. 348, 425 S.E.2d 296 (1992).

Expert's affidavit was not sufficient, to support the movant's motion for summary judgment when the affidavit did not show the statements made therein were from the witness' personal knowledge, the affidavit did not pierce the pleadings on each basis for imposing liability, and even assuming the expert was qualified, the affidavit did not establish when the expert examined the property in question or that the expert was personally familiar with the property. King v. Sheraton Savannah Corp., 194 Ga. App. 618, 391 S.E.2d 457 (1990).

Expert affidavit is insufficient to oppose the defendant's motion for summary judgment if the documents on which the affiant relies in forming the expert's opinions are not certified or sworn, even if unsworn copies are attached to the affidavit, and if the expert's affidavit relies on the plaintiff's affidavit, when the plaintiff's affidavit does not contain sufficient facts on which the expert, relying on the affidavit alone, could base the expert's opinions. Johnson v. Srivastava, 199 Ga. App. 696, 405 S.E.2d 725 (1991).

Unsupported affidavit of expert witness.

- When the affidavit of the plaintiff's expert would have created a genuine issue of fact as to whether a qualified inspector should have found visible evidence of termite infestation but for the absence from the record of the supporting material relied upon by the expert, it was not probative to contradict the defendant's affidavit, and the defendant was entitled to judgment as a matter of law. Gunnin v. Swat, Inc., 195 Ga. App. 344, 393 S.E.2d 700 (1990).

Erroneous exhibit attached to affidavit.

- Trial court erred in entering summary judgment in favor of the plaintiff when there was no evidence authorizing such judgment since Exhibit "B" attached to the affidavit of the custodian of plaintiff's accounts attached to the motion for summary judgment was clearly erroneous in the calculations reaching the balance due the plaintiff. Fowler v. Ford Motor Credit Co., 180 Ga. App. 738, 350 S.E.2d 319 (1986).

X-ray films require certification.

- X-ray films relied on by physician-affiant in medical malpractice case were material requiring certification under subsection (e) of O.C.G.A. § 9-11-56. Bush v. Legum, 176 Ga. App. 395, 336 S.E.2d 284 (1985).

Medical records not attached.

- When the medical records upon which a medical expert reached the expert's conclusions were not attached to the expert's affidavit or included in the record, the affidavit was insufficient to meet the evidentiary standards under subsection (e) of O.C.G.A. § 9-11-56 on a motion for summary judgment and, as a matter of law, lacked any probative value. Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 505 S.E.2d 232 (1998).

Medical records attached.

- Summary judgment was properly granted in favor of a doctor, the doctor's anesthesiology clinic, and others since the doctor properly attached to the affidavit a certified copy of the medical record which was referred to in the affidavit, and the affidavit was made upon the doctor's personal knowledge, and rather than relying on the complained-of medical record in reaching the doctor's conclusions, merely concurred in the possible causes of the injuries at issue. Oakes v. Magat, 263 Ga. App. 165, 587 S.E.2d 150 (2003).

D. Application

Trial court did not err in converting motion to dismiss into a motion for summary judgment in a medical malpractice case; the patient did not object to the trial court's decision, and even if the patient was not clear as to the trial court's intent, the patient did not show that the patient would have filed additional affidavits, briefs, or other supporting documentation had the patient been given additional time to do so in the context of a motion for summary judgment. Tucker v. Thomas C. Talley, M.D., P.C., 267 Ga. App. 820, 600 S.E.2d 778 (2004).

Affidavit of neurologist found sufficient to create issue of fact as to testamentary capacity. Baldwin v. First Tenn. Bank, 251 Ga. 561, 307 S.E.2d 919 (1983).

Affidavit asserting diligent service efforts insufficient.

- Statements in a plaintiff's affidavit asserting that diligent efforts were made to serve an owner prior to the order for service by publication and that the owner hid to avoid service were bare conclusions that were neither supported by facts nor based on personal knowledge, and thus the affidavit was properly stricken; a statement in a process server's affidavit that, in the process server's professional opinion, the owner was intentionally evading service of process, was also a bare conclusion, not supported by facts, about the owner's true motives and intent, and was also properly stricken. Baxley v. Baldwin, 279 Ga. App. 480, 631 S.E.2d 506 (2006).

Affidavit asserting plainly that, to affiant's knowledge, mother did not sign deed, raises issue for a jury to determine as to genuineness of the deed. Mathews v. Brown, 235 Ga. 454, 219 S.E.2d 701 (1975).

Letter to plaintiff not considered affidavit.

- Letter from a person who had inspected a vehicle destroyed by fire, addressed to the plaintiff, did not qualify as an affidavit and the contents of the letter therefore amounted to no more than factual allegations additional to those in the pleadings. Barber v. Threlkeld Ford, 199 Ga. App. 787, 406 S.E.2d 249 (1991).

Reliance on technical manuals.

- Trial court abused the court's discretion under O.C.G.A. § 9-11-56(c) in refusing to permit an injured party to supplement the party's response to a manufacturer's reliance, for the first time at the summary judgment hearing, on a technical manual not produced during discovery; the injured party was prejudiced by the ruling, which was not in accordance with the intent of the Georgia Civil Practice Act, O.C.G.A. Ch. 11, T. 9, to promote justice and not to obstruct the administration of justice. Hunter v. Werner Co., 258 Ga. App. 379, 574 S.E.2d 426 (2002).

Affidavit opinion as to cause of accident properly struck.

- Police officer's affidavit stated that a van owner and the owner's friend chased a thief who stole the van and did not lose sight of the van, and opined that a crash between the van and two accident victims would not have occurred but for the chase. The trial court properly struck portions of the affidavit that consisted of the officer's opinions based on the officer's conversations with the van owner and were not based on physical evidence that the jurors without training in accident investigation might be unable to properly evaluate, such as skid marks, distances, and the positions and damage to the vehicles. Whitlock v. Moore, 312 Ga. App. 777, 720 S.E.2d 194 (2011), cert. denied, 2012 Ga. LEXIS 304, 321 (Ga. 2012).

5. Opinion Evidence

No absolute rule against opinion evidence.

- Rule that opinion evidence cannot be used to support grant of summary judgment is not absolute. Tony v. Pollard, 248 Ga. 86, 281 S.E.2d 557 (1981).

Opinion testimony insufficient for summary judgment.

- Summary judgment can never issue based solely upon opinion evidence; in all such cases, the jury must decide the case. Ginn v. Morgan, 225 Ga. 192, 167 S.E.2d 393 (1969).

Opinion testimony of ultimate fact to be decided is never sufficient to authorize a grant of summary judgment. State Hwy. Dep't v. Charles R. Shepherd, Inc., 119 Ga. App. 872, 168 S.E.2d 922 (1969); Jordan v. Scherffius, 121 Ga. App. 685, 175 S.E.2d 97 (1970); Galloway v. Banks County, 139 Ga. App. 649, 229 S.E.2d 127 (1976); Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977).

Opinion evidence is not permissible as basis for summary judgment although it may be used in opposition. Summer v. Allison, 127 Ga. App. 217, 193 S.E.2d 177 (1972).

Testimony that amounts to no more than opinion does not require grant of motion for summary judgment. Lockhart v. Beaird, 128 Ga. App. 7, 195 S.E.2d 292 (1973).

Summary judgment can never issue based solely upon opinion evidence. Hawkins v. Greenberg, 159 Ga. App. 302, 283 S.E.2d 301 (1981), overruled on other grounds, Haynes v. Hoffman, 164 Ga. App. 236, 296 S.E.2d 216 (1982), overruled on other grounds, Smith v. Finch, 285 Ga. 709, 681 S.E.2d 147 (2009).

Opinions which are nothing more than ultimate conclusions of fact and law are of no probative value and must be disregarded on a motion for summary judgment. Adkins v. Adkins, 168 Ga. App. 151, 308 S.E.2d 432 (1983).

Opinion used to preclude summary judgment.

- While opinion evidence adduced by respondent is sufficient to preclude the grant of summary judgment, it does not follow that introduction of opinion evidence by the movant will authorize the grant of summary judgment. Harrison v. Tuggle, 225 Ga. 211, 167 S.E.2d 395 (1969).

While opinion evidence adduced by the nonmovant is sufficient to preclude grant of summary judgment, it does not follow that introduction of opinion evidence by the movant will authorize the grant thereof, since no burden is on the respondent to rebut the movant's case until the movant has first removed, by affidavits, admissions, interrogatories, etc., all jury questions from the case. Davidson Mineral Properties, Inc. v. Gifford-Hill & Co., 235 Ga. 176, 219 S.E.2d 133 (1975).

Opinion evidence cannot be utilized for the granting of a summary judgment motion; however, opinion evidence in affidavits can be sufficient to preclude the granting of a summary judgment motion. Stevens v. Wakefield, 160 Ga. App. 353, 287 S.E.2d 49 (1981), rev'd on other grounds, 249 Ga. 254, 290 S.E.2d 58 (1982).

Grant of summary judgment cannot be supported by opinion evidence, but opinion evidence in affidavits can be sufficient to preclude the grant of a summary judgment. Lee v. Lee, 194 Ga. App. 606, 391 S.E.2d 654, cert. denied, 194 Ga. App. 912, 391 S.E.2d 654 (1990).

Opinion evidence precluding summary judgment.

- While opinion evidence is not sufficient to authorize a grant of summary judgment, it may preclude grant of a motion therefor. Aetna Cas. & Sur. Co. v. Cowan Supply Co., 125 Ga. App. 155, 186 S.E.2d 556 (1971).

Opinion evidence can be sufficient to preclude grant of summary judgment. Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977).

If plaintiff must produce expert's opinion in order to prevail at trial, and the defendant produces an expert's opinion in the defendant's favor on a motion for summary judgment but the plaintiff fails to produce a contrary expert opinion in opposition to that motion, there is no genuine issue to be tried by the jury and it is not error to grant summary judgment to the defendant. Howard v. Walker, 242 Ga. 406, 249 S.E.2d 45 (1978); Golden v. Payne, 152 Ga. App. 800, 264 S.E.2d 292 (1979); Parker v. Knight, 245 Ga. 782, 267 S.E.2d 222 (1980); Lawrence v. Gardner, 154 Ga. App. 722, 270 S.E.2d 9 (1980); Davidson v. Shirley, 616 F.2d 224 (5th Cir. 1980); Hawkins v. Greenberg, 159 Ga. App. 302, 283 S.E.2d 301 (1981); Hardinger v. Park, 159 Ga. App. 729, 285 S.E.2d 212 (1981); Jones v. Wike, 654 F.2d 1129 (5th Cir. 1981); Savannah Valley Prod. Credit Ass'n v. Cheek, 248 Ga. 745, 285 S.E.2d 689 (1982).

If the plaintiff must produce an expert's opinion that the defendant was negligent in order to avoid the grant of a directed verdict in favor of the defendant, the plaintiff must also produce an expert's opinion in order to avoid the grant of summary judgment in favor of the defendant when the defendant moves for summary judgment solely on the basis of the defendant's own affidavit, submitted in the defendant's capacity as an expert, that the defendant was not negligent. Payne v. Golden, 245 Ga. 784, 267 S.E.2d 211 (1980).

Expert opinion supporting allegations of both parties.

- Simply because the defendant is initially responsible for production of certain expert witnesses, the defendant is not entitled to summary judgment when experts the defendant relies upon also offer expert testimony which a jury could find supports the plaintiff's allegations of medical negligence. Lawrence v. Gardner, 154 Ga. App. 722, 270 S.E.2d 9 (1980).

Conflicting expert testimony precludes summary judgment.

- Given the conflict between the experts' testimony concerning an obviously hazardous condition, and the inferences to be drawn from the absence of prior accidents, a question of fact exists whether a defective condition existed which the defendant, in the exercise of ordinary care in keeping the defendant's premises safe in the more than 30 years the defendant has owned the premises, knew or should have known would cause injury to an invitee. Haire v. City of Macon, 200 Ga. App. 744, 409 S.E.2d 670, cert. denied, 200 Ga. App. 896, 409 S.E.2d 670 (1991).

Opinion evidence on competency of party to contract insufficient.

- In a case in which the issue is whether one of the parties had the requisite mental capacity to make a contract, opinion evidence will not authorize the grant of summary judgment that such party was competent. McCraw v. Watkins, 242 Ga. 452, 249 S.E.2d 202 (1978).

Seller's affidavit as to value insufficient.

- Genuine issue of fact is not raised by the seller's own affidavit as to the value of property in a suit for specific performance. Baker v. Jellibeans, Inc., 252 Ga. 458, 314 S.E.2d 874 (1984).

Opinion evidence that marriage not irretrievably broken.

- When the respondent files an affidavit expressing the respondent's opinion that the marriage is not irretrievably broken and that there are genuine prospects for reconciliation, then summary judgment should be denied. Bryan v. Bryan, 248 Ga. 312, 282 S.E.2d 892 (1981).

In legal malpractice action, attorney-defendant may make affidavit as expert in the attorney's own behalf. In view of the presumption that legal services are performed in an ordinary skillful manner, the movant is then required to produce an expert's affidavit, unless there is "clear and palpable" negligence. Rose v. Rollins, 167 Ga. App. 469, 306 S.E.2d 724 (1983).

Statements held to be conclusions bearing on ultimate fact.

- In an action against a tavern owner arising out of an alleged battery by one patron upon another, statements in the owner's affidavit that the owner had no reason to anticipate the actions of the patron and that the owner could not by exercise of reasonable care have discovered or prevented injury were conclusions bearing on the ultimate fact to be decided and could not be utilized on a summary judgment motion. Johnson v. Crews, 165 Ga. App. 43, 299 S.E.2d 99 (1983).

Circumstantial evidence insufficient to show tree-planting company's knowledge of a well.

- In a widow's claim against a tree-planting company for the company's failure to report an abandoned well as required by O.C.G.A. § 44-1-14, allegedly resulting in her husband's death when he drove over the well in a four-wheeler, summary judgment was proper because the widow's circumstantial evidence from an expert that the company was aware of the well due to a deviation in the row of trees at the well's location could not overcome the company's direct evidence that the company did not know about the well. Handberry v. Manning Forestry Servs., LLC, 353 Ga. App. 150, 836 S.E.2d 545 (2019).

6. Medical Opinion Evidence

Medical malpractice plaintiff cannot prevail on conclusory opinion.

- Plaintiff in a medical malpractice case cannot prevail on a motion for summary judgment by merely presenting a conclusory opinion that the defendant was negligent or failed to adhere to the professional standard. Plaintiff must state the particulars and establish the parameters of the acceptable professional conduct and set forth how or in what way the defendant deviated therefrom. Loving v. Nash, 182 Ga. App. 253, 355 S.E.2d 448 (1987); Connell v. Lane, 183 Ga. App. 871, 360 S.E.2d 433 (1987).

Records must be sworn or certified.

- To be sufficient to controvert the defendant's expert opinion and create an issue of fact in a medical malpractice case, the plaintiff's expert must base the expert's opinion on medical records which are sworn or certified copies, or upon the expert's own personal knowledge, and the expert must state the particulars in which the defendant's treatment of the plaintiff was negligent. Loving v. Nash, 182 Ga. App. 253, 355 S.E.2d 448 (1987).

Failure of opposing party to present expert evidence in malpractice case.

- When the opposing party does not present an expert medical opinion to counter the defendant physician's expert opinion in a medical malpractice case, the physician is entitled to summary judgment. Aaron v. Harrison, 160 Ga. App. 172, 286 S.E.2d 762 (1981).

Absent evidence of causation in an action under the Federal Employers' Liability Act provided by the employee's treating physician as the doctor based a diagnosis on an incomplete medical history of the employee without considering earlier lung-related illnesses, and while unaware of the employee's prior chemical exposure and treatment by other physicians, the trial court properly granted an employer's motion for partial summary judgment on the employee's claim for benefits. Shiver v. Ga. & Fla. Railnet, Inc., 287 Ga. App. 828, 652 S.E.2d 819 (2007), cert. denied, No. S08C0394, 2008 Ga. LEXIS 330 (Ga. 2008).

Sufficiency of doctor's expert opinion in malpractice case.

- Doctor's own affidavit as an expert that the doctor had not negligently performed the doctor's medical duties is a sufficient expert opinion to establish grounds for summary judgment in a malpractice action unless the plaintiff-patient refutes such testimony by an expert opinion that the defendant's treatment was not reasonable under the circumstances. Gragg v. Spenser, 159 Ga. App. 525, 284 S.E.2d 40 (1981).

Physician moving for summary judgment in a medical malpractice case may rely on the physician's own affidavit, submitted in the physician's capacity as an expert, that the physician was not negligent; to avoid summary judgment, the plaintiff must then produce expert testimony to the contrary. Hardinger v. Park, 159 Ga. App. 729, 285 S.E.2d 212 (1981).

Sufficiency of affidavit of non-treating physician.

- When in the plaintiff's expert's affidavit, the affiant, a non-treating physician, states that the affiant's opinions are based, at least in part, on the affiant's personal knowledge of the facts of the case, and the affiant goes on to state the particulars in which the affiant believes the defendants were negligent, the affidavit is sufficient to raise a genuine issue of material fact and preclude the trial court's grant of summary judgment. Crawford v. Phillips, 173 Ga. App. 517, 326 S.E.2d 593 (1985).

Plaintiff 's expert in a medical malpractice action was entitled to base the expert's opinions upon medical records which the expert reviewed and would be the same facts introduced hypothetically at trial since all documents referenced in the expert's affidavit were part of the record prior to the hearing on the summary judgment motion. Hall v. Okehi, 194 Ga. App. 721, 391 S.E.2d 787 (1990).

When the plaintiff's expert's affidavit does not state that the expert has any "personal knowledge of the facts of the case," and in fact states that the expert's knowledge concerning the case is confined to uncertified medical records, the affidavit is insufficient to create a question of material fact (notwithstanding that, in reality, it is always questionable whether an affidavit statement of a non-treating physician has substantially more "knowledge" than derived from a personal review of the medical records). Crawford v. Phillips, 173 Ga. App. 517, 326 S.E.2d 593 (1985).

Testimony of plaintiff 's medical witnesses as to the probability of a connection between an automobile accident and the plaintiff 's later physical problems was sufficient to avoid summary judgment for the defendant, the driver of the other car. Holley v. Smallwood, 174 Ga. App. 365, 330 S.E.2d 136 (1985).

Application of the contradictory testimony rule was improper.

- In a medical malpractice case brought by a married couple, it was error to grant summary judgment to the defendants based on the finding that the testimony of the couple's expert was conflicting and lacking in credibility; application of the contradictory testimony rule was improper when the testimony was that of a non-party expert witness, and accordingly, notwithstanding the inconsistencies in the expert's testimony, the trial court should have given the couple the benefit of the most favorable version of such testimony as a whole which the jury would be authorized to accept. Whitley v. Piedmont Hosp., Inc., 284 Ga. App. 649, 644 S.E.2d 514 (2007), cert. denied, 2007 Ga. LEXIS 626, 651 (Ga. 2007).

