Ga. Code Ann. § 9-11-56

After a creditor establishes a prima facie debt and delivery, subsection (e) requires the debtor to present specific facts rebutting that proof; general denials are insufficient.

Sweet Water Tree Farm, Inc. v. J. Frank Schmidt & Son, Inc. · filed 2007-09-07(e)

Once Schmidt set forth a prima facie case of Sweet Water’s indebtedness and the delivery of the goods, as reflected in the ... remaining invoices, Sweet Water had the burden of presenting evidence of specific facts to refute Schmidt’s proof. ... Sweet Water’s general assertions that it did not purchase any trees from Schmidt and did not owe Schmidt any money is insufficient to meet its burden.

Section 9-11-56 permits summary judgment even when the nonmovant’s affidavit statements are accepted as true if those statements do not create a material factual issue.

Udoinyion v. re/max of Atlanta. · filed 2008-02-12

Even accepting the statements made in the affidavits filed by Udoinyion as true, the trial court correctly granted summary judgment in favor of the defendants.

A movant may discharge subsection (c)’s burden through documentary evidence supporting the nonmovant’s case, after which the nonmovant must produce evidence creating a triable issue rather than rest on the pleadings.

Atkins v. News Publishing Co. · filed 2008-03-06(c)

Upon motion for summary judgment, it is the movant’s burden to show that no jury question remains as to any material fact and that he or she is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). The movant may discharge this burden by reference to affidavits, depositions, and other documentary evidence in support of the non-movant’s case. Id. After the movant discharges this burden, the nonmovant cannot rest on the pleadings, but instead must come forward with evidence giving rise to a triable issue.

On cross-motions for summary judgment, each party must independently show the absence of a genuine issue of material fact and carry its own burden of proof.

Realty Professionals, Inc. v. De La Valette · filed 2025-10-30(c)

And “[o]n cross-motions for summary judgment, each party must show there is no genuine issue of material fact and that each, respectively, is entitled to summary judgment as a matter of law; either party, to prevail by summary judgment, must bear its burden of proof.”

When a summary judgment movant points to an absence of evidence on an essential element, the opposing party must identify record evidence creating a triable issue.

City of Atlanta v. Mersier · filed 2014-07-31(c)

In moving for summary judgment, the City pierced the pleadings of McCrary and Mersier by pointing to an absence of evidence linking the City’s alleged failure to enforce its pursuit policy and train its officers to unauthorized pursuits resulting in a continuing and repeated dangerous condition or injuries of which the City had notice. The burden then shifted to McCrary and Mersier to point to evidence in the record showing that link.

Subsection (c)’s right to serve opposing affidavits does not entitle a party to use an expert who was not timely identified under a case-management order and for whom leave was not obtained.

Thomas v. Peachtree Orthopaedic Clinic, P.C. · filed 2008-03-10(c)

Further, the Thomases have provided no authority for their contention that a party’s right to serve affidavits in opposition to a summary judgment motion pursuant to OCGA § 9-11-56 (c) entitles them to use an expert that was not timely identified or for whom they did not obtain leave of court to present.

A party needing additional discovery to oppose summary judgment should invoke subsection (f); the court need not allow discovery to be completed before ruling.

Carr v. Kindred Healthcare Operating, Inc. · filed 2008-07-02(f)

Thus, if Carr needed additional discovery for their response to Kindred’s motion, they should have invoked OCGA § 9-11-56 (f). ... The trial court was not required to allow the completion of discovery before ruling on the motion for summary judgment.

A party needing more discovery to oppose summary judgment must invoke subsection (f), and the court need not await completion of discovery before ruling.

Fortson v. Brown · filed 2010-01-25(f)

If Fortson “needed additional discovery for [his] response to [the Appellees’] motion, [he] should have invoked OCGA § 9-11-56 (f). The trial court was not required to allow the completion of discovery before ruling on the motion for summary judgment.”

A summary-judgment respondent who claims the motion is premature should invoke subsection (f), which authorizes a continuance for further discovery when an affidavit gives reasons why essential opposing facts cannot yet be presented.

Carr v. Fedex Ground Package System · filed 2012-10-02(f)

A respondent to a summary judgment motion who contends that the motion is premature should invoke OCGA § 9-11-56 (f), which authorizes a court to order a continuance for further discovery in connection with summary judgment proceedings, “[s]hould it appear from the affidavits of a party opposing the [summary judgment] motion that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition.”

Late discovery does not excuse a party's failure to seek a subsection (f) extension of the summary-judgment deadline.

Metro Atlanta Task Force for the Homeless, Inc. v. Ichthus Community Trust · filed 2015-11-23(f)

The lateness of discovery is an inadequate excuse for the failure to ask for an extension of the summary judgment deadline in order to amend the complaint. See OCGA § 9-11-56 (f).

Subsection (f) permits a continuance when an opposing party’s affidavit explains why essential facts cannot yet be presented, and the trial court must exercise its discretion on a relevant request rather than deny it as moot after a reversed judgment.

Asuamah v. Haley · filed 2008-07-14(f)

The motion to stay was filed pursuant to OCGA § 9-11-56 (f), which permits the court to grant a continuance “[s]hould it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavits facts essential to justify his opposition.” ... However, in light of our reversal of the summary judgment on the negligent repair claim against Cendant in Case No. A08A0210, we reverse the trial court’s ruling and remand for the court to exercise its discretion and rule on the substance of Asua-mah’s discovery motions, insofar as they are relevant to this claim.

When the opposing party cannot present essential facts by affidavit, subsection (f) allows the court to refuse judgment, continue the matter for evidence or discovery, or enter another just order.

Lightfoot v. Hollins · filed 2011-01-26(f)

Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavits facts essential to justify his opposition, the court may refuse the application for judgment, or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had, or may make such other order as is just.

A court may deny additional discovery under subsection (f) when no additional discovery could affect the movant’s entitlement and the requesting party previously had an opportunity to pursue discovery.

