Ga. Code Ann. § 9-11-56

A summary-judgment affidavit must contain admissible testimony based on personal knowledge; inadmissible hearsay, conclusions, and opinions receive no weight.

Whitlock v. Moore · filed 2011-11-03(e)

As a rule, an affidavit offered in support of, or in opposition to, a motion for summary judgment must set forth testimony that would be admissible if the affiant appeared as a witness at trial. ... To the extent that such an affidavit instead sets forth inadmissible hearsay, conclusions or opinions, it is entitled to no weight in the summary judgment analysis.

An affidavit satisfies subsection (e)'s personal-knowledge requirement when it expressly claims personal knowledge and nothing in its contents is inconsistent with that claim.

Windham & Windham, Inc. v. Suntrust Bank · filed 2012-02-01(e)

Nothing in the affidavit is inconsistent with the averment of personal knowledge, and in the absence of any evidence that the officer did not, in fact, have the personal knowledge he claims, his affidavit is competent enough to sustain an award of summary judgment.

Under subsection (e), hearsay, unsupported conclusions, and affidavit statements not affirmatively based on personal knowledge must be excluded from summary-judgment consideration.

Norton v. Anderson · filed 2013-07-01(e)

“It is well-established that all hearsay evidence, unsupported conclusions, and the like, must be stricken or eliminated from consideration in a motion for summary judgment.”

Under subsection (e), hearsay, unsupported conclusions, and affidavit statements not affirmatively based on personal knowledge must be excluded from summary-judgment consideration.

Anderson v. Jones · filed 2013-07-01(e)

“It is well-established that all hearsay evidence, unsupported conclusions, and the like, must be stricken or eliminated from consideration in a motion for summary judgment.”

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

Aquanaut Diving and Engineering, Inc. D/B/A Diving World v. Guitar Center Stores, Inc. · filed 2013-11-07(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 summary-judgment affidavits to be based on personal knowledge, state admissible facts, and affirmatively show the affiant's competence.

Gwinnett Community Bank v. Arlington Capital, LLC · filed 2014-03-28(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.

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

Greenstein v. Bank of the Ozarks · filed 2014-03-28(e)

OCGA § 9-11-56 (e) requires that such an affidavit “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 within.”

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

SMITH Et Al. v. DILL’S BUILDERS, INC. · filed 2015-06-22(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 opposing affidavit must be based on personal knowledge, state admissible facts, affirmatively show competence, and attach sworn or certified copies of referenced papers.

Sidhi Investment Corporation v. Thrift · filed 2016-03-11(e)

However, the clerk’s purported affidavit does not satisfy the statutory criteria for affidavits opposing a motion for summary judgment. See OCGA § 9-11-56 (e) (affidavits either supporting or opposing motions 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”). ... In addition, although the purported affidavit refers to licenses issued by the City of Nahunta, the purported affidavit does not include “[s]worn or certified copies of all papers or parts thereof referred to in [the] affidavit.” OCGA § 9-11-56 (e).

Subsection (e)’s personal-knowledge requirement is satisfied when the affidavit’s contents show that its material statements fall within the affiant’s personal knowledge.

J. Squared Plumbing Company, Inc. v. City of Atlanta · filed 2016-05-26(e)

Contrary to J. Squared’s contention, the affidavit states on its face that the facts, not mere conclusions, set forth therein were based on the Risk Analyst’s personal knowledge.

A summary-judgment affidavit must be based on personal knowledge, state admissible facts, and affirmatively show the affiant's competence, including when the affiant is a corporate representative.

Jpmorgan Chase Bank, N.A. v. Cronan · filed 2020-06-18(e)

Affidavits supporting or opposing motions 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.” OCGA § 9-11-56 (e).

Under subsection (e), only affidavit facts admissible in evidence may be considered; public information offered to show availability rather than truth is not hearsay and may fall within the affiant's personal knowledge.

Coe v. Proskauer, LLP. · filed 2021-06-30(e)

Georgia law states, “[o]nly such portion of an affidavit that sets forth facts that are admissible in evidence can be considered.” ... As stated in OCGA § 9-11-56 (e), “[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.” ... Although Lederkramer’s affidavit referenced attachments of publically available information regarding BDO’s involvement with tax shelters and other similar news stories, this did not constitute inadmissable hearsay because it showed that the information was widely available and was not offered for the truth ... of the matter asserted.

An affidavit based on document review must show that its contents are rooted in the affiant’s personal knowledge; unsupported conclusions and hearsay are not competent summary-judgment evidence.

RHONDA CROSS v. WILMINGTON TRUST, NATIONAL ASSOCIATION, SOLELY AS TRUSTEE FOR MFRA TRUST 2014-2 · filed 2021-07-01(e)

OCGA § 9-11-56 (e) governs the use of affidavits on summary judgment and provides in relevant part, “[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.” ... Accordingly, we find that Booker’s affidavit does not meet the personal knowledge requirement of OCGA § 9-11-56 (e) and is not competent evidence to support Wilmington’s summary judgment motion.

An affiant's statement that testimony is based on personal knowledge generally satisfies subsection (e), and a personal-knowledge objection is waived if first raised on appeal after the affidavit was considered without objection below.

Rafac v. Jiangsu Linhai Power MacHinery Group Corporation · filed 2022-05-02(e)

But in his affidavit, Lu states that he was a director and general manager of Jiangsu and that the affidavit was given based on his personal knowledge. “Generally, the mere statement of the affiant that the testimony given comes from personal knowledge is sufficient.” ... “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 [below].”

Subsection (e) requires affidavits to rest on personal knowledge and admissible facts, and firsthand testimony describing the affiant’s own perceptions satisfies that requirement.

Gilbert v. Freeland · filed 2022-06-09(e)

OCGA § 9-11-56 (e) requires that “[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.” ... Freeland attested that the statements in his affidavit were based on his personal knowledge and involved his own recollection of what occurred before and after the ... crash. ... Thus, the trial court did not abuse its discretion in refusing to strike this part of Freeland’s affidavit testimony.

An affidavit satisfies subsection (e)'s personal-knowledge requirement when the affiant avers personal knowledge and describes matters within the responsibilities of the affiant's corporate position, even if attached documents are challenged.

Think Development Systems, Inc. v. Cloudious, LLC · filed 2023-08-02(e)

Joy averred that he had personal knowledge of the events described in his affidavit, which include a detailed account of the negotiations preceding execution of the ASA; the parties’ interactions after they signed the ASA; terms of a new, interim agreement reached when CTS initially refused to approve Cloudious as a vendor; and Cloudious’s failure to pay Think Development after Cloudious became an approved vendor. Cloudious has not shown that Joy — Think Development’s president, CEO, and person responsible for day-to-day operations — lacked sufficient personal knowledge to testify on these topics. ... The trial court, therefore, did not abuse its discretion in denying the motion to strike. See OCGA § 9-11-56 (e).

An affidavit based on the affiant's personal knowledge of business operations can create a genuine factual dispute without additional business records.

Preston Building and Renovations, LLC. v. Ace American Insurance Company · filed 2025-07-31(e)

Preston offered this evidence based on his personal knowledge of Preston Building’s business operations, including sales of services, project management, and executive supervision of all work conducted through contracted construction supervision or the job site supervision of subcontractors. Preston’s affidavit (and attached exhibits) therefore contained sufficient evidence to create a disputed issue of fact for the jury to resolve concerning the classification of certain subcontractors and the calculation of the final premium due under the policy.

An interested party's affidavit based on personal knowledge of specific facts may support or defeat summary judgment even though it is self-serving.

Young Harris College v. Peach Belt Athletic Conference, Inc. · filed 2025-09-22(e)

Accordingly, any challenge to detailed paragraphs within the affidavit on the basis that it is self-serving is unpersuasive, because the affidavit of an interested party based on personal knowledge of specific facts can be admissible in evidence and is sufficient to support or defeat summary judgment even though it serves the party’s self-interest.

