Ga. Code Ann. § 9-11-56

A defendant is entitled only to partial summary judgment when other liability theories fairly shown by the pleadings and evidence remain for trial.

Reed v. Adventist Health Systems/Sunbelt, Inc. · filed 1987-01-05

Thus, we find that the trial court should have granted only partial summary judgment to Smyrna Hospital, as there exist other issues, fairly shown by the pleadings and evidence, remaining for trial.

A movant seeking judgment on the entire case cannot obtain partial summary judgment under section 56(d) without requesting it and preserving error as to that relief.

Butts v. Georgia Casualty & Surety Co. · filed 1986-07-03(d)

Hence, the complaint in the instant case sought recovery of $50,000. The motion for summary judgment sought recovery of the whole amount and plaintiff did not request partial summary judgment under OCGA § 9-11-56 (d).

Partial summary judgment is proper when undisputed evidence negates the defendant's ownership, control, and premises liability for the claims at issue.

Goodman v. Kahn · filed 1987-04-28

The trial court did not err in granting partial summary judgment to defendant Kahn. OCGA § 9-11-56.

Granting summary judgment terminates the underlying action against the prevailing party, leaving that party without standing to seek rulings on other pending motions.

White Repair & Contracting Co. v. Oviedo · filed 1988-09-07(b)

Accordingly, once the trial court had granted summary judgment in favor of appellee Dr. Oviedo, the action as against him was terminated.

Subsection (d) permits partial summary judgment eliminating unsupported professional-malpractice allegations while allowing adequately pleaded ordinary-negligence theories to proceed.

Hillhaven Rehabilitation & Convalescent Center v. Patterson · filed 1990-03-07(d)

The judgment must be reversed with direction that all allegations of medical malpractice be stricken and that plaintiff be allowed to proceed only upon simple negligence. See OCGA § 9-11-56 (d).

Section 56(d) partial relief may be reviewed when the motion and enumeration expressly seek it.

Knothe v. Rose · filed 1990-03-16(d)

Contrary to defendant’s assertion, plaintiffs motion for summary judgment requested in the alternative for “an order granting partial summary judgment, and limiting the issues for trial.” On appeal the failure to grant a partial summary judgment is enumerated as error.

A motion for partial summary judgment may address a single claim and need not include every claim pleaded in the action.

Clark v. West · filed 1990-06-28(a), (d)

OCGA § 9-11-56 (a) specifically authorizes a motion for summary judgment upon a “claim,” rather than upon an action as a whole, and OCGA § 9-11-56 (d) provides specifically for partial summary judgment. There is no requirement that all claims pleaded be included in a motion for partial summary judgment.

Section 56(d) requires a partial-summary-judgment order to specify the extent to which damages are not disputed.

Primo's, Inc. v. Clayton Common Associates, Ltd. · filed 1990-09-28(d)

In ruling upon plaintiff’s summary judgment motion, it was incumbent upon the trial court to make an order specifying “the extent to which the amount of damages ... is not in controversy.” OCGA § 9-11-56 (d).

When the trial court resolves fewer than all claims, its ruling is partial summary judgment and the unresolved claim must be remanded for adjudication.

Proctor v. Rapid Group, Inc. · filed 1992-02-20(d)

Accordingly, the trial court’s ruling on the issue of optional PIP was a grant of partial summary judgment, see OCGA § 9-11-56 (d), and the case must be remanded for adjudication of this issue.

A party may receive partial summary judgment on liability for the main claim even when genuine factual issues prevent summary judgment on a counterclaim.

Forest Villas Condominium Assn. v. Camerio · filed 1992-09-08

The denial of summary judgment as to the main claim is reversed to the extent plaintiff is entitled to partial summary judgment as to liability. OCGA § 9-11-56. The pendency of genuine issues of material fact in regard to defendants’ counterclaim precluded the requested grant of summary judgment on it.

Subsection (b) permits partial summary judgment on a claim within a count even when that claim was not pleaded as a separate count.

Duffett v. E & W Properties, Inc. · filed 1993-04-15(b)

It is a claim within a count and not the procedural count itself which is the real subject of motions for partial summary judgment or motions on the pleadings directed as to partial claims.

A partial summary-judgment order that narrows recovery to actual damages controls the remaining proceeding and cannot be disregarded to expand damages at trial.

Richfield Capital Corp. v. Federal Sign Division of Federal Signal Corp. · filed 1996-08-29(d)

The partial summary judgment order determined as a matter of law that the liquidated damages provision of the lease was void and unenforceable as an unlawful penalty. It narrowed Federal Sign’s recovery to “actual damages suffered.” ... By ignoring the substance of the partial summary judgment order and permitting the damages issue to be litigated beyond actual damages, the trial court erred in allowing Federal Sign to expand the damages issue.

Subsection (a) permits partial summary judgment on liability while reserving the exact amount of damages for a jury.

Ledbetter v. Ledbetter · filed 1996-09-10(a)

The trial court did not err in granting defendant’s motion for partial summary judgment as to plaintiff’s personal liability for such expenses, as a matter of contract between the parties, while reserving the exact calculation of the final amount for jury resolution.

Section 9-11-56 authorizes summary judgment on fewer than all issues in a case.

Goodman v. Hammonds · filed 1997-01-29

This argument is without merit. OCGA § 9-11-56 authorizes summary judgment as to less than all the issues in a case.

Partial summary judgment may resolve only an issue that disposes of all or part of a claim; a ruling on a nondispositive issue is not directly appealable as partial summary judgment.

Planet Insurance v. Ferrell · filed 1997-08-26(d), (h)

Neither of these questions is directly dispositive of any or all of the claims asserted in appellee’s complaint, and thus they are not proper subjects for disposition by way of summary judgment.

An order granting summary judgment on specified claims while leaving other theories unresolved is an order of partial summary judgment under subsection (d).

Pyle v. City of Cedartown · filed 1999-10-20(d)

We interpret the order of the trial court to be an order of partial summary judgment under OCGA § 9-11-56 (d).

A movant seeking a partial-summary-judgment order specifying facts without substantial controversy must request such an order under subsection (d), and an unraised failure to enter one is not considered on appeal.

Wynn v. Arias · filed 2000-03-10(d)

API did not request that, if summary judgment were denied as to a particular count, the court enter an order pursuant to OCGA § 9-11-56 (d), “specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy.” On appeal, API argues that it was entitled to summary judgment as to each separate count but does not assert that the trial court erred in failing to enter an order pursuant to OCGA § 9-11-56 (d).

Subsection (h) makes a grant of partial summary judgment directly appealable even though it does not resolve every issue in the case.

SCHOENBAUM LTD., LLC v. Lenox Pines, LLC · filed 2003-06-25(h)

Even though a grant of partial summary judgment does not resolve all issues in a case, it is directly appealable under OCGA § 9-11-56 (h).

Subsection (d) requires an order specifying uncontested material facts only when a movant seeks partial summary judgment and claims remain for trial, and even then only if practicable.

Kuruvila v. Mulcahy · filed 2003-12-11(d)

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, would have been required by the statute only if the movants had opted to seek only partial summary judgment and other counts of the complaint remained to be tried.

Subsection (h) makes an order granting partial summary judgment directly appealable.

Threatt v. Rogers · filed 2004-09-01(h)

Noting that the grant of partial summary judgment in favor of Rogers was directly appealable under OCGA § 9-11-56 (h), we nevertheless entered an order granting the Threatts’ application for an interlocutory appeal from the December 30, 2002 order because “[t]his Court will grant a timely application for interlocutory review if the order complained of is subject to direct appeal and the applicants have not otherwise filed a notice of appeal.”

Subsection (h) makes an order implicitly granting partial summary judgment directly appealable.