CITY OF ATLANTA v. HOTELS.COM, L.P. Et Al. · filed 2015-07-23(f)

No additional discovery would bear upon the OTC’s entitlement to summary judgment on the breach of trust claim because, as discussed above, earlier proceedings in this case barred that claim.

Summary judgment generally should not be resolved while a motion to compel discovery is pending unless the withheld discovery would add nothing material; potential substantive discovery makes review premature.

Preservation Management, Inc. v. Ann J. Herrera, as Conservator of B. W., a Minor · filed 2019-10-30(c)

“As a general rule, this Court does not condone the grant of summary judgment while a motion to compel discovery is pending, unless it can be determined that the disallowed discovery would add nothing of substance to the party’s claim.” ... At this point, a de novo review of the denial of summary judgment would thus be premature.

Summary judgment is premature when a pending motion to compel seeks potentially substantive discovery and the nonmovant requests a continuance so the court can address discovery first.

Dodson v. Sykes Industrial Holdings, LLC · filed 2013-11-20(c)

We hold that the trial court erred by granting summary judgment because Dodson had a motion to compel pending that appears reasonably calculated to lead to the discovery of admissible evidence and he moved for a continuance of the hearing on the motion for summary judgment so that the court could address his motion first.

A supporting affidavit relied on for summary judgment must be on file at least 30 days before the hearing under subsection (c) and section 9-11-6(d).

Cordell v. BANK OF NORTH GEORGIA · filed 2008-12-31(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.

A supporting affidavit must be filed at least 30 days before the hearing unless the opponent acquiesces or the movant obtains an extension; a late affidavit requires excusable neglect and a full response period.

BRENDA STEWARD v. ARANDIA · filed 2021-06-30(c)

The law is clear that affidavits relied upon in support of a motion for summary judgment must be on file for at least 30 days prior to the hearing. 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. ... We conclude that the trial court erred in considering Garmon’s affidavit submitted in support of his survey. There is no evidence that Arandia requested an extension of time to file the affidavit and Arandia did not present any evidence of excusable neglect in failing to timely file the affidavit.

Subsection (h) gives a losing party a direct appeal from partial summary judgment but does not give every party in a multiparty case standing to appeal.

Davis v. Deutsche Bank National Trust Co. · filed 2009-02-09(h)

[T]he grant of a motion for summary judgment in a multiparty case will not, standing alone, necessarily authorize the initiation of a direct appeal therefrom by any party to the underlying case. An appeal must be filed by one who has standing to pursue it. OCGA § 9-11-56 (h) “ ‘gives a ... losing ... party the right to a direct appeal from an order granting ... summary judgment on any issue or as to any party even though the judgment is not final. . . . [Cit.]’ [Cit.]”

A codefendant who is not a losing party and whose rights are not affected by summary judgment against another defendant lacks standing to take a direct appeal under subsection (h).

Adams v. D-Money Enterprises, Inc. · filed 2011-11-15(h)

Because the Appellants were not losing parties to the trial court’s order granting summary judgment to D-Money as to its breach of contract claim against Thomas, and the Appellants were not sued as joint tortfeasors of Thomas, the Appellants have no standing to file a direct appeal of that order.

A court cannot use a motion in limine to decide the sufficiency of damages evidence without determining that no genuine material factual issue exists and that the opponent is entitled to judgment as a matter of law.

State, Department of Transportation v. Douglas Asphalt Co. · filed 2009-04-10(c)

Accordingly, the trial court erred in granting Douglas Asphalt’s motion in limine by essentially ruling on the sufficiency of DOT’s damages evidence without determining whether there were genuine issues of material fact and without determining that Douglas Asphalt was entitled to judgment as a matter of law.

A declaratory-judgment claimant may seek summary judgment under subsection (a), but the court may not grant declaratory relief sua sponte without notice and an opportunity to respond.

McLeod v. Clements · filed 2009-06-25(a)

[w]here a party seeking a declaratory judgment contends that he is entitled to judgment based on the facts or allegations currently of record, he may move for judgment on the pleadings pursuant to OCGA § 9-11-12 (c) or for summary judgment pursuant to OCGA § 9-11-56 (a). Under either procedure, the opposing party would, of course, be entitled to an opportunity to respond. There is no procedure pursuant to which the trial court may simply grant a complaint for declaratory judgment sua sponte, without affording the opposing party notice or an opportunity to be heard.

A court may grant summary judgment sua sponte only after giving the affected party full and fair notice and an opportunity to respond.

Crossing Park Properties, LLC v. Archer Capital Fund, L.P. · filed 2011-07-11

Nothing in the applicable law places a burden on the nonmovant to respond to issues which are not raised in the motion for summary judgment. But a trial court may grant summary judgment sua sponte under certain circumstances, so long as it ensures that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment.

A party needing additional discovery to oppose a converted summary-judgment motion should invoke subsection (f) by presenting an affidavit explaining why essential facts cannot yet be presented.

Fernandez v. WebSingularity, Inc. · filed 2009-07-13(f)

“If [Fernandez] needed additional discovery so as to make a response to appellee’s motion, [he] should have invoked OCGA § ... 9-11-56 (f),” ... Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavits facts essential to justify his opposition, the court may refuse the application for judgment, or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had, or may make such other order as is just.

To obtain additional discovery before responding to summary judgment, subsection (f) requires an opposing affidavit explaining why essential facts cannot yet be presented; the ruling rests in the trial court's sound discretion.

Dexter Sims v. First Acceptance Insurance Company · filed 2013-06-20(f)

Pursuant to OCGA § 9-11-56 (f), however, “in order to extend the time to respond to a summary judgment motion so that additional discovery may be had, the party opposing the motion must file an affidavit explaining why he cannot present by affidavits facts essential to justify his opposition and therefore needs time to conduct or obtain additional discovery.” ... “The granting or denial of a motion under OCGA § 9-11-56 (f) lies in the sound discretion of the trial judge and will not be reversed absent a showing of clear abuse of discretion.”