An affidavit used to introduce business records on summary judgment must be based on personal knowledge, set out admissible facts, and affirmatively show the affiant's competence.

Span v. Phar-Mor, Inc. · filed 2001-08-22(e)

To facilitate the introduction of business records in evidence, we have held that on motion for summary judgment an affidavit satisfying the requirements of OCGA § 24-3-14 meets the OCGA § 9-11-56 (e) requirement that such an affidavit “‘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.’ [Cit.]”

An affidavit purporting to establish a debt cannot support summary judgment through business records that have not been properly authenticated and admitted.

Brown v. Service Credit Union · filed 2025-12-19(c)

Affidavits purporting to establish the amount of a debt without accompanying business records, where appropriate, are insufficient to sustain summary judgment. ... And affidavit testimony based on the content of business records constitutes inadmissible hearsay if the records are not properly authenticated.

An affidavit based partly on unattached business records may still be considered when the affiant’s personal knowledge supports its statements.

Jewell Cox v. Mayan Lagoon Estates Limited · filed 2012-11-30(e)

Lamont’s averments, however, were also based on her personal knowledge, and the trial court could conclude that Lamont’s personal knowledge, given that she was a Director of Mayan and Placencia, was probative of whether Constantino was an agent of Mayan and Placencia.

Section 56(e) does not permit an affidavit to rely on evidence supporting an affirmative defense that the party failed to plead and therefore could not offer at trial.

Phillips v. Hertz Commercial Leasing Corp. · filed 1976-04-22(e)

The failure of the appellant to plead the affirmative defense of fraud precludes him from offering evidence on such defense at trial. Stalvey v. Osceola Industries, Inc., 124 Ga. App. 708 (185 SE2d 629). This being so, evidence that the appellee’s agent fraudulently induced the appellant’s signature is not properly within the appellant’s affidavit. Code Ann. § 81A-156 (e).

An affidavit offering only an unsupported conclusion does not create a genuine factual issue sufficient to defeat a supported summary-judgment motion.

Nipper v. Crisp County · filed 1977-02-17

The only evidence offered by appellant was an affidavit in opposition to the motion for summary judgment which merely concluded that the structure was a bridge, without factual support for that conclusion.

An affidavit opposing summary judgment must state specific adverse facts rather than mere legal conclusions and allegations.

Smith v. Forrester · filed 1980-10-10(e)

However, “it is clearly the law that answers, depositions or affidavits containing mere legal conclusions and allegations present no issues of fact on a motion for summary judgment. An affidavit in contravention of a motion for summary judgment must state more than mere conclusions; it must state specific adverse facts.”

Under subsection (e), an opposing party must present admissible specific facts showing a genuine issue; mere legal conclusions must be disregarded.

City of Cordele v. Turton's, Inc. · filed 1982-07-16(e)

The duty is on the party opposing the motion to set forth specific facts showing that there is a genuine issue for trial. MacGrath v. Hoffman, 156 Ga. App. 240 (274 SE2d 631) (1980). Mere legal conclusions must be disregarded. Hyman v. Horwitz, 148 Ga. App. 647 (252 SE2d 74) (1979). The facts must be such as would be admissible in evidence. Code § 81A-156 (e).

An affidavit invoking the exception for materials already in the record must identify the specific records on which it is based.

Hayes v. Murray · filed 1983-10-13(e)

Pretermitting the question of certification of the medical records in the record and any probative value they may have, we find Dr. Kleber’s affidavit insufficient for the reason that it failed to identify the specific medical records upon which he based his opinion.

An affidavit expressing a conclusion based on unspecified words and conduct does not set forth specific facts creating a genuine issue for trial.

Norris v. Kunes · filed 1983-05-19(e)

In the face of the total absence of evidence that the attorney departed from the fee agreement, the appellant’s assertion does not “set forth specific facts” (OCGA § 9-11-56 (e) (Code Ann. § 81A-156)) raising any issue of fact as to the words and conduct of the attorney; it merely states the appellant’s conclusion.

Unsupported opinions amounting to ultimate conclusions of fact and law have no probative value and must be disregarded on summary judgment.

Adkins v. Adkins · filed 1983-09-26(c)

These opinions set forth no factual basis whatsoever and constitute mere conclusions that Adkins was incompetent. The opinions constitute clearly inadmissible evidence.

An objection to an expert affidavit will not be considered for the first time on appeal when the trial court considered it without objection.

Baldwin v. First Tennessee Bank · filed 1983-10-19(e)

However, “objections to expert opinion affidavits will not be entertained for the first time on appeal where such affidavits were considered by the trial judge, without objection, in ruling on the motion for summary judgment.”

An opposing affidavit containing a legal conclusion and factual averments directly contradicted by unambiguous lease terms does not create a material factual issue.

Groover Engineering Co. v. Capital Associates, Inc. · filed 1984-01-06

The averment that the defendant is not indebted to the plaintiff is merely a legal conclusion. ... In view of these provisions, the trial court did not err in concluding that the averments contained in the defendant’s affidavit were insufficient to preclude the grant of the plaintiffs motion for summary judgment. See generally OCGA § 9-11-56 (Code Ann. § 81A-156).

An opposing affidavit must state specific facts creating a genuine issue; unsupported, vague, and argumentative conclusions are insufficient.

Wood v. Chatham Engineering & Construction Co. · filed 1985-01-15(e)

An affidavit opposing motion for summary judgment must “set forth specific facts showing ... a genuine issue for trial.” (OCGA § 9-11-56 (e)); facts contained in an affidavit, and not argumentative conclusions as in this case, determine whether a genuine issue of fact exists.

A party resisting summary judgment must present evidence sufficient to create a genuine material factual issue and a credible basis for that evidence's admissibility.

Wilson v. Nichols · filed 1984-06-19

Trial courts, under the general provisions pertaining to motions for summary judgment, must consider all factual matters presented, as well as suggested bases for their ultimate admissibility. Hence, a party resisting summary judgment, in addition to coming forward with evidence which is sufficient to create a genuine issue of material fact, must present some credible warrant for its admissibility.

A verified answer stating specific disputed facts can defeat summary judgment when the movant has not conclusively rebutted those facts or shown entitlement to judgment.

Smith v. Maner · filed 1984-06-26(c), (e)

In this case the defendant by his verified answer raised specific issues of fact; the plaintiff has not conclusively rebutted the facts plead by Smith nor shown entitlement to summary judgment as a matter of law.

A pleading verified only as true to the party's belief is equivalent to information-and-belief and cannot serve as summary-judgment evidence.

Computer Maintenance Corp. v. Tilley · filed 1984-09-25(e)

However, the verification accompanying Horton’s complaint provides that the allegations contained therein are true “as I verily believe.” Such a purported verification is “just a variation of our old friend ‘information and belief.’ [Cits.]”

Subsection (e) requires an opponent to support defenses and counterclaims with admissible evidence rather than hearsay.

Bentley v. Nat. Bank of Walton County · filed 1985-09-03(e)

Appellant’s testimony on these crucial matters was therefore, at best, hearsay and thus insufficient to carry his evidentiary burden either as counterclaimant or as defendant to a motion for summary judgment. OCGA § 9-11-56 (e), supra.

An expert affidavit opposing a factually supported medical-malpractice motion must give a factual basis, an explicit comparison of what was done and should have been done, or particulars describing the deviation from professional standards.

Bushey v. Atlanta Emergency Group · filed 1986-07-08(e)

In a case such as this, of medical malpractice when a motion for summary judgment is made and supported by affidavit which sets forth specific facts about the doctor’s performance of the involved medical activity, the plaintiff must offer similar factual evidence in opposition in order to avoid grant of the motion.

