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Summary Judgment With Fewer Than Thirty Days’ Notice

by merlin on December 26th, 2014
  • Sumo

Statutorily, summary judgment as a tool to dispose of all or a part of a case based on the pleadings and other information that has come to light – without the expense and stress of a formal trial – is a useful method of resolving competing claims.

It is defined by The Law Dictionary as “[a] quick decision of a court based on briefings and affidavits where material facts are not disputed or where the court’s opinion is used for judgment. Also known as accelerated judgment.”
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In the Official Code of Georgia, Section 9-11-56 addresses summary judgment in civil cases.  It reads as follows:

“(a) 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.

(b) 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.

(c) 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.

(d) 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.

(e) 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.

(f) 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.

(g) 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.

(h) 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.”

Subsection (c) indicates that there must be a hearing and that the hearing has to be at least thirty (30)days after the motion has been made.  However, this is not a rigid and inflexible rule, because the Uniform Superior Court Rules that control how Superior Courts must be run also direct that all motions in civil cases are to be decided without a hearing wherever possible.  In the case of summary judgment motions, this is often possible, and the Uniform Superior Court Rules and the cases discussing the issue recognize it, and carve out an exception.

Specifically, USCR 6.3 addresses both of the above statements directly.  It reads as follows:

“Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict.

However, oral argument on a motion for summary judgment shall be permitted upon written request made in a separate pleading bearing the caption of the case and entitled “Request for Oral Hearing,” and provided that such pleading is filed with the motion for summary judgment or filed not later than five (5) days after the time for response.”

In other words, it is fully possible to have a hearing on a motion for summary judgment, when it hasn’t been clearly proven by the facts, evidence, supporting affidavits, etc., but only under the specific conditions outlined in that second paragraph above.

The application of this rule was explored more fully recently in a case involving a dispute between a bank and the corporation and personal guarantor that a note had been issued to.  The case is Brooks v. Multibank 2009-1RES-ADC Venture, LLC, 317 Ga.App. 264, 730 S.E.2d 509 (Ga. Ct. App. 2012).  It specifically upheld the Court’s decisions to convert a motion for judgment on the pleadings into a motion for summary judgment, and to grant that summary judgment even though it was made less than thirty (30) days before judgment was issued, since civil motions were supposed to be decided without hearing when it was appropriate.  By the way, something else that this case shows is the devastating effect that a failure to admit something that was requested in civil Discovery but subsequently proved true, or a failure to even respond, can have on those matters, and it was because of the legal admissions that the Court was empowered to grant summary judgment here.  The case is as follows:

James William Clifton, Atlanta, for Appellant.

Andrew James Gebhardt, John Philip Webb, Stockbridge, for Appellee.

BARNES, Presiding Judge.

Appellants A.L. Brooks & Company, also known as ALB & Company and Aaron Brooks (hereinafter “Brooks”) appeal from the trial court’s order granting summary judgment to Multibank 2009–1 RES–ADC Venture, LLC (hereinafter “Multibank”). Brooks argues on appeal that the trial court erred in denying his motion to withdraw admissions and also in converting Multibank’s motion for judgment on the pleadings to a motion for summary judgment without providing him 30 days to respond pursuant to OCGA § 9–11–12(c) and OCGA § 9–11–56(c). Upon our review, we affirm.

On January 28, 2009, FirstCity Bank filed a complaint on a note and guaranty against Brooks, alleging that the corporation was in default on the loan and Brooks, as the guarantor, was liable for the $3,509,043.74 due on the loan, prejudgment interest and attorneys fees. A copy of the note and Brooks’ guaranty were attached to the complaint. On March 13, 2009, Brooks, acting pro se, filed a “response to summons” on his and the company’s behalf in which he responded simply, “We do not agree with the amounts of the indebtedness owed to FirstCity Bank. We are also working closely with a client who has expressed genuine interest in purchasing the collateral.”

In June of 2009, FirstCity Bank was granted a motion to extend discovery until March 13, 2010, and notified the court that it was under receivership by the Federal Deposit Insurance Company (“FDIC”). On January 21, 2010, the trial court sua sponte granted Brooks’ corporate entity, A.L. Brooks & Company, 31 days from the date of the order to have an attorney file a answer on the corporation’s behalf. It advised that a default judgment would be entered against the corporation if an answer was not filed by an attorney. On February 22, 2010, an attorney filed an entry of appearance and answer on behalf of “the Corporation only,” in which it challenged the court’s jurisdiction over Brooks and the corporation and also consideration for the underlying loan. On March 25, 2010, Multibank was substituted as the party plaintiff, and was granted an additional six-month discovery period until September 15, 2010.