To obtain additional discovery before responding to summary judgment, subsection (f) requires an opposing affidavit explaining why essential facts cannot yet be presented; the ruling rests in the trial court's sound discretion.

Sims v. First Acceptance Insurance Co. of Georgia, Inc. · filed 2013-06-20(f)

Pursuant to OCGA § 9-11-56 (f), however, ... in order to extend the time to respond to a summary judgment motion so that additional discovery may be had, the party opposing the motion must file an affidavit explaining why he cannot present by affidavits facts essential to justify his opposition and therefore needs time to conduct or obtain additional discovery. ... “The granting or denial of a motion under OCGA § 9-11-56 (f) lies in the sound discretion of the trial judge and will not be reversed absent a showing of clear abuse of discretion.”

A party seeking to delay summary judgment for discovery must explain by affidavit why essential opposing facts cannot yet be presented and identify the relevant evidence expected from the requested discovery.

915 Indian Trail, LLC v. State Bank and Trust Company · filed 2014-07-03(f)

The statute requires that a party seeking relief set forth in an ... affidavit ... that it “cannot, for reasons stated, present by affidavits facts essential to justify [its] opposition” to a motion for summary judgment. Thus, the LLC was required “to set forth the reasons for a continuance and to show that if the motion to compel were successful, then what relevant and material evidence would be produced in opposition to the motion for summary judgment.”

A party seeking a continuance for discovery must state the reasons for it and identify the relevant and material evidence expected to oppose summary judgment.

Lockwood v. Federal Deposit Insurance Corporation · filed 2015-01-12(f)

OCGA § 9-11-56 (f) requires an appellant “to set forth the reasons for a continuance and . . . what relevant and material evidence would be produced in opposition to the motion for summary judgment.”

On summary judgment, a trial court may determine whether disputed issues of material fact exist but may not resolve those disputes.

Thorpe v. Sterling Equipment Co., Inc. · filed 2012-05-17(c)

“In ruling on a motion for summary judgment, a trial court is not empowered to resolve disputed issues of material fact but merely to determine if such issues exist for resolution.”

Subsection (e) requires sworn or certified copies of papers referenced in an affidavit to be attached or served with it unless they are otherwise made part of the record.

Howell v. Willis · filed 2012-06-29(e)

“Accordingly, the expert’s assertion regarding the [codes’] 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.’); [Cit.]” ... While an expert may offer testimony as to industry practices and whether a particular condition is consistent with those practices, an expert affidavit is insufficient to establish the contents of a particular code or standard unless copies are attached to his affidavit or are otherwise made part of the record.

Failure to give the opposing party 30 days to respond after converting a pleadings motion to summary judgment under § 9-11-56 is not reversible without a showing of harm.

Brooks v. Res-Ga Albc, LLC · filed 2012-07-12(c)

Thus, as Brooks has not shown that given additional time he would have filed additional affidavits or other supporting documentation in response to a motion for summary judgment, he has not shown that he was harmed by having the motion for judgment on the pleadings converted to a motion for summary judgment. Accordingly, no reversal is required.

Failure to give the opposing party 30 days to respond after converting a pleadings motion to summary judgment under § 9-11-56 is not reversible without a showing of harm.

Brooks v. Multibank 2009-1 RES-ADC Venture, LLC · filed 2012-07-12(c)

Thus, as Brooks has not shown that given additional time he would have filed additional affidavits or other supporting documentation in response to a motion for summary judgment, he has not shown that he was harmed by having the motion for judgment on the pleadings converted to a motion for summary judgment. Accordingly, no reversal is required.

A court may not grant summary judgment by default merely because the opposing party failed to respond.

McRae v. Hogan · filed 2012-10-05

But “[t]here is no such thing as a default summary judgment.”

Denial of a summary-judgment motion means only that genuine issues require resolution by a jury; it does not necessarily entitle the opposing party to summary judgment.

Brinko v. City of St. Marys, Georgia · filed 2013-10-30(c)

On the contrary, the denial of a motion for summary judgment is simply a ruling that the movant is not entitled to summary judgment because there are genuine issues of material fact that require resolution by a jury. See OCGA § 9-11-56 (c). It does not necessarily mean that the opposing party is entitled to summary judgment, and the trial court erred in reaching such a conclusion in this case.

Denial of a summary-judgment motion means only that genuine issues require resolution by a jury; it does not necessarily entitle the opposing party to summary judgment.

City of St. Marys v. Brinko · filed 2013-10-30(c)

On the contrary, the denial of a motion for summary judgment is simply a ruling that the movant is not entitled to summary judgment because there are genuine issues of material fact that require resolution by a jury. See OCGA § 9-11-56 (c).

A nonmovant’s failure to file responsive material does not automatically entitle the movant to judgment; the record must affirmatively show no material factual issue and entitlement as a matter of law.

Houghton v. Sacor Financial, Inc. · filed 2016-05-31(c)

This argument disregards applicable law of summary judgment: There is “no such thing as a default summary judgment.”

A plaintiff may not use summary judgment to obtain judgment based on a defendant's default; default judgment must proceed under the default statute.

Matthews v. Gibson Holdings, LLC · filed 2025-08-29

If Tia was in default, the proper judgment to be entered was a default judgment pursuant to OCGA § 9-11-55, not summary judgment pursuant to OCGA § 9-11-56.

A party who seeks immediate review of a grant of summary judgment under subsection (h) but commits a fatal procedural default cannot later resubmit that judgment for appellate review.

L. SCOTT BORN v. BRUCE G. BORN · filed 2022-06-15(h)

Given these circumstances, just as in Mitchell, the defendants put the machinery of appellate review into motion under OCGA § 9- 11-56 (h) and committed a procedural default. Thus, under Mitchell, the defendants are foreclosed from resubmitting the partial grant of summary judgment for review on appeal.