While an expert witness can base opinions on medical records reviewed by the witness, subsection (e) of O.C.G.A. § 9-11-56 requires that sworn or certified copies of such material be attached to the affidavit. If such medical records are not part of the record in the case, the records would have no probative value. Lance v. Elliott, 202 Ga. App. 164, 413 S.E.2d 486 (1991).

7. Oral Testimony

Subsection (c) construed.

- It is not the general purpose of subsection (c) of this section to permit use of oral testimony. Price v. Star Serv. & Petro. Corp., 119 Ga. App. 171, 166 S.E.2d 593 (1969).

Section makes no reference to oral testimony.

- This section refers strictly to affidavits, depositions, answers to interrogatories, and admissions on file, but does not refer to oral testimony. Johnson v. Aetna Fin., Inc., 139 Ga. App. 452, 228 S.E.2d 299 (1976).

Motions not generally heard on oral testimony.

- Generally, motions for summary judgment are not heard on oral testimony. Orr v. Woodruff-Robinson, Inc., 142 Ga. App. 861, 237 S.E.2d 463 (1977).

Oral evidence may be used with proper notice.

- Evidence on motion for summary judgment may be heard orally in some instances, provided proper notice is given. Orr v. Woodruff-Robinson, Inc., 142 Ga. App. 861, 237 S.E.2d 467 (1977).

When motion for summary judgment is to be heard on oral testimony, proper notice must be given to the opposite party, unless notice is waived. Myers v. McLarty, 150 Ga. App. 432, 258 S.E.2d 56 (1979).

No obligation to permit use.

- Law creates no obligation on court to permit use of oral evidence at a hearing on a motion for summary judgment. Gunter v. National City Bank, 239 Ga. 496, 238 S.E.2d 48 (1977).

Discretion of court.

- While there may be circumstances in which the court may, in the court's sound discretion, permit use of oral evidence at the hearing on a motion for summary judgment as, for example, when both parties agree, there is no requirement that the court do so. Johnson v. Aetna Fin., Inc., 139 Ga. App. 452, 228 S.E.2d 299 (1976).

In the exercise of sound discretion the trial court may permit the introduction of oral evidence, but there is no obligation that the court do so, and if the court does, it must be done in strict conformity with the law. Pierce v. Gaskins, 168 Ga. App. 446, 309 S.E.2d 658 (1983).

Introduction over objection not permitted.

- Trial court is without authority to permit introduction of oral testimony over the opposing party's objection. Pierce v. Gaskins, 168 Ga. App. 446, 309 S.E.2d 658 (1983).

Denial of use of oral testimony not reversible error.

- Denial of request to permit use of oral testimony on hearing on motion for summary judgment is not ground for reversal. Price v. Star Serv. & Petro. Corp., 119 Ga. App. 171, 166 S.E.2d 593 (1969).

Writing requirement.

- Evidentiary hearing on issue of damages following the defendant's default is subject to requirement that findings of fact and conclusions of law be in writing. Marsh v. Way, 170 Ga. App. 300, 316 S.E.2d 599 (1984).

Undisputed testimony of witnesses admitted in probate court will sustain grant of summary judgment admitting the will to probate. Norton v. Georgia R.R. Bank & Trust, 248 Ga. 847, 285 S.E.2d 910 (1982), aff'd, 253 Ga. 596, 322 S.E.2d 870 (1984).

Construction of Evidence and Inferences

Respondent's papers given considerable indulgence.

- Movant's papers should be carefully scrutinized, while opposing party's papers are treated with considerable indulgence. Herrington v. Stone Mt. Mem. Ass'n, 119 Ga. App. 658, 168 S.E.2d 633, rev'd on other grounds, 225 Ga. 746, 171 S.E.2d 521 (1969); Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969); Ham v. Ham, 230 Ga. 43, 195 S.E.2d 429 (1973); Gregory v. Vance Publishing Corp., 130 Ga. App. 118, 202 S.E.2d 515 (1973); Lansky v. Goldstein, 136 Ga. App. 607, 222 S.E.2d 62 (1975); Piano & Organ Ctr., Inc. v. Southland Bonded Whse., Inc., 228 S.E.2d 615 (1976); Danny's Cabinet Shop, Inc. v. G & M Fire Extinguisher Sales & Serv., Inc., 149 Ga. App. 215, 253 S.E.2d 802 (1979); Sun First Nat'l Bank v. Gainesville 75, Ltd., 155 Ga. App. 70, 270 S.E.2d 293 (1980).

Movant's proof is carefully scrutinized while respondent's proof is treated with indulgence. Whitehead v. Capital Auto. Co., 239 Ga. 460, 238 S.E.2d 104 (1977).

In determining whether any genuine issue of material fact exists, the court will treat the respondent's paper with considerable indulgence. Mallard v. Jenkins, 179 Ga. App. 582, 347 S.E.2d 339 (1986).

Court must carefully scrutinize movant's papers to determine whether the movant is entitled to judgment as a matter of law, regardless of the opponent's response or lack thereof. Southern Protective Prods. Co. v. Leasing Int'l, Inc., 134 Ga. App. 945, 216 S.E.2d 725 (1975).

Allegations of both the complaint and answer must be taken as true in a summary judgment case, unless the movant successfully pierces the allegations so as to show that no material issue of fact remains. Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 195 S.E.2d 277 (1972); Gregory v. Vance Publishing Corp., 130 Ga. App. 118, 202 S.E.2d 515 (1973), overruled on other grounds, Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651, 334 S.E.2d 188 (1985).

Allegations of both the petition and the answer must be taken as true in a summary judgment case, unless the movant successfully pierces the allegations so as to show that no material issue of fact remains. Cotton States Mut. Ins. Co. v. Martin, 110 Ga. App. 309, 138 S.E.2d 433 (1964); Butterworth v. Pettitt, 223 Ga. 355, 155 S.E.2d 20 (1967);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Piercing pleadings required before summary judgment.

- Absent piercing of the pleadings, court errs in granting summary judgment. State Farm Mut. Auto. Ins. Co. v. Wendler, 115 Ga. App. 452, 154 S.E.2d 772 (1967).

On motion for summary judgment, pleadings of opposing party must be taken as true until it appears beyond controversy that no fact issue exists. Joiner v. Mitchell County Hosp. Auth., 125 Ga. App. 1, 186 S.E.2d 307 (1971), aff'd, 229 Ga. 140, 189 S.E.2d 412 (1972); Duke Enters., Inc. v. Espy, 140 Ga. App 527, 231 S.E.2d 522 (1976); Sapp v. ABC Credit & Inv. Co., 243 Ga. 151, 253 S.E.2d 82 (1979).

Evidence construed favorably to nonmovant and unfavorably to movant.

- Party opposing motion for summary judgment is entitled to liberal construction in that party's favor of the pleadings and evidence. Saunders v. Vikers, 116 Ga. App. 733, 158 S.E.2d 324 (1967); Dollar v. First Bank, 153 Ga. App. 789, 266 S.E.2d 566 (1980); Mixon v. Georgia Bank & Trust Co., 154 Ga. App. 32, 267 S.E.2d 483 (1980).

On motions for summary judgment, evidence must be construed most favorably toward the party opposing the granting of summary judgment; and most unfavorably toward the party applying for the motion. State Hwy. Dep't v. Charles R. Shepherd, Inc., 119 Ga. App. 872, 168 S.E.2d 922 (1969); Pritchard v. Neal, 139 Ga. App. 512, 229 S.E.2d 18 (1976); Drake v. Leader Nat'l Ins. Co., 153 Ga. App. 314, 265 S.E.2d 114 (1980).

All evidence adduced on a motion for summary judgment, including the testimony of the party opposing the motion, was to be construed more strongly against the movant. Tri-Cities Hosp. Auth. v. Sheats, 247 Ga. 713, 279 S.E.2d 210 (1981).

All ambiguities and conclusions on consideration of summary judgment must be construed most favorably toward the respondent and against the movant. North v. Toco Hills, Inc., 160 Ga. App. 116, 286 S.E.2d 346 (1981).

Evidence must be construed most favorably to party opposing motion for summary judgment. McCarty v. National Life & Accident Ins. Co., 107 Ga. App. 178, 129 S.E.2d 408 (1962); Harris v. Stucki, 116 Ga. App. 371, 157 S.E.2d 507 (1967)(decided under former Ga. L. 1959, p. 234, § 1 et seq.); Chandler v. Gately, 119 Ga. App. 513, 167 S.E.2d 697 (1969); Summer v. McCrory Corp., 146 Ga. App. 515, 249 S.E.2d 768 (1978); Keappler v. Allen, 152 Ga. App. 746, 264 S.E.2d 37 (1979); Mixon v. Georgia Bank & Trust Co., 154 Ga. App. 32, 267 S.E.2d 483 (1980);.

Nonmovant given benefit of reasonable doubts and inferences.

- Party opposing the motion is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists, and the trial court must give that party the benefit of all favorable inferences that may be drawn from the evidence. Holland v. Sanfax Corp., 106 Ga. App. 1, 126 S.E.2d 442 (1962); Malcom v. Malcolm, 112 Ga. App. 151, 144 S.E.2d 188 (1965)(decided under former Ga. L. 1959, p. 234, § 1 et seq.); Watkins v. Nationwide Mut. Fire Ins. Co., 113 Ga. App. 801, 149 S.E.2d 749 (1966); Blount v. Seckinger Realty Co., 167 Ga. App. 778, 307 S.E.2d 683 (1983)(decided under former Ga. L. 1959, p. 234, § 1 et seq.);(decided under former Ga. L. 1959, p. 234, § 1 et seq.);

Party opposing motion for summary judgment must be given the benefit of all favorable inferences. McCarty v. National Life & Accident Ins. Co., 107 Ga. App. 178, 129 S.E.2d 408 (1962); Ussery v. Koch, 115 Ga. App. 463, 154 S.E.2d 879 (1967)(decided under Ga. L. 1959, p. 234, § 1 et seq.); Raven v. Dodd's Auto Sales & Serv., Inc., 117 Ga. App. 416, 160 S.E.2d 633 (1968), overruled on other grounds,.

Party opposing motion for summary judgment must be given benefit of all reasonable doubts. McCarty v. National Life & Accident Ins. Co., 107 Ga. App. 178, 129 S.E.2d 408 (1962);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Party opposing motion for summary judgment is to be given benefit of all reasonable doubts in determining whether a genuine issue exists, and the trial court must give that party the benefit of all favorable inferences that may be drawn from the evidence. Chapman v. Turnbull Elevator, Inc., 116 Ga. App. 661, 158 S.E.2d 438 (1967); State Hwy. Dep't v. Charles R. Shepherd, Inc., 119 Ga. App. 872, 168 S.E.2d 922 (1969); Anderson v. Redwal Music Co., 122 Ga. App. 247, 176 S.E.2d 645 (1970); Cotton States Mut. Ins. Co. v. Proudfoot, 123 Ga. App. 397, 181 S.E.2d 305 (1971), later appeal, 126 Ga. App. 799, 191 S.E.2d 870 (1972), and, 230 Ga. 169, 196 S.E.2d 131 (1973); Burton v. National Indem. Co., 123 Ga. App. 402, 181 S.E.2d 107 (1971); Lawson Prods., Inc. v. Rousey, 132 Ga. App. 726, 209 S.E.2d 125 (1974); Warner v. Arnold, 133 Ga. App. 174, 210 S.E.2d 350 (1974).

On motion for summary judgment, evidence must be construed most favorably to party opposing the motion, and the opposing party must be given the benefit of all reasonable doubts and all favorable inferences. Weekes v. Parker, 120 Ga. App. 549, 171 S.E.2d 660 (1969).

Law is very strict respecting motions for summary judgment and any doubt must be resolved in favor of respondent in such motions. Boston Ins. Co. v. Barnes, 120 Ga. App. 585, 171 S.E.2d 626 (1969).

All inferences must be resolved in favor of party opposing motion for summary judgment. W.J. Bremer, Inc. v. United Bonding Ins. Co., 122 Ga. App. 183, 176 S.E.2d 633 (1970); Scroggins v. Whitfield Fin. Co., 152 Ga. App. 8, 262 S.E.2d 168 (1979).

Every inference will be indulged in favor of defendants and all doubts will be resolved against plaintiff moving for summary judgment. Winkles v. Brown, 227 Ga. 33, 178 S.E.2d 865 (1970).

Evidence must be construed most favorably to the opposing party, and the trial court must give the opposing party the benefit of all favorable inferences that may be drawn from the evidence. Textile Prods., Inc. v. Fitts Cotton Goods, Inc., 124 Ga. App. 421, 184 S.E.2d 14 (1971); Smith v. Sandersville Prod. Credit Ass'n, 229 Ga. 65, 189 S.E.2d 432 (1972); Peachtree Bottle Shop, Inc. v. Bessemer Sec. Corp., 134 Ga. App. 729, 215 S.E.2d 692 (1975); City of Rome v. Turk, 235 Ga. 223, 219 S.E.2d 97 (1975); Indian Trail Village, Inc. v. Smith, 139 Ga. App. 691, 229 S.E.2d 508 (1976); Cumberland Assocs. v. Market Assistants, Inc., 142 Ga. App. 483, 236 S.E.2d 109 (1977); Jarriel v. Preferred Risk Mut. Ins. Co., 155 Ga. App. 136, 270 S.E.2d 238 (1980).

Party opposing motion for summary judgment is to be given benefit of all reasonable doubts in determining whether genuine issue exists. Smith v. Sandersville Prod. Credit Ass'n, 229 Ga. 65, 189 S.E.2d 432 (1972); Peachtree Bottle Shop, Inc. v. Bessemer Sec. Corp., 134 Ga. App. 729, 215 S.E.2d 692 (1975); National Life Assurance Co. v. Massey-Ferguson Credit Corp., 136 Ga. App. 311, 220 S.E.2d 793 (1975); Cumberland Assocs. v. Market Assistants, Inc., 142 Ga. App. 483, 236 S.E.2d 109 (1977).

Party resisting motion for summary judgment is given benefit of all favorable inferences that may be drawn from the evidence. Benson Paint Co. v. Williams Constr. Co., 128 Ga. App. 47, 195 S.E.2d 671 (1973); Gregory v. Vance Publishing Corp., 130 Ga. App. 118, 202 S.E.2d 515 (1973), overruled on other grounds, Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651, 334 S.E.2d 188 (1985); Mattison v. Travelers Indemn. Co., 157 Ga. App. 372, 277 S.E.2d 746 (1981).

All inferences, all ambiguities, and all doubts are resolved against the movant for summary judgment and in favor of the party opposing the grant of summary judgment. Summers v. Milcon Corp., 134 Ga. App. 182, 213 S.E.2d 515 (1975).

Opposing party is given the benefit of all reasonable doubts and favorable inferences that may be drawn from the evidence, and the moving party is entitled to judgment as a matter of law only if there is no genuine issue as to any material fact. Hip Pocket, Inc. v. Levi Strauss & Co., 144 Ga. App. 792, 242 S.E.2d 305 (1978).

Party opposing the motion for summary judgment is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. Eiberger v. West, 247 Ga. 767, 281 S.E.2d 148 (1981).

All inferences of fact from the proof proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion. Jonesboro Tool & Die Corp. v. Georgia Power Co., 158 Ga. App. 755, 282 S.E.2d 211 (1981).

Parties opposing the motion are entitled to all favorable inferences and the evidence is to be construed most strongly in their favor. Hanover Ins. Co. v. Nelson Conveyor & Mach. Co., 159 Ga. App. 13, 282 S.E.2d 670 (1981).

On a motion for summary judgment, the evidence must be construed most strongly against the movant, and the party opposing the motion is entitled to all inferences that may fairly and reasonably be drawn in support of the nonmovant's case. Vizzini v. Blonder, 165 Ga. App. 840, 303 S.E.2d 38 (1983).

On a motion for summary judgment, the party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence; this is so even when the movant is the party on whom the burden of proof at trial does not lie. Georgia Int'l Life Ins. Co. v. Huckabee, 175 Ga. App. 343, 333 S.E.2d 618 (1985).

In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion; moreover, opinion evidence can be sufficient to preclude the grant of summary judgment. Mitchell v. Rainey, 187 Ga. App. 510, 370 S.E.2d 673 (1988).

Evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in the nonmovant's favor. Barber v. Perdue, 194 Ga. App. 287, 390 S.E.2d 234 (1989), cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 414 (1990).

When the evidence is ambiguous or doubtful, the party opposing the motion must be given the benefit of all reasonable doubts and all favorable inferences and such evidence must be construed most favorably to the party opposing the motion. Jordan v. Ailstock, 230 Ga. 67, 195 S.E.2d 425 (1973); Match Point, Ltd. v. Adams, 148 Ga. App. 673, 252 S.E.2d 90 (1979), overruled on other grounds, Mock v. Canterbury Realty Co., 152 Ga. App. 872, 264 S.E.2d 489 (1980); Reese v. Sanders, 153 Ga. App. 654, 266 S.E.2d 313 (1980).

Construction of testimony of parties.

- Although general rule is that upon trial of case testimony of party litigant, when self-contradictory or ambivalent, must be construed against the litigant, yet on motion for summary judgment made by party upon whom burden of proof does not lie at trial, all evidence must be construed against the movant and in favor of the party opposing the motion. Columbia Drug Co. v. Cook, 127 Ga. App. 490, 194 S.E.2d 286 (1972); Benton Bros. Ford Co. v. Cotton States Mut. Ins. Co., 157 Ga. App. 448, 278 S.E.2d 40 (1981).

In dealing with summary judgments, the rule concerning construction of party's testimony is to adopt that construction favorable to the opposing party when conflicting testimony comes from a litigant. Johnson v. Curenton, 127 Ga. App. 687, 195 S.E.2d 279 (1972).

All evidence and materials submitted on a motion for summary judgment, including testimony of the parties, must be construed most strongly against the movant. Keheley v. Benham, 155 Ga. App. 59, 270 S.E.2d 285 (1980).

Once the trial court has eliminated the favorable portions of contradictory testimony, the court must take all testimony on motion for summary judgment as the testimony then stands, and construe the testimony in favor of the party opposing the motion in determining whether summary judgment should be granted. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680 (1986).

Vague or contradictory testimony.

- Rule as to construing evidence most favorably to the party opposing the motion for summary judgment applies to testimony of that party, even though the testimony may be vague and contradictory. Jordan v. Ailstock, 230 Ga. 67, 195 S.E.2d 425 (1973); Gregory v. Vance Publishing Corp., 130 Ga. App. 118, 202 S.E.2d 515 (1973); Match Point, Ltd. v. Adams, 148 Ga. App. 673, 252 S.E.2d 90 (1979); Aiken v. Drexler Shower Door Co., 155 Ga. App. 436, 270 S.E.2d 831 (1980).

