(Ga. L. 1966, p. 609, § 6; Ga. L. 1967, p. 226, §§ 5, 6; Ga. L. 1985, p. 648, § 2; Ga. L. 2009, p. 73, § 3/HB 29.)
Cross references.- Computation of time in regard to exercise of privileges or discharge of duties prescribed or required by election laws, § 21-2-14.
Procedure regarding making of motions for new trial generally, § 5-5-40 et seq.
Editor's notes.- Ga. L. 2009, p. 73, § 5/HB 29, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall apply to motions to dismiss filed after July 1, 2009.
U.S. Code.- For provisions of Federal Rules of Civil Procedure, Rule 6, see 28 U.S.C.
Law reviews.- For survey article on death penalty decisions from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 175 (2003).
JUDICIAL DECISIONSANALYSIS
General Consideration
Construction with Appellate Practice Act.
- While O.C.G.A. § 9-14-52(a) provides that appeals in habeas corpus cases shall be governed by the Appellate Practice Act (Act), O.C.G.A. § 5-6-30 et seq., that provision only means that appeals in habeas corpus cases, once begun, are to be handled in the same way as other civil appeals, and the Act does not provide for every single act involved in an appeal as there is no provision in the Act for computing time limits, and it is necessary to supplement the provisions of the Act by reference to O.C.G.A. § 9-11-6. Head v. Thomason, 276 Ga. 434, 578 S.E.2d 426, cert. denied, 540 U.S. 957, 124 S. Ct. 409, 157 L. Ed. 2d 294 (2003), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Inapplicable to judicial review of medicaid determination.
- Georgia Civil Practice Act's (see O.C.G.A. Ch. 11, T. 9) three-day rule under O.C.G.A. § 9-11-6(e) was inapplicable to a determination of timeliness with respect to a petition for judicial review of a Medicaid applicant's claim for benefits, pursuant to O.C.G.A. § 50-13-19; similarly, the certified mail rule under O.C.G.A. § 50-13-23 was expressly deemed inapplicable pursuant to O.C.G.A. § 49-4-153(c) and, accordingly, the applicant's petition was properly denied as untimely. Gladowski v. Dep't of Family & Children Servs., 281 Ga. App. 299, 635 S.E.2d 886 (2006).
Cited in Martin Theaters of Ga., Inc. v. Lloyd, 118 Ga. App. 385, 165 S.E.2d 909 (1968); Insurance Co. of N. Am. v. Dimaio, 120 Ga. App. 214, 170 S.E.2d 258 (1969); Johnson v. Frazier, 121 Ga. App. 212, 173 S.E.2d 434 (1970); DeKalb County v. McFarland, 226 Ga. 321, 175 S.E.2d 20 (1970); Bulloch County Bank v. Dodd, 226 Ga. 773, 177 S.E.2d 673 (1970); Bramlett v. Smith, 227 Ga. 523, 181 S.E.2d 849 (1971); Dowdy v. White, 123 Ga. App. 729, 182 S.E.2d 517 (1971); Goodman v. Kenney, 124 Ga. App. 709, 185 S.E.2d 632 (1971); Clayton McLendon, Inc. v. McCarthy, 125 Ga. App. 76, 186 S.E.2d 452 (1971); Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972); Mickas v. Mickas, 229 Ga. 10, 189 S.E.2d 81 (1972); Van Keuren v. Loomis, 128 Ga. App. 136, 195 S.E.2d 776 (1973); Smith v. Smith, 230 Ga. 238, 196 S.E.2d 437 (1973); Turner v. Bank of Zebulon, 128 Ga. App. 404, 196 S.E.2d 668 (1973); Robinson v. Bassett, 128 Ga. App. 711, 197 S.E.2d 799 (1973); Hightower v. Berlin, 129 Ga. App. 246, 199 S.E.2d 335 (1973); Kitson v. Hawke, 231 Ga. 157, 200 S.E.2d 703 (1973); Livesay v. King, 129 Ga. App. 751, 201 S.E.2d 178 (1973); Larwin Mtg. Investors v. Delta Equities, Inc., 129 Ga. App. 769, 201 S.E.2d 187 (1973); Brannon v. Trailer Craft Mfg. Co., 130 Ga. App. 766, 204 S.E.2d 477 (1974); Webb v. Oliver, 133 Ga. App. 555, 211 S.E.2d 605 (1974); Osceola Inns v. State Hwy. Dep't, 133 Ga. App. 736, 213 S.E.2d 27 (1975); Porter v. Murlas Bros. Commodities, 134 Ga. App. 96, 213 S.E.2d 190 (1975); Evans v. Goodyear Tire & Rubber Co., 135 Ga. App. 75, 217 S.E.2d 318 (1975); Vitiaz v. Chrysler Credit Corp., 135 Ga. App. 606, 218 S.E.2d 313 (1975); Jernigan v. Collier, 234 Ga. 837, 218 S.E.2d 556 (1975); Lansky v. Goldstein, 136 Ga. App. 607, 222 S.E.2d 62 (1975); Earwood v. Liberty Loan Corp., 136 Ga. App. 799, 222 S.E.2d 204 (1975); Liberty Forest Prods., Inc. v. Interstate Paper