Buckler v. DeKalb County Board of Commissioners · filed 2009-07-13(h)

In the same order, the court implicitly granted the county’s motion for partial summary judgment on Counts 2 and 3 of the developers’ complaint. Therefore, the order is directly appealable. OCGA § 9-11-56 (h).

Subsection (d) does not authorize judgment on part of a claim or partial relief; it permits a court to remove sham issues and specify facts that are not genuinely disputed.

City of Sandy Springs v. Kaplan · filed 2009-11-09(d)

It “does not authorize the entry of a judgment on part of a claim or the granting of partial relief. ... It simply empowers the court to withdraw sham issues from the case and to specify those facts that really cannot be controverted.”

Subsections (b) and (d) permit whole or partial summary judgment on a claim but do not authorize a motion seeking only an advisory ruling on a factual issue that disposes of no claim or part of a claim.

Nugent v. Myles · filed 2019-06-13(b), (d)

Pursuant to OCGA § 9-11-56 (b), a party may move for summary judgment “as to all or any part” of a claim. Thus, under these code sections, “a movant can elect to move for a whole or a partial summary judgment.” ... However, this provision “does not authorize the initiation of motions the sole object of which is to adjudicate issues of fact which are not dispositive of any claim or part thereof.” ... In other words, “[a] motion for summary judgment is designed to test the merits of a claim.”

A defendant may obtain summary judgment by pointing to an absence of evidence supporting at least one essential element of the plaintiff’s claim.

Nicholl v. Nationsbank of Georgia, N.A. · filed 1997-07-11(c)

A motion for summary judgment should be granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence to support at least one essential element of the plaintiff’s claim.

Once the moving party shows an absence of evidence supporting a claim, the opposing party must identify specific evidence creating a triable issue rather than rely on its pleadings.

Travelers Insurance v. Linn · filed 1998-12-04(e)

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. OCGA § 9-11-56 (e).

When a summary judgment motion is withdrawn and the case proceeds to trial, the court errs by applying the summary judgment standard to its trial judgment.

Malak v. Unifund Ccr, LLC as Assignee of Citibank, N.A. · filed 2017-10-24

Moreover, given that Unifund had withdrawn its motion for summary judgment, the trial court erred by applying a summary judgment standard in its order following the trial.

Section 9-11-56(h) ordinarily lets a party appeal a grant of summary judgment that leaves other issues unresolved immediately or after final judgment.

Cunina Brown Agard v. Prp Property Management, LLC · filed 2020-03-13(h)

Ordinarily, where a grant a summary judgment does not dispose of all issues in the case, a party has the option to appeal that order directly or wait until after the entry of final judgment.

Section 9-11-56(h) makes a grant of partial summary judgment on any issue or as to any party directly appealable.

Allstate Property and Casualty Insurance Company v. Nay · filed 2020-11-17(h)

Under OCGA § 9-11-56 (h), the grant of partial summary judgment on any issue or as to any party is reviewable by direct appeal.

Section 9-11-56(e) requires sworn or certified copies of papers referenced in a summary judgment affidavit to be attached or served with it; an affidavit that fails to identify or include those papers may be excluded.

Doe v. Roe · filed 2021-11-08(e)

The trial court properly excluded the affidavit because it referred to documents that were not identified in or attached to the affidavit; so we affirm that ruling. ... OCGA § 9-11-56 (e), which governs affidavits supporting or opposing motions for summary judgment, provides that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”

Section 9-11-56 motions for summary judgment are functionless and inappropriate in the superior court when it reviews an administrative agency decision under the Administrative Procedure Act.

Walker v. Harden · filed 1973-09-06

Howell held that the Civil Practice Act has no application to judicial review of administrative agency decisions under § 20 of *783the Administrative Procedure Act, and that motions for judgment on the pleadings and for summary judgment are "functionless” and are not appropriate in the superior court when that court is sitting as an appellate court under authority of the Administrative Procedure Act. Hence, even if those motions are in fact made in such a proceeding and are in fact ruled on by the superior court, the rulings are nullities and unappealable even with the judge’s certificate.

Section 9-11-56(e) requires an adverse party to respond with specific facts showing a genuine issue for trial rather than rely on pleadings.

Ernst v. Little · filed 1973-09-28(e)

Unless rebutted by some evidence to the contrary, it required the grant of defendant L. H. Ernst’s motion for summary judgment. However, the plaintiff offered nothing in contradiction of this critical evidence. "[A]n 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 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."

Section 9-11-56(c) governs the grant of summary judgment when the court determines that a party is entitled to judgment on a claim.

Graves Refrigeration, Inc. v. Haswell · filed 1976-02-06(c)

The trial court therefore did not err in granting summary judgment to defendants Haswell and Gatlin with regard to Count 1 of the complaint. Code Ann. § 81A-156 (c).

Section 9-11-56 permits summary judgment when the movant sustains its burden and no genuine issue of material fact remains.

Christian v. M&R Collection Adjustment, Inc. · filed 1983-09-06

Because we have held in Division 1, supra, that the court correctly adjudicated the merits of the prior action, it follows that appellee carried its statutory burden of sustaining its res judicata defense, and of establishing that there remained in the case no genuine issues of material fact. The trial court did not err in granting summary judgment to appellee. OCGA § 9-11-56 (Code Ann. § 81A-156).

Section 9-11-56 permits summary judgment when the evidence is sufficient to require judgment for the moving party.

Peppers v. Veres · filed 1983-10-07

In the instant case the evidence was sufficient to demand judgment for appellee. OCGA § 9-11-56 (Code Ann. § 81A-156).

Subsection (c) authorizes summary judgment when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law.

Wagner v. Howell Enterprises, Inc. · filed 1987-09-30(c)

... Because [appellant’s] claim of fraud was based solely upon statements allegedly made about future payments, no genuine issue as to any material fact has been raised. [Appellee] was thereby entitled to judgment as a matter of law. OCGA § 9-11-56 (c).”

Section 9-11-56 permits summary judgment when the evidence raises no material issue of disputed fact.

Hudson v. Montcalm Publishing Corp. · filed 1989-02-21

The evidence on summary judgment did not raise a material issue of disputed fact, OCGA § 9-11-56, as to the validity and enforceability of the release.

Subsection (e) requires the opposing party to present evidence showing a defense remains viable, and subsection (h) makes an initial summary judgment on liability directly appealable.

Costanzo v. Jones · filed 1991-07-16(e), (h)

Plaintiff pierced defendant’s reformation defense by showing a lack of mutual mistake. Thus, it was incumbent upon defendant to present evidence showing that his reformation defense remained viable. OCGA § 9-11-56 (e). This defendant failed to do.

Section 9-11-56 permits summary judgment when there is no genuine issue of material fact.

Mullins v. Columbia County · filed 1991-11-15

Since the deposition excerpts submitted do not contradict the trial court’s decision, we accept the trial court’s factual findings, and similarly conclude that there is no genuine issue of material fact regarding breach of contract, negligence or nuisance on the part of the county causing the damage alleged by appellant. See OCGA § 9-11-56.

Section 9-11-56 requires summary judgment evidence to be viewed in favor of the opposing party.

Davis v. John Hancock Mutual Life Insurance · filed 1991-11-20

Viewed in favor of Davis, the opponent of the summary judgment motion, OCGA § 9-11-56, Eiberger v. West, 247 Ga. 767, 769 (1) (281 SE2d 148) (1981), the uncontradicted evidence established that the incurable leukemia Mrs. Davis suffered from existed on December 7, 1987 when she applied for the insurance, despite the fact that the disease was undiagnosed.

When a supported summary judgment motion is made, the opposing party must present specific facts showing a genuine issue for trial; otherwise, summary judgment may be entered if appropriate.