"Contradictory testimony rule" applies to testimony presented in support or response to a motion for summary judgment. This rule provides that a party's self-conflicting testimony is to be construed against the party. If a reasonable explanation is offered for the contradiction, however, the inconsistency will not be construed against the party witness. The burden rests on the party giving the contradictory testimony to tender the reasonable explanation, and whether this has been done is an issue of law. Stone v. Dayton Hudson Corp., 193 Ga. App. 752, 388 S.E.2d 909 (1989).

If no explanation is given for the conflict in testimony or a party's explanation is determined to be unreasonable, the trial court must eliminate the favorable portions of the contradictory testimony and then take all testimony on motion for summary judgment, as it then stands, and construe the evidence in favor of the party opposing the motion in determining whether summary judgment should be granted. Stone v. Dayton Hudson Corp., 193 Ga. App. 752, 388 S.E.2d 909 (1989).

Self-contradictory statements.

- When the respondent to a motion for summary judgment makes deliberate and intentional self-contradictory statements about a material issue of fact, that party's unfavorable testimony may be used against that party. Ward v. Griffith, 162 Ga. App. 194, 290 S.E.2d 290 (1982).

Contradictions by movant to be resolved against movant.

- When a party directly contradicts themselves, the conflict will be resolved against the party on a motion for summary judgment unless a reasonable explanation is offered. Georgia Farm Bureau Mut. Ins. Co. v. Nolan, 180 Ga. App. 28, 348 S.E.2d 554 (1986).

Conflict or contradiction in testimony of opposing party, must be construed in the opposing party's favor; such contradictions, at the most, may themselves create a conflict in the evidence, as well as a question of credibility, which is solely for the jury. Keheley v. Benham, 155 Ga. App. 59, 270 S.E.2d 285 (1980).

When the deponent's testimony is somewhat vague and inconsistent, but does not disclose an attempt to confuse or mislead the court, although such inconsistency might weaken the deponent's case at trial it does not, as a matter of law, entitle the movant to summary judgment. Aiken v. Drexler Shower Door Co., 155 Ga. App. 436, 270 S.E.2d 831 (1980).

Inconsistencies between plaintiff nonmovant's affidavit and deposition immaterial.

- On motion for summary judgment made by the defendant, it is immaterial that there are inconsistencies between the plaintiff's affidavit and the deposition, as that part of the plaintiff's testimony most favorable to the plaintiff's position will be taken as true. Columbia Drug Co. v. Cook, 127 Ga. App. 490, 194 S.E.2d 286 (1972); Roberson v. Home Ins. Co., 149 Ga. App. 590, 254 S.E.2d 908 (1979). But see Davis v. Ferrell, 118 Ga. App. 690, 165 S.E.2d 313 (1968), construing plaintiff's deposition testimony which conflicted with his affidavit most strongly against him.

Intentional or deliberate self-contradictions.

- When a party is intentionally or deliberately self-contradictory, the court may be justified in taking against the party that version of the party's testimony which is most unfavorable to the party. Brooks v. Douglas, 154 Ga. App. 54, 267 S.E.2d 495 (1980); Combs v. Adair Mtg. Co., 155 Ga. App. 432, 270 S.E.2d 828 (1980); Aiken v. Drexler Shower Door Co., 155 Ga. App. 436, 270 S.E.2d 831 (1980).

Only if party testifying in that party's own behalf intentionally or deliberately contradicts oneself in order to confuse or mislead the court so as to elude summary judgment shall the more favorable portion of the contradictory testimony be treated as though it did not exist. Aiken v. Drexler Shower Door Co., 155 Ga. App. 436, 270 S.E.2d 831 (1980).

Explanation by party of contradictions.

- Rule in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680 (1986), that when a party offers a reasonable explanation for contradictory testimony the inconsistency will not be used against the party, applies to the movants for summary judgment as well as the respondents, so that if a movant for summary judgment provides a reasonable explanation for a contradiction, the inconsistency will not be construed against the movant. However, the reasonable explanation merely permits the favorable portion of the contradictory testimony to remain as evidence to be considered; it does not operate to eliminate the unfavorable testimony so as to establish any fact authorizing the grant of summary judgment. Gentile v. Miller, Stevenson & Steinichen, Inc., 257 Ga. 583, 361 S.E.2d 383 (1987).

Contradictory statements by nonparty witnesses.

- Requirement that testimony of a party who personally offers to be a witness in one's own behalf is to be construed most strongly against that party, when passing upon a motion for summary judgment, does not apply to contradictory statements by witnesses who are not parties to the litigation. Miller v. Douglas, 235 Ga. 222, 219 S.E.2d 144 (1975).

Effect of burden of proof at trial.

- Doubts are to be resolved against the movant, even if at trial opposing party would have burden of proof. Whitehead v. Capital Auto. Co., 239 Ga. 460, 238 S.E.2d 104 (1977).

All evidence adduced on motion for summary judgment, including testimony of party upholding the motion, is construed more strongly against the movant, even though the movant may not be the party upon whom the burden of proof lies at trial. Combs v. Adair Mtg. Co., 245 Ga. 296, 264 S.E.2d 226 (1980).

Application of Prophecy rule.

- Appellate court properly found that the company was not entitled to summary judgment as even though the Prophecy rule applied such that a party could adopt the party's unsworn statement that the party affirmed under oath even when the unsworn statement contradicted the party's later, sworn testimony, the record did not show that the employee affirmed under oath that portion of the employee's unsworn statement that the company relied on to obtain summary judgment in the employee's personal injury case, and, thus, the employee was entitled to rely on the employee's later, more favorable deposition testimony, which created a genuine issue of material fact and precluded summary judgment. CSX Transp., Inc. v. Belcher, 276 Ga. 522, 579 S.E.2d 737 (2003).

Insufficient evidence.

- Defendants may prevail under subsection (e) of O.C.G.A. § 9-11-56 by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of a plaintiff's case. Bandy v. Mills, 216 Ga. App. 407, 454 S.E.2d 610 (1995).

Circumstantial evidence as basis for summary judgment.

- Trial court's denial of the first possible motorist and second possible motorist's summary judgment motion was error as the motorist and the passenger conceded that the second possible driver was neither the owner nor the driver of the car that struck the motorist and the passenger's vehicle, and circumstantial evidence failed to point more strongly to a conclusion opposite the direct testimony of the first possible driver and the second possible driver that their car which struck the motorist and the passenger's vehicle had been stolen on the night in question and, therefore, the first possible driver was not driving the car when the car struck the motorist and passenger's vehicle. Rosales v. Davis, 260 Ga. App. 709, 580 S.E.2d 662 (2003).

More specificity required to support motion.

- When the administrative law judge used the improper legal standard when the judge granted summary judgment to the Georgia Environmental Protection Division on grounds that the draft permit included the name of the receiving body of water in the fact sheet attached with the draft permit, more specificity was required and, thus, reversal of the summary judgment order was warranted. Hughey v. Gwinnett County, 278 Ga. 740, 609 S.E.2d 324 (2004).

Clear and convincing evidence to support appointment of conservator.

- Similar to a ruling on a motion for summary judgment in a civil action, because a parent's gravely-impaired judgment, which combined with a physical frailty and impaired vision, made the parent vulnerable to exploitation by a new person living with the parent, the probate court properly concluded that the parent lacked sufficient understanding to make significant responsible decisions concerning the management of the parent's property; moreover, because the parent chose not to include the transcript of the evidence in the appellate record, and, as any pre-trial ruling on the parent's capabilities was, after a trial determining the matter, harmless if not moot, the probate court's ruling was upheld. Yetman v. Walsh, 282 Ga. App. 499, 639 S.E.2d 491 (2006).

Time and Notice for Hearing of Motion for Summary Judgment

Spirit of the summary judgment procedure.

- Granting motion for summary judgment without affording opposite side time provided or without giving notice or opportunity to be heard does not comport with spirit of this section. Peoples Fin. Corp. v. Jones, 134 Ga. App. 649, 215 S.E.2d 711 (1975).

Denial of motion for extension of time proper.

- Because a motion for an extension of time to respond to a summary judgment motion and conduct additional discovery failed to set forth specific reasons why additional time was necessary and failed to include the affidavit required under O.C.G.A. § 9-11-56(f), a trial court acted within the court's discretion in declining to grant the requested extension of time. Smyrna Dev. Co. v. Whitener Ltd. P'ship, 280 Ga. App. 788, 635 S.E.2d 173 (2006).

Notice of affirmative defense.

- Affirmative defense of limitations cannot be raised for the first time orally at a hearing on a summary judgment motion without any notice to the opposing party. Hansford v. Robinson, 255 Ga. 530, 340 S.E.2d 614 (1986).

Phrase "at any time" is simply used to distinguish between times plaintiffs and defendants have in which to file a motion for summary judgment; it means at any time before a trial begins in which a final judgment is to be rendered, and does not mean that a motion for summary judgment may be filed without any time limit whatsoever. Braselton Bros. v. Better Maid Dairy Prods., Inc., 110 Ga. App. 515, 139 S.E.2d 124 (1964);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Party may move for summary judgment at any time.

- Party against whom claim is asserted may move at any time for summary judgment. Fierer v. Ashe, 147 Ga. App. 446, 249 S.E.2d 270 (1978); Christian v. Allstate Ins. Co., 152 Ga. App. 358, 262 S.E.2d 621 (1979).

Defendant may move at any time for summary judgment, with or without supporting affidavits. Nimmer v. Strickland, 242 Ga. 430, 249 S.E.2d 233 (1978).

Notice and hearing required.

- Subsection (c) of O.C.G.A. § 9-11-56 requires notice to an adverse party and a hearing. Ferguson v. Miller, 160 Ga. App. 436, 287 S.E.2d 363 (1981).

Trial court erred in granting summary judgment on an election candidate's claim for defamation by a radio broadcast as the candidate did not have a full and fair opportunity to meet and attempt to controvert the assertions with respect to that claim. Howard v. Pope, 282 Ga. App. 137, 637 S.E.2d 854 (2006).

Party must have 30 days' notice of hearing and an opportunity to respond to a motion for summary judgment. Leverich v. Roddenberry Farms, Inc., 253 Ga. 414, 321 S.E.2d 328 (1984).

When a motion to dismiss was converted to a motion for summary judgment, and nothing in the record reflected that the plaintiff received any notice that the motion would be heard, the dismissal of the complaint was error. Barrett v. Wharton, 196 Ga. App. 688, 396 S.E.2d 603 (1990).

Granting the plaintiffs motion for summary judgment without holding a hearing or fixing a time for a hearing thereon and without giving the defendant notice of the time when judgment would be rendered is a procedural shortcoming requiring reversal. Smith v. Conley, 152 Ga. App. 589, 263 S.E.2d 453 (1979).

Actual notice.

- Spirit of the summary judgment procedure contemplates that the respondent shall have actual notice of a day upon which the matter will be heard and judgment rendered upon the record then existing. A mere reference to the local court rules sent by the attorney does not give such actual notice and an opportunity to be heard. Ferguson v. Miller, 160 Ga. App. 436, 287 S.E.2d 363 (1981).

Failure to give notice.

- It is error to grant final relief without giving party opposing motion statutory requirement of notice prior to a hearing on the merits of the claim for final relief. Royston v. Royston, 236 Ga. 648, 225 S.E.2d 41 (1976).

Court's error in conducting a hearing on the defendant's motion in absence of proper service of notice of the hearing on the plaintiff was not harmless since the plaintiff was deprived of the plaintiff's statutory right to file opposing affidavits up to one day before the hearing. Goodwin v. Richmond, 182 Ga. App. 745, 356 S.E.2d 888 (1987).

When a trial court orally noted that a limitations period did not bar a lessor's action to recover for a lessee's alleged default in the lessee's financing obligations for office equipment, such was not controlling since the trial court's written order sua sponte granted summary judgment to the lessor on a finding that all defenses were barred by a prior order of the Bankruptcy Court; however, when there was no indication that proper notice had been provided to the lessee, it was determined that the lessee had not been given a full opportunity to address the basis on which the summary judgment order had been entered. Carroll v. Finova Capital Corp., 265 Ga. App. 517, 594 S.E.2d 720 (2004).

In a wrongful foreclosure action, the trial court erred in conducting a hearing on the defendants' motion to dismiss and in converting the motion to dismiss into a motion for summary judgment by considering evidence outside the pleadings, without giving the plaintiff prior notice as the trial court's notice of hearing stated that the court was conducting a status conference, and the notice made no mention of the defendants' motion to dismiss. Garner v. US Bank Nat'l Ass'n, 329 Ga. App. 86, 763 S.E.2d 748 (2014).

Statutorily mandated service requirement waived.

- Even though the defendant was never served with a motion for summary judgment, since the trial court gave the defendant fair notice of, and an opportunity to respond to, the motion, the statutorily-mandated service requirement was waived. Ferguson v. Duron, Inc., 244 Ga. App. 19, 534 S.E.2d 142 (2000).

Receipt of notice of claim.

- Summary judgment for an insurer was reversed as factual issues remained as to whether an insurance agency was able to accept notices of claims on behalf of an insurer as a fiduciary and as a dual agent. Bowen Tree Surgs., Inc. v. Canal Indem. Co., 264 Ga. App. 520, 591 S.E.2d 415 (2003).

Grant of summary judgment without notice at hearing on motion to compel.

- It was error to grant summary judgment in the defendant's favor in the plaintiff's absence at a hearing on a motion to compel, without notice to the plaintiff that summary judgment would be heard or that a judgment for money damages would be sought on grounds entirely distinct from those pled in a prior summary judgment motion, and by support of an affidavit of which the plaintiff had no notice. Jackson v. Bekele, 152 Ga. App 417, 263 S.E.2d 225 (1979).

Hearing motion before discovery complete.

- Trial court did not abuse the court's discretion by hearing the plaintiff's motion for summary judgment before discovery was complete. Garner v. Roberts, 238 Ga. App. 738, 520 S.E.2d 255 (1999).

Ruling on summary judgment motion instead of discovery motion.

- Trial court did not abuse the court's discretion in not ruling on a motion to compel discovery prior to ruling on a motion for summary judgment because the questions from the discovery procedure sought to clearly invade the attorney-client privilege. NationsBank v. SouthTrust Bank, 226 Ga. App. 888, 487 S.E.2d 701 (1997).

Trial court's consideration of a summary judgment motion by the defendant was premature as the plaintiffs raised discovery issues that required judicial scrutiny; accordingly, the case had to be remanded to permit consideration of the plaintiffs' motion to compel discovery that was denied by the trial court. Parks v. Hyundai Motor Am., Inc., 258 Ga. App. 876, 575 S.E.2d 673 (2002).

Hearing of Motion for Summary Judgment

Purpose of hearing.

- Obvious purpose of hearing on motion for summary judgment is to provide counsel with an opportunity to persuade the court and to provide the court with an opportunity to interrogate counsel. Premium Distrib. Co. v. National Distrib. Co., 157 Ga. App. 666, 278 S.E.2d 468 (1981).

Hearing procedure is designed to give the opposing party fair opportunity to contradict the supporting material relied upon by the movant. Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631, 278 S.E.2d 377 (1981).

Subsection (c) of O.C.G.A. § 9-11-56 requires that hearing date be set and hearing conducted before a motion for summary judgment is granted; the failure of the trial court to do so is error. Premium Distrib. Co. v. National Distrib. Co., 157 Ga. App. 666, 278 S.E.2d 468 (1981).

"Hearing" does not necessarily mean an oral hearing, but O.C.G.A. § 9-11-56 at the very least contemplates notice to the respondent that the matter will be heard and taken under advisement as of a certain day. Ferguson v. Miller, 160 Ga. App. 436, 287 S.E.2d 363 (1981).

"Hearing" means opportunity to respond.

- Hearing referred to in subsection (c) of O.C.G.A. § 9-11-56 simply means an opportunity to respond. If the adverse party is given this opportunity, then the party has been heard within the meaning of that statute. Brown v. Shiver, 183 Ga. App. 207, 358 S.E.2d 862 (1987).

Both respondent and movant have a right to be heard as provided in O.C.G.A. § 9-11-56. Sentry Ins. v. Echols, 174 Ga. App. 541, 330 S.E.2d 725 (1985).

Duty of each party at a hearing on the motion for summary judgment is to present each party's case in full. Bible Farm Serv., Inc. v. House Hasson Hdwe. Co., 157 Ga. App. 358, 277 S.E.2d 341 (1981); Walter E. Heller & Co. v. Aetna Bus. Credit, Inc., 158 Ga. App. 249, 280 S.E.2d 144 (1981).

Opposing party to present evidence at time of hearing.

- When there has been an order to show cause under a motion for summary judgment, the time for the opposite party to present that party's relevant evidence, if any, is at the time of the hearing on the order to show cause, and if this is not done, it is too late to complain later. Scales v. Peevy, 103 Ga. App. 42, 118 S.E.2d 193 (1961);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Time for party opposing motion for summary judgment to present relevant evidence or show satisfactory reasons for nonproduction is at hearing on an order to show cause, and if this is not done, it is too late to complain later. King v. Fryer, 107 Ga. App. 715, 131 S.E.2d 203 (1963); Planters Rural Tel. Coop. v. Chance, 108 Ga. App. 146, 132 S.E.2d 90 (1963);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Defendant's failure to demand hearing does not constitute waiver of that right. Premium Distrib. Co. v. National Distrib. Co., 157 Ga. App. 666, 278 S.E.2d 468 (1981).

Hearing sanctioned even if motion never filed.

- In a procedural context, the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, sanctions the hearing of a motion for summary judgment even though no such motion is ever filed. Richmond Leasing Co. v. First Union Bank, 188 Ga. App. 843, 374 S.E.2d 746, cert. denied, 188 Ga. App. 912, 374 S.E.2d 746 (1988).

Denial of motion does not negate need for hearing.

- Necessity of a hearing in accordance with O.C.G.A. § 9-11-56 is not abrogated merely because the motion is ultimately denied. Sentry Ins. v. Echols, 174 Ga. App. 541, 330 S.E.2d 725 (1985).

Failure to hold hearing.

- When the record and the briefs of the parties reflect that, while a hearing on the motion was scheduled and the parties notified, no hearing was actually held, the appropriate course of action is to remand the case to the trial court for a determination as to whether the respondent waived the respondent's right to a hearing. Hillis v. First Nat'l Bank, 168 Ga. App. 408, 309 S.E.2d 404 (1983).

While it was error for the trial court to fail to hold a hearing on a motion for summary judgment, which was granted, as the losing parties did not show harm by the denial of their right to a hearing - not stating what defense they expected to raise and not arguing that the grant of summary judgment was improper - a reversal was not demanded. Harper v. Birmingham Trust Nat'l Bank, 171 Ga. App. 618, 320 S.E.2d 622 (1984).