Corp., 138 Ga. App. 153, 225 S.E.2d 731 (1976); Gregory v. Tench, 138 Ga. App. 219, 225 S.E.2d 753 (1976); Johnson v. Fortson, 237 Ga. 367, 227 S.E.2d 392 (1976); Brown v. Rooks, 139 Ga. App. 770, 229 S.E.2d 548 (1976); Whitaker v. Whitaker, 237 Ga. 739, 229 S.E.2d 603 (1976); Leathers v. Gilland, 141 Ga. App. 681, 234 S.E.2d 336 (1977); Maslia v. Hamilton, 239 Ga. 52, 235 S.E.2d 485 (1977); Craig v. Citizens & S. Nat'l Bank, 142 Ga. App. 474, 236 S.E.2d 166 (1977); Green v. Decatur Fed. Sav. & Loan Ass'n, 143 Ga. App. 368, 238 S.E.2d 740 (1977); Mullis v. Bone, 143 Ga. App 407, 238 S.E.2d 748 (1977); Charamond v. Charamond, 240 Ga. 34, 239 S.E.2d 362 (1977); Cobb County Fair Ass'n v. Boyle, 143 Ga. App. 754, 240 S.E.2d 136 (1977); Prudential Timber & Farm Co. v. Collins, 144 Ga. App. 849, 243 S.E.2d 80 (1978); Central Mut. Ins. Co. v. Wofford, 145 Ga. App. 836, 244 S.E.2d 899 (1978); Chattahoochee Holdings, Inc. v. Marshall, 146 Ga. App. 658, 247 S.E.2d 167 (1978); Legend Carpets v. Stinson, 147 Ga. App. 58, 248 S.E.2d 48 (1978); Bull v. Bull, 243 Ga. 72, 252 S.E.2d 494 (1979); Safe-Lite Mfg., Inc. v. C.E. Morgan Bldg. Prods., Inc., 150 Ga. App. 172, 257 S.E.2d 19 (1979); Yeomans v. American Nat'l Ins. Co., 150 Ga. App. 334, 258 S.E.2d 1 (1979); Creamer v. State, 150 Ga. App. 458, 258 S.E.2d 212 (1979); McAllister v. City of Jonesboro, 151 Ga. App. 260, 259 S.E.2d 666 (1979); Gibbs v. Spencer Indus., Inc., 244 Ga. 450, 260 S.E.2d 342 (1979); Cielock v. Munn, 244 Ga. 810, 262 S.E.2d 114 (1979); Massengale v. Georgia Power Co., 153 Ga. App. 476, 265 S.E.2d 830 (1980); Exum v. City of Valdosta, 246 Ga. 169, 269 S.E.2d 441 (1980); Phillips v. Old Republic Life Ins. Co., 155 Ga. App. 537, 271 S.E.2d 676 (1980); Copeland v. Levine, 157 Ga. App. 327, 277 S.E.2d 320 (1981); Oliver v. Thomas, 158 Ga. App. 388, 280 S.E.2d 416 (1981); Williams v. Universal Decorators, Inc., 161 Ga. App. 165, 288 S.E.2d 115 (1982); McIntosh v. McLendon, 162 Ga. App. 220, 290 S.E.2d 157 (1982); Atlanta Professional Ass'n for Thoracic & Cardiovascular Surgery, P.C. v. Allen, 163 Ga. App. 400, 294 S.E.2d 647 (1982); Gilbert v. Decker, 165 Ga. App. 11, 299 S.E.2d 65 (1983); Willingham v. Bridges, 165 Ga. App. 35, 299 S.E.2d 392 (1983); Pierce v. Gaskins, 169 Ga. App. 446, 309 S.E.2d 658 (1983); Suttle v. Northside Realty Assocs., 171 Ga. App. 928, 321 S.E.2d 424 (1984); Biggs v. McDougall, 175 Ga. App. 87, 332 S.E.2d 381 (1985); Williamson v. SUNOCO, Inc., 176 Ga. App. 661, 337 S.E.2d 441 (1985); Albers v. Brown, 177 Ga. App. 620, 340 S.E.2d 260 (1986); Daniel v. Leibolt, 178 Ga. App. 186, 342 S.E.2d 334 (1986); Mack v. Smith, 178 Ga. App. 652, 344 S.E.2d 474 (1986); Alliance Auto Acceptance Lease, Inc. v. Chuck Clancy Ford, Inc., 182 Ga. App. 182, 355 S.E.2d 112 (1987); Wimberly v. Karp, 185 Ga. App. 571, 365 S.E.2d 131 (1988); Thompson v. Tom Harvey Ford Mercury, Inc., 193 Ga. App. 64, 387 S.E.2d 28 (1989); Jet Air, Inc. v. EPPS Air Serv., Inc., 194 Ga. App. 829, 392 S.E.2d 245 (1990); Jewell v. State, 200 Ga. App. 203, 407 S.E.2d 763 (1991); Kelley v. Daugherty, 201 Ga. App. 291, 410 S.E.2d 759 (1991); Professional Cleaners v. Phenix Supply Co., 201 Ga. App. 634, 411 S.E.2d 781 (1991); First Community Bank v. Bryan Starr & Assocs., 203 Ga. App. 696, 417 S.E.2d 330 (1992); Lend Lease Trucks, Inc. v. TRW, Inc., 206 Ga. App. 410, 425 S.E.2d 293 (1992); Harris v. Hanna Creative Enters., 208 Ga. App. 549, 430 S.E.2d 846 (1993); Dixon v. Barnes, 214 Ga. App. 7, 446 S.E.2d 774 (1994); ABE Eng'g, Inc. v. Fulton County Bd. of Educ., 214 Ga. App. 514, 448 S.E.2d 221 (1994); Stephenson v. Ingram, 239 Ga. App. 892, 522 S.E.2d 500 (1999); Glass v. Glover, 241 Ga. App. 838, 528 S.E.2d 262 (2000); Woods v. State, 243 Ga. App. 195, 532 S.E.2d 747 (2000); Nash v. State, 243 Ga. App. 800, 534 S.E.2d 492 (2000); U.S. Traffic Corp. v. Turcotte, 246 Ga. App. 187, 539 S.E.2d 884 (2000); Randall v. Randall, 274 Ga. 107, 549 S.E.2d 384 (2001); Currington v. State, 270 Ga. App. 381, 606 S.E.2d 619 (2004); Brito v. Gomez Law Group, LLC, 289 Ga. App. 625, 658 S.E.2d 178 (2008); Clawson v. Intercat, Inc., 294 Ga. App. 624, 669 S.E.2d 671 (2008); Laurel Baye Healthcare of Macon, LLC v. Neubauer, 315 Ga. App. 474, 726 S.E.2d 670 (2012); Brooks v. Multibank 2009-1 RES-ADC Venture, LLC, 317 Ga. App. 264, 730 S.E.2d 509 (2012); Copeland v. Wells Fargo Bank, N.A., 317 Ga. App. 669, 732 S.E.2d 536 (2012); McRae v. Hogan, 317 Ga. App. 813, 732 S.E.2d 853 (2012); Sewell v. Cancel, 295 Ga. 235, 759 S.E.2d 485 (2014); RLBB Acquisition, LLC v. Baer, 329 Ga. App. 483, 765 S.E.2d 662 (2014); N. Druid Dev., LLC v. Post, Buckley, Schuh & Jernigan, Inc., 330 Ga. App. 432, 767 S.E.2d 29 (2014); SJN Props., LLC v. Fulton County Bd. of Assessors, 296 Ga. 793, 770 S.E.2d 832 (2015); Lemcon USA Corp. v. Icon Tech. Consulting, Inc., 301 Ga. 888, 804 S.E.2d 347 (2017); Rebel Auction Co. v. Citizens Bank, 343 Ga. App. 81, 805 S.E.2d 913 (2017); Southern Trust Insurance Company v. Cravey, 345 Ga. App. 697, 814 S.E.2d 802 (2018), cert. denied, No. S18C1319, 2018 Ga. LEXIS 820 (Ga. 2018); Bush v. Eichholz, 352 Ga. App. 465, 833 S.E.2d 280 (2019).
Computation of Time
"Day" defined.
- Day consists of 24 hours, from midnight to midnight. Gilmore v. State, 127 Ga. App. 249, 193 S.E.2d 219 (1972), rev'd on other grounds, 235 Ga. 348, 219 S.E.2d 447 (1975).
Absent contrary policy, computation hereunder applies.
- Computation of time provided for by this section has been held applicable unless a contrary policy is expressed in a governing statute or court decision. Zeeman Mfg. Co. v. L.R. Sams Co., 123 Ga. App. 99, 179 S.E.2d 552 (1970).
Subsection (a) is applicable to proceeding which is had after commencement of the action. Warrick v. Mid-State Homes, Inc., 139 Ga. App. 301, 228 S.E.2d 234 (1976).
"An applicable statute" construed.
- Phrase "an applicable statute," contained in subsection (a) of this section, refers to statutes expressly applicable to proceedings had after commencement of an action. Davis v. U.S. Fid. & Guar. Co., 119 Ga. App. 374, 167 S.E.2d 214 (1969).
Phrase "applicable statute" in subsection (a) of this section refers directly only to statutes applicable to proceedings had after commencement of the action and, hence, would not apply expressly to a statute of limitations. Zeeman Mfg. Co. v. L.R. Sams Co., 123 Ga. App. 99, 179 S.E.2d 552 (1970).
Subsection (a) not applicable to statutes of limitation.
- Subsection (a) of this section is a rule of procedure relating to acts done or proceedings had after commencement of an action and to any statutes expressly applicable to such proceedings, and is not intended to modify and change existing statutes of limitation. Davis v. U.S. Fid. & Guar. Co., 119 Ga. App. 374, 167 S.E.2d 214 (1969); Georgia Power Co. v. Whitmire, 146 Ga. App. 29, 245 S.E.2d 324 (1978).
Subsection (a) of this section does not apply directly to determine computation of period of time involved in a statute of limitation. Davis v. U.S. Fid. & Guar. Co., 119 Ga. App. 374, 167 S.E.2d 214 (1969).
Adoption of subsection (a) of this section by analogy, for application to statutes of limitation, is not warranted in view of case law holding that when the time prescribed for bringing an action is computed by years or months, Sundays are to be excluded. Davis v. U.S. Fid. & Guar. Co., 119 Ga. App. 374, 167 S.E.2d 214 (1969).
Subsection (a) of this section provides for computations of time applicable to proceedings after commencement of the action, and does not apply in determining time within which an action may be instituted, or when an action may be barred by a statute of limitation. Schaefer v. Mayor of Athens, 120 Ga. App. 301, 170 S.E.2d 339 (1969).
Service of uninsured motorist carrier within five business days after the date of filing of the complaint in an action for personal injuries related back to the date of filing as a matter of law for statute of limitation purposes. Williams v. Colonial Ins. Co., 199 Ga. App. 760, 406 S.E.2d 99 (1991).