An expert affidavit based on the affiant’s personal observations can create a material factual issue under section 56(e) even if record materials supporting other portions are unattached.

Hively v. Davis · filed 1987-02-10(e)

We hold that this averment, which was clearly based on his own personal observations, constituted in and of itself a sufficient statement of the particulars in which he believed Dr. Davis had been negligent to withstand the motion for summary judgment.

A malpractice plaintiff’s expert must identify the acceptable professional standard and specifically explain how the defendant departed from it to defeat summary judgment.

Loving v. Nash · filed 1987-03-05(e)

To stay in court the plaintiff had to come forward with specifics.

Summary judgment is proper when the opponent's affidavit offers only a belief-based assertion with no probative value.

Chambers v. Gap Stores, Inc. · filed 1986-09-05(e)

Therefore, the trial court correctly granted summary judgment to appellee.

An unsworn recitation of facts is not competent evidence under subsection (e) and does not rebut a supporting affidavit.

Jones v. Gordon · filed 1987-03-03(e)

Appellant presented no affidavits or any other sworn evidence competent under OCGA § 9-11-56 (e) to rebut appellee’s affidavit filed in support of his motion for summary judgment. Appellant’s sole response to appellee’s motion was an unsworn recitation of facts already in the record.

Section 56(e) requires affidavits to state admissible specific facts, and a sworn affirmation of a pleading’s conclusions is insufficient.

ARA TRANSPORTATION v. Barnes · filed 1987-06-08(e)

The statute clearly provides that “affidavits shall ... set forth such facts as would be admissible in the evidence.” OCGA § 9-11-56 (e).

An expert affidavit relying on safety-code provisions must attach sworn or certified copies of those provisions.

Lynch v. Georgia Power Co. · filed 1987-11-18(e)

However, neither certified nor sworn copies of the specific provisions of the NESC upon which the expert relied in reaching his opinion were attached to his affidavit. OCGA § 9-11-56 (e).

Section 56(e)’s affidavit standards do not apply to the expert-affidavit pleading rule for a newly filed malpractice complaint.

0-1 Doctors Memorial Holding Co. v. Moore · filed 1989-02-13(e)

We are not persuaded by appellees’ arguments to incorporate the evidentiary standards applicable to evidence supporting a motion for summary judgment pursuant to OCGA § 9-11-56 (e) to the rule of pleading set forth in OCGA § 9-11-9.1 (a).

When a dispositive issue depends on opinion evidence, the movant's opinion evidence alone cannot sustain summary judgment.

Brygider v. Atkinson · filed 1989-07-03(c)

“[W]hen the evidence on a dispositive issue consists of opinion evidence, such evidence alone can never sustain an award of summary judgment.

An unsworn statement cannot create a factual issue under subsection (e), and summary judgment is proper when the record otherwise contains no evidence supporting the asserted waiver.

Barrett v. Commercial Union Insurance · filed 1988-09-09(e)

Viewing the evidence in the light most favorable to appellant, the respondent below, we conclude there is no dispute that appellant failed to file suit within the time required by the policy. Further, we find no evidence that the parties continued to negotiate after appellee denied the claim, and thus find no evidence that appellee either waived or led appellant to believe that it would waive the one-year time limitation. Accordingly, there was no error in the trial court’s grant of summary judgment to appellee.

Opinion evidence may preclude summary judgment even though it cannot support granting the motion.

Lee v. Lee · filed 1990-02-08(e)

The trial court therefore correctly considered the opinion evidence in denying the motion for summary judgment and in finding that a jury question existed on the issue of Jin Kook Lee’s negligence in failing to exercise ordinary care to keep the premises safe for an invitee.

A conclusory denial of indebtedness is insufficient to create a genuine issue against evidence establishing the debt.

Battle v. Sandy Springs Associates · filed 1991-02-13(c)

The part of Battle’s affidavit which asserts that he is not indebted to SSA in the amount specified is a mere conclusion or allegation of the ultimate fact which is insufficient to support a motion for summary judgment.

An affidavit lacking personal knowledge and factual support for its conclusions is deficient under subsection (e).

Brown v. Apollo Industries, Inc. · filed 1991-03-07(e)

Under these facts, we have little hesitancy in concluding that the affidavit of plaintiff’s expert was wholly deficient under the mandates of OCGA § 9-11-56 (e). Consequently, the trial court did not err in granting defendant’s motion to strike.

A nonmovant does not satisfy subsection (e)'s specific-facts burden by offering only a conclusory affidavit that fails to identify the amount of a claimed setoff.

Trebor Corp. v. Nutmeg Industries, Inc. · filed 1993-04-27(e)

Trebor did not meet its statutory burden and summary judgment was properly entered on the principal amount.

After a movant presents affirmative evidence establishing a material fact, a self-serving and conclusory affidavit without substantiating facts is insufficient to create a triable issue.

Foster v. Ramsey · filed 2000-06-27

Since the estate put forth affirmative evidence establishing ownership of the account, it was incumbent on Foster to put forward some evidence to dispute that fact. OCGA § 9-11-56. Foster offered his own affidavit, stating that he signed an agreement to establish a joint account. Although Foster avers he established a joint account, in the absence of substantiating fact, Foster’s affidavit is self-serving and conclusory and, therefore, insufficient to create an issue for trial.

Hearsay is inadmissible on summary judgment under subsection (e) and cannot supply evidence creating a triable issue.

Wallace v. State Farm Fire & Casualty Co. · filed 2000-09-12(e)

“An alleged statement by an unidentified witness is hearsay and inadmissible.” ... Hearsay on motion for summary judgment is inadmissible.

Conclusory affidavit statements are inadmissible under subsection (e) and must be disregarded when deciding summary judgment.

Dews v. Ratterree · filed 2000-10-06(e)

To the extent that Mr. Ratterree’s affidavit was conclusory it was inadmissible on motion for summary judgment. OCGA § 9-11-56 (e) (“[A]ffidavits 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 based on hearsay from referenced but unattached documents fails subsection (e)’s requirements and has no probative value.

Hunter v. Cabe Group, Inc. · filed 2000-05-24(e)

The affidavit does not fulfill the requirements of OCGA § 9-11-56 (e). It consists of hearsay based on review by Miller of documents which are referred to but not attached to the affidavit and therefore lacks any probative value.

Hearsay has no probative value on summary judgment even when admitted without objection.

Sumter Regional Hospital, Inc. v. Sumter Free Press, Inc. · filed 2001-03-06(e)

Myers’ testimony concerning McLendon’s alleged statement is hearsay, which has no probative value, even when admitted without objection. ... See OCGA § 9-11-56 (e); ... (evidentiary rules apply on motion for summary judgment); ... (hearsay has no probative value).

A trial court may exclude self-serving hearsay affidavits that lack sufficient reliability when deciding summary judgment.

Dodd v. Scott · filed 2001-06-08(e)

Thus, the court did not abuse its discretion in refusing to consider their affidavits in the summary judgment context.

Subsection (e) requires affidavits to state facts, so mere opinions and conclusions cannot support a summary-judgment ruling.

Lawrence v. Direct Mortgage Lenders Corp. · filed 2002-03-29(e)

These statements are not facts but mere opinions and conclusions to influence the trial court and which fail to state facts mandated under OCGA § 9-11-56 (e) as to affidavits.

Statements offered through opposing affidavits that do not comply with subsection (e)'s requirements are inadmissible on summary judgment.

Cooper-Bridges v. Ingle · filed 2004-06-24(e)

The statements of several individuals that Cooper-Bridges submitted in response to the motion for summary judgment were not admissible as they did not comport with the requirements for opposing affidavits on summary judgment.

Affidavits opposing summary judgment must comply with subsection (e)'s evidentiary rules.