On July 13, 2011, Multibank served discovery on Brooks, including requests for admissions. On July 14, 2010, Multibank moved to strike the answer and enter default judgment as to the corporation because the answer was not filed by an attorney, and moved for judgment on the pleadings as to Brooks, alleging that he had failed to deny the allegations in its complaint. On July 21, 2010, the trial court denied the motion to strike as to the corporation, but scheduled a September 7, 2010 hearing on the motion for judgment on the pleadings against Brooks. It also directed Brooks to file a written response to the motion “within 30 days of service of the motion and provide a copy to [Multibank].” The trial court further advised that, should Brooks fail to timely respond, the court would rule on the motion “based on the pleadings and the evidence.” Brooks did not timely respond, and on August 20, 2010, a new attorney filed a notice of appearance and substitution of counsel on behalf of the corporation and Brooks, and also moved for an extension of time in which to file his response to the motion for the judgment on the pleadings. Brooks argued his failure to respond on time was due to “excusable neglect,” and that he should be allowed to respond pursuant to OCGA § 9–11–6(b).1 The trial court placed the motion for an extension of time to respond to Multibank’s motion for judgment on the pleadings on the September 7, 2010 hearing calendar, to be addressed before the motion for judgment on the pleadings.

During this period, Brooks’ responses to several discovery requests were due, including requests for admissions, answers to interrogatories, and motions to produce, but he did not respond to them. At the September 7, 2010, hearing on the motions, Brooks was not present but was represented by his new counsel, who argued that his motion for an extension of time to respond to the motion for judgment on the pleadings should be granted pursuant to OCGA § 9–11–6(b), due to “excusable neglect,” because he was not represented by counsel during that time and did not know how to file responsive pleadings or answers.

The trial court denied the motion for more time to respond, finding no excusable neglect. It then heard Multibank’s motion for judgment on the pleadings and Brooks’ response, then orally granted the motion, after advising the parties that it was converting Multibank’s motion to one for summary judgment “because [it] was unable to ascertain the liquidated damages from the complaint alone” and had “looked to the previously filed Request for Admissions that were not responded to by Brooks.”.

On September 8, 2010, Brooks filed a motion to withdraw his admissions and a motion to extend the time to file answers to the requests for admissions. In a September 13, 2010 order, the trial court scheduled a hearing on the motion for October 19, 2010; however, on October 14, 2010, the trial court entered a written order granting Multibank’s motion for summary judgment against Brooks personally, nunc pro tunc to September 7, 2010. In the order, the trial court noted that Brooks did not file his motion to withdraw his admissions until after the trial court had ruled against him from the bench, and had not proffered any evidence that would have excused his failure to respond to the discovery request. The court awarded Multibank $3,509,043.74, plus attorneys fees of $567,359.05. Brooks appeals from this order.

1. Brooks first contends that the trial court erred in not granting his motion to withdraw his admissions. He argues that the presentation of the merits of the case would clear up the miscalculations of the debt and also that Multibank failed to show that it would be prejudiced by the withdrawal of the admissions.

If the time for response to a request for admission passes “without answer or objection, then the requests are admitted subject only to the requestee’s opportunity under OCGA § 9–11–36(b) on motion to have his admissions withdrawn….” (Citation, punctuation and emphasis omitted.) Atlanta Cas. Co. v. Goodwin, 205 Ga.App. 421, 422 S.E.2d 76 (1992). Thus, the matters in the requests for admissions were admitted by operation of law when Brooks failed to answer the requests within 30 days of service. OCGA § 9–11–36(a)(2). The trial court had the discretion to permit withdrawal of the admissions if (1) that withdrawal would subserve or advance the presentation of the merits of the action, and (2) that there is no satisfactory showing that withdrawal will prejudice the party who obtained the admissions. OCGA § 9–11–36(b).