Time prescribed by
§ 5-6-43 computed hereunder. - Subsection (a) of Ga. L. 1967, p. 226, §§ 5 and 6 (see now O.C.G.A. § 9-11-6) applies to computation of time prescribed by Ga. L. 1968, p. 1072, § 6 (see now O.C.G.A. § 5-6-43), providing for transmittal of record to appellate court by trial court clerk within five days after filing of transcript of evidence. Zeeman Mfg. Co. v. L.R. Sams Co., 123 Ga. App. 99, 179 S.E.2d 552 (1970).
When Sunday is last day to file pleading.
- When the last day for filing a petition for a writ of certiorari falls on a Sunday, the appellant has until Monday to file the petition. Salter v. City of Thomaston, 200 Ga. App. 536, 409 S.E.2d 88 (1991).
Period relating to insurance policy.
- Ten-day notice period required for cancellation of an insurance policy is governed by O.C.G.A. § 1-3-1 for computation of time rather than by O.C.G.A. § 9-11-6. Southern Trust Ins. Co. v. First Fed. Sav. & Loan Ass'n, 168 Ga. App. 899, 310 S.E.2d 712 (1983).
Extension of Time
Subsections (b) and (d) provide flexibility in filing times.
- O.C.G.A. § 9-11-56(c), relating to affidavits in support of summary judgments, requires that only supporting material which is "on file" at least 30 days before the hearing shall be considered for the movant and subsections (b) and (d) of O.C.G.A. § 9-11-6 provide flexibility by authorizing the trial judge, or the parties by stipulation, to extend the filing times. Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631, 278 S.E.2d 377 (1981).
Subsection (b) not applicable to periods of time fixed by other statutes.
- Subsection (b) of this section does not apply to periods of time which are definitely fixed by statute, such as time for filing notice of appeal. Buckhead Doctors' Bldg., Inc. v. Oxford Fin. Cos., 116 Ga. App. 503, 157 S.E.2d 767 (1967).
Subsection (b) of this section applies only to an act required or allowed to be done by the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9), a notice given thereunder, or an order of the court, and does not apply to periods of time which are definitely fixed by other statutes. Wilson v. City of Waycross, 130 Ga. App. 253, 203 S.E.2d 301 (1973); Miller v. Georgia Real Estate Comm'n, 136 Ga. App. 718, 222 S.E.2d 183 (1975).
Granting of extensions of time, as permitted under certain circumstances by the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) does not apply to periods of time which are definitely fixed by other statutes. McClure v. Department of Transp., 140 Ga. App. 564, 231 S.E.2d 532 (1976).
Because the time for filing a petition for judicial appraisal is set by O.C.G.A. § 14-2-1330, subsection (b) of O.C.G.A. § 9-11-6 did not apply to permit a trial court to grant an extension of time before the commencement of such a legal action; thus, when a corporation failed to commence the proceeding within the statutory 60-day period, the court did not have subject matter jurisdiction to reach the merits of the petition. Riddle-Bradley, Inc. v. Riddle, 217 Ga. App. 725, 459 S.E.2d 576 (1995).
Response to discovery requests.
- Extension of time to respond to plaintiff's motions for summary judgment, sanctions, and discovery requests was upheld because trial judges have broad discretion in controlling discovery and the appellate courts will not interfere with a trial court's exercise of that discretion in the absence of abuse. Butler v. Household Mortg. Servs., Inc., 244 Ga. App. 353, 535 S.E.2d 518 (2000).
Appeal from administrative agency not covered.
- Subsection (b) of this section may not be utilized to obtain an extension which would allow the late filing of an appeal to the superior court from am administrative agency after extension of a specified time. Miller v. Georgia Real Estate Comm'n, 136 Ga. App. 718, 222 S.E.2d 183 (1975).
Default statute controlled over general extension of time statute.
- Trial court erred by alternatively granting the defendant's motion to extend the time to file an answer because O.C.G.A. § 9-11-6(b) was a general statute providing for extensions of time; and O.C.G.A. § 9-11-55(b), a specific statute regarding opening default, prevailed over O.C.G.A. § 9-11-6(b), a general statute. Leeper v. Safebuilt Ga., Inc., 353 Ga. App. 121, 836 S.E.2d 625 (2019).
Judicial discretion to extend time.
- Subsection (b) of this section gives the trial court wide discretionary authority to enlarge the time within which an act may be done, but the discretion to be exercised is a judicial discretion, not an unrestrained one. Jones v. Howard, 153 Ga. App. 137, 264 S.E.2d 587 (1980).
In a summary judgment action, while O.C.G.A. § 9-11-6(b) permitted late service of affidavits in support of a motion, in giving such permission, the trial court was not required to make a written finding of excusable neglect; accordingly, the court was not required to state the court's basis for finding excusable neglect. Green v. Bd. of Dirs. of Park Cliff Unit Owners Ass'n, 279 Ga. App. 567, 631 S.E.2d 769 (2006).
Trial court did not err in denying the motion for an extension of time to answer the complaint because the defendants agreed to a waiver of service yet still filed the answer late, the motion for an extension was made after the time for filing an answer had expired, and a judicial extension of the statutory time for filing the answer, in essence, would have allowed a circumvention of the default status of the action. Mecca Constr., Inc. v. Maestro Invs., LLC, 320 Ga. App. 34, 739 S.E.2d 51 (2013).
Extension granted in addition to opening of default.
- Trial court did not abuse the court's discretion granting a contractor's motion to open default on the ground of excusable neglect and, alternatively, also for an extension of time to file the contractor's answer because the contractor had paid costs and pled a meritorious defense under oath, and the homeowners had refiled the action in a different county and, therefore, did not have clean hands given the homeowners superior knowledge of the dismissal of the other action. Leeper v. Safebuilt Ga., Inc., 353 Ga. App. 121, 836 S.E.2d 625 (2019).