Failure of a trial court to hold a hearing on a motion for summary judgment prior to a ruling thereon is error; nonetheless, that error is not reversible absent a showing of harm. Sentry Ins. v. Echols, 174 Ga. App. 541, 330 S.E.2d 725 (1985); Christensen v. State, 219 Ga. App. 10, 464 S.E.2d 14 (1995).

Purpose of the 30 day waiting period required by O.C.G.A. § 9-11-56 is to place the opposing party on notice as to the material relied upon by the movant in support of the motion so that the opposing party might have sufficient opportunity to prepare a response. Benton Bros. Ford Co. v. Cotton States Mut. Ins. Co., 157 Ga. App. 448, 278 S.E.2d 40 (1981).

Statutory requisite that, unless waived or extended, supporting material must be on file at least 30 days before a summary judgment hearing is an implementation of the fundamental principle of due process. Bonds v. John Wieland Homes, Inc., 177 Ga. App. 254, 339 S.E.2d 318 (1985).

Service of motion less than 30 days before hearing.

- When motion for summary judgment is served less than 30 days before the time fixed for hearing, but no prejudice occurs to the party opposing the motion, the trial court may properly proceed with the hearing. Cel-Ko Bldrs. & Developers, Inc. v. BX Corp., 136 Ga. App. 777, 222 S.E.2d 94 (1975).

Waiver of 30-day requirement.

- The 30-day requirement under subsection (c) of O.C.G.A. § 9-11-56 can be waived. Mobley v. Coast House, Ltd., 182 Ga. App. 305, 355 S.E.2d 686 (1987).

When the trial court inquired of counsel the best time available to hear the several pending motions and respondent's attorney expressly asked the court to rule upon all motions for summary judgment at one time and no mention or objection was made by the attorney that only six days had expired between the time of filing and the time of ruling on several of the motions, any defect as to the timeliness of the granting of the disputed motions for summary judgment was waived. Mobley v. Coast House, Ltd., 182 Ga. App. 305, 355 S.E.2d 686 (1987).

Court did not err in holding a hearing on a summary judgment motion only 15 days after the motion was supplemented with citations to authority, and did not deprive the nonmovants of the right to 30 days to respond, when the nonmovants waived expansion of the time and resetting of the trial by not only rejecting the court's offer but by affirmatively asking the court to move forward with the summary judgment determination. Southern Trust Ins. Co. v. Georgia Farm Bureau Mut. Ins. Co., 194 Ga. App. 751, 391 S.E.2d 793 (1990).

Nonmoving party waived the matter of the trial court's failure to comply with the procedural mandate that the nonmoving party be afforded 30 days within which to respond to a motion as the nonmoving party for summary judgment failed to raise this procedural defect at the hearing. Dennisson v. Lakeway Publishers, Inc., 196 Ga. App. 85, 395 S.E.2d 366 (1990).

Timeliness of hearing waived by appearance and argument.

- When both parties appeared and argued plaintiff's motion to strike and dismiss (in effect a motion for summary judgment or judgment on the pleadings) on the day assigned, without objection as to time, no complaint may later be made as to the timeliness of the hearing. Connell v. Connell, 119 Ga. App. 485, 167 S.E.2d 686 (1969).

Permissible not to require oral argument hearing unless requested.

- When O.C.G.A. §§ 9-11-56,9-11-78, and9-11-83 are considered in conjunction, it is permissible for the court rules to provide that an oral argument hearing is not required unless the party requests a hearing. Dallas Blue Haven Pools, Inc. v. Taslimi, 180 Ga. App. 734, 350 S.E.2d 265 (1986), aff'd, 256 Ga. 739, 354 S.E.2d 160 (1987).

When timely response to motion filed, oral argument erroneously denied.

- Because the responding party timely responded to a summary judgment motion, pursuant to Ga. Unif. Super. Ct. R. 6.3, the trial court erred in denying that party oral argument on that motion and in granting summary judgment to the movant. Green v. Raw Deal, Inc., 290 Ga. App. 464, 659 S.E.2d 856 (2008).

Impact of failure to respond.

- When a party fails to respond to a motion for summary judgment the party only waives the right to present evidence in opposition to the motion. Holladay v. Cumming Family Medicine, Inc., 348 Ga. App. 354, 823 S.E.2d 45 (2019).

Failure to respond did not waive right to oral argument.

- Grant of summary judgment to the plaintiff was vacated and the case was remanded to the trial court for oral argument on the motion for summary judgment because the defendant's failure to respond to the motion did not waive the right to present oral argument on the motion. Holladay v. Cumming Family Medicine, Inc., 348 Ga. App. 354, 823 S.E.2d 45 (2019).

Entry of order prior to expiration of 30 day period.

- Unless the record unequivocally demonstrates that the nonmovant's defenses to the motion are wholly meritless and frivolous or the nonmovant fails to raise the procedural defect at the hearing, the trial court's entry of an order on the motion prior to the expiration of 30 days from its service is reversible error, even though the trial court may ultimately determine on a renewed motion that the movant is entitled to summary judgment. Dixon v. Midland Ins. Co., 168 Ga. App. 319, 309 S.E.2d 147 (1983); U.S. Traffic Corp. v. Turcotte, 246 Ga. App. 187, 539 S.E.2d 884 (2000).

Trial court's error in initially ruling upon a motion for summary judgment before expiration of the 30-day response period was not prejudicial since the court reaffirmed the court's grant of summary judgment after the expiration of the 30-day period during which time no response was made. Segrest v. Intown Value Hdwe., Inc., 190 Ga. App. 588, 379 S.E.2d 615 (1989).

Trial court's error in granting the defendants' summary judgment motion prior to the end of the 30-day response period did not require reversal and remand when the plaintiff's action was barred by the exclusive remedy provision of the Workers' Compensation Act, O.C.G.A. Ch. 9, T. 34. Larraga v. Aetna Cas. & Sur. Co., 222 Ga. App. 654, 475 S.E.2d 649 (1996).

Entry of judgment for both movant and nonmovant plaintiffs permitted when defendant has notice of issues.

- It is proper to enter summary judgment in favor of nonmovant party plaintiff as well as for movant party plaintiff, absent written notice or waiver thereof if issues are the same as those involved in the movant's motion of which the opposite parties have notice. Cruce v. Randall, 245 Ga. 669, 266 S.E.2d 486 (1980).

Continuance or refusal to allow filing when opposing affidavits not served prior to hearing.

- There may be situations when failure to serve opposing affidavits prior to the day of hearing will result in the trial court refusing with propriety to allow the affidavits to be filed, or situations when the court may allow the affidavits to be filed but grant a motion for continuance. Simmons v. State Farm Mut. Auto. Ins. Co., 111 Ga. App. 738, 143 S.E.2d 55 (1965);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Conversion of Other Motions to Motions for Summary Judgment

Conversion of motion to dismiss.

- Party is entitled to notice of conversion of motion to dismiss into a motion for summary judgment as well as 30 days to respond to such motion. Riverhill Community Ass'n v. Cobb County Bd. of Comm'rs, 236 Ga. 856, 226 S.E.2d 54 (1976).

When on a hearing on a motion to dismiss a complaint because of failure to state a claim, evidence is introduced and admitted by the court, the motion to dismiss is converted to one for summary judgment, and the opposing party must be given 30 days notice of the motion. Jaynes v. Douglas, 147 Ga. App. 678, 250 S.E.2d 14 (1978).

Upon the trial court's conversion of a motion to dismiss to one for summary judgment, being the first notice to the plaintiffs in the record that the motion was one for summary judgment, the plaintiffs were then entitled to 30 days to respond to the motion as converted before a ruling was made on the motion, and the entry of the trial court's order on the summary judgment motion without allowing the plaintiffs 30 days to respond was error. Hart v. Sullivan, 197 Ga. App. 759, 399 S.E.2d 523 (1990).

Attachment of an affidavit to a motion to dismiss does not constitute notice that the motion will be converted to a motion for summary judgment. Until the trial court decides whether to consider or exclude matters outside the pleadings, the mere attachment of an affidavit to a motion to dismiss should not be construed to constitute notice of the conversion of that motion to dismiss into a summary judgment motion. Hart v. Sullivan, 197 Ga. App. 759, 399 S.E.2d 523 (1990).

Trial court's order denying dismissal of a fraud claim in a medical malpractice action against a doctor, upon a motion which the trial court treated as one for summary judgment when the court considered material beyond the pleadings, was reversed as there was no evidence that the doctor knew or even suspected that the patient had a pancreatic tumor, or that the doctor withheld information regarding the tumor; thus, the doctrine of equitable estoppel did not apply and the fraud claim was barred by the statute of repose, O.C.G.A. § 9-3-71(b). Balotin v. Simpson, 286 Ga. App. 772, 650 S.E.2d 253 (2007), cert. denied, 2007 Ga. LEXIS 803 (Ga. 2007).

When a party did not object in the trial court to the conversion of a motion to dismiss for failure to state a claim into one for summary judgment, and the party did not challenge or address the conversion on appeal, any objection to the conversion was waived. Action Concrete v. Portrait Homes - Little Suwanee Point, LLC, 285 Ga. App. 650, 647 S.E.2d 353 (2007).

When motions to dismiss asserted, among other things, that the complaint failed to state a claim and the trial court considered material beyond the pleadings in ruling on the motions to dismiss, those motions were required to be treated as motions for summary judgment, and the losing party maintained the right to a direct appeal from an order granting partial summary judgment. City of Demorest v. Town of Mt. Airy, 282 Ga. 653, 653 S.E.2d 43 (2007).

Trial court erred in failing to grant a client's request for a hearing on a former attorney's motion to dismiss claims for legal malpractice and intentional infliction of emotional distress because the trial court considered matters outside the pleadings. Under O.C.G.A. § 9-11-12(b), the motion was required to be treated as one for summary judgment and disposed of as provided in O.C.G.A. § 9-11-56, and all parties were to be given a reasonable opportunity to present all material made pertinent to such a motion. Fitzpatrick v. Harrison, 300 Ga. App. 672, 686 S.E.2d 322 (2009).

Conversion of motion for judgment on pleadings.

- When there is only a motion for judgment on the pleadings under consideration, which motion is converted into a motion for summary judgment by the presentation of matters outside the pleadings not excluded by the court, the trial judge must give reasonable opportunity to the opposing party to present all material pertinent to such motion; however, when a motion filed and heard is for summary judgment as well as judgment on the pleadings, and a motion for summary judgment is the only motion ruled upon, there is no requirement that the trial court offer the opposing party a reasonable opportunity to secure evidence or materials as the opposing party has already had notice that such would be required. Hanson v. Byers, 120 Ga. App. 298, 170 S.E.2d 315 (1969).

Personal guarantor did not show that the guarantor was harmed by a trial court's converting a bank's motion for judgment on the pleadings to a motion for summary judgment because the guarantor did not show that given additional time the guarantor would have filed additional affidavits or other supporting documentation in response to the motion for summary judgment. Brooks v. Multibank 2009-1 RES-ADC Venture, LLC, 317 Ga. App. 264, 730 S.E.2d 509 (2012).

Conversion of interlocutory injunction application.

- Trial court has the authority to convert an application for interlocutory injunction into a motion for summary judgment. However, the court cannot do so without compliance with the provisions of subsection (c) of O.C.G.A. § 9-11-56. Charming Shoppes, Inc. v. Black, 252 Ga. 207, 312 S.E.2d 604 (1984); Electronic Data Sys. Corp. v. Heinemann, 217 Ga. App. 816, 459 S.E.2d 457 (1995).

Motion at hearing for temporary relief.

- Motion for summary judgment can be made orally at hearing for temporary relief. Royston v. Royston, 236 Ga. 648, 225 S.E.2d 41 (1976).

Hearing on interlocutory injunction held not one for summary judgment.

- When no motion to dismiss the complaint or other motions or responsive pleadings are made until after the plaintiffs have presented evidence at a hearing on an application for interlocutory injunction, the hearing cannot properly be considered as a hearing on a motion for summary judgment. McGregor v. Town of Fort Oglethorpe, 236 Ga. 711, 225 S.E.2d 238 (1976).

Summary judgment for nonjoinder of indispensable party improper at hearing adjudicating indispensability.

- It is not proper for the trial court to grant summary judgment against the plaintiff for failure to have an indispensable party joined in the same order in which the trial court adjudicates that individual to be indispensable. Frady v. Irvin, 245 Ga. 307, 264 S.E.2d 866 (1980).

Time for trial on permanent child custody.

- After time for filing defensive pleadings expires, it is not error for permanent child custody hearing to be set by rule nisi less than 30 days hence, as time for trial is set by Ga. L. 1976, p. 1677, § 1 (see now O.C.G.A. § 9-11-40(a)), not subsection (c) of Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56). Brand v. Brand, 244 Ga. App. 124, 259 S.E.2d 133 (1979).

Construction with Notice and Hearing Provisions of Superior Court Rules

Sufficiency of service under Superior Court Rule 6. - When the plaintiff alleged receiving no prior notice of the date of a ruling on motions for summary judgment, it was held that under Superior Court Rule 6, service of a motion on an opposing party serves as notice to that party that the court will take the matter under advisement after 30 days (the time during which the opposing party may file a response to the motion) after service of the motion has passed. Jacobsen v. Muller, 181 Ga. App. 382, 352 S.E.2d 604 (1986).

Superior Court Rule 6.2. - Superior Court Rule 6.2, which requires a party who opposes a motion to file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion unless otherwise ordered by the trial judge, does not conflict with O.C.G.A. § 9-11-56(c), which requires that the motion be served at least 30 days before the time fixed for hearing. Spikes v. Citizens State Bank, 179 Ga. App. 479, 347 S.E.2d 310 (1986).

In the event of a conflict between Uniform State Court Rule 6.2, requiring opposing affidavits to be filed not later than 30 days, and O.C.G.A. § 9-11-56(c), subsection (c) prevails. Walton v. Datry, 185 Ga. App. 88, 363 S.E.2d 295 (1987), cert. denied, 185 Ga. App. 911, 363 S.E.2d 295 (1988).

O.C.G.A. § 9-11-56 permits the respondent to serve opposing affidavits at any time "prior to the date of the hearing" in the event that a hearing is set. To the extent the requirements of Uniform State Court Rule 6.2 conflict with the statutory provision, the rule must yield. Wyse v. Potamkin Chrysler-Plymouth, Inc., 189 Ga. App. 64, 374 S.E.2d 785 (1988).

Superior Court Rule 6.3. - Superior Court Rule 6.3 does not conflict with O.C.G.A. § 9-11-56, since the rule does not require that litigants seek a hearing or waive the hearing, nor does the rule invest the trial court with discretion to deny to parties a right granted by statute. Spikes v. Citizens State Bank, 179 Ga. App. 479, 347 S.E.2d 310 (1986).

Superior Court Rule 6.3 regarding hearings was promulgated by a governmental body (the Supreme Court) pursuant to a constitutional delegation of authority, and the rule has the force and effect emanating from the delegating authority, the Constitution. Hence, even if the rule were contrary to a statute, such as O.C.G.A. § 9-11-56(c), the constitutional rule would control, and permit granting a motion for summary judgment without setting a hearing. Dallas Blue Haven Pools, Inc. v. Taslimi, 180 Ga. App. 734, 350 S.E.2d 265 (1986), aff'd, 256 Ga. 739, 354 S.E.2d 160 (1987).

Rule 6.3 of the Uniform Superior Court Rules is not inconsistent with subsection (c) of O.C.G.A. § 9-11-56, and it was not error for the trial court to arrive at the court's decision in accordance with Rule 6.3, Uniform Superior Court Rules, without an oral argument hearing, when neither party requested such a hearing. Dallas Blue Haven Pools, Inc. v. Taslimi, 180 Ga. App. 734, 350 S.E.2d 265 (1986), aff'd, 256 Ga. 739, 354 S.E.2d 160 (1987).

Hearing not required in absence of request by either rule or statute.

- Neither O.C.G.A. § 9-11-56(c) nor Ga. Unif. Super. Ct. R. 6.3 required that the trial court hold an oral hearing on a trustee's motion for summary judgment in the trustee's action against an executor for breach of fiduciary duty because no party requested a hearing as set forth in Rule 6.3. Royal v. Blackwell, 289 Ga. 473, 712 S.E.2d 815 (2011).

Service and Filing of Affidavits

Purpose of subsection (c) to prevent surprise.

- Purpose of subsection (c) of this section is to prevent a party from being surprised on the day of the hearing by an affidavit that the party would not be in a position to answer. Vann v. Bice, 127 Ga. App. 579, 194 S.E.2d 259 (1972).

Subsection (c) and

§ 9-11-6(d) to be read together to permit variance in time for service of opposing motions. - Subsection (c) of Ga. L. 1967, p. 226, § 25 (see now O.C.G.A. § 9-11-56) and Ga. L. 1967, p. 226, §§ 5 and 6 (see now O.C.G.A. § 9-11-6(d)) should be read together so as to vest in the court discretion to permit opposing affidavits to a motion for summary judgment to be served at some other time than provided in Ga. L. 1967, p. 226, § 25. Sasser & Co. v. Griffin, 133 Ga. App. 83, 210 S.E.2d 34 (1974).

Subsection (e) and

§ 9-11-6(d) to be read together in determining time requirements. - In determining whether affidavits in support of a motion for summary judgment are properly before the court, Ga. L. 1967, p. 226, §§ 5 and 6 (see now O.C.G.A. § 9-11-6(d)), relating to time for motions and affidavits, and subsection (e) of Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56) must be read together. Jones v. Howard, 153 Ga. App. 137, 264 S.E.2d 587 (1980); Bailey v. Dunn, 158 Ga. App. 347, 280 S.E.2d 388 (1981); Citizens & S. Nat'l Bank v. Dorsey, 159 Ga. App. 784, 285 S.E.2d 242 (1981); McIntosh v. McLendon, 162 Ga. App. 220, 290 S.E.2d 157 (1982).

Under prevailing authority, subsection (e) of Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56) and Ga. L. 1967, p. 226, §§ 5 and 6 (see now O.C.G.A. § 9-11-6(d)) require affidavits in support of a motion for summary judgment to be served with the motion, unless the movant seeks and obtains an extension from the court pursuant to Ga. L. 1967, p. 226, §§ 5 and 6 (see now O.C.G.A. § 9-11-6(d)), and any such extension of time within which to file supporting affidavits should also ensure that the party opposing the motion will have 30 days within which to respond. Jones v. Howard, 153 Ga. App. 137, 264 S.E.2d 587 (1980).

When the supporting affidavit of a party moving for summary judgment was filed less than 30 days before the originally scheduled hearing date of June 19, but the affidavit had been on file for more than 30 days when the actual hearing was held because the trial court had continued the hearing until July 13, the trial court did not abuse the court's discretion when the court granted the summary judgment motion. Smith v. Shaw, 196 Ga. App. 2, 395 S.E.2d 286 (1990).