A party bearing the burden of proof at trial must present facts establishing its entitlement to summary judgment, and a nonmovant may first argue on appeal that the record lacks those facts.

Kammerer Real Estate v. Plh Sandy Springs · filed 2012-11-14(c)

[T]o be entitled to summary judgment, a party who bears the burden of proof at trial must present the trial court with the facts showing its entitlement to judgment. When the record fails to contain the facts supporting the grant of summary judgment, the non-movant may argue this ground to the appellate court regardless of whether the non-movant asserted an “objection to the prima facie case.”

Guesses or speculation that raise only conjecture or possibility cannot create an inference of fact sufficient to defeat summary judgment.

Taylor v. Campbell · filed 2013-03-14(c)

But “[g]uesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.”

Speculation that raises only conjecture or possibility does not create even an inference of fact sufficient to defeat summary judgment.

Georgia Lottery Corporation v. Vasaya · filed 2019-10-31(c)

“Speculation that raises a mere conjecture or possibility is not sufficient to create even an inference of fact for consideration on summary judgment.” ... Consequently, Flanagan’s testimony that Vasaya was not a bona fide purchaser is not sufficient to create a genuine dispute of a material fact.

Speculation that a movant knew a material fact is insufficient to survive summary judgment.

ALLEN v. HARRIS · filed 2024-10-30(c)

Harris’s speculation that the Allens must have known about this area of water intrusion is not sufficient to survive summary judgment on his fraud claim.

Guesses or speculation about what might have caused an event do not create a factual issue at summary judgment.

CRIBB v. MOORE · filed 2024-11-01(c)

Instead, Appellees’ negligence claim is based upon a pyramid of inferences and speculation as to what could have caused the fire, which is insufficient to create a genuine issue of material fact to survive summary judgment.

A nonmovant cannot avoid summary judgment through speculation or conjecture unsupported by evidence.

DROSSMAN v. WAL-MART STORES EAST LP, (DELAWARE) · filed 2025-02-04(c)

But absent evidence showing that the water came from those doors, “summary judgment cannot be avoided based on mere speculation or conjecture[.]”

A negligence plaintiff cannot avoid summary judgment with speculation that unidentified enhanced security measures might have prevented a targeted criminal attack.

GILES v. GREENHOUSE APARTMENTS, LLC · filed 2026-02-06(c)

Significantly, a mere possibility of such causation is not enough; and when the matter “remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.”

When a party’s affidavit and deposition are not materially contradictory, the testimony must be viewed favorably to that party on summary judgment rather than construed against the party under the Prophecy rule.

Price v. Thapa · filed 2013-07-10(c)

Because no material contradiction appears in Price’s statements concerning the speed of Shah’s and Thapa’s vehicles or their running of the stop sign, and because Price’s contention that Thapa failed to stop at the stop sign was supported by other evidence, it was error for the court below to apply the Prophecy rule and view his testimony in any light other than that most favorable to Price.

When a party’s affidavit and deposition are not materially contradictory, the testimony must be viewed favorably to that party on summary judgment rather than construed against the party under the Prophecy rule.

Price v. Thapa · filed 2013-07-10(c)

In this case, Price’s deposition testimony as to how the accident occurred is not in material conflict with his description of the accident in his affidavit. Based on our review, Price’s deposition testimony offers a fuller, more expansive, and complete account of the accident, and it provides the underlying basis for his statements in the affidavit.

Subsection (c) contemplates but does not mandate an oral hearing on summary judgment; a party obtains one by timely written request under the court rule.

Chae v. Saehan Bank · filed 2013-05-06(c)

OCGA § 9-11-56 (c) provides that the motion for summary judgment shall be served at least 30 days “before the time fixed for the hearing.” ... The rule and the statute work together consistently. The statute contemplates but does not mandate a hearing. The rule fixes the method parties use to obtain a hearing.

When substantive law imposes a heightened evidentiary burden, a court deciding summary judgment must consider the actual quantum and quality of proof needed to support liability.

Johnson v. Omondi · filed 2013-11-14(c)

And, the heightened evidentiary burden imposed in cases falling under OCGA § 51-1-29.5 (c) must necessarily be considered on a motion for summary judgment. When faced with such a heightened burden, “a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability....”

A grant of summary judgment must be affirmed if right for any reason because appellate review addresses the grant itself rather than the trial court’s analysis.

Walleye, LLC v. City of Forest Park · filed 2013-07-01

A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.

An appellate court must affirm a grant of summary judgment on any correct ground that the movant raised below and the nonmovant had a fair opportunity to answer.

TONYA BROOK USRY v. CITY OF SANDERSVILLE · filed 2025-02-21

[A] grant of summary judgment must be affirmed if it is right for any reason, whether stated or unstated in the trial court’s order, so long as the movant raised the issue in the trial court and the nonmovant had a fair opportunity to respond.

An appellate court may affirm summary judgment on an alternative ground not addressed below when that ground was raised in the trial court.

SWAP MEAT FILMS, INC. v. REEL SECURITY CORPORATION OF GEORGIA · filed 2025-09-22

The trial court did not specifically rule on this issue. However, because the issue was raised below, this Court may affirm the grant of summary judgment if it is right for any reason.

An appellate court has discretion to decline an unaddressed alternative ground for affirming summary judgment when no party enumerated that ground as error.

JAMES FARMER v. MITCHELL · filed 2025-09-30

Because these potential equitable bars were not addressed by the trial court and were not enumerated as error by any party here, we decline to exercise our discretion to consider whether summary judgment could be affirmed on those two claims.

An appellate court cannot affirm summary judgment as right for any reason on a ground not raised before the trial court.

Jones v. Dho, Inc. · filed 2025-10-30(c)

[W]e cannot affirm a grant of summary judgment as right for any reason for a reason not raised before the trial court.