Holmes v. University Health Service, Inc. · filed 1992-09-09(e)

OCGA § 9-11-56 (e) provides, “[w]hen 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.” After reviewing the entire record in this case, we find that the trial court correctly granted summary judgment in favor of UHS.

Section 9-11-56 allows a defendant to obtain summary judgment by negating an essential element, showing its absence from the record, or establishing a complete defense, requiring the plaintiff to identify specific evidence creating a triable issue.

Wiederkehr v. Brent · filed 2001-03-15

Under these circumstances, we find that the grant of summary judgment was proper and affirm. See Speir v. Krieger, 235 Ga. App. 392, 397 (2) (509 SE2d 684) (1998) (on motion for summary judgment under OCGA § 9-11-56, movant defendant may prevail (1) by presenting evidence negating essential element of plaintiff’s claims, (2) by showing that there is no evidence in the record supporting essential element of the case, or (3) by showing a complete defense of immunity as in this case, discharge by the moving party, requiring nonmovant plaintiff to point to specific evidence beyond its pleadings giving rise to a triable issue).

Section 9-11-56(c) permits summary judgment when the record shows no genuine issue of material fact and the movant is entitled to judgment as a matter of law.

Colonial Ins. Co. v. PROGRESSIVE CAS. INS. · filed 2001-11-09(c)

See OCGA § 9-11-56(c) (summary judgment is appropriate where "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").

Section 9-11-56(c) supports summary judgment when no question of material fact shows a compensable taking.

Hanson v. City of Roswell · filed 2003-07-14(c)

We conclude that Hanson has presented no question of material fact showing such a taking.

Section 9-11-56 requires summary judgment when no genuine issue of material fact exists and the undisputed facts establish entitlement to judgment.

Johnson v. Fayette County · filed 2006-05-08

To prevail on summary judgment, therefore, Fayette County was required to demonstrate that there was no genuine issue of material fact and that the undisputed facts established that the FCMD is a county police force created prior to January 1, 1992, which remains in existence and operational.

Section 9-11-56 requires summary judgment to be decided using material admissible at trial when determining whether an issue of fact exists.

Parks v. Hyundai Motor America, Inc. · filed 2008-10-20

Once Hyundai produced evidence on summary judgment establishing the bar of the ten-year statute of repose, the burden of production shifted to the Parkses to produce some admissible evidence in support of the exception to the bar that they relied upon. ... Because the Parkses simply argued that allegations in other complaints or occurrences made them substantially similar to their claim, but failed to make the required foundational showing of substantial similarity, we find that the Parkses failed to produce any evidence sufficient to create an issue of fact as to the bar of the ten-year statute of repose. ... (on summary judgment trial court considers material that would be admissible at trial).

Subsections (b) and (d) permit a party to seek summary judgment on all or part of a claim and allow unresolved material facts to be specified for later trial.

CNL APF Partners, LP v. Department of Transportation · filed 2010-12-30(b), (d)

The court had jurisdiction over the motion for partial summary judgment filed in the condemnation action pending before it. ... See OCGA § 9-11-56 (b), (d) (party against whom claim is asserted may, at any time, move for summary judgment as to all or any part thereof; if, on such motion, judgment is not rendered upon the whole case, the court shall, if practicable, ascertain what material facts exist without substantial controversy and shall make an order specifying such facts; upon subsequent trial of the action, such facts shall be deemed established).

Subsection (e) requires sworn or certified copies of papers referred to in an affidavit to be attached or served with it.

Morgan v. Horton · filed 2011-03-04(e)

Further, although the plaintiffs’ expert witness stated in an affidavit that, “[according to the State Forestry Commission Policy and Procedure [Manual], no active flames are permitted outside of the permitted time,” the manual upon which he relied for this conclusion is not a part of the record. Accordingly, the expert’s assertion regarding the manual’s contents is inadmissible hearsay and without probative value. See OCGA § 9-11-56 (e) (“Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”); Farrar v. Made, 297 Ga. App. 192, 194 (2) (676 SE2d 840) (2009).

Subsection (c) permits summary judgment on liability alone even when the amount of damages remains genuinely disputed.

City of College Park v. Georgia Interlocal Risk Management Agency · filed 2011-10-11(c)

A summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damage.

Subsection (c) permits partial summary judgment on liability despite unresolved damages issues, and such a liability ruling is directly appealable under subsection (h).

Burgundy Guzman, as Surviving Spouse of Paul Guzman v. Carsten Link · filed 2020-03-13(c), (h)

OCGA § 9-11-56 (c) provides that “[a] summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of ... damage.” ... Therefore, the trial court properly considered Link’s motion as one for partial summary judgment on the issue of liability, even though factual issues relating to apportionment of damages remained for the jury’s consideration under OCGA § 51-12-33. ... Accordingly, Burgundy’s direct appeal of the trial court’s ruling was authorized under OCGA § 9-11-56 (h), ... and Link’s motion to dismiss is denied.

When a trial court considers affidavits filed after the pleadings in deciding a motion to dismiss, the motion is converted to one for summary judgment under § 9-11-56.

Murphy v. Ticor Title Insurance Company · filed 2012-05-11

Here, the trial court’s order reflects that it considered affidavits filed after the original pleadings in making its determination. Therefore, Ticor’s motion to dismiss was converted into a motion for summary judgment pursuant to OCGA § 9-11-56 and we apply that standard of review.

When a motion to dismiss is converted to summary judgment, subsection (c) requires notice of the conversion and at least 30 days for the nonmovant to prepare opposing evidence, though deficient notice is not reversible without harm.

Bynum v. Horizon Staffing · filed 2004-02-24(c)

Under these circumstances, the court was required to give Bynum notice of this conversion and at least 30 days to respond. ... But deficient notice is not reversible absent a showing of harm.

A trial court may convert an interlocutory-injunction application into a summary-judgment motion only by complying with subsection (c) and providing an opportunity for a summary-judgment hearing.

RTS Landfill, Inc. v. Appalachian Waste Systems, LLC · filed 2004-03-29(c)

Similarly, the trial court has the authority to convert an application for interlocutory injunction to a motion for summary judgment, but it cannot do so without complying with OCGA § 9-11-56 (c) and without an opportunity for a hearing on summary judgment.

A motion to dismiss must be treated as a section 56 summary-judgment motion when the parties present and the court considers matters outside the pleadings.

Barone v. Adcox · filed 1975-10-28

We note initially that because the Barones presented and the court considered matters outside the pleadings, the motion should have been treated as one for summary judgment under Code Ann. § 81A-156. Code Ann. § 81A-112 (b).

A motion to dismiss may be treated as one for summary judgment based on matters outside the pleadings when the opposing party receives the notice required by § 9-11-56.

National Bank & Trust Co. v. Grant · filed 1976-07-09

On motion to dismiss, a trial judge is authorized to hear matters outside the pleadings and treat the motion as one for summary judgment where the opposing party has notice as provided by Code § 81A-156.

A motion to dismiss must be treated and resolved as a section 56 summary-judgment motion when the court considers matters outside the complaint.

Stender v. Fulton County · filed 1982-01-08

From the transcript of the hearing held pursuant to appellee’s oral motion to dismiss, “... it is clear that the trial court considered matters outside the complaint. The appellee [’s] motion should therefore have been treated as one for summary judgment and disposed of as provided in Code Ann. § 81A-156. [Cit.]” Hoffman v. PMC Development Co., 238 Ga. 258 (232 SE2d 541). The failure to follow the procedures appropriate to summary adjudication require reversal of the judgment.

When a motion to dismiss is converted to summary judgment through consideration of matters outside the record, the statute's notice-and-hearing requirements must be satisfied.