Supplemental affidavit was not filed 30 days before the time fixed for the hearing and therefore was not properly considered by the trial court. Brandon v. Mayfield, 215 Ga. App. 735, 452 S.E.2d 181 (1994).

Affidavits are required to be filed prior to the hearing. Rose v. Rollins, 167 Ga. App. 469, 306 S.E.2d 724 (1983).

Filing of response.

- When a hearing on the plaintiff's motion for summary judgment and the time for response was continued by agreement to the date of the hearing, and the defendant's response was filed on that date, the filing was timely. Liberty Forest Prods., Inc. v. Interstate Paper Corp., 138 Ga. App. 153, 225 S.E.2d 731 (1976).

Response to a motion for summary judgment is timely filed if filed on the date of the hearing, notwithstanding the language in Ga. L. 1967, p. 226, § 4 (see now O.C.G.A. § 9-11-5(d)) requiring all papers after the complaint to be filed within the time allowed for service. Gross v. Pyrofax Gas Corp., 151 Ga. App. 130, 259 S.E.2d 137 (1979).

Response to a motion for summary judgment is timely filed if filed on the date of hearing, notwithstanding the language in O.C.G.A. § 9-11-6(d) requiring all papers after the complaint to be filed within the time allowed for service. Martin v. Newman, 162 Ga. App. 725, 293 S.E.2d 18 (1982).

Failure to file responsive pleading.

- Plaintiff 's failure to file a responsive pleading to the defendant's motion to dismiss, which was properly treated as a motion for summary judgment, constituted non-compliance with the provision governing affidavits supporting and opposing summary judgment and, thus, the defendant was entitled to an award of summary judgment. Gaddy v. Thomasson, 172 Ga. App. 876, 324 S.E.2d 817 (1984).

Opposing affidavits.

- Party opposing motion for summary judgment has until the day prior to hearing to serve opposing affidavits, unless the trial court in the court's discretion permits the affidavits to be served at a later date, and service by mail is complete upon mailing. Gross v. Pyrofax Gas Corp., 151 Ga. App. 130, 259 S.E.2d 137 (1979).

Adverse party may serve opposing affidavit prior to the day of the hearing on a motion for summary judgment. Bailey v. Dunn, 158 Ga. App. 347, 280 S.E.2d 388 (1981).

Affidavit made in opposition to a motion for summary judgment should be served on the opposite party at least one day prior to hearing the motion; however, the court has discretion to consider affidavits not so filed and the court's ruling on this issue will not be reversed unless there is an abuse of discretion. Liberty Nat'l Life Ins. Co. v. Houk, 157 Ga. App. 540, 278 S.E.2d 120, aff 'd, 248 Ga. 111, 281 S.E.2d 583 (1981).

Affidavit made in opposition to a motion for summary judgment not served at least one day before the hearing is barred from consideration as evidence unless the record discloses the trial court, in the exercise of the court's discretion, has allowed the affidavit to be served and considered. Talley v. City Tank Corp., 158 Ga. App. 130, 279 S.E.2d 264 (1981); Dutton v. Dykes, 159 Ga. App. 48, 283 S.E.2d 28 (1981).

When a party opposing summary judgment filed an affidavit and served the affidavit by mail the same day, one day before the summary judgment hearing as required by O.C.G.A. § 9-11-56(c), the affidavit was not untimely; under O.C.G.A. § 9-11-5(b), service by mail was complete upon mailing. Kirkland v. Kirkland, 285 Ga. App. 238, 645 S.E.2d 626 (2007), cert. denied, 2007 Ga. LEXIS 646 (Ga. 2007); 552 U.S. 1312, 128 S. Ct. 1898, 170 L. Ed. 2d 749 (2008).

Affidavits supplied before court's decision considered.

- Since the trial court made no decision at the summary judgment hearing but took the matter under advisement, and it is undisputed that the defendant supplied the supporting affidavits before the trial court's decision on the matter, the trial court was authorized to consider the evidence submitted by the defendant. Howell Mill/Collier Assocs. v. Gonzales, 186 Ga. App. 909, 368 S.E.2d 831 (1988).

Failure to exercise reasonable diligence or greatest possible diligence in attempting service of process.

- Because the evidence presented before the trial court failed to show that an injured passenger exercised either reasonable diligence or the greatest possible diligence in attempting service of process on an opposing driver, but instead showed that: (1) numerous attempts at service were unsuccessful; (2) the passenger filed the complaint eight days before the expiration of the limitation period, and service was not perfected until 16 months after the statute ran; (3) long lapses in time existed between failed attempts when apparently no actions were taken to effectuate service; and (4) the driver continued to reside in the same small community during the 16 months that it took to ultimately perfect service, the trial court did not err in granting summary judgment to the driver. Moore v. Wilkerson, 283 Ga. App. 340, 641 S.E.2d 578 (2007).

Late filed affidavit.

- Trial court did not abuse the court's discretion in considering an affidavit that was submitted after the trial court conducted a hearing on the plaintiff's motion for summary judgment and was not on file for at least 30 days before the trial court issued the court's order on the motion since defendants were put on notice by the trial court's letter requesting the information that the evidence contained in the affidavit would be filed with the court. Moreover, before the trial court issued the court's decision, defendants filed a response to the plaintiff's "renewed" motion containing nothing to counter the affidavit. NeSmith v. Ellerbee, 203 Ga. App. 65, 416 S.E.2d 364 (1992).

Trial court's "failure to rule" on a motion to consider additional evidence in opposition to a grant of summary judgment is not error when the affidavits to be filed would be untimely. Splish Splash Waterslides, Inc. v. Cherokee Ins. Co., 167 Ga. App. 589, 307 S.E.2d 107 (1983).

Even though O.C.G.A. § 9-11-6(d) and subsection (c) of O.C.G.A. § 9-11-56 require an opposing affidavit to be served at least one day prior to the summary judgment hearing, the trial court is vested with discretion to consider affidavits not so served. Liberty Nat'l Life Ins. Co. v. Houk, 248 Ga. 111, 281 S.E.2d 583 (1981).

Trial court does not err in considering the plaintiff 's supplemental affidavits even though the affidavits are served upon the defendant only a few days before the hearing when the affidavits either contain nothing that was not already admitted by the defendant by the defendant's failure to respond to the plaintiff 's request for admissions, or the affidavits merely document the time spent on the case by the plaintiff 's attorney in support of a prayer for attorney fees in addition to damages. Concert Promotions, Inc. v. Haas & Dodd, Inc., 167 Ga. App. 883, 307 S.E.2d 763 (1983).

When the plaintiff filed an affidavit in opposition to the defendant's motion for summary judgment, but the affidavit was filed after the entry of the order granting summary judgment to the defendant, since the plaintiff's affidavit was not timely under subsection (c) of O.C.G.A. § 9-11-56, the plaintiff's affidavit was not effective to contradict the averments in the defendant's affidavit. Myers v. Barnard, 180 Ga. App. 192, 348 S.E.2d 733 (1986).

Consideration of untimely filed material will not warrant reversal of the court's ruling on a motion for summary judgment if the record demonstrates either that the material was harmless or that the respondent acquiesced in the court's consideration of the motion. Connell v. Houser, 189 Ga. App. 158, 375 S.E.2d 136 (1988).

Opposing affidavit which was not filed until the day of the hearing was untimely, and the trial court did not err by refusing to consider the affidavit. Valhalla, Inc. v. O'Donnell, 199 Ga. App. 679, 405 S.E.2d 895 (1991).

On a lessor's motion for summary judgment on a lease and guaranty, because neither party requested a hearing on the lessor's motion and no hearing was held, the 30-day period for filing the lessor's counsel's affidavit in O.C.G.A. § 9-11-56(c) did not apply. The requirement in O.C.G.A. § 9-11-6(d) that the affidavit be served with the motion was to ensure adequate notice; in this case, the affidavit was filed eight months prior to the trial court's decision. Triple T-Bar, LLC v. DDR Southeast Springfield, LLC, 330 Ga. App. 847, 769 S.E.2d 586 (2015).

Objection at hearing rather than by motion.

- When an affidavit made in support of a summary judgment motion is not served with the motion, the burden is on the movant, not the opposing party, to invoke the trial court's discretion with regard to the late filing, and objection by the opposing party at hearing instead of by motion is not a waiver of that objection. Jones v. Howard, 153 Ga. App. 137, 264 S.E.2d 587 (1980).

Trial court may deny verbal motion made on date of hearing to use certain depositions taken in another court. Knight v. Bryant-Durham Elec. Co., 169 Ga. App. 502, 313 S.E.2d 758 (1984).

Waiver of requirement of timely filing.

- Affidavit relied on in support of a motion for summary judgment must be on file for at least 30 days prior to the hearing. This strict requirement may be waived by the opposing party's acquiescence in the use of the untimely materials, or if the movant seeks and obtains an order from the trial court under O.C.G.A. § 9-11-6(b) extending the time for filing. Gunter v. Hamilton Bank, 201 Ga. App. 379, 411 S.E.2d 115 (1991).

Error in untimely affidavit waived by failure to object.

- Any error arising from a failure to timely file an affidavit in support of a motion for summary judgment is waived by the adverse party's failure to object to the filing of the affidavit in question in the trial court. Southeastern Hose, Inc. v. Prudential Ins. Co. of Am., 167 Ga. App. 356, 306 S.E.2d 308 (1983).

Objection to the timeliness of an affidavit submitted in response to a motion for summary judgment will be deemed waived unless the objective is itself timely raised in the trial court. Pruitt v. Tyler, 181 Ga. App. 174, 351 S.E.2d 539 (1986).

Interest of justice.

- Affidavit made in opposition to a motion for summary judgment may be admitted without objection, the time of service may be waived, or the court may for some other reason find it in the interest of justice to consider the evidence. Liberty Nat'l Life Ins. Co. v. Houk, 157 Ga. App. 540, 278 S.E.2d 120, aff 'd, 248 Ga. 111, 281 S.E.2d 583 (1981).

Procedure When Affidavits Unavailable

Purpose of subsection (f).

- Subsection (f ) of this section should be used to protect the opposite party when a necessary motion for continuance is made on the ground of surprise. Kiker v. Pinson, 120 Ga. App. 784, 172 S.E.2d 333 (1969).

Discretion as to continuances.

- Grant or denial of a continuance is within the discretion of the trial judge, and unless clearly abused will not be interfered with. Calcutta Apts. Assocs. v. Linden & Deutsch, 131 Ga. App. 743, 206 S.E.2d 559 (1974); Patterson v. Lanham, 182 Ga. App. 343, 355 S.E.2d 738, cert. denied, 484 U.S. 913, 108 S. Ct. 260, 98 L. Ed. 2d 218 (1987).

Continuances on motion for summary judgment are within the sound discretion of the trial court. Cole v. Jordan, 158 Ga. App. 200, 279 S.E.2d 497 (1981).

Express ruling on motion for continuance is preferred.

- Better practice is for the trial court to address a motion for continuance under O.C.G.A. § 9-11-56(f) by issuing an express ruling thereon; such a ruling, of course, can be issued as part of the court's ruling on the summary judgment motion. A ruling on a pending § 9-11-56(f) motion would be especially well advised when a motion to compel discovery is also pending. Jaraysi v. City of Marietta, 294 Ga. App. 6, 668 S.E.2d 446 (2008).

Mere possibility that some new facts may turn up is not enough to require postponement. Herring v. R.L. Mathis Certified Dairy Co., 121 Ga. App. 373, 173 S.E.2d 716, appeal dismissed, 400 U.S. 922, 91 S. Ct. 192, 27 L. Ed. 2d 183 (1970).

Affidavit as to professional malpractice.

- When the plaintiff in a medical malpractice action is unable to present an affidavit of an expert witness on a motion for summary judgment, subsection (f) of this section authorizes the plaintiff to execute an affidavit to this effect and the court may, among other things, order a continuance to permit affidavits to be obtained. Larson v. Friedman & Snyder, 154 Ga. App. 702, 269 S.E.2d 532 (1980).

Affidavit as to professional malpractice.

- Mandatory direction of O.C.G.A. § 9-11-9.1 that a plaintiff alleging professional malpractice "shall be required to file with the complaint" a specific expert affidavit necessarily preempts and supersedes the judicially-created rule that no plaintiff's expert affidavit might be required in cases of malfeasance so "clear and palpable" as to be reasonably ascertained by the jury without expert evidence. Barr v. Johnson, 189 Ga. App. 136, 375 S.E.2d 51, cert. denied, 189 Ga. App. 911, 375 S.E.2d 51 (1988).

Denial of continuance for lack of diligence.

- When the record is devoid of any discovery, requests for admissions, or notices to take depositions addressed to the party moving for summary judgment, during the period between the time the opposing party made a request for continuance pursuant to subsection (f) of this section and the time motions for summary judgment were argued at a hearing over two months later, the trial court properly entertained arguments for summary judgment in spite of a motion for continuance. Shmunes v. GMC, 146 Ga. App. 486, 246 S.E.2d 486 (1978).

It was not error to deny a continuance solely on the hope that an amnesia victim's memory might improve to the point that the victim could remember the events at the time of the collision since the victim offered no medical or other expert evidence that this was likely to occur. Gray v. Gober, 185 Ga. App. 624, 365 S.E.2d 279 (1988).

Trial court properly denied the defendants' motion for a continuance pursuant to O.C.G.A. § 9-11-56(f) in a breach of a lease agreement, as the dispute involved written leases and assignments which were not alleged to be ambiguous, and it was unclear what possible evidence employees of the successor in interest to the original lessor could provide to affect the intent of the documents. Gilco Invs., Inc. v. Stafford Cordele, LLC, 267 Ga. App. 167, 598 S.E.2d 889 (2004).

Trial court's grant of summary judgment to a supplier on the supplier's complaint for money due under an agreement and on account was affirmed; a defendant's affidavit pursuant to the O.C.G.A. § 9-11-56(f ) continuance motion failed to specify any information that the defendant could possibly obtain to dispute the debt owed to the supplier and, thus, the trial court did not abuse the court's discretion when the court denied the motion for a continuance. Wilson v. Edward Don & Co., 275 Ga. App. 787, 622 S.E.2d 18 (2005).

Affidavits Made in Bad Faith

Subsection (g) of O.C.G.A. § 9-11-56 only applies when a party to a lawsuit files a motion for summary judgment and it becomes apparent that the motion was filed in bad faith or solely for the purpose of delay. Ravenwood Church v. Starbright, Inc., 168 Ga. App. 870, 310 S.E.2d 582 (1983).

Subsection (g) of O.C.G.A. § 9-11-56 was violated when the affidavit contained statements known to be false and statements based on other than personal knowledge. Malloy v. Cauley, 169 Ga. App. 623, 314 S.E.2d 464 (1984).

Function of Trial Court

Court not to sit as judge and jury.

- In no sense does this section authorize the court to sit as both judge and jury. Watkins v. Nationwide Mut. Fire Ins. Co., 113 Ga. App. 801, 149 S.E.2d 749 (1966); Kohlmeyer & Co. v. Bowan, 130 Ga. App. 386, 203 S.E.2d 630 (1973)(decided under former Ga. L. 1959, p. 234, § 1 et seq.); Black v. Hamilton, 133 Ga. App. 881, 212 S.E.2d 449 (1975); Peachtree Bottle Shop, Inc. v. Bessemer Sec. Corp., 134 Ga. App. 729, 215 S.E.2d 692 (1975); Fountain v. World Fin. Corp., 144 Ga. App. 10, 240 S.E.2d 558 (1977);.

Court will not resolve questions for jury.

- Law relating to summary judgment does not purport to confer upon judges any greater authority to decide issues of fact normally reserved for decision by a jury than the judges possessed before the law's enactment. Yeager v. Jacobs, 111 Ga. App. 358, 141 S.E.2d 837 (1965);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Questions as to diligence and negligence, including contributory negligence, are questions peculiarly for the jury, and the court will decline to resolve the questions except in plain and indisputable cases. Haire v. City of Macon, 200 Ga. App. 744, 409 S.E.2d 670, cert. denied, 200 Ga. App. 896, 409 S.E.2d 670 (1991).

Function in ruling on motions for summary judgment and directed verdict analogous.

- Trial court's function in ruling on a motion for summary judgment is analogous to the function the court performs when ruling on a motion for directed verdict. McCarty v. National Life & Accident Ins. Co., 107 Ga. App. 178, 129 S.E.2d 408 (1962); Standard Accident Ins. Co. v. Ingalls Iron Works Co., 109 Ga. App. 574, 136 S.E.2d 505 (1964); Chandler v. Gately, 119 Ga. App. 513, 167 S.E.2d 697 (1969); W.J. Bremer, Inc. v. United Bonding Ins. Co., 122 Ga. App. 183, 176 S.E.2d 633 (1970);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Court only to determine if issues of fact exist.

- Cardinal rule of summary judgment procedure is that the court may not resolve facts nor reconcile issues, but may only look to ascertain if there is an issue. Suggs v. Brotherhood of Locomotive Firemen, 104 Ga. App. 219, 121 S.E.2d 661 (1961); Benefield v. Malone, 110 Ga. App. 607, 139 S.E.2d 500 (1964)(decided under former Ga. L. 1959, p. 234, § 1 et seq.), overruled on other grounds, Fountain v. World Fin. Corp., 144 Ga. App. 10, 240 S.E.2d 558 (1977); Woodstock Rd. Inv. Properties v. Lacy, 149 Ga. App. 593, 254 S.E.2d 910 (1979); Scroggins v. Whitfield Fin. Co., 152 Ga. App. 8, 262 S.E.2d 168 (1979); Aiken v. Drexler Shower Door Co., 155 Ga. App. 436, 270 S.E.2d 831 (1980); Jonesboro Tool & Die Corp. v. Georgia Power Co., 158 Ga. App. 755, 282 S.E.2d 211 (1981); Foskey v. Smith, 159 Ga. App. 163, 283 S.E.2d 33 (1981);.

On summary judgment, the court is concerned only with whether there is a genuine issue of fact for determination, and not with the difficulty a party opposing the motion may have in proving the party's case. Rigby v. Powell, 233 Ga. 158, 210 S.E.2d 696 (1974).

Only authorized function of court is to determine existence of genuine issue of fact.

- On motion for summary judgment, court is not authorized to try and resolve issues of fact; function of the court, and the court's only authorized function under this procedure, is to determine existence of a genuine issue of material fact. Watkins v. Nationwide Mut. Fire Ins. Co., 113 Ga. App. 801, 149 S.E.2d 749 (1966); Kohlmeyer & Co. v. Bowan, 130 Ga. App. 386, 203 S.E.2d 630 (1973)(decided under former Ga. L. 1959, p. 234, § 1 et seq.); Black v. Hamilton, 133 Ga. App. 881, 212 S.E.2d 449 (1975); Peachtree Bottle Shop, Inc. v. Bessemer Sec. Corp., 134 Ga. App. 729, 215 S.E.2d 692 (1975); Fountain v. World Fin. Corp., 144 Ga. App. 10, 240 S.E.2d 558 (1977); Porter v. Moschella, 152 Ga. App. 678, 263 S.E.2d 538 (1979);.