Triguero v. ABN Amro Bank N.V. · filed 2005-04-22(e)

Affidavits in opposition to motions for summary judgment must conform to OCGA § 9-11-56 (e) as to the rules of evidence.

A movant is not entitled to summary judgment when its supporting affidavit is conclusory, contradictory, and unsupported and therefore fails to establish the absence of a genuine material-fact issue.

Scott v. Bank of America · filed 2008-06-18(e)

Accordingly, BOA failed to establish that no genuine issue of material fact exists.

Hearsay without probative value cannot support an award of summary judgment.

Harris Insurance Agency, Inc. v. Tarene Farms, LLC · filed 2008-08-26

The statement in the letter constituted hearsay without probative value and was insufficient to support an award of summary judgment.

Impermissible hearsay cannot be considered in a summary-judgment proceeding.

Vadde v. Bank of America · filed 2009-11-20

Third, Sanusi’s statements to Srivinas Vadde assuring him that the check was genuine, authentic, and valid is impermissible hearsay and cannot be considered in a summary judgment proceeding.

Hearsay, unsupported conclusions, and similar material must be eliminated from consideration on summary judgment.

Karle v. Belle · filed 2011-06-16(c)

All hearsay evidence, unsupported conclusions, and the like, must be stricken or eliminated from consideration in a motion for summary judgment.

Hearsay testimony in an affidavit is inadmissible and has no probative value on summary judgment unless an exception makes it admissible.

US Lawns v. Cutting Edge Landscaping · filed 2011-09-15(e)

Accordingly, the hearsay testimony contained in the affidavit was inadmissible and had no probative value for purposes of summary judgment.

Subsection (e) requires summary-judgment affidavits and other evidence to be admissible, within the witness’s competence, and properly authenticated; hearsay and unsupported conclusions must be excluded.

R&G Investments & Holdings, LLC v. American Family Insurance Company · filed 2016-06-09(e)

All hearsay evidence, unsupported conclusions, and the like, must be stricken or eliminated from consideration in a motion for summary judgment.

Subsection (e)'s admissibility requirements exclude objected-to hearsay from summary-judgment consideration, although unobjected-to hearsay may be considered.

Wilson v. Hunter Lee Guy · filed 2020-09-10(e)

acknowledge that “on summary judgment[,] a court may consider unobjected-to-hearsay evidence[.]” ... But in the proceedings below, Wilson objected to the admission of Guy’s testimony that Wilson told Williamson to use gasoline to start the fire, aptly arguing that it was hearsay and inadmissible for purposes of summary judgment.

Section 9-11-56(e) requires a summary judgment movant to support its motion with admissible evidence; unauthenticated documents are insufficient.

Estate of Steven E. Fanning, Sr. v. Estate of Karen E. Fanning · filed 2020-03-13(e)

The exhibits relied upon by Karen’s estate were unauthenticated documents, not accompanied by sworn affidavits or other admissible evidence. As such, they were insufficient to support the summary judgment motion. See OCGA § 9-11-56 (e) (requiring admissible evidence in support of summary judgment motion); see generally Powers v. Hudson & Keyse, 289 Ga. App. 251, 252 (1) (656 SE2d 578) (2008).

Section 9-11-56 permits summary judgment when a medical malpractice claim is supported by an unrebutted expert affidavit.

Larson v. Snyder · filed 1980-05-20(f)

Under the circumstances of the case sub judice, Dr. Snyder’s affidavit is sufficient to pierce the allegation of defendant Linda Larson’s counterclaims. The affidavit of Dr. Norris, filed in opposition to plaintiffs motion for summary judgment on the counterclaim, expresses no opinion as to the standard with which the dental procedures were carried out by Dr. Snyder. Consequently, Dr. Snyder’s affidavit is not rebutted and it was not error to grant summary judgment to plaintiff on defendant Linda Larson’s counterclaim.

Under subsection (e), affidavit statements that explain conduct rather than constitute inadmissible hearsay may be considered on summary judgment.

Ibrahim v. Talley & Associates, P. C. · filed 1994-08-17(e)

In his first enumeration, Ibrahim contends that the court erred in considering evidence which would have been inadmissible at trial. See generally OCGA § 9-11-56 (e). Specifically, he argues that many of appellees’ statements of undisputed fact were based on hearsay from Talley’s and Lord’s affidavits and that many of the statements set forth opinions and conclusions. ... This enumeration is without merit. Contrary to Ibrahim’s contentions, the statements were not inadmissible hearsay, but testimony to explain conduct.

Section 9-11-56(c) requires an affidavit supporting opposition to summary judgment to be filed before the court grants the motion.

Buffington v. Gold Kist, Inc. · filed 1986-06-05(c)

Appellant’s affidavit, submitted a week after the grant of summary judgment as part of appellant’s motion for reconsideration, was not timely filed, OCGA § 9-11-56 (c), see Martin v. Newman, 162 Ga. App. 725, 726 (2) (293 SE2d 18) (1982), and we find no abuse of the trial court’s discretion in denying appellant’s motion.

Subsection (c) permits the nonmovant to file opposing affidavits until the day before the hearing, and a conflicting 30-day requirement in Uniform State Court Rule 6.2 must yield to the statute.

Landsberg v. Powell · filed 2006-03-06(c)

we recognized that to the extent that the 30-day requirement of USCR 6.2 conflicts with that part of OCGA § 9-11-56 (c) allowing the party opposing a motion for summary judgment to file opposing affidavits up until the day prior to the hearing, the rule must yield to the statute.

Affidavits filed after the summary-judgment hearing and ruling do not satisfy sections 56(c) and (e) or make the prior ruling erroneous.

Goss v. Thornton · filed 1981-07-06(c), (e)

The affidavits submitted by the appellants were not filed prior to the hearing on the summary judgment motion as required by Code Ann. § 81A-156 (c). Indeed, they were not filed until the motion had already been granted. Accordingly, they do not render the court’s ruling erroneous.

When an earlier summary-judgment order is vacated and a new hearing is set, section 56(c) permits opposing materials to be filed until the day before the new hearing unless the court orders otherwise.

Bishop v. Stephens · filed 1982-10-19(c)

The crucial language of the sentence found in the Code section does not refer to the date originally set for hearing but only “the day of hearing.” Once the trial judge set aside the former order on motion for summary judgment, in the absence of any express order limiting discovery or setting any deadlines, the matter was reopened for all purposes including the subsequent filing of affidavits, depositions, interrogatories, etc., up until “prior to the day of hearing.”

A court has discretion to consider opposing affidavits served at the summary-judgment hearing, but commits no error by declining to consider them as untimely.

Willingham v. Bridges · filed 1983-01-04(c)

The court is vested with a discretion to consider affidavits not so served, and if he does so there is no requirement that a writing to that effect appear in the record. Liberty Nat. Life Ins. Co. v. Houk, 248 Ga. 111 (1) (281 SE2d 583) (1981). Where he does not in his discretion choose to consider those untimely filed no error appears. Dutton v. Dykes, 159 Ga. App. 48 (1) (283 SE2d 28) (1981); Oliver v. Thomas, 158 Ga. App. 388 (280 SE2d 416) (1981). The two affidavits offered and served by the plaintiff at the time of hearing were properly disallowed.

Section 56(e) does not require an affiant to undergo cross-examination before the affidavit may support summary judgment.

Mustin v. Citizens & Southern National Bank · filed 1983-09-28(e)

that an affiant must be subjected to cross-examination before his affidavit may be considered in support of a motion for summary judgment. No such requirement is statutorily imposed. See OCGA § 9-11-56 (e) (Code Ann. § 81A-156).

A conclusory affidavit is inadmissible under subsection (e), and a responsive affidavit filed after the summary-judgment hearing may be rejected under subsection (c).