A summary-judgment movant has not carried subsection (c)'s burden when a material issue can be eliminated only through credibility judgments.

Stevenson v. City of Doraville · filed 2013-11-25(c)

A movant for summary judgment has not met his ... burden where a material issue can be eliminated only by making credibility judgments.

A material contradiction between witnesses creates a credibility question and a genuine factual issue that precludes summary judgment.

MOTON v. EMORY HEALTHCARE, INC. · filed 2025-10-01(c)

The vein through which defendant nurses administered the Dilantin is the material issue in this case and its resolution depends upon the finder of fact considering the credibility of the witnesses.

Opinion evidence on impairment cannot sustain summary judgment because its weight and credibility remain for the jury.

ONSITE COMMUNICATION SERVICES, LLC v. GOOCH · filed 2026-06-24(c)

Indeed, the other evidence cited by Parris also rests on opinion testimony concerning his impairment, and for such evidence a “jury must make the factual determination whether to accept the opinion evidence . . . in whole or in part and what weight and credibility to give it.”

Under subsection (c), a nonmovant need only present evidence raising a genuine issue of material fact, not evidence demanding judgment in its favor.

Quinney v. Phoebe Putney Memorial Hospital, Inc. D/B/A Phoebe Putney Memorial Hospital · filed 2013-11-21(c)

A party is entitled to summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). ... The party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact.

Once the moving party shows that the record lacks evidence of an essential element, the nonmoving party must present specific evidence creating a triable issue.

Post Properties, Inc. v. Doe · filed 1997-12-03(e)

Because proximate cause is an essential element in a negligence claim, Lau’s Corp., supra, and because Doe failed in her burden of presenting competent evidence of a triable issue of fact, the trial court erred in denying Post’s motion for summary judgment.

Subsection (c) precludes partial summary judgment when genuine issues of material fact remain.

Jamil Khan v. Landmark American Insurance Company · filed 2014-03-26(c)

Because there remain genuine issues of material fact as to the identity of the employee who shot Khan and whether the shooting was committed to protect persons and/or property, the trial court did not err in denying Khan’s motion for partial summary judgment. See OCGA § 9-11-56 (c).

Section 9-11-56 authorizes summary judgment on comparative-fault issues only in a plain and indisputable case.

Thomas M. Reed, Sr. v. Carolina Casualty Insurance Company · filed 2014-03-25

But we find nothing in the statute that abrogates a trial court’s authority under OCGA § 9-11-56 to grant summary judgment in an appropriate case, i.e., in a plain and indisputable case.

A defendant seeking summary judgment on an affirmative defense may not rely on an absence of evidence disproving that defense and must instead produce evidence establishing it.

Sanchez v. Atlanta Union Mission Corporation · filed 2014-09-25(c)

And a defendant moving for summary judgment based on an affirmative defense may not rely upon an absence of evidence in the record disproving the affirmative defense. ... Consequently, the burden was on Atlanta Mission to come forward with evidence establishing that Sanchez’s negligence claim was barred by a contractual exculpatory clause waiving and releasing it from liability.

After a respondent rebuts a summary-judgment movant's prima facie case with an affirmative defense, the burden shifts back to the movant to eliminate genuine factual issues concerning each affirmative defense.

Koules v. Sp5 Atlantic Retail Ventures, LLC. · filed 2014-12-12

Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence. However, if the respondent successfully produces such rebuttal evidence in the form of an affirmative defense, the burden shifts back to the movant to establish the non-existence of a genuine issue of fact as to each affirmative defense.

A summary-judgment movant asserting a limitations defense bears the initial proof burden; after proof that the period ran, the nonmovant must produce some evidence of tolling, and a genuine tolling dispute defeats judgment.

Williams v. Durden · filed 2018-09-21(c)

The movant on summary judgment has the burden of proof regarding the affirmative defense of the running of the statute of limitation, and once the movant presents evidence that the limitation period has run, “[t]he burden of persuasion then shifts to the nonmovant to present some evidence showing that an issue exists that the statute has not run but has been tolled.” ... Summary judgment is improper if a genuine factual dispute exists concerning whether the limitation period has been tolled.

A plaintiff moving for summary judgment bears the burden of establishing the absence or nonexistence of every defense raised by the defendant.

PARKWOOD LIVING, LLC v. LIGGINS · filed 2024-10-15(c)

[w]here, as here, a plaintiff moves for summary judgment, it has the burden of establishing the absence or non-existence of any defense raised by the defendant.

A defendant seeking summary judgment on an affirmative defense must eliminate factual disputes as to every element of that defense.

Smg Construction Services, LLC v. Cook · filed 2025-10-15(c)

Our conclusion that no issue of material fact exists with respect to Cook’s actual knowledge of the specific hazard at issue is not the end of the inquiry because knowledge is only one element of the affirmative defenses raised in SMG’s motion for summary judgment and ruled on by the trial court. ... But we leave it to the Court of Appeals to determine on remand whether, in light of our conclusion that SMG has established Cook’s actual knowledge of the hazard at issue, SMG has also shown the absence of any question of material fact concerning the other elements of its affirmative defenses.

A defendant moving for summary judgment on an affirmative defense cannot rely on an absence of evidence disproving the defense and must present evidence establishing it prima facie.

WILLIAMS v. REDDICK · filed 2025-10-29(c)

A defendant moving for summary judgment based on an affirmative defense, such as release, OCGA § 9-11-8 (c), may not rely upon an absence of evidence in the record disproving the affirmative defense. Instead, the defendant must present evidence which establishes the prima facie affirmative defense.

A defendant moving for summary judgment on an affirmative defense must present evidence establishing every defense element before the burden shifts to the plaintiff to identify evidence creating a jury issue.