In ruling on a motion for summary judgment, the court does not try the case but merely determines from the record whether there are any genuine issues of fact. Flanders v. Columbia Nitrogen Corp., 135 Ga. App. 21, 217 S.E.2d 363 (1975).

In ruling on a motion for summary judgment, a trial court is not empowered to resolve disputed issues of material fact but merely to determine if such issues exist for resolution. Colquitt County Hosp. Auth. v. Health Star, Inc., 262 Ga. 285, 417 S.E.2d 147 (1992).

Credibility of affidavits.

- On motion for summary judgment, court is not concerned with the credibility of affidavits, only with whether the affidavits show the existence of a genuine issue of fact. Ussery v. Koch, 115 Ga. App. 463, 154 S.E.2d 879 (1967); Mullis v. Merit Fin. Co., 116 Ga. App. 582, 158 S.E.2d 415 (1967).

Court cannot weigh evidence or determine credibility.

- On summary judgment proceedings, the court is not in a position to weigh the evidence or determine the evidence's credibility. When the facts alleged in the affidavits clearly create a conflict in the evidence as to a material issue, summary judgment is precluded. HOH Co. v. Ethridge, 168 Ga. App. 20, 308 S.E.2d 43 (1983).

It is within the discretion of the trial judge to consider a renewed motion for summary judgment even without an expansion of the record. Premium Distrib. Co. v. National Distrib. Co., 157 Ga. App. 666, 278 S.E.2d 468 (1981).

Findings and conclusions not required.

- Trial court is not required to enter findings of fact and conclusions of law in ruling on a motion for summary judgment. Nelson v. Mexicana de Jugo y Sabores, 139 Ga. App. 612, 229 S.E.2d 102 (1976); Healthdyne, Inc. v. Henry, 144 Ga. App. 52, 240 S.E.2d 259 (1977); Victor v. First Trust & Deposit Co., 154 Ga. App. 97, 267 S.E.2d 639 (1980); Thomas v. DeKalb County, 227 Ga. App. 186, 489 S.E.2d 58 (1997).

Fact that the trial court's order granting the defendant's motion for summary judgment does not affirmatively indicate that the court considered the record is not cause for reversal, nor is it necessary to include findings of fact and conclusions of law on decisions on motions for summary judgment. Fudge v. Colonial Baking Co., 186 Ga. App. 582, 367 S.E.2d 814 (1988).

An entry of findings of fact and conclusions of law was not necessary in a case where the trial court granted summary judgment to the defendants on all five of the plaintiff's tortious claims against the defendants, even though one of the defendants filed a counterclaim upon which the trial court did not rule; furthermore, the plaintiff made no showing that it was practical for the trial court to do so. Kuruvila v. Mulcahy, 264 Ga. App. 626, 591 S.E.2d 491 (2003).

No error in entering findings of fact.

- Mere entry of findings of fact and conclusions of law in ruling on a motion for summary judgment does not constitute error per se. In certain cases when the trial court makes findings of fact and conclusions of law in ruling on motions for summary judgment, it can be helpful to the appellate courts and instructive to the parties. Harrell v. Louis Smith Mem. Hosp., 197 Ga. App. 189, 397 S.E.2d 746 (1990).

Presumption that court performs duty.

- It is presumed that the trial judge, as a public official, faithfully and lawfully performed the duties devolving upon the judge by law. Smith v. Jones, 154 Ga. App 629, 269 S.E.2d 471 (1980).

Court may decide issue of fraud in undisputed cases.

- Although the question of fraud is ordinarily within the province of the jury, in plain and undisputed cases it is proper that the determination be made by the court. The trial court does not err in such a case in granting a motion for summary judgment upon the issue of fraud. Horton v. Middle Ga. Bank, 191 Ga. App. 51, 380 S.E.2d 749 (1989).

Appealability and Finality

1. In General

Subsection (h) is peculiar to this state and does not appear in the Federal Rules of Civil Procedure. Bush v. City of Albany, 125 Ga. App. 558, 188 S.E.2d 245 (1972).

O.C.G.A. § 9-11-56(h) must be read in conjunction with O.C.G.A. §§ 5-6-34 and 5-6-35 regarding the procedure for appeal to this court. Jarrett v. Ford Motor Credit Co., 178 Ga. App. 600, 344 S.E.2d 440 (1986).

Defendant's direct appeal from a trial court's grant of partial summary judgment in favor of the plaintiff was dismissed for lack of jurisdiction because an application to appeal under O.C.G.A. § 5-6-35(a) was required but not submitted and O.C.G.A. § 9-11-56(h) did not provide for direct appeals from all grants of summary judgment, but had to be read in conjunction with O.C.G.A. §§ 5-6-34 and5-6-35. Bullock v. Sand, 260 Ga. App. 874, 581 S.E.2d 333 (2003).

Exception to finality rule.

- O.C.G.A. § 9-11-56(h) is an exception to the finality rule which is for the benefit of the losing party, and when the losing party appeals after the rendition of the final judgment, the grant of summary judgment is still subject to appellate review. Although a trial court properly dismissed a mechanic's negligence claim, the mechanic's fraud claim, the mechanic's reduction in force claim, and certain of the mechanic's wage claims as time barred, since each paycheck which failed to pay all wages due was a new violation, the trial court erred in dismissing the balance of the mechanic's wage claims. Willis v. City of Atlanta, 265 Ga. App. 640, 595 S.E.2d 339 (2004).

Section controlling in determining appealability.

- Ga. L. 1967, p. 226, § 25 (see now O.C.G.A. § 9-11-56), being the last expression of legislative intent, controls over former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34) as to the appealability or reviewability of a motion for summary judgment. Young v. Reese, 118 Ga. App. 114, 162 S.E.2d 831 (1968).

Right to direct appeal under O.C.G.A. § 9-11-56(h) is for the losing party's benefit and is in addition to the party's right to appeal after the resolution of the entire case. Gresham Park Community Org. v. Howell, 652 F.2d 1227 (5th Cir. 1981).

De novo review.

- Appellate court's review of an appeal from summary judgment is de novo. Mohamud v. Wachovia Corp., 260 Ga. App. 612, 580 S.E.2d 259 (2003).

Partial summary judgment.

- Subsection (h) of O.C.G.A. § 9-11-56 includes an order for partial summary judgment. Crolley v. Haygood Contracting, Inc., 207 Ga. App. 434, 429 S.E.2d 93 (1993).

Subsection (h) inapplicable to motions to set aside and vacate judgments.

- Subsection (h) of Ga. L. 1967, p. 226, § 25 (see now O.C.G.A. § 9-11-56) is not applicable to motions to set aside and vacate judgments authorized by Ga. L. 1967, p. 226, §§ 26, 27 and 30 (see now O.C.G.A. § 9-11-60(d)). Farr v. Farr, 120 Ga. App 762, 172 S.E.2d 158 (1969).

Voluntary dismissal not appealable judgment.

- Plaintiff's own voluntary dismissal with prejudice of counts of the plaintiff's complaint did not constitute a final, appealable judgment for purposes of appellate review of rulings on the partial grant of summary judgment entered by the trial court more than 30 days from the filing of the notice of appeal. Studdard v. Satcher, Chick, Kapfer, Inc., 217 Ga. App. 1, 456 S.E.2d 71 (1995).

In an action on a credit card contract brought by a creditor, the debtor's voluntary dismissal of an appeal from an order granting the creditor summary judgment before the case was ever docketed served to dismiss the debtor's direct appeal, even though the trial court did not enter a formal dismissal order; thus, the appellate court lacked jurisdiction to hear the issue, and a payment of appeal costs became moot. Ghee v. Target Nat'l Bank, 282 Ga. App. 28, 637 S.E.2d 742 (2006), cert. denied, 2007 Ga. LEXIS 62 (Ga. 2007), 552 U.S. 859, 128 S. Ct. 141, 169 L. Ed. 2d 97 (2007).

Question before appellate court.

- In reviewing the grant of a motion for summary judgment, the question before the appellate court is whether allegations of the pleadings have been pierced so that no genuine issue of material fact remains. Duke Enters., Inc. v. Espy, 140 Ga. App. 527, 231 S.E.2d 522 (1976).

On review of summary judgment, the first essential question for determination by the appellate court is whether a genuine issue of material fact exists which should be decided by a jury; if no jury issue is found to exist, the next query is whether the moving party is entitled to judgment as a matter of law after each party has an opportunity to make out their case. Hayes v. Brown, 108 Ga. App. 360, 133 S.E.2d 102 (1963);(decided under former Ga. L. 1959, p. 234, § 1 et seq.)

Power of Court of Appeals to review.

- There are instances when the Georgia Court of Appeals will review a record and determine that a summary judgment ruling was right for a reason other than the one given by the trial court, but it is improper for the Court of Appeals to consider whether the trial court was "wrong for any reason." Earls v. Aneke, 350 Ga. App. 455, 829 S.E.2d 661 (2019).

Entire record reviewed on appeal.

- Appellate court does not err in examining all the material of record to determine if there remain any issues for trial. City of Rome v. Turk, 235 Ga. 223, 219 S.E.2d 97 (1975).

On consideration of summary judgments, the appellate court must look at the entire record. Lawson v. Duke Oil Co., 155 Ga. App. 363, 270 S.E.2d 898 (1980).

Trial court did not err in concluding that the record upon which the summary judgment was based would be necessary for appellate review as the obligation of both the trial court and the appellate court is to consider the entire record when such a motion is ruled on. Sumner v. First Union Nat'l Bank, 200 Ga. App. 729, 409 S.E.2d 212, cert. denied, 200 Ga. App. 897, 409 S.E.2d 212 (1991).

Pleadings considered on appeal.

- On review of grant of summary judgment, reviewing court's consideration of the pleadings, as amended, is required, whether specifically argued or not. Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 195 S.E.2d 277 (1972).

Additional evidence may not be admitted on appeal.

- Appellate courts will only review evidence presented to the trial court before the court's ruling on the motion, and additional evidence will not be admitted on appeal. Meade v. Heimanson, 239 Ga. 177, 236 S.E.2d 357 (1977); Stephens v. Tate, 147 Ga. App. 366, 249 S.E.2d 92 (1978).

Prior objection by nonmoving party not required.

- Issue in an appeal from the grant of summary judgment is whether the movant met the burden established by subsection (c) of O.C.G.A. § 9-11-56 and, in addressing that issue on appeal, the nonmoving party is entitled to advance all arguments without regard to whether the arguments were raised by way of objections below. Dental One Assocs. v. JKR Realty Assocs., 269 Ga. 616, 501 S.E.2d 497 (1998).

Objection to errors not prerequisite to review.

- It is not a prerequisite for the review of enumerated errors that the plaintiff object to or make an issue of these errors at trial below, when the alleged errors are asserted as reasons why the trial court should not have granted the motion for summary judgment. Southern Protective Prods. Co. v. Leasing Int'l, Inc., 134 Ga. App. 945, 216 S.E.2d 725 (1975); Binswanger Glass Co. v. Beers Constr. Co., 141 Ga. App. 715, 234 S.E.2d 363 (1977); Griffin v. Wittfeld, 143 Ga. App. 485, 238 S.E.2d 589 (1977).

Absent particularized enumerations of error only denial of motion as to whole case determined.

- When the appellant fails to enumerate any error on the trial court's omission to make an order specifying whether certain facts appear without substantial controversy, the appellate court can determine only whether the court below erred in denying the summary judgment motion as to the whole case. Ireland v. Matthews, 120 Ga. App. 510, 171 S.E.2d 387 (1969).

When the motion for summary judgment sets out that there is no genuine issue as to any material fact and thus seeks judgment as to the whole case, and enumeration of error likewise is with regard to summary judgment in toto and makes no mention of any partial recovery, the appellate court can determine only whether the trial court erred in denying the motion as to the whole case. Borden, Inc. v. Barker, 124 Ga. App. 291, 183 S.E.2d 597 (1971).

Credibility not considered on appeal.

- On motions for summary judgment, the appellate court cannot consider the credibility of witnesses or their affidavits, and a jury must resolve the question and the conflicts in the evidence which it produces. Miller v. Douglas, 235 Ga. 222, 219 S.E.2d 144 (1975).

Appellate court on review of summary judgment is not concerned with the credibility of affidavits, but only with whether the affidavits show the existence of a genuine issue of fact. Ussery v. Koch, 115 Ga. App. 463, 154 S.E.2d 879 (1967).

Reversal of order overruling summary judgment motion.

- When the trial court overrules a motion for summary judgment, the appellate court will not reverse, unless from the entire record construed against the movant it appears that there is an absence of any genuine issue as to all material facts and that the movant is entitled to judgment as a matter of law. Black v. Hamilton, 133 Ga. App. 881, 212 S.E.2d 449 (1975).

When no ruling invoked, no question for review.

- There was no error in the trial court's failure to allow the plaintiff's expert's affidavit to be supplemented when the plaintiff never made a motion to supplement the affidavit, because when no ruling is invoked in the trial court ordinarily there is no question for review in appellate courts. Crawford v. Phillips, 173 Ga. App. 517, 326 S.E.2d 593 (1985).

Motion for new trial is not proper vehicle to obtain reexamination of the legal conclusions solely involved in a grant of summary judgment. Sands v. Lamar Properties, Inc., 159 Ga. App. 718, 285 S.E.2d 24 (1981).

When trial court has considered depositions, appellate court will not say that the trial court did not do so. Porter Coatings v. Stein Steel & Supply Co., 157 Ga. App. 260, 277 S.E.2d 272, aff'd, 247 Ga. 631, 278 S.E.2d 377 (1981).

Order granting plaintiff's motion for partial summary judgment on the issue of the defendant's liability on an insurance policy was interlocutory, not res judicata as to the issues resolved therein, and subject to revision by the trial court at any time prior to final judgment, as by admitting evidence in support of a defense to liability which in substance vacated or set aside the court's previous order. Glover v. J.C. Penney Cas. Ins. Co., 181 Ga. App. 753, 353 S.E.2d 587 (1987).

Res judicata defense based on prior summary judgment in malpractice case.

- When a prior summary judgment for an attorney in a legal malpractice action was based on a recognition that, regardless of the applicability of any pleading requirements imposed by the subsequently enacted provisions of O.C.G.A. § 9-11-9.1, the client's failure to have complied with the evidentiary requirements of O.C.G.A. § 9-11-56 nevertheless mandated the grant of summary judgment on the merits, the attorney's res judicata defense in a subsequent action was viable and the trial court erred in failing to grant the attorney's motion for summary judgment based upon that viable defense. Robinson v. Starr, 197 Ga. App. 440, 398 S.E.2d 714 (1990).

Evidence sufficient to demand judgment for defendant. See Peppers v. Veres, 168 Ga. App. 367, 309 S.E.2d 388 (1983).

In an action by a physician for termination of the physician's hospital privileges, grant of the physician's motion seeking a determination that the defendants breached the hospital bylaws, which did not include a ruling that the physician was entitled to recover on the physician's claim, was not a grant of summary judgment subject to direct appeal. Saint Francis Hosp. v. Patton, 228 Ga. App. 544, 492 S.E.2d 303 (1997).

Appeal dismissed absent evidence that exception to finality rule applied.

- Because the trial court's order was best viewed as an order dismissing the plaintiffs' complaint for failure to comply with the requirements of O.C.G.A. § 9-11-17, and summary judgment could not properly be granted to a defendant on the basis of a real-party-in-interest objection, absent any evidence that an exception to the final judgment rule applied, the appeal from the trial court's order had to be dismissed. First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883, 655 S.E.2d 605 (2008).

Appeal dismissed as untimely filed.

- Motion to dismiss an appeal on grounds that the appealing party failed to timely appeal an order granting summary judgment pursuant to O.C.G.A. § 5-6-38(a) was granted; moreover, the appeal was not taken from the final judgment entered in the case. Patterson v. Bristol Timber Co., 286 Ga. App. 423, 649 S.E.2d 795 (2007).

Malicious prosecution claim by priest.

- Trial court did not err in granting summary judgment to a property owner on the priest's malicious prosecution claim as probable cause existed to prosecute the priest since a police officer saw the priest violate a restraining order by committing a criminal trespass and by threatening another person; probable cause also existed because the two restraining order violations arose out of the same incident and were reasonably related even though the criminal charge for aggravated stalking arising out of the threat's made to the property owner's employee was later merged into another offense. Holmes v. Achor Ctr., Inc., 260 Ga. App. 882, 581 S.E.2d 390 (2003).

Subcontractor's action.

- Trial court properly granted summary judgment to a property owner after the subcontractor sued the property owner so that the subcontractor could perfect its materialman's lien against the property owner's property as the subcontractor's method of providing notice of the lien to the property owner did not comply with applicable statutory law, O.C.G.A. § 44-14-361.1(a)(2), since that statute expressly allowed the lien notice to be provided to the property owner by registered mail, certified mail, or statutory overnight delivery, and not through the facsimile transmission that the subcontractor used, especially since the facsimile transmission was not the equivalent method of providing notice as those methods set forth in the statute. Phillips, Inc. v. Historic Props. of Am., 260 Ga. App. 886, 581 S.E.2d 389 (2003).

Employment contract.

- Trial court properly granted partial summary judgment pursuant to O.C.G.A. § 9-11-56 to an employer on an employee's action alleging breach of an employment contract, holding that the employee could only recover wages payable up to the time of trial; O.C.G.A. § 10-6-37 provided that in all employment contracts for a definite duration, an employee could sue for the value of the services rendered, or could wait until the expiration of the year and sue for and recover the employee's entire wages, and in this action the employee elected to affirm the contract and bring an immediate suit for damages based upon the company's alleged breach thereof, and under this option, the employee only had the right to prove, and to recover for, all damages which may have accrued up to the date of the trial. Harvey v. J. H. Harvey Co., 276 Ga. 762, 582 S.E.2d 88 (2003).

Tortious interference with inheritance.

- Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56 to the defendants in the plaintiffs' action alleging tortious interference with an inheritance and other claims arising out of transfers of land to defendants as the parties' mother was still alive, and therefore the plaintiffs had no standing to bring such an action, and because the plaintiffs' claims were barred by collateral estoppel; the trial court erred in denying the defendants' summary judgment motion as to claims raised by a guardian because no claims were actually raised by the guardian. Copelan v. Copelan, 261 Ga. App. 726, 583 S.E.2d 562 (2003).

Summary judgment appropriate as county did not waive immunity.