Long v. City of Midway · filed 1983-11-29(c), (e)

Inasmuch as the affidavit by Midway’s attorney constituted inadmissible evidence, the trial court properly did not consider the same in resolving American Fidelity’s summary judgment. OCGA § 9-11-56 (e) (Code Ann. § 81 A-156). The trial court also concluded that the amendment to Midway’s response to the motion for summary judgment having been filed long after the hearing thereon, would not be considered in that disposition. The trial court did not err in rejecting the affidavit. OCGA § 9-11-56 (c) (Code Ann. § 81A-156).

An objection that a supporting affidavit was untimely filed is waived if it was not raised in the trial court.

Southeastern Hose, Inc. v. Prudential Insurance Co. of America · filed 1983-06-13(e)

However, defendant made no objection before the trial court to the filing of the affidavit in question. Any error arising from a failure to timely file the affidavit is waived by defendant’s failure to object to the filing of the affidavit in question in the trial court.

Affidavits opposing summary judgment must be filed before the hearing unless the trial court permits otherwise.

Rose v. Rollins · filed 1983-07-14

Under OCGA § 9-11-56 (Code Ann. § 81A-156), affidavits are required to be filed prior to the hearing.

A party waives an objection to a late-filed summary-judgment affidavit by failing to object before the trial court rules.

Suttle v. Northside Realty Associates, Inc. · filed 1984-09-05(c)

This court has consistently reached a finding of waiver where no objection was made to the late filing of an affidavit — whether the affidavit was in support of, or in opposition to, a motion for summary judgment. ... In the absence of objection, the trial court was authorized to consider the late filed affidavits.

Section 56(e) requires sworn or certified copies of every paper referred to in an affidavit to be attached or served with it.

Crawford v. Phillips · filed 1985-02-08(e)

The rule to be applied in determining the sufficiency of the affidavit of appellant’s expert is that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith . . . .” OCGA § 9-11-56 (e).

An affidavit offering only contentions and conclusions without a factual basis is substantively deficient, and failure to object in the trial court does not waive that defect.

Mingledolph v. University Emergency Physicians, P. C. · filed 1985-03-06(e)

An affidavit that presents only contentions and conclusions without reference to any factual basis for them is deficient in substance rather than form, and failure to object at trial does not waive such a deficiency.

Objections to formal or evidentiary defects in a summary-judgment affidavit must be raised by a timely motion to strike or they are waived.

Bradbury v. Mead Corp. · filed 1985-04-17(c), (e)

Defendants’ failure to have raised these objections prior to oral argument was sufficient in itself to justify the overruling of same.

Opposing affidavits may be served through the day before the hearing, and filing with the court may occur on the hearing date; a local rule cannot shorten those statutory periods.

Hayes v. Fernandez · filed 1985-10-03(c)

The actual filing of the response with the court need not be accomplished, under the statute, until the date of the hearing itself.

A court has discretion to consider affidavits served at the summary-judgment hearing and commits no error by refusing to consider them as untimely.

Williamson v. SUNSHINE OIL COMPANY, INC. · filed 1985-10-30(c)

A review of the record fails to disclose any circumstances which would indicate that the trial court abused its discretion in refusing to consider defendants’ opposing affidavits.

A movant’s supporting material must be on file at least 30 days before the hearing unless the court extends the filing time.

Bonds v. John Wieland Homes, Inc. · filed 1985-12-03(c)

The record is bereft of anything to show that plaintiffs waived the right to have defendants’ supporting evidence submitted on time, and appellees do not assert any such waiver. The record shows no request for enlargement of time which would have invoked the trial court’s discretionary ruling under OCGA § 9-11-6 (b), and no waiver, so the documents could not be considered.

An opposing affidavit filed before the actual summary-judgment hearing is timely under section 56(c) when the record does not support an asserted earlier hearing date.

Bandy v. Hospital Authority of Walker County · filed 1985-04-12(c)

Therefore, this second affidavit of Dr. Davidson was timely filed, OCGA § 9-11-56 (c), and because Dr. Davidson’s affidavits create questions of fact as to whether Hillis and Derrick were negligent, the trial court erred by granting summary judgment in their favor.

An affidavit filed after entry of summary judgment is untimely and cannot contradict the moving affidavit.

Myers v. Barnard · filed 1986-09-03(c)

Since appellant’s affidavit was not timely (OCGA § 9-11-56 (c)), it was not effective to contradict the averments in appellee’s affidavit.

A trial court may exclude summary-judgment evidence tendered at the hearing when it was not served on opposing counsel at least one day earlier.

Alliance Auto Acceptance Lease, Inc. v. Chuck Clancy Ford, Inc. · filed 1987-03-17(c)

Plaintiff also contends the trial court erred in refusing to consider certain evidence, described as a signed and notarized statement by Hudson, which plaintiff’s counsel tendered at the hearing on the motion for summary judgment. Defense counsel objected on the grounds that he had not been served at least one day prior to the hearing. It was within the discretion of the superior court to exclude this evidence.

An objection that an opposing summary-judgment affidavit is untimely is waived unless the objection itself is timely raised in the trial court.

Pruitt v. Tyler · filed 1986-12-05(c)

Pretermitting whether Rule 6.2 of the Uniform Superior Court Rules can be reconciled with OCGA §§ 9-11-6 (d) and 9-11-56 (c), it is clear that an objection to the timeliness of an affidavit submitted in response to a motion for summary judgment will be deemed waived unless it is itself timely raised in the trial court.

Section 56(c)’s affidavit deadline prevails over a conflicting court rule.

Walton v. Datry · filed 1987-11-06(c)

In the event of a conflict the rules yield to substantive law.

Subsection (c) requires consideration of opposing affidavits filed at any time before the summary-judgment hearing, notwithstanding a conflicting court-rule deadline.

Bell v. Norfolk Southern Railway Co. · filed 1996-08-23(c)

These affidavits were filed December 22, 1995, five days before the hearing on the motion. Although the trial court found the documents had not been filed in accordance with Uniform Superior Court Rule 6.2, OCGA § 9-11-56 (c) requires the trial court to consider opposing affidavits filed at any time prior to the hearing. The statute controls the rule, and the trial court should have considered these affidavits.

When oral argument is set, subsection (c) permits opposing affidavits through the day before the hearing, overriding a conflicting local 30-day response rule, but it does not extend the filing time for other responsive materials.

Coastal Plains Trucking Co. v. Thomas County Federal Savings & Loan Ass'n · filed 1997-02-26(c)

OCGA § 9-11-56 (c) allows the adverse party to a motion for summary judgment to serve opposing affidavits prior to the day of the hearing. Therefore, if a motion for summary judgment is set for oral argument, USCR 6.2 would yield to OCGA § 9-11-56 (c), and the opposing party would have until the day prior to the date that the motion is calendared for a hearing to file opposing affidavits.

A party opposing a summary-judgment motion may file opposing affidavits until the day before the hearing.

CareAmerica, Inc. v. Southern Care Corp. · filed 1997-12-03(c)

Contrary to Southern Care’s protestations regarding the timeliness of the Konvalinka affidavit, because cross-motions for summary judgment were filed and heard, MRC was the respondent to and was opposing Southern Care’s motion for summary judgment. OCGA § 9-11-6 (d) would therefore permit affidavits to be filed until the day before the hearing on a motion. OCGA § 9-11-56 (c) specifically so states.

An affidavit supporting a summary-judgment motion must be filed at least 30 days before the hearing unless the opponent acquiesces or the court extends the filing time.

Pierce v. Wendy's International, Inc. · filed 1998-06-19(c)

“OCGA § 9-11-56 (c) which requires that a motion for summary judgment be served at least 30 days before the time fixed for a hearing, and OCGA § 9-11-6 (d) which requires that ‘when a motion is supported by affidavit, the affidavit shall be served with the motion,’ have been construed together to mean that an affidavit relied on in support of a motion for summary judgment must be on file for at least 30 days prior to the hearing. [Cits.]”