HARVEY v. LAMAR HALL · filed 2025-12-03(c)

And once the defendant satisfies ... its burden of proof by presenting evidence to support each element of the affirmative defense, the same burden of proof it would have at trial, the burden of production of evidence shifts to the plaintiff, who will survive ... summary judgment in the same fashion that [he] would survive a motion for directed verdict at trial, i.e., by presenting any evidence which creates a jury issue on an element of the affirmative defense.

A defendant seeking summary judgment on an affirmative defense must eliminate factual disputes as to every element of that defense.

Cook v. Smg Construction Services, LLC · filed 2026-06-24(c)

As explained below, we determine that SMG has not shown the absence of any question of material fact with regard to the other elements of its two affirmative defenses, assumption of the risk and voluntary negligence.

A defendant seeking summary judgment on an affirmative defense cannot rely on favorable inferences and must present evidence supporting every element of the defense.

SCOTT v. EVANS DELIVERY COMPANY, INC. · filed 2026-06-24(c)

In so doing, the defendant, as the moving party seeking summary judgment, may not rely on inferences from the evidence presented, because: (1) the defendant would have such burden of proof at trial; and (2) the allocation of favorable inferences between the parties is a jury question.

Subsection (b) permits a party defending against a claim to move for summary judgment at any time before trial begins.

Padilla v. Ermes Medrano D/B/A/ Medrano Flooring and General Contractors, Inc. · filed 2015-05-21(b)

“‘At any time’ obviously means at any time before a trial begins in which a final judgment is to be rendered. . . .”

Subsection (b) permits a party defending against a claim to move for summary judgment at any time before trial begins.

Padilla v. Medrano · filed 2015-05-21(b)

“ ‘At any time’ obviously means at any time before a trial begins in which a final judgment is to be rendered ”

Subsection (c)'s 30-day period for filing a supporting affidavit does not apply when neither party requests a hearing and no hearing is held.

TRIPLE T-BAR, LLC Et Al. v. DDR SOUTHEAST SPRINGFIELD, LLC · filed 2015-03-03(c)

In this case, neither party requested a hearing on DDR’s motion for summary judgment and no hearing was held. Consequently, the 30-day statutory period for filing the affidavit did not apply.

A plaintiff moving for summary judgment must prove every element of the claim, and a defendant's failure to obtain summary judgment does not automatically entitle the plaintiff to judgment.

Bac Home Loans Servicing, L.P. v. Wedereit · filed 2015-06-15(c)

A plaintiff, on the other hand, “must demonstrate that there is no genuine issue of material fact [as to every element of his or her claims] and that the undisputed facts, viewed in the light most favorable to the [defendant], require judgment [in the plaintiff’s favor] as a matter of law.” ... These burdens are completely different, as it cannot be said that, where a defendant is unable to show that “there is no evidence sufficient to create a jury issue on at least one essential element of [a] plaintiff's case,” a plaintiff has automatically carried his or her burden of proving every element of his or her case such that he or she is entitled to judgment as a matter of law.

A plaintiff moving for summary judgment must make a prima facie showing of no material factual issue and entitlement to judgment before the burden shifts to the defendant to establish a defense.

TSELIOS Et Al. v. SARSOUR · filed 2017-05-24(c)

Where the party moving for summary judgment is the plaintiff, he must make a prima facie showing that no material issues of fact exist and that he is entitled to judgment as a matter of law before the burden shifts to the defendant to establish a possible defense.

A plaintiff moving for summary judgment must establish the absence or nonexistence of every defense raised by the defendant.

BROWNPHIL, LLC v. PETER KOFI AMIHERE CUDJOE · filed 2024-03-14(c)

When a plaintiff moves for summary judgment, he has the burden of establishing the absence or non-existence of any defense raised by the defendant.

A plaintiff moving for summary judgment must establish every element of the claim and cannot prevail merely because the defendant failed to disprove the claim.

REDDY v. BELTON · filed 2024-08-12

A plaintiff, on the other hand, must demonstrate that there is no genuine issue of material fact as to every element of his or her claims and that the undisputed facts, viewed in the light most favorable to the defendant, warrant judgment in the plaintiff’s favor as a matter of law.

A plaintiff moving for summary judgment must present evidence supporting its claim and pierce the defendant's affirmative defenses.

MIDFIRST BANK v. MANTOOTH · filed 2025-10-07(c)

Where, as here, “the movant is the plaintiff, [it] has the burden of presenting evidence to support [its] claim and the burden of piercing the defendant’s affirmative defenses.”

A plaintiff moving for summary judgment must make a prima facie showing that no material factual issue exists and that it is entitled to judgment before the defendant must establish a possible defense.

J and S Chemical Corporation v. Uniquechem Solutions, Inc. · filed 2026-02-09(c)

A plaintiff moving for summary judgment “must make a prima facie showing that no material issues of fact exist and that [it] is entitled to judgment as a matter of law before the burden shifts to the defendant to establish a possible defense.”

Subsection (h) does not make an order directly appealable merely because it is labeled partial summary judgment; summary judgment cannot resolve a collateral issue that is not dispositive of any part of the merits.

In Re: Estate of Ruby Kirkland · filed 2015-12-11(h)

Although the trial court’s order is styled “Order granting partial summary judgment,” the order does not reach the merits of the case. Summary judgment does not lie “as to issues the adjudication of which would not be dispositive in whole or in part of the merits of the case under consideration.” ... The order at issue denies Kirkland’s motion to recuse Judge Cross, which is a collateral issue in the case that is not a proper subject for disposition by summary judgment.

Subsection (h) does not make an order directly appealable merely because it is labeled partial summary judgment; summary judgment cannot resolve a collateral issue that is not dispositive of any part of the merits.

In Re: Estate of Leon Kirkland · filed 2015-12-11(h)

Although the trial court’s order is styled “Order granting partial summary judgment,” the order does not reach the merits of the case. Summary judgment does not lie “as to issues the adjudication of which would not be dispositive in whole or in part of the merits of the case under consideration.” ... The order at issue denies Kirkland’s motion to recuse Judge Cross, which is a collateral issue in the case that is not a proper subject for disposition by summary judgment.