Failure to move to reopen within 30 days.
- O.C.G.A. § 9-11-6 is inapplicable when the plaintiffs did not move to reopen a case within 30 days of entry of the judgment and although the court had discretion to act on the motion, the case was no longer pending at the time the court acted on the motion. Gabel v. Revels, 203 Ga. App. 131, 416 S.E.2d 103 (1992).
Judgment obtained against a deceased defendant is void, and the trial court does not err in vacating the judgment, setting the judgment aside, and dismissing the action, when no party has been substituted since the suggestion of death and no reason has been shown that the failure to act was the result of excusable neglect so as to allow an extension of time. Franklin v. Collins, 167 Ga. App. 596, 307 S.E.2d 66 (1983).
In order to obtain enlargement of time within which to do an act, request for enlargement must be made before the expiration of the period originally prescribed, or as extended by previous order, and if such request is made after expiration of the period of time within which the act should have been done, there must be a showing of excusable neglect. Wall v. Citizens & S. Bank, 145 Ga. App. 76, 243 S.E.2d 271 (1978).
Private agreement between counsel to extend time to file pleadings is not binding on the court, except when a written stipulation by counsel is filed in the case. Minnesota Mut. Life Ins. Co. v. Love, 120 Ga. App. 502, 171 S.E.2d 361 (1969); Peterson v. American Int'l Life Assurance Co., 203 Ga. App. 745, 417 S.E.2d 402, cert. denied, 203 Ga. App. 907, 417 S.E.2d 402 (1992).
Private agreement between counsel extending time to file pleadings is not binding except when in compliance with O.C.G.A. § 9-11-6 and the agreement is filed with the court. Ewing v. Johnston, 175 Ga. App. 760, 334 S.E.2d 703 (1985); Fadum v. Liakos, 186 Ga. App. 556, 367 S.E.2d 843, cert. denied, 186 Ga. App. 917, 367 S.E.2d 843 (1988).
Defendant was in default for failure to timely answer a complaint, even if there was an agreement to extend the time to answer during settlement negotiations, since the defendant failed to comply with the requirements of subsection (b) of O.C.G.A. § 9-11-6 for extending the time to answer. Roberson v. Gnann, 235 Ga. App. 112, 508 S.E.2d 480 (1998).
Burden of obtaining order or stipulation.
- When counsel for the defendant knew that the time for filing defensive pleadings had expired, but believed that the plaintiff had agreed to extend the time for filing an answer, the burden was upon counsel to obtain the proper order or stipulation. Minnesota Mut. Life Ins. Co. v. Love, 120 Ga. App. 502, 171 S.E.2d 361 (1969).
Extension of time to answer request for admissions.
- Trial judge has authority under subsection (b) of Ga. L. 1967, p. 226, §§ 5 and 6 (see now O.C.G.A. § 9-11-6) to grant an extension of time for filing answers to request for admissions of fact, if the request is within time allowed under Ga. L. 1972, p. 510, § 9 (see now O.C.G.A. § 9-11-36(a)) for such filing, with or without motion; if such time has expired, there must be a motion to allow late filing. National Bank v. Great S. Bus. Enterprises, Inc., 130 Ga. App. 221, 202 S.E.2d 848 (1973).
While a trial judge has authority to grant extensions of time for filing a response after the time for answering a request for admissions has expired, there must be a motion to allow the late filing under subsection (b) of Ga. L. 1967, p. 226, §§ 5 and 6 (see now O.C.G.A. § 9-11-6), or a motion for withdrawal of the admissions under Ga. L. 1972, p. 510, § 9 (see now O.C.G.A. § 9-11-36(b)). Custom Farm Servs., Inc. v. Faulk, 130 Ga. App. 583, 203 S.E.2d 912 (1974).
Excusable neglect.
- That defendant's original counsel was confused as to the rule in Georgia for filing an answer to a suit did not constitute excusable neglect as a matter of law. Barone v. McRae & Holloway, P.C., 179 Ga. App. 812, 348 S.E.2d 320 (1986).
"Press of business" does not constitute excusable neglect which would justify the untimely filing of defensive pleadings. Labat v. Bank of Coweta, 218 Ga. App. 187, 460 S.E.2d 831 (1995).
Pursuant to O.C.G.A. § 9-11-36(b), a trial court properly granted a bank a one-day extension to respond to a request to admit after the bank served the bank's response one day late because the trial court found excusable neglect based on the bank's counsel's mistaken belief that the opposing party's counsel had granted a one-day extension in which to respond. 131 Ralph McGill Blvd., LLC v. First Intercontinental Bank, 305 Ga. App. 493, 699 S.E.2d 823 (2010).
Error to deny motion to dismiss absent showing of excusable neglect.
- When there was no evidence from which the trial court could find excusable neglect as a matter of fact and, as a matter of law, the plaintiff's explanation that counsel was confused as to the law in Georgia regarding substitution of an executor of a decedent's estate in place of a deceased defendant did not constitute excusable neglect, the trial court abused the court's discretion in denying the executor's motion to dismiss the plaintiff's suit for failure to seek substitution of parties within the 180-day limitation period in O.C.G.A. § 9-11-25(a)(1). King v. Green, 189 Ga. App. 105, 375 S.E.2d 53, cert. denied, 189 Ga. App. 912, 375 S.E.2d 53 (1988).