Evidence opposing summary judgment must be filed either within 30 days after service of the motion or by the day before the scheduled hearing.

Zampatti v. TRADEBANK INTERN. FRANCHISING · filed 1998-11-03(c)

OCGA § 9-11-56(c) and Uniform Superior Court Rules 6.2 and 6.3 mandate the time within which the respondent may file evidence in opposition to summary judgment; either within 30 days of service of the motion or on the day prior to the scheduled hearing.

Subsection (e) does not require court permission to file affidavits supporting a supplement when they address matters not covered by earlier affidavits rather than supplementing or opposing them.

Al-Madinah Petroleum, Inc. v. Mahsa, Inc. · filed 2000-02-15(e)

There is no merit in Al-Madinah’s argument that OCGA § 9-11-56 (e) required Mahsa to obtain court permission to file affidavits in support of a supplement to its motion for declaratory judgment, as these affidavits did not supplement or oppose any earlier affidavits but rather concerned matters not previously addressed.

Subsection (c) requires a trial court to consider opposing affidavits filed at any time before the day of the summary-judgment hearing.

Perimeter Realty v. Gapi, Inc. · filed 2000-03-30(c)

OCGA § 9-11-56 (c) requires the trial court to consider opposing affidavits filed at any time prior to the day of the hearing, and it is undisputed that the affidavits were filed before the day of the hearing. Therefore, the trial court abused its discretion in striking the affidavits as untimely.

Subsection (c) permits an adverse party to serve opposing affidavits before the day of the summary-judgment hearing, notwithstanding an earlier response deadline in a court rule.

Milestone v. David · filed 2001-10-10(c)

In contrast, OCGA § 9-11-56 (c), provides that “[t]he adverse party prior to the day of hearing may serve opposing affidavits.” ... All documentary evidence submitted by Milestone was properly before the trial court as attachments to Milestone’s timely filed affidavit.

An affidavit first submitted after entry of the summary-judgment order as part of a motion for reconsideration is untimely under subsection (c).

Jones v. Bank of America Mortgage · filed 2002-03-12(c)

Moreover, Jones’s affidavit denying receipt of said notice, which Jones submitted on April 3, 2001, as part of his motion for reconsideration, was not timely filed pursuant to OCGA § 9-11-56 (c).

Subsection (c) generally limits a movant to supporting material on file at least 30 days before the hearing, but the nonmovant waives that requirement by declining an offered continuance.

Ficklin v. Hyundai Motor America, Inc. · filed 2005-03-08(c)

OCGA § 9-11-56 (c) requires that only supporting material which is ‘on file’ at least 30 days before the hearing shall be considered for the movant. ... This requirement can be waived, however, if the nonmoving party declines a trial court’s offer of a continuance.

A supplemented affidavit may support summary judgment when it is filed and served more than 30 days before the hearing and the opposing party does not object.

Stubbs v. DUBOIS · filed 2010-09-23(c), (e)

Although Stubbs ... challenges the adequacy of an earlier Chambers affidavit filed with the motion for summary judgment, we find no deficiency in the amended affidavit, which was filed and served more than 30 days prior to the summary judgment hearing ... and to which no objection appears in the record.

Subsection (c) permits opposing affidavits outside Uniform Superior Court Rule 6.2's response period, but does not permit other late responsive materials.

Hill v. Mm Gas & Food Mart, Inc. · filed 2019-08-29(c)

We note that OCGA § 9-11-56 (c) authorizes a party to submit opposing affidavits outside the time period set out in USCR 6.2, but it does not allow other responsive materials beyond the time frame.

When an adverse party had sufficient notice to serve an opposing affidavit before the hearing as subsection (c) requires, the trial court may refuse to consider an affidavit submitted later.

Giddens v. the Medical Center of Central Georgia · filed 2020-02-12(c)

Giddens likewise had sufficient notice of MCCG’s argument such that she could have complied with the filing requirement of OCGA § 9-11-56 (c) (A motion for summary judgment “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 trial court did not abuse its discretion in refusing to consider Pate’s expert affidavit.

Section 9-11-56(c) requires an adverse party to serve opposing affidavits before the summary judgment hearing; an affidavit served after the hearing and judgment is untimely.

Hill v. Federal Employees Credit Union · filed 1989-09-06(c)

However, OCGA § 9-11-56 (c) provides only that the adverse party may serve opposing affidavits prior to the hearing on the motion for summary judgment. Thus, appellant’s affidavit was untimely because it was filed and served after the hearing, after the order granting summary judgment to appellee, and after filing her motion for reconsideration.

A nonmovant may serve opposing affidavits before the day of the hearing, but a court need not consider an affidavit filed without approval after the hearing.

Tucker v. City of Thomasville · filed 2023-05-23(c)

As a preliminary matter, we note that the trial court was not obligated to consider the second woman’s affidavit, which was filed without prior approval after the hearing on the City’s motion and which the trial court expressly declared to be “untimely.”

Subsection (c) allows the opposing party to file affidavits before the hearing date, while the trial court retains discretion to consider affidavits served outside the statutory time limits.

Hunter v. Werner Co. · filed 2002-11-15(c)

OCGA § 9-11-56 (c) allows the party opposing a motion for summary judgment to file opposing affidavits before the day of the hearing on the motion. However, “[i]t is well settled that the trial court has the discretion to decide whether it will consider affidavits not served within the time limits contemplated by the statutes.”

A trial court has discretion to consider opposing affidavits served after the section 56(c) deadline but before it decides the motion.

Howell Mill/Collier Associates v. Gonzales · filed 1988-04-25(c)

“[E]ven though [OCGA § 9-11-6 (d)] and [OCGA § 9-11-56 (c)] require an opposing affidavit to be served at least one day prior to the summary judgment hearing, the trial court is vested with a discretion to consider affidavits not so served.”

When a summary-judgment hearing is set, subsection (c) permits the respondent to serve opposing affidavits at any time before the hearing, and a conflicting uniform rule must yield.

Wyse v. Potamkin Chrysler-Plymouth, Inc. · filed 1988-10-14(c)

To the extent the requirements of Uniform Rule 6.2 conflict with this statutory provision, the rule must yield.

If a hearing is set, section 56(c) permits opposing affidavits at any time before the hearing despite a conflicting court rule.

O'QUINN v. Southeast Radio Corp. · filed 1989-03-06(c)

Accordingly, appellant had the statutory right to serve opposing affidavits at any time prior to February 15, 1988, the date the hearing on the motion for summary judgment was held, and the appellee so concedes in its supplemental brief.

A late-filed supporting affidavit may be considered after the hearing is continued until the affidavit has been on file for more than thirty days.

Smith v. Shaw · filed 1990-05-30(c)

However, appellee’s affidavit had been on file for more than 30 days when the actual hearing was held because the trial court had continued the hearing on appellee’s motion until July 13.

An opposing affidavit served after the summary-judgment hearing is barred unless the trial court exercises its discretion to allow it.

Strickland v. DeKalb Hospital Authority · filed 1990-09-12(c)

The court is vested with discretion whether to consider affidavits untimely served.

An opposing affidavit filed on the hearing date is untimely, but the court has discretion to consider it.

Valhalla, Inc. v. O'Donnell · filed 1991-05-08(c), (e)

As the opposing affidavit was not filed until the day of the hearing, it was untimely, and the trial court did not err by refusing to consider it.

A movant’s supporting affidavit must be on file at least 30 days before the summary-judgment hearing.

Gunter v. Hamilton Bank · filed 1991-09-30(c)

Since the bank’s supplemental affidavit and the deposition were not timely filed, they were not properly before the trial court for consideration.