Huttig Sash & Door Co. v. Controlled Building Corp. · filed 1983-01-13

The record affirmatively demonstrates that neither motion complied with the notice and hearing requirements of Code Ann. § 81A-156 (OCGA § 9-11-56).

A motion to dismiss that requires consideration of matters outside the record is treated as a summary-judgment motion and becomes subject to the statute's notice-and-hearing requirements.

Marconi Avionics, Inc. v. DeKalb County · filed 1983-02-16

To the extent that the motion requires consideration of matters outside the record, it will be treated as a motion for summary judgment and subject to the notice and hearing requirements of OCGA § 9-11-56 (Code Ann. § 81A-156).

A court converting an interlocutory-injunction application into a summary-judgment motion must provide the 30 days’ notice and hearing opportunity required by section 56(c).

Charming Shoppes, Inc. v. Black · filed 1984-02-21(c)

A trial court has the authority to convert an application or interlocutory injunction into amotion for summary judgment. However, it cannot do so without compliance with the provisions of OCGA § 9-11-56 (c) (Code Ann. § 81A-156). This section requires thirty days notice and an opportunity for hearing at the end of thirty days.

When a court considers matters beyond the pleadings on a motion to dismiss, the motion becomes one for summary judgment and must satisfy the statutory requirements.

Gaddy v. Thomasson · filed 1984-12-04

When, in ruling on a motion to dismiss based on grounds set forth in OCGA § 9-11-12, the trial court considers matters other than the pleadings themselves, such motion is properly treated as a motion for summary judgment subject to the requirements of OCGA § 9-11-56.

When a court considers extraneous matter on a motion for judgment on the pleadings, section 56 governs the converted motion and requires the evidence to demand judgment as a matter of law.

Baker v. Wulf · filed 1985-03-06

A motion for judgment on the pleadings is just that and when extraneous matter is considered under OCGA § 9-11-12 (c) the motion is treated as one for summary judgment and disposed of as provided in OCGA § 9-11-56. In such circumstances “the evidence must demand a finding that there is no genuine issue of any material fact and that the moving party is entitled to judgment as a matter of law.”

A trial court may sua sponte convert a failure-to-state-a-claim motion into summary judgment even without outside matter if the parties receive sufficient time to submit evidence.

Zepp v. Mayor & Council of Athens · filed 1986-07-16

So long as the parties are afforded sufficient time within which to file affidavits and other evidentiary materials, we see no reason why a trial court sua sponte cannot treat an OCGA § 9-11-12 (b) (6) motion as one for summary judgment even though neither party introduced matter outside of the pleadings.

When outside matter converts a dismissal motion into one for summary judgment, section 56(c) requires notice and an opportunity to present pertinent materials.

Jim Altman Insurance, Inc. v. Zorn & Son Insurance Agency, Inc. · filed 1987-10-19(c)

That being so, it was necessary to give appellant notice of the motion as is required by OCGA § 9-11-56 (c), and an opportunity to present any materials made pertinent by the motion.

The thirty-day summary-judgment response period does not apply to a motion for judgment on the pleadings when the court considers no matter outside the pleadings.

Sofet v. Roberts · filed 1987-12-17

Since there is nothing in the trial court’s order or in the record that reflects that the trial court considered matters outside the pleadings, we cannot join in appellant’s conclusion.

A motion to dismiss may be treated as summary judgment without a separately filed summary-judgment motion when outside evidence is considered and the parties receive notice and follow that procedure without objection.

RICHMOND LEASING, INC. v. First Union Bank · filed 1988-09-21(c)

Hence, in a procedural context, the CPA sanctions the hearing of a motion for a summary judgment even though no such motion is ever filed.

A converted summary-judgment motion must follow subsection (c) and the applicable superior-court procedures.

Barrett v. Wharton · filed 1990-09-04(c)

OCGA § 9-11-56 (c) and Superior Court Rules 6.5 and 6.6 prescribe the procedures for motions for summary judgment. The record on appeal shows that these procedures were not followed.

An objection to conversion of a dismissal motion into summary judgment cannot be raised for the first time on appeal.

Arnall, Golden & Gregory v. Health Service Centers, Inc. · filed 1990-11-29

We cannot find where appellant raised an objection in the lower court after the court converted the motion to dismiss into one for summary judgment, and it did not enumerate the court’s action as error on appeal.

When a trial court converts a motion to dismiss into summary judgment, the respondent is entitled to thirty days to respond before the court rules.

Hart v. Sullivan · filed 1990-11-14

Because appellants were not given the 30 days to respond to the motion for summary judgment under OCGA § 9-11-56, we agree with appellants that the trial court’s grant of partial summary judgment to appellees was error.

A failure-to-state-a-claim motion becomes a summary-judgment motion when the court considers matters outside the pleadings.

SunAmerica Financial, Inc. v. 260 Peachtree Street, Inc. · filed 1991-01-31

If, as here, on motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in OCGA § 9-11-56. OCGA § 9-11-12 (b).

When a dismissal motion is converted by outside material, section 56(c) requires 30 days’ notice and an opportunity to respond.

Jones v. Ward · filed 1991-11-05(c)

OCGA § 9-11-56 (c) requires service of a motion for summary judgment on the opposing party at least 30 days before a hearing.

After converting a motion to dismiss into summary judgment, the court must give notice of conversion, thirty days to respond, and an opportunity for a hearing unless those protections are waived.

Bonner v. Fox · filed 1992-06-01

Although the trial court may convert a motion to dismiss to a motion for summary judgment (see OCGA § 9-11-12 (b)), where this is done there must be compliance with OCGA § 9-11-56 requiring 30 days notice and an opportunity for a hearing.

When a court considers matters outside the pleadings in resolving a motion to dismiss, it must treat the motion as one for summary judgment and apply summary-judgment standards.

Bates & Associates, Inc. v. Romei · filed 1993-01-13

As the issue of applicability of the economic loss rule is ... inextricably linked to the issue of privity in the determination as to the viability of appellant’s counterclaim, appellee’s motion properly should have been treated as a motion for summary judgment, and the standards pertaining thereto applied in reaching disposition of the counterclaim. OCGA § 9-11-56.

When consideration of matters outside the pleadings converts a motion to dismiss into one for summary judgment, Section 9-11-56 requires a hearing opportunity on 30 days' notice to the nonmovant.

American Car Rentals, Inc. v. Walden Leasing, Inc. · filed 1994-12-13

Where a motion to dismiss is thus converted to a motion for summary judgment, there must be compliance with OCGA § 9-11-56, requiring an opportunity for a hearing upon 30 days notice to the non-moving party.

A court may convert an application for an interlocutory injunction into a summary-judgment motion only by complying with subsection (c) and providing an opportunity for a summary-judgment hearing.

Electronic Data Systems Corp. v. Heinemann · filed 1995-07-13(c)

The trial court has authority to convert an application for interlocutory injunction to a motion for summary judgment, but it cannot do so without complying with OCGA § 9-11-56 (c) and without an opportunity for a hearing on summary judgment.

When outside evidence converts a motion to dismiss into summary judgment, section 9-11-56 requires an opportunity for a hearing, but denial of that opportunity is not reversible without a showing of harm.

Christensen v. State · filed 1995-11-03

In converting a motion to dismiss into one for summary judgment, the court must give the parties an opportunity for a hearing as required by OCGA § 9-11-56. ... However, the error is not reversible absent a showing of harm.

When a court relies on evidence outside the pleadings to decide a remaining motion to dismiss, it must convert the motion to summary judgment and give the parties notice under section 9-11-56.