- Trial court properly entered summary judgment for a county as to two injured parties' tort claims as the county's self-insurance plan for certain claims did not constitute a waiver of the county's sovereign immunity because the county did not purchase a motor vehicle liability insurance policy - a requirement under O.C.G.A. § 33-24-51(b); there is no statute which provides that by establishing a self-insurance plan, a county waives sovereign immunity. Smith v. Chatham County, 264 Ga. App. 566, 591 S.E.2d 388 (2003).

2. Grant of Summary Judgment

Legislative intent.

- Clear and last expression of legislative intent with respect to appeals from grants of summary judgments, as expressed in Ga. L. 1966, p. 609, § 56 (see now O.C.G.A. § 9-11-56(h)), was to except summary judgments from general appealability provisions of former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34) and to allow appeal when summary judgment was granted on any issue or as to any party, even though the case is still pending within the purview of former Code 1933, § 6-701. McLeod v. Westmoreland, 117 Ga. App. 659, 161 S.E.2d 335 (1968).

Subsection (h) as exception to rule requiring final judgment for appeal.

- Grant of summary judgment is an exception to rule requiring final judgment in order to appeal. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969).

Although generally an appeal is premature when a case remains pending, subsection (h) of this section makes the grant of summary judgment an exception to the rule requiring a final judgment in order to appeal. Overstreet v. Doctors Hosp., 142 Ga. App. 895, 237 S.E.2d 213 (1977).

Subsection (h) of this section states an exception to the finality rule which is for the benefit of the losing party. Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 248 S.E.2d 641 (1978); Bozard v. J.A. Jones Constr. Co., 148 Ga. App. 425, 251 S.E.2d 362 (1978).

Subsection (h) of this section gives the losing party the right to direct appeal from an order granting summary judgment on any issue, even if judgment is not final, as when the order disposes of fewer than all claims; this is also true when an appeal is from the grant of partial summary judgment. Sapp v. ABC Credit & Inv. Co., 243 Ga. 151, 253 S.E.2d 82 (1979).

Under subsection (h) of this section, grant of summary judgment is excepted from rule requiring final judgment as to all parties and claims before an appeal may be taken. Capital Bank v. Levy, 151 Ga. App. 819, 261 S.E.2d 722 (1979).

Subsection (h) of O.C.G.A. § 9-11-56, which permits direct appeal from any grant of summary judgment, is an exception to the finality rule expressed in O.C.G.A. § 9-11-54. Edwards v. Davis, 160 Ga. App. 122, 286 S.E.2d 301 (1981).

Grant of partial summary judgment is an appealable order. Cohen v. Garland, 119 Ga. App. 333, 167 S.E.2d 599 (1969); Thomas v. McGee, 242 Ga. 441, 249 S.E.2d 242 (1978); Tri-County Feed & Seed, Inc. v. Savannah Valley Prod. Credit Ass'n, 158 Ga. App. 815, 282 S.E.2d 344 (1981).

Dismissal of an owner's appeal of a summary judgment on a breach of contract and fraud complaint was improper since the complaint was amended to include a negligence count hours before a summary judgment on the fraud and breach of contract claims was filed, and therefore entered pursuant to O.C.G.A. § 9-11-58(b) (although the summary judgment order had been signed the previous day); the negligence claim was pending at the time that the summary judgment was entered, and although the summary judgment was subject to a direct appeal by the owner, the owner was not required to file an appeal at that time under O.C.G.A. § 9-11-56(h). Liberty v. Storage Trust Props., L.P., 267 Ga. App. 905, 600 S.E.2d 841 (2004).

Grant of the plaintiff's motion for partial summary judgment to the effect that a contract with the defendant was valid was not a final judgment and left the action pending below, but was directly appealable nevertheless under O.C.G.A. § 9-11-56(h) without a certificate of immediate review under O.C.G.A. § 5-6-34(b). Jack V. Heard Contractors, Inc. v. Adams Constr. Co., 155 Ga. App. 409, 271 S.E.2d 222, overruled on other grounds, Southeast Ceramics, Inc. v. Klem, 156 Ga. App. 636, 275 S.E.2d 723 (1980).

Time for appeal.

- Appeal of partial summary judgment for the plaintiff must be filed within 30 days and is not extended by a motion for reconsideration. Becker v. Fairman, 167 Ga. App. 708, 307 S.E.2d 520 (1983); Jones v. Walker, 209 Ga. App. 532, 433 S.E.2d 726 (1993).

While a plaintiff can appeal directly an order granting summary judgment as to the main action, when the plaintiff fails to do so within 30 days, thereafter it can only appeal that order after final judgment. Gulf Oil Co. v. Mantegna, 167 Ga. App. 844, 307 S.E.2d 732 (1983).

Grant of summary judgment on one count of three-count petition is directly appealable, though remaining counts are still pending in trial court. Ferguson v. United Ins. Co. of Am., 163 Ga. App. 282, 293 S.E.2d 736 (1982).

Summary judgment on any issue or as to any party may be appealed. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969).

Submission of specific issue on appeal permitted.

- Subsection (h) of this section permits submission of a specific issue to the appellate court. Bush v. City of Albany, 125 Ga. App. 558, 188 S.E.2d 245 (1972).

Summary judgment for one of parties defendant appealable.

- Order granting summary judgment in behalf of one of the parties defendant was appealable under subsection (h) of Ga. L. 1967, p. 226, § 25 (see now O.C.G.A. § 9-11-56) and under former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34), even though the case was still pending. George v. Lee, 118 Ga. App. 302, 163 S.E.2d 262 (1968).

Summary judgment only final when entire case disposed of.

- Grant of motion for summary judgment is appealable, but such grant constitutes final judgment only if it disposes of the entire case and the case is no longer pending in the court below. Insurance Co. of N. Am. v. Fowler, 148 Ga. App. 509, 251 S.E.2d 594 (1978).

Direct appeal even though judgment is not final.

- Subsection (h) of Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56) gives the losing party the right to a direct appeal from an order granting summary judgment on any issue or as to any party, even if the judgment was not final under former Code 1933, § 6-701 or Ga. L. 1976, p. 1047, § 2 (see now O.C.G.A. §§ 5-6-34(a)(1) or9-11-54(b)). Bozard v. J.A. Jones Constr. Co., 148 Ga. App. 425, 251 S.E.2d 362 (1978); Southern Guar. Ins. Co. v. Jeffares, 190 Ga. App. 449, 379 S.E.2d 167, overruled on other grounds, Strozier v. Simmons U.S.A. Corp., 192 Ga. App. 601, 385 S.E.2d 677 (1989).

Right to review lost by failure to appeal.

- After the trial court certified that summary judgment in favor of three of four defendants was final and ripe for review, the plaintiff lost the plaintiff's right to obtain appellate review by failing to file a timely notice of appeal, even though the plaintiff had filed a motion for reconsideration. Jarallah v. Aetna Cas. & Sur. Co., 199 Ga. App. 592, 405 S.E.2d 510 (1991).

Condominium unit owner's appeal from a grant of partial summary judgment in favor of an HOA was directly appealable under O.C.G.A. § 9-11-56(h), and the court could then consider an earlier ruling on motions to dismiss; however, the court could not consider an earlier grant of partial summary judgment that was directly appealable but was not appealed. O.C.G.A. § 5-6-34(d) did not provide jurisdiction because that statute applied only to appeals taken under § 5-6-34(a), (b), and (c). Headrick v. Stonepark of Dunwoody Unit Owners Ass'n, 331 Ga. App. 772, 771 S.E.2d 382 (2015).

Subsection (d) covers adjudication of less than all issues.

- Rule embodied in subsection (d) of this section is designed to cover situations where the court makes partial adjudication of some but not all issues presented as, for example, when there is more than one claim for relief and the movant is entitled to favorable judgment on some of the claims, but on others there are disputed issues of fact necessitating trial. Finney v. Pan-Am. Fire & Cas. Co., 123 Ga. App. 250, 180 S.E.2d 253 (1971).

Interlocutory order establishing facts not in controversy permitted.

- This section provides that when a party applies for summary judgment on the entire case or on one claim when several claims for recovery are pleaded or on a counterclaim or cross-claim, and the trial judge finds that summary judgment as to the entire case, claim, counterclaim, or cross-claim is not appropriate, the judge is authorized to enter an interlocutory order establishing for trial those facts which are without substantial controversy. Robinson v. Franwylie, Inc., 145 Ga. App. 507, 244 S.E.2d 73 (1978).

Power of judge to reassess interlocutory order.

- As with a pretrial order entered under Ga. L. 1968, p. 1104, § 5 (see now O.C.G.A. § 9-11-16), a trial judge retains full power to reassess an interlocutory order entered under subsection (d) of Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56) and to make one complete adjudication on all aspects of the case when the proper time arrives. Robinson v. Franwylie, Inc., 145 Ga. App. 507, 244 S.E.2d 73 (1978).

Temporary adjudication of lack of issues.

- Under subsection (d) of this section, trial judge may adjudicate temporarily the lack of issues until a final judgment in the case. Mays v. Citizens & S. Nat'l Bank, 132 Ga. App. 602, 208 S.E.2d 614 (1974), overruled on other grounds, Mock v. Canterbury Realty Co., 152 Ga. App. 872, 264 S.E.2d 489 (1980).

Adjudication on less than all claims or parties remains interlocutory absent court's determination.

- In a case involving multiple claims or parties, when the trial court fully adjudicates one or more but fewer than all claims or rights and liabilities of fewer than all parties, the court can make an adjudication under subsection (d) of Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56) final by making express determination and direction called for by Ga. L. 1976, p. 1047, § 2 (see now O.C.G.A. § 9-11-54(b)); however, failing to do that, the adjudication remains interlocutory. Robinson v. Franwylie, Inc., 145 Ga. App. 507, 244 S.E.2d 73 (1978).

Adjudication of nondispositive issues not authorized.

- Subsection (d) of this section does not authorize initiation of motions of which the sole object is to adjudicate issues of fact which are not dispositive of any claim or part thereof. Robinson v. Franwylie, Inc., 145 Ga. App. 507, 244 S.E.2d 73 (1978); Planet Ins. Co. v. Ferrell, 228 Ga. App. 264, 491 S.E.2d 471 (1997).

Losing party who commits procedural default is foreclosed from resubmitting matter for review.

- If a losing party suffers dismissal of the party's O.C.G.A. § 9-11-56(h) appeal for failure to fulfill procedural requirements, the losing party should, in return for that party's privilege of direct appeal, suffer the same sanction of res judicata which attaches to a final judgment from which a procedurally defective appeal is taken; therefore, a losing party on summary judgment who puts the machinery of immediate appellate review under O.C.G.A. § 9-11-56(h) into motion, yet commits a procedural default fatal to the losing party's appeal, is foreclosed from thereafter resubmitting the matter for review on appeal of the final judgment. Eckerd Corp. v. Alterman Real Estate, Ltd., 266 Ga. App. 860, 598 S.E.2d 510 (2004).

Opposing party may appeal after grant of summary judgment or final judgment.

- Party against whom summary judgment is granted may appeal either after grant of summary judgment or after rendition of final judgment, and when the party appeals after rendition of final judgment, the grant of summary judgment is still subject to appellate review. Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 248 S.E.2d 641 (1978); Bozard v. J.A. Jones Constr. Co., 148 Ga. App. 425, 251 S.E.2d 362 (1978).

Defendant's motion to dismiss a party is normally appealable only as an interlocutory appeal, but as a grant of a motion for summary judgment it is directly appealable under subsection (h) of O.C.G.A. § 9-11-56. McMullan v. Georgia Girl Fashions, Inc., 180 Ga. App. 228, 348 S.E.2d 748 (1986).

Only if co-defendants are sued as joint tort-feasors does the grant of summary judgment as to one potentially affect the other's rights of contribution. Therefore, it is only in this situation that the co-defendant would be deemed a losing party and have standing to appeal the grant of summary judgment to another co-defendant. C.W. Matthews Contracting Co. v. Studard, 201 Ga. App. 741, 412 S.E.2d 539 (1991).

Pending claims.

- Party may appeal grant of summary judgment after rendition of final judgment in the case, and the summary judgment is not res judicata as to any other claims which had remained pending. Ramseur v. American Mgt. Ass'n, 155 Ga. App. 340, 270 S.E.2d 880 (1980).

Order as to ex delicto claims not final if ex contractu claim pending.

- Order granting the defendant's motion to strike certain ex delicto allegations and the prayers of the plaintiff 's complaint was not final when the appellant's ex contractu claim was still pending and, accordingly, the order was not directly appealable. Whatley v. Blue Cross of Ga./Columbus, Inc., 165 Ga. App. 340, 301 S.E.2d 60 (1983).

Grant of motion for summary judgment in Civil Court of Bibb County can be appealed directly to the Court of Appeals. Middle Ga. Bank v. Continental Real Estate & Assocs., 168 Ga. App. 611, 309 S.E.2d 893 (1983).

Grant of summary judgment held erroneous.

- Trial court erred in granting the appellee's motion for summary judgment and in failing to grant the appellant's motion for summary judgment. Georgia Farm Bureau Mut. Ins. Co. v. DeKalb County, 167 Ga. App. 577, 306 S.E.2d 924 (1983).

On de novo review of a decision granting summary judgment to a consulting firm in an action against the firm by a hotel franchisee alleging negligence and negligent misrepresentation, it was error to grant summary judgment to the firm when the franchisee submitted an affidavit from an expert that demonstrated familiarity with the standard of care required of the consulting firm in performing an impact study and that concluded the firm breached that duty. The questions surrounding the expert's factual accuracies and conclusions were issues for trial, not summary judgment. Marquis Towers, Inc. v. Highland Group, 265 Ga. App. 343, 593 S.E.2d 903 (2004).

Summary judgment on partial issues held proper.

- Summary judgment was properly entered on fraud claim as such claim was time-barred; but, when fact issues remained as to a foreclosure allegedly resulting from a non-existent debt, slandering the title to the underlying property, summary judgment was reversed as to these claims. Boaz v. Latson, 260 Ga. App. 752, 580 S.E.2d 572 (2003).

Judgment final only when entire case disposed of.

- Because a partial taking condemnation order did not consist of a viable grant of partial summary judgment, and was not otherwise a final appealable judgment within the meaning of O.C.G.A. § 5-6-34(a), but the parties could have appealed by complying with the relevant interlocutory appeal requirements but did not do so, the appeals court lacked jurisdiction to consider either the appeal or the cross-appeal; moreover, the superior court's rulings on the admissibility of certain evidence constituted no judgment on the merits of any part of the appealing party's claim for just and adequate compensation. Forest City Gun Club v. Chatham County, 280 Ga. App. 219, 633 S.E.2d 623 (2006).

Court of appeals had appellate jurisdiction to review the grant of summary judgment in favor of a bank on the bank's conversion claim against a real estate firm because the grant of summary judgment was directly appealable under O.C.G.A. § 9-11-56(h), and the firm's cross-appeal of that grant of summary judgment could stand on its own merits; because the court of appeals had jurisdiction to review the grant of summary judgment in favor of the bank on the bank's conversion claim, the court also had jurisdiction pursuant to O.C.G.A. § 5-6-34(d) to review the denial of the firm's motion for summary judgment on that same issue. Trey Inman & Assocs., P.C. v. Bank of Am., N.A., 306 Ga. App. 451, 702 S.E.2d 711 (2010).

3. Denial of Summary Judgment

Editor's notes.

- As originally enacted by Ga. L 1966, p. 609, § 56, subsection (h) of this section provided that an order denying summary judgment was not appealable. The subsequent amendment by Ga. L. 1967, p. 226, § 25, stated that denial of summary judgment was not subject to review by direct appeal or otherwise unless the trial judge certified within ten days that such order should be subject to review, in which case it would be subject to review by direct appeal. The 1975 amendment by Ga. L. 1975, p. 757, § 3 made an order denying summary judgment subject to review by direct appeal in accordance with § 5-6-34(b) The latter section provides for review of an order, decision, or judgment not otherwise subject to direct appeal if the trial judge certifies that such order, etc., is of such importance that immediate review should be had, and if the appellate court, on application, permits an appeal to be taken. Hence, decisions dealing with appealability of denial of summary judgment should be consulted with care, with particular attention to the dates on which such decisions were rendered.

Denial of motion not final judgment.

- Denial of motion for summary judgment is not a final judgment. Giordano v. Stubbs, 129 Ga. App. 283, 199 S.E.2d 322 (1973), rev'd on other grounds, Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974).

Denial not appealable unless certain conditions are met.

- Grant of motion for summary judgment is subject to direct appeal, but denial of such motion is not appealable unless certain conditions are met. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980).

Procedure in

§ 5-6-34(b) held requisite to appeal. - Order denying summary judgment must be appealed in accordance with former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(b)). First Nat'l Bank v. Ferrell, 239 Ga. 8, 235 S.E.2d 507 (1977).

Denial of a motion for summary judgment is not subject to review by direct appeal, except on the grant of permission to appeal as set out in former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(b)). Johnston-Willis Hosp. v. Cain, 142 Ga. App. 305, 236 S.E.2d 374 (1977).

Appealability of denial of motion governed by subsection (h) and

§ 5-6-34(b). - Denial of motion for summary judgment was not reviewable other than by procedures set forth in former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(b)) and subsection (h) of Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56). Vaughn & Co. v. Saul, 143 Ga. App. 74, 237 S.E.2d 622 (1977).

Observance of interlocutory review procedures required.

- No appeal lies from denial of a motion for summary judgment, standing alone, unless an interlocutory review procedure is observed. U.S.I.F. Atlanta Corp. v. Paul, 138 Ga. App. 625, 227 S.E.2d 90 (1976).

Appeal of other issues when appealing summary judgment.

- When direct appeal of the grant of summary judgment is taken, any other judgments, rulings, or orders rendered in the case and which may affect the proceedings below may be raised on appeal including the denial of a motion for summary judgment. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980).

Cross appeal of denial of motion.

- Denial of motion for summary judgment may be carried up as a cross appeal to appeal by the opposite party of a grant of a motion for summary judgment. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980). But see, Campbell v. Carroll, 121 Ga. App. 497, 174 S.E.2d 375 (1970).

Availability of direct appeal irrelevant to interlocutory appeal decision.

- As the losing party on cross-motions for summary judgment, the defendant was entitled to proceed under O.C.G.A. § 5-6-34(b) to seek an interlocutory appeal from the denial of its motion or, in the alternative, to file a direct appeal from the grant of the plaintiff's motion pursuant to subsection (h) of O.C.G.A. § 9-11-56. Because the defendant elected to invoke the interlocutory appeal procedure, the mere availability of the alternative of the direct appeal procedure would not be a factor in determining whether to grant an interlocutory appeal. Southeastern Sec. Ins. Co. v. Empire Banking Co., 268 Ga. 450, 490 S.E.2d 372 (1997).

Denial of summary judgment moot after trial of case.