A supporting affidavit for summary judgment must be on file at least 30 days before the hearing unless the opponent acquiesces or the court extends the filing time.

Corry v. Robinson · filed 1993-01-04(c)

“OCGA § 9-11-56 (c)[,] which requires that a motion for summary judgment be served at least 30 days before the time fixed for a hearing, and OCGA § 9-11-6 (d)[,] which requires that ‘(w)hen a motion is supported by affidavit, the affidavit shall be served with the ... motion,’ have been construed together to mean that an affidavit relied on in support of a motion for summary judgment must be on file for at least 30 days prior to the hearing.”

Section 9-11-56(c) permits opposing affidavits before the hearing but does not authorize other response materials to be filed outside the deadline imposed by court rules.

Winchester v. Sun Valley-Atlanta Associates · filed 1992-11-02(c)

However, OCGA § 9-11-56 (c) refers only to the filing of opposing ... affidavits ... prior to the day of hearing and thus provides no authority for other responsive materials to be filed outside the 30-day period prescribed in USCR 6.2.

Subsection (e) gives the trial court discretion to allow summary-judgment affidavits and other admissible evidence to be supplemented or opposed by depositions, interrogatory answers, or further affidavits.

Gynecologic Oncology, P.C. v. Weiser · filed 1994-04-08(e)

The trial court has discretion to permit affidavits and other admissible evidence in summary judgment proceedings to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. OCGA § 9-11-56 (e).

An opposing affidavit may be served before the day of the summary-judgment hearing, and the trial court has discretion whether to consider an untimely affidavit.

Devore & Johnson, Inc. v. Bowen & Watson, Inc. · filed 1994-12-13(c)

Under OCGA § 9-11-56 (c), a party opposing a motion may serve opposing affidavits prior to the day of hearing on the motion. “The court is vested with discretion as to whether to consider affidavits untimely served. [Cits.]”

A trial court has discretion under subsection (c) to consider untimely affidavits.

Southern Medical Corp. v. Liberty Mutual Insurance · filed 1995-02-13(c)

Although there is some question whether the certificate of the Secretary of State and the affidavit by the Southern Medical officer were timely filed under OCGA § 9-11-56 (c), the trial court has discretion to consider untimely affidavits.

An affidavit filed before the day of the summary-judgment hearing is timely under subsection (c) even if the party's response brief is untimely.

Martin v. Fairburn Banking Co. · filed 1995-10-03(c)

The affidavit was filed at the same time Ellijay Lumber filed its response to Fairburn’s motion for summary judgment. Fairburn objected to the response as untimely. Fairburn did not object, however, to the affidavit, which as Ellijay Lumber correctly notes, was properly filed prior to the day of the hearing. OCGA § 9-11-56 (c).

Affidavits opposing summary judgment must be filed before the day of the hearing unless the trial court exercises its discretion to permit an untimely filing.

Mazdak Auto Towing & Service, Inc. v. Midcontinental Group, Inc. · filed 1998-04-01(c)

The trial court’s refusal to consider affidavits opposing MG’s motion for summary judgment which were not filed “prior to the day of the hearing” does not require reversal. OCGA § 9-11-56 (c). Untimely filed affidavits are barred unless the trial court permits them to be considered.

Subsection (e) requires sworn or certified copies of papers referred to in a summary-judgment affidavit to be attached to the affidavit.

Bregman-Rodoski v. Rozas · filed 2005-06-22(e)

Pursuant to OCGA § 9-11-56 (e), on motion for summary judgment, “[s]worn or certified copies of all papers or parts thereof ... referred to in an affidavit ... shall be attached thereto.”

Failure to attach certified copies of documents referenced in an affidavit is not reversible error when the documents are otherwise properly before the trial court.

Jordan v. Jordan · filed 1980-09-04(e)

We agree with the appellees that their failure to attach the documents to an affidavit offered both in rebuttal pf appellant’s motion for summary judgment and in support of their own motion did not constitute reversible error in this case as the trial court had the documents properly before it in at least two other instances.

An affidavit need not attach material already in the case record and before the trial court if it clearly identifies the record matter on which it relies.

Jones v. Rodzewicz · filed 1983-03-04(e)

An affidavit need not attach material upon which it is based if that material is part of the "record in the case and is before the trial court, provided that the affidavit clearly identifies the record matter upon which it is based.

An affidavit need not attach source material that is already before the trial court in the record if the affidavit clearly identifies that material.

Hughey v. Emory University · filed 1983-09-06(e)

“An affidavit need not attach material upon which it is based if that material is part of the record in the case and is before the trial court, provided that the affidavit clearly identifies the record matter upon which it is based.”

Subsection (e) does not require a record custodian attesting that records lack an item to attach every record searched.

Logan v. American Bankers Life Assurance Co. · filed 1983-10-27(e)

As for the failure to attach copies of all the records referred to in the affidavit, the only records which are relevant are Potts’ application form and policy, and a copy of each is attached to the affidavit. The appellant does not dispute the accuracy or authenticity of these documents but contends, in effect, that the affiant was additionally required pursuant to OCGA § 9-11-56 (e) (Code Ann. § 81A-156), to attach to the affidavit a copy of every other credit life insurance policy and application contained in its files in order to substantiate her statements that no application was ever received on the Logans’ behalf and no policy was ever issued to them. It is difficult to imagine a more unreasonable or unworkable requirement, and the code section clearly imposes no such burden.

An affidavit's statement that it is based on personal knowledge generally satisfies subsection (e), especially when attachments support its averments.

Whitaker v. Trust Co. · filed 1983-06-20(e)

Such an averment meets the requirements of OCGA § 9-11-56 (e) (Code Ann. § 81A-156). A statement in an affidavit that it is based upon personal knowledge generally is sufficient, especially when its averments are supported by attachments to the affidavit.

An expert affidavit based partly on personal knowledge may have enough probative value to create a genuine issue even though medical records also referenced in it were neither attached nor clearly identified.

Hayes v. Murray · filed 1984-04-24(e)

However, in the affidavit, the affiant also states that his opinions are based, at least in part, on his personal knowledge of the facts of the case, and the affiant goes on to state the particulars in which he believes the defendants were negligent. We hold that the affidavit is, therefore, sufficient to raise a genuine issue of material fact and thus preclude the trial court’s grant of the defendants’ motions for summary judgment.

A defendant can carry its summary-judgment burden by establishing that the plaintiff cannot prove its claim because the sole document on which the claim depends is inadmissible at trial.

Davidson v. American Fitness Centers, Inc. · filed 1984-06-28

Defendant’s burden upon a motion for summary judgment was to make an affirmative showing that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law. OCGA § 9-11-56. Defendant met this burden by establishing that plaintiffs could not prove their tort claim because the document upon which they relied would be inadmissible at trial.

An affidavit need not attach the material on which it relies if that material is already in the case record, is before the trial court, and is clearly identified by the affidavit.

Nettles v. Laws · filed 1984-09-25(e)

An affidavit need not attach material upon which it is based if that material is part of the record in the case and is before the trial court, provided that the affidavit clearly identifies the record matter upon which it is based.

Section 56(e) gives no probative value to an affidavit based solely on documents that are neither attached nor identified as part of the record.

Landers v. Georgia Baptist Medical Center · filed 1985-07-15(e)

Plaintiff failed to attach any copy of any paper referred to in the affidavit upon which the expert based his opinion. A court may not consider such affidavit when based solely upon documentation which is neither a part of the record nor attached to the affidavit.

Section 56(e) requires an affidavit to be based on personal knowledge and to attach or clearly identify the records supporting its opinion.