Dean v. Schreeder, Wheeler & Flint · filed 1996-08-06

If venue is found to exist, the trial court should convert appellee Miller’s remaining motion to dismiss into a motion for summary judgment, give the parties notice thereof (OCGA § 9-11-56), and adjudicate the converted motion based on evidence in the record outside the pleadings.

Summary judgment is the proper procedure for precluding pleaded theories by showing the absence of a material factual issue and piercing the pleadings.

Martin v. Brown · filed 1996-08-20

A motion for summary judgment would be the proper motion to preclude appellant from such theories of liability by showing the absence of a material issue of fact and piercing the pleadings, requiring appellant to come forward to show that a material issue of fact does in fact exist.

When consideration of matters outside the pleadings converts a motion to dismiss into one for summary judgment, the trial court must give notice of the conversion and allow 30 days for response.

Robison v. Green · filed 1997-08-06(c)

As such, once the decision was made to consider facts outside the pleadings, the trial court should have given notice that appellee’s motion was to be considered a motion for summary judgment and should have allowed 30 days for appellant’s response before considering the motion, pursuant to OCGA § 9-11-56 (c).

Considering matters outside the pleadings on a motion to dismiss for insufficient process or service does not convert that motion into one for summary judgment subject to subsection (c).

Franchell v. Clark · filed 1999-11-03(c)

When a court considers matters outside the pleadings in reaching the merits of a motion to dismiss for insufficient process or insufficient service of process, the motion is not thereby converted to one for summary judgment.

When a court sua sponte converts a motion to dismiss by considering outside material, it must give the respondent 30 days’ notice and a reasonable opportunity to present summary-judgment material.

Bakhtiarnejad v. Cox Enterprises, Inc. · filed 2000-10-13(c)

The trial court shall give 30 days notice from the time the court considers matters outside the pleadings, sua sponte converting the motion to dismiss into a motion for summary judgment, to permit the respondent an opportunity to respond as required under OCGA § 9-11-56.

When a motion to dismiss is converted to summary judgment, the opponent is entitled to 30 days’ notice and a reasonable opportunity to present pertinent material.

Cox Enterprises, Inc. v. Nix · filed 2000-11-13

If, on motion to dismiss for failure to state a claim, the trial court elects to consider matters outside of the pleadings, “the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by” that code section.

A motion to dismiss must be treated as a motion for summary judgment under section 9-11-56 when the parties and court rely on documents outside the pleadings.

Department of Transportation v. Carr · filed 2002-03-11

Because it is clear that DOT, the plaintiffs, and the trial court all relied on numerous documents outside the pleadings, the motions to dismiss should be treated as motions for summary judgment under OCGA § 9-11-56.

When a court considers matters outside the pleadings on a failure-to-state-a-claim motion, the motion converts to summary judgment and the opponent must be notified and allowed at least 30 days to submit evidence.

Morrell v. Wellstar Health System, Inc. · filed 2006-06-20(c)

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.

When a trial court considers matters outside the pleadings on a dismissal motion, the motion converts to summary judgment and the opposing party ordinarily must receive notice and at least 30 days to submit evidence.

Gaddis v. Chatsworth Health Care Center, Inc. · filed 2006-11-29

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.

Considering matters outside the pleadings converts a dismissal motion into summary judgment and ordinarily requires notice plus at least 30 days for the opponent to submit evidence.

Action Concrete v. Portrait Homes — Little Suwanee Point, LLC · filed 2007-06-04

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.

Subsection (c) permits summary judgment when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law.

Boatright v. Glynn County School District · filed 2012-03-22(c)

Because the trial court considered evidence outside Boatright’s complaint, we find that it decided the motion as one seeking summary judgment and therefore we apply the following standard of review: “Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. . . .[ ... ] We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.”

When a court considers matters beyond a renewed application in ruling on a motion to dismiss, the motion must be treated as one for summary judgment and disposed of under § 9-11-56.

Warehouseboy Trading, Inc. v. Gew Fitness, LLC · filed 2012-06-15

Gew Fitness’s “motion should therefore have been treated as one for summary judgment and disposed of as provided in [OCGA § 9-11-56].”

Considering evidence attached to a motion to dismiss converts it into a summary-judgment motion governed by § 9-11-56.

Babalola v. HSBC Bank, USA, N.A. · filed 2013-11-15

Although a trial court has the option to consider evidence attached to a motion to dismiss and brief in support thereof, when it does so it converts the motion to dismiss into a motion for summary judgment, governed by OCGA § 9-11-56.

When a court considers matters outside the pleadings on a motion to dismiss, it must treat the motion as one for summary judgment and give all parties a reasonable opportunity to present pertinent material.

MINNIFIELD v. WELLS FARGO BANK, N.A. Et Al. · filed 2015-04-10

But if matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment, and all parties shall be given a reasonable opportunity to present all material made pertinent to such a motion by OCGA § 9-11-56. OCGA § 9-11-12 (b).

When consideration of matters outside the pleadings converts a dismissal motion into summary judgment, a resulting order granting relief on an issue is directly appealable under subsection (h).

CARTER v. VISTACARE, LLC (Two Cases) · filed 2016-02-18(h)

Carter moved for reconsideration, contending that the trial court converted VistaCare’s motion to dismiss into a motion for summary judgment when it considered matters outside of the pleadings. Carter asserted that the First Order was therefore directly appealable under OCGA § 9-11-56 (h), which provides that “[a]n order granting summary judgment on any issue or as to any party shall be subject to review by appeal.” Finding Carter’s argument persuasive, we vacated the order of dismissal and reinstated the appeal.

When a court considers evidence attached to a motion to dismiss, the motion converts to one for summary judgment and the plaintiff must receive notice and at least 30 days to submit responsive evidence.

Love v. Fulton County Board of Tax Assessors · filed 2018-12-03

Although a trial court has the option to consider evidence attached to a motion to dismiss and brief in support thereof, when it does so it converts the motion to dismiss into a motion for summary judgment, governed by OCGA § 9-11-56. In accordance with this procedure, the trial court has the burden of informing a plaintiff that it will be considering exhibits attached to the defendant’s motion to dismiss and that the plaintiff would have no less than 30 days within which to submit his own evidence in response to the motion for summary judgment.

Considering evidence outside the pleadings converts a motion to dismiss into summary judgment, requiring notice and at least 30 days for the plaintiff to submit responsive evidence.

W. Henry Schwab, Jr. v. Jackson · filed 2019-01-23

[a]lthough a trial court has the option to consider evidence attached to a motion to dismiss and brief in support thereof, when the court does so it converts the motion to dismiss into a motion for summary judgment, governed by OCGA § 9-11-56. In accordance with this procedure, the trial court has the burden of informing a plaintiff that it will be considering exhibits attached to the defendant’s motion to dismiss and that the plaintiff would have no less than 30 days within which to submit his own evidence in response to the motion for summary judgment.

Considering matters outside the pleadings converts a dismissal motion into summary judgment and requires a reasonable opportunity to present pertinent material, but materials used only for a separate motion do not establish conversion of the dismissal.

Roberts v. Dupont Pine Products, LLC · filed 2019-10-29

But if matters outside the pleadings are ... presented to and not excluded by the court, the motion must be treated as one for summary judgment, and all parties shall be given a reasonable opportunity to present all material made pertinent to such a motion by OCGA § 9-11-56. ... Accordingly, Roberts and NHF Farms have not shown that the trial court’s dismissal was a summary judgment ruling for which notice and an opportunity to respond were required.

Considering matters outside the pleadings converts a motion to dismiss into summary judgment, requiring notice and at least 30 days for the opposing party to submit evidence unless that party waives notice by acquiescing in the evidentiary submission.