Expiration of Term
As to background of subsection (c) of this section, see Union Circulation Co. v. Trust Co. Bank, 143 Ga. App. 715, 240 S.E.2d 100 (1977), rev'd on other grounds, 241 Ga. 343, 245 S.E.2d 297 (1978).
Amendment or revocation of interlocutory ruling.
- Rule against amending or revoking a judgment after expiration of term in which the judgment was entered has no application to interlocutory rulings, so long as the case continues from term to term, until final judgment. Union Circulation Co. v. Trust Co. Bank, 143 Ga. App. 715, 240 S.E.2d 100 (1977), rev'd on other grounds, 241 Ga. 343, 245 S.E.2d 297 (1978).
Motions and Affidavits
1. In General
Citation for contempt not covered by subsection (d).
- Subsection (d) of this section applies to written motions in a pending case and has no application to a citation for contempt, which is an independent proceeding authorized by law. Gibson v. Gibson, 234 Ga. 528, 216 S.E.2d 824 (1975).
Purpose of subsection (d).
- Purpose of subsection (d) of this section is to prevent a party from being surprised on the day of hearing by an affidavit that the party is not in a position to answer. Fairington, Inc. v. Yeargin Constr. Co., 144 Ga. App. 491, 241 S.E.2d 608 (1978); Bailey v. Dunn, 158 Ga. App. 347, 280 S.E.2d 388 (1981).
Purpose of subsection (d) of this section is to provide parties with sufficient notice to prepare a response to a motion, and a postponement granted by the trial court serves that purpose. Southwest Ga. Prod. Credit Ass'n v. Wainwright, 241 Ga. 355, 245 S.E.2d 306 (1978).
Facsimile service on attorney not compliant.
- Custody modification order granting custody to a father was reversed because the father's motion to modify custody was served on the mother's counsel by facsimile and, as a result, did not satisfy the statutory requirements for service found in O.C.G.A. § 9-11-5(b) and constituted a nonamendable defect on the face of the record. Fiffee v. Jiggetts, 353 Ga. App. 730, 839 S.E.2d 224 (2020).
Opposing affidavits.
- Right of the court to set another date for the hearing affects only the five-day rule which is found in the first sentence of subsection (d) of O.C.G.A. § 9-11-6. The last sentence of the same subsection grants an opposing party the right to file opposing affidavits up to one day before the hearing. The court cannot deny an opposing party the party's statutory right to file opposing affidavits up to one day before the scheduled hearing. Operation Rescue v. City of Atlanta, 259 Ga. 676, 386 S.E.2d 126 (1989).
Trial court erred by granting the inspection company's motion to dismiss the complaint for failure to state a cause of action because the complaint sufficiently stated a claim for negligent inspection and via an affidavit properly challenged the validity and enforceability of the contract containing the limitations provision that the inspection company asserted barred the claim. Hughes v. Cornerstone Inspection Grp., Inc., 336 Ga. App. 283, 784 S.E.2d 116 (2016).
Time for objection to affidavit.
- There is no requirement that the party moving for a summary judgment object to the opposing affidavits prior to the time when the affidavits will actually be considered, even when the affidavits were filed before the statutory deadline. Mitchell v. Haygood's Hauling & Grading, Inc., 194 Ga. App. 671, 391 S.E.2d 481 (1990).
Notice of hearing on motion.
- Publication in an official county organ of notice of the date of hearing on a motion was not sufficient because notice of a hearing on a motion is required to be served. TMS Ins. Agency, Inc. v. Galloway, 205 Ga. App. 896, 424 S.E.2d 71 (1992); King v. Board of Regents, 215 Ga. App. 570, 451 S.E.2d 482 (1994); Edens v. O'Connor, 238 Ga. App. 252, 519 S.E.2d 691 (1999).
When a trial court indicated that the court sent a notice of a combined rescheduled hearing on a construction manager's motion for summary judgment and a hearing on the issue of unliquidated damages to a condominium owner, it was presumed that such notice was sent and received in compliance with O.C.G.A. §§ 9-11-5(b) and9-11-6(d), and the owner's mere contention that the owner did not receive notice of the hearing was not controlling and did not satisfy the owner's burden of showing that notice was in fact not received; accordingly, the owner's claim that the owner did not appear at the hearing because notice was insufficient lacked merit, due process was met, and the judgment entered from the hearing was affirmed. Blue Stone Lofts, LLC v. D'Amelio, 268 Ga. App. 355, 601 S.E.2d 719 (2004).
In a suit for breach of a promissory note and related guaranties, while the guarantors were not properly served with the rule nisi order setting the April 15, 2014 hearing, the guarantors learned of the hearing on April 10, 2014, and the lack of notice, thus, did not prevent the guarantors' counsel from preparing for or appearing at the April 15 hearing nor was there any evidence that the guarantors' were deprived of the guarantors' right under O.C.G.A. § 9-11-6(d) to serve affidavits opposing the motion as late. MJL Props. v. Cmty. & S. Bank, 330 Ga. App. 524, 768 S.E.2d 111 (2015).
Notice of trial.
- Denial of motion to set aside a default judgment against a corporation was not an abuse of discretion as the trial was properly noticed by publication of the trial calendar in the county's legal gazette; publication of a court calendar in the county's legal organ of record was sufficient notice to the parties to appear. Migmar, Inc. v. Williams, 281 Ga. App. 870, 637 S.E.2d 471 (2006).