However, “[t]he motion in this case, made after grant of summary judgment for the defendant, was not timely.” Meadows v. Dalton, 153 Ga.App. 568(2), 266 S.E.2d 235 (1980). By issuing the order nunc pro tunc the “trial court caused the written [order] to relate back to … the date of the hearing and its oral ruling.” Hinkle v. Woolever, 249 Ga.App. 249, 252, n. 1, 547 S.E.2d 782 (2001). Moreover,

[t]he party seeking to withdraw the admissions has the burden of establishing the first prong by showing that the admitted request either can be refuted by admissible evidence having a modicum of credibility or is incredible on its face, and the denial is not offered solely for purposes of delay. Failure to present admissible, credible evidence contradicting the admitted matters justifies the denial of the motion to withdraw.

(Citations and punctuation omitted.) Porter v. Urban Residential Dev. Corp., 294 Ga.App. 828, 829–830(1), 670 S.E.2d 464 (2008). Under the first prong, Brooks bore the burden of either showing the admissions were incredible on their face or presenting admissible, credible evidence refuting the admissions. “If the movant fails to make the required showing to satisfy the first prong of the test, then the trial court is authorized to deny the motion to withdraw the admissions.” Turner v. Mize, 280 Ga.App. 256, 257(1), 633 S.E.2d 641 (2006). Under such circumstances, “there is no need to address the second prong.” Id. at 259(1), 633 S.E.2d 641.
Brooks made no attempt in the trial court to make either showing relative to the first prong. Thus, the trial court did not abuse its discretion in denying his request to withdraw the admissions.

2. Brooks also contends that the trial court erred in converting the motion for judgment on the pleadings to a motion for summary judgment without providing additional time for him to “confront the evidence.”

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 OCGA § 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.

(Citation omitted.) Gaddis v. Chatsworth Health Care Center, 282 Ga.App. 615, 616–617(1), 639 S.E.2d 399 (2006). The 30–day notice period can be waived through acquiescence of the party opposing the motion. Davis v. Phoebe Putney Health Systems, 280 Ga.App. 505, 507(2), 634 S.E.2d 452 (2006). Moreover, the error is not reversible absent a showing of harm. Sentry Ins., etc. v. Echols, 174 Ga.App. 541, 542(1), 330 S.E.2d 725 (1985).
Here, Multibank acknowledged at the hearing that the trial court could not ascertain the amount of liquidated damages from the complaint alone. The court then considered Brooks’ default admissions to ascertain the amount of damages and informed Brooks that it would treat the motion as one for summary judgment. It then permitted Brooks to present arguments on the summary judgment motion. Brooks argued that a general denial of indebtedness was sufficient to present a triable issue, and that Multibank failed to properly plead venue, and also addressed several discovery issues.

Even though Brooks asserts harm as a result of the ruling, he has offered nothing to suggest that the ruling would have been any different if he had been given 30 days to respond with more evidence. Christensen v. State, 219 Ga.App. 10, 12(4), 464 S.E.2d 14 (1995). Under the Civil Practice Act, a venue defense shall “be asserted in the responsive pleading thereto, if one is required … [or] by motion in writing.” OCGA § 9–11–12(b). Want of venue, however, may be waived expressly by failing to raise it in an answer or by written motion, or impliedly by failing to elicit a ruling from the trial court on the question of venue before the entry of judgment or the commencement of trial. Williams v. Willis, 204 Ga.App. 328, 329, 419 S.E.2d 139 (1992). A defense based on improper venue must be brought to the attention of the trial court “at the earliest opportunity to plead.” Maalouf v. Knight, 237 Ga.App. 509, 511(2), 515 S.E.2d 650 (1999).

Brooks never raised the issue before the hearing, and as was noted at the hearing, had not filed a motion to transfer venue. Even in his affidavit filed the day after the hearing, Brooks merely asserted that the amounts due were incorrect, and alluded to the payments not being made because of “certifications and approvals” related to the real estate development for which the monies had been loaned. He presented no documentation showing a contradictory amount owed on the loan, nor any evidence contravening his guaranty of the loan.

Thus, as Brooks has not shown that given additional time he would have filed additional affidavits or other supporting documentation in response to a motion for summary judgment, he has not shown that he was harmed by having the motion for judgment on the pleadings converted to a motion for summary judgment. Accordingly, no reversal is required. See Tucker v. Thomas C. Talley, M.D., P.C., 267 Ga.App. 820, 823(2), 600 S.E.2d 778 (2004).

Judgment affirmed.

ADAMS and McFADDEN, JJ., concur.


1. The Civil Practice Act provides that, when an act is required within a specific time, “the court for cause shown may at any time in its discretion[,] … upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect….” OCGA § 9–11–6(b).

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