Sweet City Landfill, LLC v. Lyon · filed 2019-11-06(c)

“Although a trial court has the option to consider evidence attached to a motion to dismiss and brief in support thereof, when it does so it converts the motion to dismiss into a motion for summary judgment, governed by OCGA § 9-11-56.” ... 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. The party opposing the motion may waive the right to the 30–day notice by acquiescing in the movant’s submission of evidence in support of the motion to dismiss.

A motion to dismiss is not converted into a summary-judgment motion when the trial court considers only the pleadings and no matter outside them.

Mitchell v. Capehart · filed 2020-01-28(c)

... we will not conclude that the underlying motion to dismiss filed by Capehart was so converted. ... Capehart posits on appeal that evidence within the record authorized a substantive ruling against Mitchell, but the trial court expressly identified in the written judgment those parts of the record considered for its ruling; and such recitation included only pleadings.

When outside material converts a motion to dismiss into summary judgment, the opposing party is entitled to notice and at least 30 days to prepare responsive evidence.

Premier Eye Care Associates, P.C. v. Mag Mutual Insurance Company · filed 2020-06-05(c)

Under OCGA § 9-11-56 (c), a motion for summary judgment “shall be served at least 30 days before the time fixed for the hearing.” Thus, when a trial court converts a motion to dismiss for failure to state a claim into one for summary judgment, “the party opposing the motion may, if he so desires, have 30 days’ notice in which to prepare evidence in opposition.”

When outside material converts a motion to dismiss into summary judgment, the opposing party is entitled to notice and at least 30 days to prepare responsive evidence.

Premier Eye Care Associates, P.C. v. Mag Mutual Insurance Company · filed 2020-06-17(c)

Under OCGA § 9-11-56 (c), a motion for summary judgment “shall be served at least 30 days before the time fixed for the hearing.”

A dismissal becomes summary judgment only if the court considers matters outside the pleadings, in which case the parties must receive a reasonable opportunity to present pertinent material under section 9-11-56.

Spann v. Davis · filed 2020-06-22

The procedural distinction between dismissal, as opposed to summary judgment, is significant. ... “if matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment, and all parties shall be given a reasonable opportunity to present all material made pertinent to such a motion by OCGA § 9-11-56.” ... But, here, as in Roberts, there is no indication that the trial court considered matters outside the pleadings in reaching its decision to dismiss the complaint.

When an order ambiguously addresses dismissal and summary judgment, the court treats it as a summary-judgment ruling if outside evidence was presented, considered, and not excluded.

City of Atlanta v. Burgos · filed 2021-10-18(c)

The trial court’s order is ambiguous regarding whether it is denying the City’s motion to dismiss or its motion for summary judgment. When a trial court’s order is ambiguous, OCGA § 9-11-12 (b) “requires the reviewing court to first determine whether either party has presented matters outside the pleadings to the trial court. If no such matters are presented, then the motion is treated as a motion for dismissal. If such matters outside the pleading[s] have been presented, a further determination has to be made as to whether the trial court excluded them.” ... Here, the trial court considered these matters and did not exclude them. Therefore, we treat the trial court’s order as one denying summary judgment to the City.

When consideration of outside material converts a motion to dismiss into summary judgment, the opposing party must receive reasonable notice and at least 30 days to prepare evidence.

Roney v. Wright · filed 2022-02-22(c)

Pursuant to OCGA § 9-11-56 (c), a motion for summary judgment “shall be served at least 30 days before the time fixed for the hearing.”

When a motion to dismiss relies on and the court considers matter outside the pleadings, the motion is treated and reviewed as one for summary judgment.

Gwinnett County, Georgia v. State of Georgia · filed 2025-10-31(c)

The trial court, in ruling on the motion, considered [the] stipulation of facts filed by the parties, a matter outside the pleadings. Consequently, the motion was . . . treated as one for summary judgment, and we review the order appealed as a [grant] of a motion for summary judgment[, rather than a dismissal for failure to state a claim].

Considering matters outside the pleadings converts a motion to dismiss into summary judgment, though a party may waive an objection to that conversion.

William R. Chambers, Jr. v. Edwards · filed 2022-09-12

As an initial matter, we note that the trial court considered matters outside the pleadings, including orders from the probate court, in granting Edwards’s motion to dismiss. Accordingly, the motion to dismiss was converted into one for summary judgment.

A motion to dismiss for failure to state a claim becomes a summary-judgment motion when outside matters are presented and not excluded, requiring a reasonable opportunity for all parties to present pertinent material.

MCCLOUD v. LOWNDES COUNTY BOARD OF COMMISSIONERS · filed 2023-10-30(c)

It is true that if, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in [OCGA §] 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by [OCGA §] 9-11-56. ... However, the record shows no indication that the trial court treated Smith’s motion in this manner.

A party that submits evidence on a motion to dismiss and shows no prejudice from conversion acquiesces in treating the motion as one for summary judgment.

PIERRE v. MICRO-JA/X, LLC · filed 2025-09-17(c)

Under these circumstances, plaintiff “acquiesced in [d]efendants’ submission of evidence in support of their motion to dismiss[.]”

When a court considers outside evidence on a motion to dismiss, the resulting partial summary judgment is directly appealable under subsection (h).

National Santa Agency, LLC v. Pictureu Promotions, Inc. · filed 2026-05-21(h)

As the trial court considered matters outside the pleadings, the order is properly construed as the grant of partial summary judgment, which may appealed directly.

Subsection (e) requires summary-judgment evidence to state admissible facts and affirmatively show the witness is competent to testify.

Holcomb v. Norfolk Southern Railway Co. · filed 2009-01-22(e)

Rules as to the admissibility of evidence are applicable in summary judgment proceedings, since the statute provides that all affidavits, depositions, etc. “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.” OCGA § 9-11-56 (e)].

Subsection (e) requires affidavits to be based on personal knowledge, state admissible facts, show competency, and attach or serve sworn or certified copies of referenced papers.

Crawford v. Lawyers Title Insurance Corporation · filed 2009-03-05(e)

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.

Subsection (e) requires summary-judgment affidavits to be based on personal knowledge and to state facts admissible in evidence.

Garner v. RITE AID OF GEORGIA, INC. · filed 2004-02-20(e)

“Affidavits supporting and opposing summary judgment must be made on personal knowledge and must set forth such facts as would be admissible in the evidence.”

Subsection (e) requires summary-judgment affidavits to be based on personal knowledge and to state admissible facts; hearsay and unsupported conclusions must be excluded.

Sherrill v. Stockel · filed 2001-11-02(e)

Affidavits supporting and opposing summary judgment must be made on personal knowledge and must set forth such facts as would be admissible in the evidence. OCGA § 9-11-56 (e). “[A]ll hearsay evidence, unsupported conclusions, and the like, must be stricken or eliminated from consideration in a motion for summary judgment.”

Under subsection (e), an affidavit's unsupported legal conclusion must be disregarded when the record does not affirmatively show personal knowledge supporting it.

Smith v. Gibbs · filed 1978-04-11(e)

The statement that Alice M. Smith owned the vehicle driven by David Smith, however, is a legal conclusion for which the record discloses no factual support. Absent an affirmative indication that the affiant had personal knowledge on which to base that conclusion, it must be disregarded, and the summary judgment against Alice M. Smith must accordingly be reversed.

An affidavit based on personal knowledge or examination of regularly kept business records may support summary judgment, and unrebutted admissible evidence prevents the opponent from resting on pleading allegations.

McFarland v. Beardsly · filed 1979-01-09(e)

The evidence set forth in appellee’s affidavit was admissible in accordance with Code Ann. § 81A-156 (e) *646and Code Ann. § 38-711, which, by its own terms, is to be "liberally interpreted and applied.” ... The appellant was thereafter unable to "rest upon the mere allegations. . .of his pleading,” and the entry of partial summary judgment, as to the confiscated money, in favor of the appellees was appropriate. Code Ann. § 81A-156 (e).