Subsection (h) permits direct appeal only from a summary-judgment ruling on the merits; an order merely limiting amendment of the complaint is interlocutory even if described as de facto summary judgment.

Cassandra Gaines, as Surviving Parent of Kirsten Boykin v. Pediatrix Medical Group of Georgia, P.C. · filed 2019-10-25(h)

As this Court has held, summary judgment under OCGA § 9-11-56 constitutes a ruling on the merits of a claim. ... Here, the trial court’s order did not address the merits of the Plaintiffs’ claim. Rather, the order pertained to the Plaintiffs’ ability to amend their complaint to include the claim. The trial court’s order is thus interlocutory.

Subsection (h) does not permit direct appeal from an order denying settlement enforcement when the motion did not seek to dispose of any claim and therefore was not a summary-judgment ruling on the merits.

Lawson v. Darin W. Mitchell, Jr. · filed 2022-10-19(h)

Contrary to Lawson’s contention, however, a trial court’s order denying a motion to enforce a settlement agreement does not constitute the grant of partial summary judgment. “A motion for summary judgment is designed to test the merits of a claim.” ... Where, as here, the motion at issue did not seek to dispose of any claim, the ruling on the motion does not constitute a viable grant of summary judgment.

An interlocutory accounting or set-off order is not directly appealable under subsection (h) merely because the court considered evidence outside the pleadings; the order must actually grant summary judgment on a claim or issue.

WILLIAM E. CALLAWAY, JR. v. WILLARD · filed 2023-08-31(h)

The appellants argue that the trial court converted the set-off motion to a motion for partial summary judgment by considering evidence outside the pleadings, so the Set-Off Order is directly appealable under OCGA § 9-11-56 (h). ... An order granting summary judgment on any issue or as to any party is subject to review by direct appeal. OCGA § 9-11-56 (h). However, here the trial court entered its order pursuant to OCGA § 53-12-231 (d), which allows a court in an accounting action to “enter judgment granting appropriate relief.” ... the order is not directly appealable[.]”

Section 9-11-56 governs judgments on the merits and permits direct appeal from an order granting summary judgment.

Joself Freeman v. Styles Holdings, LLC · filed 2012-05-03(h)

“[OCGA § 9-11-56] contemplates a judgment on the merits, and cannot be properly ... utilized to raise matter in abatement.” ... “Accordingly, this appeal does not fall within the purview of OCGA § 9-11-56 (h), providing for a direct appeal from an order granting summary judgment.”

An affidavit purporting to establish a debt amount is insufficient for summary judgment when appropriate underlying business records are not attached.

D’agnese v. Wells Fargo Bank, N.A. · filed 2016-02-18(e)

Affidavits purporting to establish the amount of a debt without accompanying business records, where appropriate, are insufficient to sustain summary judgment. ... see also OCGA § 9-11-56(e) (affidavits offered in support of and opposition to motions for summary judgment “shall be made on personal knowledge” and “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith”).

Subsection (h) makes orders granting summary judgment directly appealable, but review still must be sought within the applicable deadline.

Davis v. Ballinger · filed 2016-10-25(h)

Orders granting summary judgment are subject to direct appeal. ... To fall within this general rule, however, the application must be filed within 30 days of entry of the order to be appealed.

A partial summary-judgment grant is directly appealable under subsection (h) if the notice is filed within 30 days of the judgment.

Sunrise Commerce Hotel Group, LLC v. Primax Properties, LLC · filed 2022-10-31(h)

“The grant of partial summary judgment as to one or more but fewer than all the claims or parties is reviewable by direct appeal if the notice of appeal is filed within 30 days of the rendition of such judgment. OCGA § 9-11-56 (h).” ... Thus, the order granting summary judgment to Primax Properties is directly appealable and is not subject to the interlocutory appeal requirements.

A summary-judgment grant is directly appealable under subsection (h), but an unnecessary discretionary application still must be filed within its applicable 30-day deadline.

HAROLD B. MASON v. CARTER · filed 2023-08-15(h)

Generally, an order granting summary judgment is directly appealable. See OCGA § 9-11-56 (h). ... However, the application for a discretionary appeal must be filed within 30 days of the order being appealed. ... Here, Mason filed his application 33 days after entry of the order he seeks to appeal. Given that the application is untimely, we are without jurisdiction to consider it.

Although subsection (h) permits a direct appeal from a grant of summary judgment, a motion for reconsideration does not extend the deadline for that appeal.

Hajiani v. the Coca-Cola Company · filed 2024-07-26(h)

While the grant of summary judgment is subject to direct appeal, see OCGA § 9-11-56 (h), a motion for reconsideration does not extend the time for filing an appellate challenge to an appealable order, and the denial of a motion for reconsideration is not appealable in its own right.

Although subsection (h) permits a direct appeal from a grant of summary judgment, a motion for reconsideration does not extend the deadline for that appeal.

Zephaniah v. Georgia Clinic, P.C. · filed 2024-09-11(h)

While the grant of summary judgment is subject to direct appeal, see OCGA § 9-11-56 (h), a motion for reconsideration does not extend the time for filing an appellate challenge to an appealable order, and the denial of a motion for reconsideration is not appealable in its own right.

Because subsection (h) makes a grant of summary judgment directly appealable, a motion for reconsideration does not extend the appeal deadline and its denial is not independently appealable.

Thompson v. Gas Express, LLC · filed 2025-01-16(h)

While the grant of summary judgment is subject to direct appeal, see OCGA § 9-11-56 (h), a motion for reconsideration does not extend the time for filing an appellate challenge to an appealable order, and the denial of a motion for reconsideration is not appealable in its own right.

A grant of summary judgment is directly appealable under subsection (h), but a discretionary application seeking review still must satisfy its jurisdictional filing deadline.