Insufficient evidence that parties properly served with notice of summary judgment hearing.
- Summary judgment order was vacated because the record contained insufficient evidence upon which the court of appeals could base a decision; the record contained no rule nisi or other evidence indicating that the parties were properly served with notice of the summary judgment hearing date pursuant to O.C.G.A. §§ 9-11-5(b) and9-11-6(d), and there was no indication in the record that a transport company actually received notice, although the company's notice of appeal asked the trial court clerk to omit nothing from the record on appeal. Sprint Transp. Group, Inc. v. China Shipping NA Agency, Inc., 313 Ga. App. 454, 721 S.E.2d 659 (2011).
Motion for continuance may be heard ex parte under subsection (d) of this section. Piper v. Piper, 139 Ga. App. 19, 227 S.E.2d 842 (1976).
Subsection (d) provides a minimum of five days between service and hearing of any motion, unless a different period is fixed by order of court. Burger Chef Sys. v. Newton, 126 Ga. App. 636, 191 S.E.2d 479 (1972) (see now O.C.G.A. § 9-11-6).
Affidavit served on day of hearing.
- Affidavit which shows on the affidavit's face that the affidavit was served on the day of the hearing cannot be considered as evidence on the hearing unless accompanied by something in the record, such as an order of court, showing that the court has exercised the court's discretion and allowed the affidavit to be served. Malone v. Ottinger, 118 Ga. App. 778, 165 S.E.2d 660 (1968).
Failure to give five-day notice required by subsection (d) of this section, absent order by the court, is fatal to intervention. Osteen v. GECC, 137 Ga. App. 546, 224 S.E.2d 453 (1976).
Five-day rule not absolute.
- Five-day service rule of subsection (d) of this section is not a hard and fast one. Burger Chef Sys. v. Newton, 126 Ga. App. 636, 191 S.E.2d 479 (1972).
Affidavit served eight months before trial court's decision gave sufficient notice.
- On a lessor's motion for summary judgment on a lease and guaranty, because neither party requested a hearing on the lessor's motion and no hearing was held, the 30-day period for filing the lessor's counsel's affidavit in O.C.G.A. § 9-11-56(c) did not apply. The requirement in O.C.G.A. § 9-11-6(d) that the affidavit be served with the motion was to ensure adequate notice; in this case, the affidavit was filed eight months prior to the trial court's decision. Triple T-Bar, LLC v. DDR Southeast Springfield, LLC, 330 Ga. App. 847, 769 S.E.2d 586 (2015).
Untimely filing of affidavits in response.
- Married couple who brought a professional malpractice suit against a hospital authority and a physical therapist did not timely respond to renewed motions to dismiss, but waited almost a year to file the couple's response. Because the response was patently untimely under Ga. Unif. Super. Ct. R. 6.2 and without leave of court to be filed late, the trial court did not abuse the court's discretion when the court struck the response as well as an expert's new affidavit under O.C.G.A. § 9-11-6(d). Cogland v. Hosp. Auth., 290 Ga. App. 73, 658 S.E.2d 769 (2008).
Consideration of untimely affidavits discretionary.
- Court is vested with discretion whether to consider affidavits untimely served. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 397 S.E.2d 576 (1990).
Although the trial court is vested with discretion to consider affidavits not timely filed, the refusal to exercise that discretion is not error. Trend-Pak of Atlanta, Inc. v. Arbor Commercial Div., Inc., 197 Ga. App. 137, 397 S.E.2d 592 (1990).
Showing of excusable neglect under statute not required in malpractice case.
- O.C.G.A. § 9-11-9.1(e) expressly allowed the trial court, in the court's discretion, to extend the time for filing amendments to defective affidavits and granted the court the authority to consider an untimely filed amended or supplemental affidavit. Thus, in a medical malpractice case, the trial court erred by finding that in the absence of a showing of excusable neglect under O.C.G.A. § 9-11-6(b), the court had no discretion to allow a patient to file a late-filed amended affidavit. Schofill v. Phoebe Putney Health Sys., Inc., 315 Ga. App. 817, 728 S.E.2d 331 (2012).
Simultaneous filing requirement not absolute.
- Requirement of simultaneous filing of motion and supporting affidavits is not absolute, but this section would, in a proper case authorize the trial court to extend the period for filing the movant's affidavits. Wall v. Citizens & S. Bank, 145 Ga. App. 76, 243 S.E.2d 271 (1978), overruled on other grounds, McKeever v. State, 189 Ga. App. 445, 375 S.E.2d 899 (1988).
Second affidavit properly considered.
- In a breach of contract action between a business and an advertiser, while the best evidence rule required the advertiser to produce the first affidavit provided by the advertiser's senior director of business affairs, and the trial court erred in considering the first affidavit without requiring the affidavit's production, given that the second affidavit showed that the parties entered into the contract at issue, which included the forum selection clause, the trial court properly considered the affidavit to that effect to support the advertiser's motion to dismiss on personal jurisdiction grounds. Consequently, when this second affidavit was not filed in violation of O.C.G.A. § 9-11-6(d), the trial court properly considered the second affidavit. Alcatraz Media, LLC v. Yahoo! Inc., 290 Ga. App. 882, 660 S.E.2d 797 (2008).
Requirement of simultaneous filing in subsection (d) of O.C.G.A. § 9-11-6 is not absolute, and the trial court is authorized to extend the period for filing the movant's affidavits. Riberglass, Inc. v. ECO Chem. Specialties, Inc., 194 Ga. App. 417, 390 S.E.2d 616 (1990).