McClure v. Clayton County Hospital Authority · filed 1985-09-24(e)

Neither affidavit stated that it was made on personal knowledge of the affiant, and both referred to “certain records and documents” as a basis for their opinion, without attaching sworn or certified copies of all papers referred to, as required by OCGA § 9-11-56 (e). Neither were the “certain records and documents” “clearly identified” so that the trial court and this court could ascertain if they were among those medical records included in this record.

X-ray films relied on by an expert affidavit are medical records or other material that must be attached in sworn or certified form unless the record-material exception applies.

Bush v. Legum · filed 1985-09-26(e)

The certification requirement is not restricted literally to paper only.

Records supporting an affidavit opinion must be attached to the affidavit or appear elsewhere in the record and be identified in the affidavit.

Connell v. Lane · filed 1987-07-14(e)

It is true that the records upon which the opinion is based must be attached to the affidavit or appear somewhere in the record and be referred to in the affidavit.

Section 56(e) requires records underlying an affidavit to be attached or clearly identified in the record.

Pratt v. TRI CITY HOSPITAL AUTHORITY · filed 1989-11-09(e)

Where records relied upon and referred to in an affidavit are neither attached to the affidavit nor included in the record and clearly identified in the affidavit, the affidavit is insufficient.

An expert may rely on reviewed medical records, but subsection (e) requires sworn or certified copies of records not already in the case record to accompany the affidavit.

Hall v. Okehi · filed 1990-03-05(e)

However, OCGA § 9-11-56 (e) requires that sworn or certified copies of such material be attached to the affidavit. If such medical records are not part of the record in the case, they would have no probative value.

An expert affidavit based on photographs, recordings, and reports lacks probative value when those supporting materials are neither attached nor in the record.

Gunnin v. Swat, Inc. · filed 1990-04-10(e)

Johnson’s opinion as expressed in his affidavit is not based on personal knowledge. He does not state that he visited the premises. Instead, it is derived from photographs, videotape and reports not appearing in the record. Thus, it is not probative to contradict the affidavit of Dunn.

Business records referred to in a supporting affidavit cannot support summary judgment unless they are attached to the affidavit.

Val Preda Motors v. NATIONAL UNIFORM SERVICE · filed 1990-04-24(e)

Although National’s affidavit referred to certain business records purportedly supporting its motion, the records were not attached to the affidavit and, therefore, the references to the business records cannot be used to support the motion.

Section 56(e) requires bank records underlying an affidavit to be attached before the affidavit can establish a debt on summary judgment.

Taquechel v. Chattahoochee Bank · filed 1991-01-31(e)

That holding is contrary to the requirements of OCGA § 9-11-56 (e) and is disapproved.

Documents relied on by an expert opposing summary judgment must be sworn or certified even when copies are attached to the affidavit.

Johnson v. Srivastava · filed 1991-04-23(e)

OCGA § 9-11-56 (e) requires sworn or certified copies of all documents referred to in an affidavit to be attached to the affidavit. An expert affidavit is insufficient to oppose a motion for summary judgment if the documents on which the affiant relies in forming his opinions are not certified or sworn, even if unsworn copies are attached to the affidavit.

Section 56(e) requires medical records attached to an affidavit to be sworn or certified, though a failure to object waives the formal defect.

Sanders v. Ramo · filed 1992-02-13(e)

We note that while there are medical records attached to the affidavit, it does not appear that they were sworn or certified as required by OCGA § 9-11-56 (e).

Personnel-file excerpts satisfying section 56(e) may be considered in support of summary judgment.

Glisson v. Morton · filed 1992-02-25(e)

Because the excerpts from plaintiff’s personnel file met the standards prescribed in OCGA § 9-11-56 (e), the trial court did not err in considering the documents filed in support of defendant’s motion for summary judgment.

Papers referred to in a summary-judgment affidavit must be attached or served unless they are already in the record before the court and the affidavit clearly identifies them.

Augustine v. Frame · filed 1992-10-09(e)

OCGA § 9-11-56 (e) requires that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”

Under subsection (e), an affidavit based on a review of records is insufficient when those records are neither attached to the affidavit nor contained in the record.

TRI-CITY CONSTRUCTION COMPANY, INC. v. Sandy Plains Partnership · filed 1992-11-30(e)

While the affidavit states it is based upon a review of the records of Tri-City, ... those records are neither attached to the affidavit nor contained in the record and the affidavit is insufficient under OCGA § 9-11-56 (e).

Unauthenticated documents that were not properly offered are not evidence for purposes of summary judgment.

McClinton v. Sullivan · filed 1993-03-19(c), (e)

Although the record contains copies of the alleged prenuptial and postnuptial agreements entered into by Lita and James Sullivan under the terms of which James Sullivan renounced his right under the laws of intestacy to inherit from his wife’s estate, the documents were never authenticated and never properly offered as evidence for the purpose of summary judgment.

Subsection (e) requires sworn or certified copies of every document referenced in an affidavit to be attached, and an expert affidavit based on unattached or unsworn documents cannot oppose summary judgment.

Hailey v. Blalock · filed 1993-06-16(e)

OCGA § 9-11-56 (e) requires sworn or certified copies of all documents referred to in an affidavit to be attached to the affidavit. An expert affidavit is insufficient to oppose a motion for summary judgment if the documents on which the affiant relies in forming his opinion are not certified or sworn, even if unsworn copies are attached to the affidavit.

An affidavit relying on papers must attach or serve sworn or certified copies, subject to the practical exception for clearly identified records already on file.

Williams v. Hajosy · filed 1993-10-05(e)

OCGA § 9-11-56 (e) straightforwardly requires that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”

Subsection (e) requires sworn or certified copies of documents referenced in an affidavit, and an expert affidavit relying solely on unsworn, uncertified records cannot oppose summary judgment.

Paulin v. Okehi · filed 1994-01-18(e)

OCGA § 9-11-56 (e) requires sworn or certified copies of all documents referred to in an affidavit to be attached to the affidavit. An expert affidavit is insufficient to oppose a motion for summary judgment if the documents on which the affiant relies in forming his opinions are not certified or sworn, even if unsworn copies are attached to the affidavit.

Medical office records produced and authenticated by the defendant physician and placed in the record may support an opposing expert affidavit under subsection (e), despite lacking certification.

Paulin v. Okehi · filed 1994-11-07(e)

We hold that the office records produced and authenticated by defendant physician and placed in the record were sufficient support to plaintiffs’ opposing affidavit as to satisfy the requirements of OCGA § 9-11-56 (e).

Subsection (e) does not require excluding an expert affidavit when the documents underlying the opinion are already in the record and are sufficiently identified to permit testing the opinion.

Millar Elevator Service Co. v. O'SHIELDS · filed 1996-07-31(e)

These documents, which are part of the record, are sufficiently identified by Lauer to assure that they are the ones upon which his opinion was based. Thus his opinion could be tested.

Clearly identified medical records authenticated in depositions and included in the record may support an opposing expert affidavit, and omission of other records unrelated to the allegations is not fatal.

Washington v. Georgia Baptist Medical Center · filed 1996-11-13(e)

The testimony of the doctors in their depositions and the documents identified and referred to by them, which are part of the record, provide a sufficient factual basis from which Dr. Thompson formed his opinions as to the care provided by these defendants. That sworn or certified copies of the other records listed by Dr. Thompson, not directly related to the factual allegations made against these defendants, are not in the record is not fatal to the affidavit.

Documents relied on by an affidavit must be properly certified and attached, unless they are already in the record before the court and the affidavit specifically identifies them.

Goring v. Martinez · filed 1996-12-05(e)

None of these documents is properly certified or attached to Dr. James’ affidavit as required by OCGA § 9-11-56 (e). While material need not be attached if the affidavit is based upon material that is part of the record and before the court, the affidavit still must specifically identify those documents and failure to do so results in summary judgment.