Yvetta D. Green v. United Community Bank · filed 2025-04-28(h)

The grant of summary judgment may be appealed directly. OCGA § 9-11-56 (h).

Although subsection (h) permits a direct appeal from a grant of summary judgment, a motion for reconsideration does not extend the deadline for that appeal.

Baker v. Roberts · filed 2025-05-23(h)

While the grant of summary judgment is subject to direct appeal, see OCGA § 9-11-56 (h), a motion for reconsideration does not extend the time for filing an appellate challenge to an appealable order, and the denial of a motion for reconsideration is not appealable in its own right.

Because subsection (h) makes a grant of summary judgment directly appealable, a motion for reconsideration does not extend the appeal deadline and its denial is not independently appealable.

Keene v. City of Warner Robins · filed 2025-09-08(h)

While the grant of summary judgment is subject to direct appeal, see OCGA § 9-11-56 (h), a motion for reconsideration does not extend the time for appealing the underlying order, and the denial of a motion for reconsideration is not appealable in its own right.

Although subsection (h) permits a direct appeal from a grant of summary judgment, a motion for reconsideration does not toll the deadline for that appeal and its denial is not independently appealable.

ESTATE OF MINNIE LEE TOMLINSON v. HOUSTON HEALTHCARE SYSTEM, INC. · filed 2026-02-10(h)

While the grant of summary judgment is subject to direct appeal under OCGA § 9-11-56 (h), in this case, the Estate did not file its notice of appeal until 79 days after the court’s July 21 summary judgment order. And though the Estate filed its appeal within 30 days of the order denying its motion for reconsideration, the denial of such a motion is not subject to direct appeal. ... Moreover, the filing of a motion for reconsideration does not toll the time for filing a direct appeal.

A supporting affidavit filed at least 30 days before the summary-judgment hearing satisfies subsection (c)'s timeframe, and the contemporaneous-service requirement may be extended when the opponent has adequate notice and an opportunity to respond.

Sawnee Forest, LLC v. Cre Venture 2011-1, LLC · filed 2016-11-07(c)

CRE filed the amended affidavit at least 30 days before the summary judgment hearing, the timeframe provided by § 9-11-56 (c). ... Moreover, the purpose of the requirement in OCGA § 9-11-6 (d) that the affidavit be filed contemporaneously with the motion “is to ensure that the other side has adequate notice of and opportunity to respond to such evidence.” ... The requirement is not absolute, as the time for filing affidavits may be extended.

A late supporting affidavit may be considered without reversal when the trial court defers its ruling and gives the opponent a full 30 days to respond, thereby curing the timing defect.

Outfront Media, LLC v. City of Sandy Springs · filed 2020-08-18(c)

the trial court indicated at the summary judgment hearing that it would defer ruling until Outfront had a full 30 days to respond to late-filed materials, and the court ultimately did not enter its summary judgment order until 11 months after the hearing. During that time period, Outfront did not file any opposing affidavits or otherwise respond to the City Manager’s supplemental affidavit that included as an exhibit the April 12 Letter. ... We concluded that “[s]ince the trial court thus insured that the defendant had a minimum of 30 days to meet and controvert the assertions on which the motion for summary judgment was based, . . . the procedure [employed by the trial court] fully vindicated the defendant’s rights and establishe[d] no cause for reversal.”

Section 9-11-56 does not limit how many times a party may move for summary judgment, and a trial court has discretion to consider a renewed motion without an expanded record.

Rintoul v. Tolbert · filed 2017-06-13

Further, “it is within the discretion of a trial judge to consider a renewed motion for summary judgment even without an expansion of the record. There is nothing in OCGA § 9-11-56 limiting the number of times a party may make a motion for summary judgment.”

Subsection (c)'s deadline for opposing affidavits does not eliminate a trial court's discretion to consider evidence presented less than one day before a summary-judgment hearing.

MILBOURNE v. MILBOURNE (And Vice Versa) · filed 2017-05-01(c)

While our summary judgment statute acts as a temporal limit on the parties’ submission of affidavits, it does not divest the trial court of all discretion to consider evidence presented less than one day before a hearing.

Section 9-11-56 standards apply to whether a special litigation committee was independent and had reasonable grounds for its good faith recommendation when a corporation seeks dismissal of a derivative suit under pre-1989 Georgia law.

Millsap v. American Family Corp. · filed 1993-03-12

With respect to pre-1989 Georgia Corporation Code law, we adopt in part the conclusion reached in Zapata: “If the Court determines either that the committee is not independent or has not shown reasonable bases for its conclusions, or, if the Court is not satisfied for other reasons relating to the process, including but not limited to the good faith of the committee, the Court shall deny the corporation’s motion. If, however, the Court is satisfied under Rule 56 standards that the committee was independent and showed reasonable bases for good faith findings and recommendations . . . ,” id. at 789 (10), the motion will be granted.

Section 9-11-56(a) permits a party seeking declaratory relief to move for summary judgment based on the existing record.

City of Norcross v. Gwinnett County, Georgia · filed 2020-05-11(a)

As we have explained, “where a party seeking a declaratory judgment contends that he is entitled to judgment based on the facts or allegations currently of record, he may move . . . for summary judgment pursuant to OCGA § 9-11-56 (a).” ... That is what occurred here, where the County sought entry of declaratory relief after discovery based on the affidavits, depositions, and documentary evidence currently in the record and prior to any trial of the case.

Section 9-11-56’s summary judgment procedure does not apply to a motion to dismiss for lack of subject-matter jurisdiction merely because affidavits are attached.

KRISTEN ROAN v. JONES · filed 2026-04-30

So, because appellants sought dismissal of Jones’s complaint based on a lack of subject-matter jurisdiction under OCGA § 9-11-12(b)(1), rather than for failure to state a claim, the trial court erred in treating their motion to dismiss as one for summary judgment merely because they attached affidavits to the motion.