- Verdict and judgment appealed from after trial renders moot the order on a prior motion for summary judgment not certified and appealed as required by subsection (h) of this section. Old Equity Life Ins. Co. v. Barnard, 120 Ga. App. 596, 171 S.E.2d 636 (1969).

Order denying motion for summary judgment becomes moot when court reviews evidence upon trial of the case. Patterson v. Castellaw, 119 Ga. App. 712, 168 S.E.2d 838 (1969).

After verdict and judgment, it is too late to review judgment denying summary judgment. Pascoe Steel Corp. v. Turner County Bd. of Educ., 142 Ga. App. 88, 235 S.E.2d 554, rev'd on other grounds in part, vacated on other grounds in part, 240 Ga. 88, 239 S.E.2d 517 (1977); Gosnell v. Waldrip, 158 Ga. App. 685, 282 S.E.2d 168 (1981).

After verdict and judgment have been entered, the Court of Appeals cannot review a judgment denying a motion for summary judgment because that issue became moot when the court heard evidence at trial. Preferred Risk Mut. Ins. Co. v. Thomas, 153 Ga. App. 154, 264 S.E.2d 662 (1980).

After verdict and judgment, it is too late to review a decision denying a summary judgment motion for that judgment becomes moot when the court reviews the evidence upon the trial of the case. Hardaway Constructors, Inc. v. Browning, 176 Ga. App. 530, 336 S.E.2d 579 (1985), cert. denied, 475 U.S. 1095, 106 S. Ct. 1491, 89 L. Ed. 2d 893 (1986).

After verdict and judgment, it was too late to review a judgment denying summary judgment for that judgment became moot when the court reviewed the evidence upon the trial of the case. Argentum Int'l, LLC v. Woods, 280 Ga. App. 440, 634 S.E.2d 195 (2006).

Husband's complaint of the trial court's denial of the corporation's motion for summary judgment under O.C.G.A. § 9-11-56 was moot as the trial court later granted the corporation's motion for a directed verdict under O.C.G.A. § 9-11-50. Moore v. Moore, 281 Ga. 81, 635 S.E.2d 107 (2006).

Effect on trial on merits.

- Appellate court declined to review the trial court's denial of a defendant's motion for summary judgment because a trial on the merits was conducted. Tensar Earth Techs., Inc. v. City of Atlanta, 267 Ga. App. 45, 598 S.E.2d 815 (2004).

Extent of review following trial.

- When a motion for judgment is overruled and the case is tried, appellate courts will review the sufficiency of the evidence to support the verdict, as well as enumerations of alleged trial errors, but will not also review the denial of the motion for summary judgment. Drillers Serv., Inc. v. Moody, 242 Ga. 123, 249 S.E.2d 607 (1978); Simmons v. Edge, 155 Ga. App. 6, 270 S.E.2d 457 (1980).

When a motion for summary judgment is overruled and the case is tried, the appellate court will review evidence in support of the judgment as well as other enumerations of error, but because ordinarily the same issues are involved, the court will not review denial of the motion for summary judgment. Rothstein v. Mirvis & Fox, Inc., 155 Ga. App. 79, 270 S.E.2d 301 (1980).

Because the issue of the purported illegality of the parties' contract was not presented to the jury, the court would review the trial court's denial of the motion for summary judgment on this ground; the court would not, however, consider the defendants' argument on summary judgment that damages were not proven since the jury considered damages in the subsequent trial. Smith v. Saulsbury, 286 Ga. App. 322, 649 S.E.2d 344 (2007).

Error in denial harmless after trial.

- When a motion for summary judgment is overruled and the case proceeds to trial and evidence introduced at trial authorizes a verdict on this same issue, any possible error in overruling the motion for summary judgment is harmless. Clark v. Piedmont Hosp., 117 Ga. App. 875, 162 S.E.2d 468 (1968).

Losing party who initiates appellate review, yet commits procedural default fatal to appeal, is foreclosed from thereafter resubmitting the matter for review on appeal of the final judgment. Mitchell v. Oliver, 254 Ga. 112, 327 S.E.2d 216 (1985).

Party that sought and was granted an interlocutory appeal from the denial of the party's motion for summary judgment but failed to timely file the party's notice of appeal in compliance with O.C.G.A. § 5-6-34(b) committed a procedural default fatal to its appeal and was foreclosed from resubmitting the matter for appellate review. It was improper for the trial court to vacate the court's original order denying summary judgment to provide the party with the opportunity to resubmit the party's application for interlocutory appeal. International Indem. Co. v. Robinson, 231 Ga. App. 236, 498 S.E.2d 795 (1998).

4. Certificate and Application for Review

Editor's notes.

- As originally enacted by Ga. L 1966, p. 609, § 56, subsection (h) of this section provided that an order denying summary judgment was not appealable. The subsequent amendment by Ga. L. 1967, p. 226, § 25, stated that denial of summary judgment was not subject to review by direct appeal or otherwise unless the trial judge certified within ten days that such order should be subject to review, in which case it would be subject to review by direct appeal. The 1975 amendment by Ga. L. 1975, p. 757, § 3 made an order denying summary judgment subject to review by direct appeal in accordance with § 5-6-34(b). The latter section provides for review of an order, decision, or judgment not otherwise subject to direct appeal if the trial judge certifies that such order, etc., is of such importance that immediate review should be had, and if the appellate court, on application, permits an appeal to be taken. Hence, decisions dealing with appealability of denial of summary judgment should be consulted with care, with particular attention to the dates on which such decisions were rendered.

Certificate from trial judge required.

- When there is no certificate of a trial judge allowing an appeal of the refusal to grant a motion for summary judgment, the appellate court is without authority to review such ruling. Peachtree on Peachtree Inn, Inc. v. Camp, 120 Ga. App. 403, 170 S.E.2d 709 (1969); Central Bd. on Care of Jewish Aged, Inc. v. Henson, 120 Ga. App. 627, 171 S.E.2d 747 (1969).

Absent proper certificate, denial of summary judgment is not subject to review. Campbell v. Carroll, 121 Ga. App. 497, 174 S.E.2d 375 (1970); Carroll v. Campbell, 226 Ga. 700, 177 S.E.2d 83 (1970).

Order deriving summary judgment shall be subject to review by obtaining certificate of immediate review. Hiller v. Culbreth, 139 Ga. App. 351, 228 S.E.2d 374 (1976).

Appeal by certificate is the only method whereby denial of a motion for summary judgment may be reviewed. First Nat'l Bank v. Ferrell, 239 Ga. 8, 235 S.E.2d 507 (1977).

When grant of summary judgment is appealed, it is impermissible for denial to be appealed simultaneously without certificate of immediate review. Jones v. Neighbor Newspapers, Inc., 142 Ga. App. 365, 236 S.E.2d 23 (1977). (But see Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980)).

Certificate and application required.

- There was no provision for review of denial of summary judgment in subsection (h) of Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56) or former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(b)), except by direct appeal with a certificate of the trial judge and an application for review to the appropriate appellate court. Marietta Yamaha, Inc. v. Thomas, 237 Ga. 840, 229 S.E.2d 753 (1976), overruled on other grounds, Marathon U.S. Realties, Inc. v. Kalb, 244 Ga. 390, 260 S.E.2d 88 (1979); American Mut. Fire Ins. Co. v. Llewellyn, 142 Ga. App. 824, 237 S.E.2d 227 (1977).

Judgment denying summary judgment is reviewable only by certificate of immediate review and application for review by the appellate court. Thomas v. McGee, 242 Ga. 441, 249 S.E.2d 242 (1978).

When grant of the plaintiff's motion for partial summary judgment was not raised via cross appeal, but was appealable only under subsection (h) of Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56), and not under former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34), denial of the defendant's motion for summary judgment could not be considered without a certificate for immediate review and application to the appellate court for permission to appeal. Jack V. Heard Contractors, Inc. v. Adams Constr. Co., 155 Ga. App. 409, 271 S.E.2d 222 (1980). But see Thomas v. McGee, 242 Ga. 441, 249 S.E.2d 242 (1978); Southeast Ceramics, Inc. v. Klem, 156 Ga. App. 636, 275 S.E.2d 723 (1980).

When grant of partial summary judgment was appealed with denial of summary judgment, judgment granting partial summary judgment was appealable, but judgment denying summary judgment was reviewable only by certificate of immediate review. Jack V. Heard Contractors, Inc. v. Adams Constr. Co., 155 Ga. App. 409, 271 S.E.2d 222 (1980). But see Thomas v. McGee, 242 Ga. 441, 249 S.E.2d 242 (1978); Southeast Ceramics, Inc. v. Klem, 156 Ga. App. 636, 275 S.E.2d 723 (1980).

Denial of summary judgment is not reviewable by the appellate courts in the absence of a timely certificate of immediate review and the granting of an interlocutory appeal by the appellate court unless there be a final judgment in the case and the cause is no longer pending in the lower court. Weldon v. Southeastern Fid. Ins. Co., 157 Ga. App. 698, 278 S.E.2d 500 (1981).

Denial of a motion for summary judgment cannot be considered without a certificate for immediate review and an application to the court for permission to appeal. National Equip. Sales, Serv. & Supplies, Inc. v. Hamrick Mfg. & Servs., Inc., 186 Ga. App. 400, 367 S.E.2d 287 (1988).

Certification and grant of application not exclusive means of appeal.

- When summary judgment is denied, it may be appealed after certification by the trial judge and the granting of an application by the appropriate appellate court, but this is not the exclusive means of appealing the denial of a motion for summary judgment. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980).

Certification not matter of right.

- Certification for review is not automatic or a matter of right, but is a matter of discretion with the trial judge. Barber v. Baker, 118 Ga. App. 513, 164 S.E.2d 349 (1968).

Authority of judge as to issuance of certificate.

- Trial judge is invested with absolute authority in issuance of certificate of appealability of denial of motion for summary judgment under subsection (h) of this section. Lewis v. Williford, 235 Ga. 558, 221 S.E.2d 14 (1975).

Certification should be made use of only sparingly, in close cases, when real doubt exists as to the merits of the motion. C & A Land Co. v. Wilson Constr. Corp., 117 Ga. App. 744, 161 S.E.2d 922 (1968); Barber v. Baker, 118 Ga. App. 513, 164 S.E.2d 349 (1968).

Routine certification not contemplated.

- Routine certification by trial courts of appealability of orders denying motions for summary judgment might well annul legislative intent as to subsection (h) of this section, the purpose of which was to do away with unnecessary delay and to assist the flow of cases toward trial on the merits. C & A Land Co. v. Wilson Constr. Corp., 117 Ga. App. 744, 161 S.E.2d 922 (1968); Flanagan v. Malsby, 119 Ga. App. 474, 167 S.E.2d 739 (1969).

No review of facts without certificate.

- Absent certificate for direct appeal on denial of a motion for summary judgment, the appellate court cannot review factual contentions. Redfern Meats, Inc. v. Hertz Corp., 134 Ga. App. 381, 215 S.E.2d 10 (1975).

No direct appeal without certificate.

- Order denying summary judgment is not subject to review by direct appeal or otherwise in absence of certificate for review by the trial judge within ten days of the order. John L. Hutcheson Mem. Tri-County Hosp. v. Oliver, 120 Ga. App. 547, 171 S.E.2d 649 (1969); City of Jesup v. Spivey, 133 Ga. App. 403, 210 S.E.2d 859 (1974); Egerton v. Jolly, 133 Ga. App. 805, 212 S.E.2d 462 (1975).

Denial of summary judgment is not subject to review by direct appeal or otherwise, unless the lower court certifies it for direct appeal. Home Indem. Co. v. Godley, 122 Ga. App. 356, 177 S.E.2d 105 (1970); Bush v. City of Albany, 125 Ga. App. 558, 188 S.E.2d 245 (1972); Starkey v. Metropolitan Hotels, Inc., 129 Ga. App. 643, 200 S.E.2d 482 (1973).

Attempting review without certificate following final judgment.

- When there is no certificate of immediate review as to denial of summary judgment, and the case is appealed after final judgment, enumeration of error on denial of summary judgment will not be considered. Rustin Oldsmobile, Inc. v. Kendrick, 123 Ga. App. 679, 182 S.E.2d 178 (1971).

Appellate court cannot consider merits of denial of a motion for summary judgment without a certificate of immediate review, even though there is a final judgment which forms the basis for an appeal. Royal Atlanta Dev. Corp. v. M.D. Hodges Enters., Inc., 141 Ga. App. 838, 234 S.E.2d 676 (1977). (But see Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980)).

Certificate from trial judge unnecessary.

- Summary judgment granted in favor of one of several defendants is a final and appealable judgment under subsection (h), and it is unnecessary to obtain a certificate from the trial judge that it should be reviewed. LuAllen v. Home Mission Bd. of S. Baptist Convention, 125 Ga. App. 456, 188 S.E.2d 138 (1972).

Denial tied to appealable order or judgment may be appealed without application.

- Denial of a motion for summary judgment can be appealed without application when it is tied to an appeal of an appealable order or judgment. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980).

Review of denial of summary judgment is permitted without necessity of making application for interlocutory appeal when there is a final judgment which is the basis of the appeal as for instance when both the plaintiff and the defendant moved respectively for summary judgments with the court granting the motion of the defendant and denying that of the plaintiff. U.S.I.F. Atlanta Corp. v. Paul, 138 Ga. App. 625, 227 S.E.2d 90 (1976).

Refusal to grant certificate not reviewable.

- There is no right to a certificate of review to the overruling of a motion for summary judgment; whether or not such certificate is granted rests solely with the trial judge, and the judge's refusal is not reviewable by the appellate court. Newsrack Supply, Inc. v. Heinle, 127 Ga. App. 843, 195 S.E.2d 193 (1973).

Failure to apply for and obtain order granting appellate review.

- When the defendant obtained a certificate for immediate review from the trial judge within ten days of the denial of the defendant's motion for summary judgment in accordance with O.C.G.A. § 9-11-56, but failed to apply to and obtain an order from this court granting an appeal, the defendant's appeal is premature. Hargraves v. Turner, 160 Ga. App. 807, 287 S.E.2d 664 (1982).

Although the repair company did not obtain a certificate of immediate review from the trial court's order denying a renewed motion for summary judgment under O.C.G.A. § 9-11-56, the appellate court had jurisdiction to address an order denying the renewed motion for summary judgment under O.C.G.A. § 5-6-34(d); the appellate court had jurisdiction to address the trial court's order denying the company's motion for reconsideration under O.C.G.A. § 5-6-34(b) since the company had obtained a timely certificate of immediate review from the trial court's order denying the court's motion for reconsideration. Gulfstream Aero. Servs. Corp. v. United States Aviation Underwriters, Inc., 280 Ga. App. 747, 635 S.E.2d 38 (2006).

5. Standing

Appeal by plaintiff to grant of summary judgment to third-party defendant.

- Since the plaintiff asserted no claim against a third-party defendant, the plaintiff was not aggrieved by the grant of summary judgment to the third-party defendant on the third-party action, which established only the third party's nonliability to the defendant and, thus, the plaintiff lacked standing to appeal an order granting such judgment. Wallace v. Scott, 164 Ga. App. 129, 296 S.E.2d 423 (1982).

Multi-party cases.

- Grant of a motion for summary judgment in a multi-party case will not, standing alone, necessarily authorize the initiation of a direct appeal therefrom by any party to the underlying case. An appeal must be filed by one who has standing to pursue the appeal. Shackelford v. Green, 180 Ga. App. 617, 349 S.E.2d 781 (1986), aff'd, 257 Ga. 9, 356 S.E.2d 27 (1987).

Standing to appeal not present for order against another party.

- Guarantor and the guarantor's principal had no standing, under O.C.G.A. § 9-11-56(h), to file a direct appeal of a trial court's grant of summary judgment to a contractor against a property owner because the guarantor and the guarantor's principal were not losing parties to the trial court's order against the owner on the contractor's breach of contract claim and because the guarantor and the guarantor's principal were not sued as joint tortfeasors of the owner. Adams v. D-Money Enters., 312 Ga. App. 537, 718 S.E.2d 870 (2011).

RESEARCH REFERENCES

Am. Jur. 2d.

- 73 Am. Jur. 2d, Summary Judgment, § 1 et seq.

20A Am. Jur. Pleading and Practice Forms, Pretrial Conference and Procedure, § 1. 23 Am. Jur. Pleading and Practice Forms, Summary Judgment, § 1 et seq.

C.J.S.

- 35B C.J.S., Federal Civil Procedure, § 1147 et seq. 49 C.J.S., Judgments, § 294 et seq.

ALR.

- Constitutionality of statute or rule of court providing for summary judgment unless affidavit of merits is filed, 69 A.L.R. 1031; 120 A.L.R. 1400.

Motion for summary judgment as searching record, 91 A.L.R. 884.

Summary judgment statute as applicable to action on war risk policy, 103 A.L.R. 217.

What amounts to "debt," "liquidated demand," "contract," etc., within contemplation of summary or expedited judgment statutes, 107 A.L.R. 1221.

Relief from stipulations, 161 A.L.R. 1161.

Proper procedure and course of action by trial court, where both parties move for summary judgment, 36 A.L.R.2d 881.

Propriety of granting summary judgment in case involving issue of gross or wanton negligence, 50 A.L.R.2d 1309.

Proper procedure and course of action by trial court, where both parties move for judgment on the pleadings, 59 A.L.R.2d 494.

Raising statute of limitations by motion for summary judgment, 61 A.L.R.2d 341.

Power of court to grant summary judgment against less than all parties against whom relief is sought, 67 A.L.R.2d 1456.

Propriety of considering answers to interrogatories in determining motion for summary judgment, 74 A.L.R.2d 984.

Propriety of summary judgment on part of single or multiple claims, 75 A.L.R.2d 1201.

Raising constitutionality of legislation by motion for summary judgment, 83 A.L.R.2d 838.

Propriety of entering summary judgment for plaintiff before defendant files or serves answer to complaint or petition, 85 A.L.R.2d 825.

Raising res judicata by motion for summary judgment under Federal Rule 56 and similar state statutes or rules, 95 A.L.R.2d 648.

Summary judgment in mandamus or prohibition cases, 3 A.L.R.3d 675.

Proceeding for summary judgment as affected by presentation of counterclaim, 8 A.L.R.3d 1361.

Reviewability of order denying motion for summary judgment, 15 A.L.R.3d 899.

Right to voluntary dismissal of civil action as affected by opponent's motion for summary judgment, judgment on the pleadings, or directed verdict, 36 A.L.R.3d 1113.

Use of evidence excludable under dead man's statute to defeat or support summary judgment, 67 A.L.R.3d 970.

Admissibility of oral testimony at state summary judgment hearing, 53 A.L.R.4th 527.

Sufficiency of evidence to support grant of summary judgment in will probate or contest proceedings, 53 A.L.R.4th 561.

Necessity of oral argument on motion for summary judgment or judgment on pleadings in federal court, 105 A.L.R. Fed. 755.