Under subsection (e), supporting and opposing affidavits must be based on personal knowledge and set forth facts admissible in evidence.

Vickers v. Chrysler Credit Corp. · filed 1981-04-15(e)

Code Ann. § 81A-156 (e) governs the form and content of affidavits supporting and opposing motions for summary judgment. Under that section affidavits must be made on the personal knowledge of the affiant and set forth such facts as would be admissible in evidence.

A corporate officer’s summary-judgment affidavit must be based on personal knowledge and show competence to testify, so conclusions about what other employees did cannot carry the movant’s burden.

Lubbers v. Tharpe & Brooks, Inc. · filed 1981-11-24(c), (e)

A corporate officer cannot testify to what other corporate employees did or did not do. “[The corporate officer’s] affidavit is sufficient as to what he did; but it is a conclusion as to what other persons did, and is therefore not sufficient as proof under the provisions of Code Ann. § 81A-156 (e) which requires that affidavits in motions for summary judgment be based on personal knowledge and must show affirmatively that affiant is competent to testify to the matters stated therein. Obviously, in a court of law, this witness could not have testified as to what other persons than himself did or did not do. [Cits.]” Textile Prod., Inc. v. Fitts Cotton, Inc., 124 Ga. App. 421, 422-3 (184 SE2d 14).

Conclusory assertions that are not admissible facts based on personal knowledge cannot create a genuine issue for trial.

Herron v. Mixon · filed 1981-01-27(e)

Appellant’s conclusions are not admissible and cannot be considered. Accordingly, the affidavit did not set forth specific facts showing that there were genuine issues for trial.

An affiant's statement in the jurat that the affidavit is based on personal knowledge is generally sufficient to satisfy subsection (e).

Bishopsgate Insurance v. Cactus Club, Inc. · filed 1985-09-17(e)

“ ‘A statement in the jurat to the effect that the affidavit is made upon personal knowledge is generally sufficient’ to comply with [OCGA § 9-11-56 (e)]. . . .”

When an affidavit contains both inadmissible material and statements clearly based on personal knowledge, the personal-knowledge portions satisfy subsection (e) and must be considered.

Moon v. Yancy · filed 1988-02-09(e)

“Even if appellant’s [affidavit does] contain some material which is not derived from personal knowledge and therefore does not satisfy the requirements of OCGA § 9-11-56 (e) . . . , those portions of the [affidavit] which clearly are derived from personal knowledge do meet the requirements of the statute and must be considered. [Cit.]”

Under section 56(e), portions of interrogatory answers clearly derived from personal knowledge must be considered even if other portions are not.

Falcone International, Inc. v. Clowes · filed 1987-10-02(e)

Even if appellant’s interrogatory answers do contain some material which is not derived from personal knowledge and therefore does not satisfy the requirements of OCGA § 9-11-56 (e) as a response to a motion for summary judgment, those portions of the answers which clearly are derived from personal knowledge do meet the requirements of the statute and must be considered.

A verified pleading has no greater effect than an affidavit under section 56(e) and must be based on personal knowledge.

Moore v. Goldome Credit Corp. · filed 1988-06-21(e)

However, a verified pleading has no greater effect than an affidavit tendered pursuant to OCGA § 9-11-56 (e), and must comply with the Rule 56 (e) requirement that both supporting and opposing affidavits shall be made on “personal knowledge.”

An affidavit need not state expressly that its affiant is competent when its contents affirmatively demonstrate competence and personal knowledge.

Jacobs v. Spano · filed 1989-11-08(e)

We do not agree with appellee that the affiants were required to state that they were “competent” to testify to the matters in the affidavits where, as here, the affidavits show affirmatively that the affiants were competent.

An affidavit's inclusion of a conclusion outside the affiant's personal knowledge does not invalidate the whole affidavit; admissible observations remain evidence.

Steerman v. American States Insurance · filed 1990-02-09(e)

Further, the other driver cannot testify Gutierrez was waiting for oncoming traffic to clear to turn left because it was not within his personal knowledge. OCGA § 9-11-56 (e). That, however, does not make this whole affidavit defective.

Section 56(e) requires an affidavit to show that its statements derive from personal knowledge.

King v. Sheraton Savannah Corp. · filed 1990-02-22(e)

In the first instance, the affidavit does not show the statements made therein are from the witness’ personal knowledge. OCGA § 9-11-56 (e).

An affidavit must affirmatively establish the affiant's competence to testify from personal knowledge, and unsupported conclusions must be disregarded even if the affidavit recites personal knowledge.

Sullivan v. Fabe · filed 1991-02-01(e)

Further, nothing in the affidavit complied with the requirement of OCGA § 9-11-56 (e) that the affidavit show affirmatively Carraher was competent to testify about the matters stated in his affidavit.

A malpractice plaintiff cannot oppose a supported summary-judgment motion with a conclusory expert opinion that omits the professional standard and particulars of the defendant's deviation.

Turner v. Kitchings · filed 1991-06-04

Since, in opposing appellee’s motion, appellant did not meet his burden, it follows that the trial court correctly granted summary judgment in favor of appellee.

A countering expert affidavit avoids summary judgment when, read as a whole, it states what should have been done and compares that standard with what was done.

Dent v. Memorial Hospital of Adel, Inc. · filed 1991-06-28(e)

It cannot be said that this “merely . . . [presents] 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. . . .”

An objection that summary-judgment affidavits lack personal knowledge is waived if not raised in the trial court.

Southern International Pictures, Inc. v. Friedman · filed 1991-09-03(e)

Defendants did not raise this objection below.

An opposing affidavit based predominantly on hearsay rather than personal knowledge does not create a factual dispute under subsection (e).

Horney v. Panter · filed 1992-05-19(e)

In addition to failing in this particular, since the basis for his conclusions is predominately hearsay, the affidavit is not based on his personal knowledge, at least regarding the premises and the injury, in violation of OCGA § 9-11-56 (e).

Under subsection (e), an interrogatory response may oppose a summary-judgment affidavit, but a verification disclaiming the responding party's authorship renders the response inadmissible.

Johnson v. Hames Contracting, Inc. · filed 1993-05-20(e)

Generally, a response to interrogatories can be submitted in opposition to a movant’s affidavit in support of summary judgment. OCGA § 9-11-56 (e). ... We find that the language of disavowal of authorship contained in the verification rendered the statements in the response inadmissible under OCGA § 9-11-56 (e).

An affidavit that neither avers nor affirmatively shows that it is based on the affiant's personal knowledge is deficient under subsection (e) and cannot create a jury issue.

Worley v. Pierce · filed 1994-02-04(e)

Under these circumstances, we do not hesitate to conclude that counsel’s affidavit was wholly deficient under the mandates of OCGA § 9-11-56 (e) to create an issue of fact for jury resolution.

Subsection (e)'s personal-knowledge, admissibility, and competency requirements apply to affidavits supporting or opposing a motion to dismiss for lack of personal jurisdiction.

Taeger Enterprises, Inc. v. Herdlein Technologies, Inc. · filed 1994-07-01(e)

Pursuant to OCGA § 9-11-56 (e), “[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.”

Under subsection (e), affidavit statements must be based on personal knowledge, be admissible, and affirmatively show competence, but portions whose content independently demonstrates personal knowledge are not disregarded solely because the affidavit also invokes information and belief.

Hassell v. FIRST NAT. BANK OF NEWTON CTY · filed 1995-07-12(e)

Nevertheless, if an examination of the contents of the affidavit shows that portions of it are based on personal knowledge rather than information and belief, then the failure to assert that the affidavit was based on personal knowledge does not require that those portions be disregarded.

