2021 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.)

- 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.

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

- 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).

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

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.

- 35B C.J.S., Federal Civil Procedure, § 1147 et seq. 49 C.J.S., Judgments, § 294 et seq.

- 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.