An affidavit satisfies subsection (e)'s personal-knowledge requirement when its contents show that its material statements are based on the affiant's personal knowledge rather than information and belief.

Edwards v. Campbell Taggart Baking Companies, Inc. · filed 1996-01-09(e)

The personal knowledge requirement set forth in OCGA § 9-11-56 (e) . . . is met where the contents of the pleading indicate that material parts of it are statements within the personal knowledge of the affiant, as opposed to being made upon information and belief.”

A sworn statement lacking personal knowledge, containing inadmissible hearsay, and failing to show the declarant's competency does not satisfy subsection (e) and is inadmissible on summary judgment.

Harding v. Georgia General Insurance · filed 1996-11-27(e)

However, this statement was not based on Mr. Raymond’s personal knowledge, contained inadmissible hearsay, and included no affirmative statement of competency. Therefore, it fails to meet the affidavit requirements of OCGA § 9-11-56 (e), and is not admissible evidence upon a consideration of a motion for summary judgment.

A party's personal-knowledge statements that do not amount to legal conclusions are admissible on summary judgment and may create a genuine issue for trial.

Quintanilla v. Rathur · filed 1997-07-16(e)

On .summary judgment, statements not amounting to legal conclusions made by a party with personal knowledge of the facts are not conclusory and are admissible to create a genuine issue for trial. See OCGA § 9-11-56 (e).

Subsection (e) requires summary-judgment affidavits to be based on personal knowledge, contain admissible facts, and affirmatively show the affiant's competence.

Georgia Farm Bureau Mutual Insurance v. Allen · filed 1997-09-29(e)

OCGA § 9-11-56 (e) provides that affidavits in support of or in opposition to a motion for summary judgment “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.”

An affidavit need not expressly say that it is based on personal knowledge when its statements clearly show that they are based on personal knowledge.

Farmer v. Brannan Auto Parts, Inc. · filed 1998-03-19(e)

Coy Baker’s and Hazel Weathers’ affidavits also do not state that they were made on personal knowledge. “However, the affidavits] also [include] statements which clearly are based on personal knowledge.”

Subsection (e) requires a summary-judgment affidavit to be based on personal knowledge and to attach sworn or certified copies of the papers it references.

Weekes v. Nationwide General Insurance · filed 1998-03-30(e)

Pursuant to OCGA § 9-11-56 (e), affidavits made in support of a motion for summary judgment must be made on personal knowledge and must attach sworn or certified copies of all papers referred to in the affidavit.

A summary-judgment affidavit need not expressly state that it is based on personal knowledge if its contents clearly reflect the affiant’s personal knowledge and observation.

Emmett v. Regions Bank · filed 1999-05-26(e)

OCGA § 9-11-56 (e) provides that affidavits supporting a summary judgment motion “shall be made on personal knowledge.” However, the affidavits need not expressly state that they are based on personal knowledge if they clearly reflect that their contents were ... rooted in the affiant’s “personal knowledge and observation.”

Summary-judgment affidavits must be based on personal knowledge, state admissible facts, and affirmatively show the affiant’s competence.

Pass v. Bouwsma · filed 1999-09-10(e)

“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.”

Subsection (e) requires affidavits to be based on personal knowledge, state admissible facts, show the affiant’s competence, and attach sworn or certified copies of referenced papers.

Brown v. Walton Electric Membership Corp. · filed 1999-11-05(e)

[A]fiidavits 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.

A summary-judgment affidavit need not expressly state that it is based on personal knowledge, but its contents must reflect the affiant’s personal knowledge and observation.

Shepard v. Winn Dixie Stores, Inc. · filed 1999-12-07(e)

Affidavits submitted in support of a motion for summary judgment must be based on personal knowledge. ... Although an affidavit need not expressly state that it is based on personal knowledge, it must at least reflect that its contents are rooted in the affi-ant’s personal knowledge and observation.

Affidavit statements about actions outside the affiants’ presence are not based on personal knowledge, and conclusory statements unsupported by record facts cannot defeat summary judgment.

Scott v. Carter · filed 2000-01-28(e)

They cannot, however, have personal knowledge of all actions taken by their attorney. Because affidavits must be made on personal knowledge, the Scotts’ statements regarding actions by Calhoun that may have taken place outside their presence are improper. In addition, the statements are conclusory, unsupported by facts properly before the court and attempt to answer one of the ultimate issues in this case.

An affidavit has probative value only when the affiant has personal knowledge.

Roberson v. Ocwen Federal Bank FSB · filed 2001-07-02(e)

The affiant must have personal knowledge for the affidavit to have probative value.

Subsection (e) requires summary-judgment affidavits to be based on personal knowledge, state admissible facts, and affirmatively show the affiant's competence.

Hodges v. Putzel Electric Contractors, Inc. · filed 2003-02-24(e)

OCGA § 9-11-56 (e) requires that “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.”

Subsection (e) requires summary-judgment affidavits to be based on personal knowledge, state admissible facts, and affirmatively show the affiant's competence.

Ledford v. Darter · filed 2003-03-26(e)

However, OCGA § 9-11-56 (e) provides that “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.”

Under subsection (e), an affidavit’s personal-knowledge assertion is generally sufficient, but any portion that was not or does not affirmatively appear to have been made from personal knowledge must be disregarded.

Langley v. National Labor Group, Inc. · filed 2003-08-13(e)

And while a statement in an affidavit that it is based upon personal knowledge is generally sufficient to meet the requirement that affidavits be made upon such knowledge, OCGA § 9-11-56 (e); ... “ ‘[i]f 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.’ [Cit.]”

Subsection (e) requires summary-judgment affidavits to be based on personal knowledge, state admissible facts, affirmatively show competence, and attach sworn or certified copies of referenced papers.

Anderson v. US Fidelity & Guar. Co. · filed 2004-05-28(e)

Pursuant to OCGA § 9-11-56, [s]upporting 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.

Subsection (e) requires summary-judgment affidavits to be based on personal knowledge, state admissible facts, affirmatively show competence, and attach sworn or certified copies of referenced papers.

Anderson v. United States Fidelity & Guaranty Co. · filed 2004-05-28(e)

[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.

Subsection (e) requires summary-judgment affidavits to affirmatively show that the affiant is competent to testify to the stated matters.

Hill v. MERCEDES BENZ USA, LLC · filed 2005-07-29(e)

See OCGA§ 9-11-56 (e) (requiring that affidavits submitted on summary judgment “show affirmatively that the affiant is competent to testify to the matters stated therein”).

Subsection (e) requires an opposing affidavit to affirmatively show that the affiant is competent to testify to the matters stated.

Dierkes v. Crawford Orthodontic Care, P.C. · filed 2007-03-08(e)

Affidavits opposing a summary judgment motion must, among other things, “show affirmatively that the affiant is competent to testify to the matters stated therein.”

Subsection (e)'s personal-knowledge requirement is met when the pleading's contents show its material statements are within the affiant's personal knowledge rather than based on information and belief.

Ellison v. Hill · filed 2007-10-25(e)

The personal knowledge requirement set forth in OCGA § 9-11-56 (e) is met where the contents of the pleading indicate that material parts of it are statements within the personal knowledge of the affiant, as opposed to being made upon information and belief.

An objection that a summary-judgment affidavit lacks personal knowledge or required attachments is waived if not raised before the trial court.

Formaro v. SunTrust Bank · filed 2010-10-07

“Objections to affidavits such as [an objection to the ... affiants’ lacking personal knowledge] will not be entertained for the first time on appeal where such affidavits were considered by the trial judge, without objection, in ruling on motions for summary judgment.”