Late affidavit improperly considered absent extension.
- Trial court improperly considered a late affidavit which was not filed with a motion when there was nothing in the record to show that the movant requested an extension of time in which to serve and file the affidavit or a finding of excusable neglect in failing to serve the affidavit with the notice of the motion. Big Canoe Corp. v. Williamson, 168 Ga. App. 179, 308 S.E.2d 440 (1983).
Error to consider late-filed material in support of motion absent extension.
- Since movant elected to rely on certain documentary evidence in support of the movant's motion for summary judgment but neither filed the motion 30 days prior to the hearing nor requested an enlargement of time within which to make such a filing, the trial court erred in considering this material in support of the motion for summary judgment. Benton Bros. Ford Co. v. Cotton States Mut. Ins. Co., 157 Ga. App. 448, 278 S.E.2d 40 (1981).
When notice of motion to intervene was personally served two days prior to confirmation hearing, the plaintiff's objection to such motion for lack of proper notice was well taken since the motion to intervene was not timely; such motion could not, in view of the objection, be taken up until a day subsequent to the confirmation hearing date. Greer v. Federal Land Bank, 158 Ga. App. 60, 279 S.E.2d 308 (1981).
Motion in limine.
- Five-day service rule of subsection (d) of O.C.G.A. § 9-11-6 is not applicable to motions in limine. Walton v. Datry, 185 Ga. App. 88, 363 S.E.2d 295, cert. denied, 185 Ga. App. 911, 363 S.E.2d 295 (1987).
Discretion to consider affidavits not timely filed.
- While the trial court is vested with discretion to consider affidavits not timely filed, the refusal to exercise that discretion is not error. Empire Shoe Co. v. Nico Indus., Inc., 197 Ga. App. 411, 398 S.E.2d 440 (1990).
Trial court's denial of a buyer's request to amend a fee petition was not an abuse of discretion; the buyer failed to request to supplement the evidence at the fee petition hearing and only requested permission to submit additional affidavits after the petition was denied. Scoggins v. Kia Motors Am., Inc., 272 Ga. App. 495, 612 S.E.2d 823 (2005).
In a mandamus action wherein a principal sued a school superintendent seeking reinstatement to a former position, the trial court did not err by considering the principal's affidavit filed late in support of the principal's petition for mandamus, showing that the principal was earning less in an assignment as a math teacher because of a reduction in working hours, as it was within the trial court's discretion to consider opposing affidavits not served within statutory time limits. Hall v. Nelson, 282 Ga. 441, 651 S.E.2d 72 (2007).
Finding of excusable neglect did not constitute abuse of discretion.
- When the trial court denied a motion by the defendants for permission to serve late responses to certain requests for admissions filed by the plaintiff and subsequently awarded summary judgment to the plaintiff based on the admissions created by the defendants' failure to respond to the requests in a timely manner, the defendants' only reason for the delay in submitting the responses being that the defendants had been without legal representation at the time the requests for admission were served upon the defendants, and had neither knowledge of the time limitation nor that the defendants' failure to respond would be considered an admission of the requests, the trial court did not abuse the court's discretion in concluding that this assertion failed to constitute a showing of excusable neglect. Haynes v. Hight, 190 Ga. App. 497, 379 S.E.2d 21 (1989).
2. Summary Judgment Proceedings
Purpose of section.
- O.C.G.A. § 9-11-6 ensures that the party against whom summary judgment is sought will be provided with a full and final opportunity to meet and attempt to controvert assertions against that party. Bailey v. Dunn, 158 Ga. App. 347, 280 S.E.2d 388 (1981).
Thirty-day pre-hearing time period implements due process.
- Statutory requisite that, unless waived or extended, supporting material must be on file at least 30 days before a summary judgment hearing is an implementation of the fundamental principle of due process. Bonds v. John Wieland Homes, Inc., 177 Ga. App. 254, 339 S.E.2d 318 (1985).
Waiver of thirty-day pre-hearing time period.
- Affidavit relied on in support of a motion for summary judgment must be on file for at least 30 days prior to the hearing. This strict requirement may be waived by the opposing party's acquiescence in the use of the untimely materials, or if the movant seeks and obtains an order from the trial court under subsection (b) of O.C.G.A. § 9-11-6 extending the time for filing. Gunter v. Hamilton Bank, 201 Ga. App. 379, 411 S.E.2d 115 (1991).
While trial judges may exercise judicial discretion to permit the late filing of affidavits, the party seeking to file affidavits late must make a motion and obtain an extension from the court pursuant to subsection (b) of O.C.G.A. § 9-11-6. Hershiser v. Yorkshire Condominium Ass'n, 201 Ga. App. 185, 410 S.E.2d 455 (1991); Pierce v. Wendy's Int'l, Inc., 233 Ga. App. 227, 504 S.E.2d 14 (1998).
Application of subsection (d) to affidavits supporting summary judgment motion.
- Affidavits in support of a motion for summary judgment, not served in compliance with subsection (d) of this section, are not properly before the court considering such motion. Fairington, Inc. v. Yeargin Constr. Co., 144 Ga. App. 491, 241 S.E.2d 608 (1978).
Construction of subsection (d) and
§ 9-11-56 together in determining timeliness of affidavits. - In determining whether affidavits in support of a motion for summary judgment are properly before the court considering such motion, Ga. L. 1967, p. 226, §§ 5, 6 and 25 (see now O.C.G.A. §§ 9-11-6(d) and9-11-56(e)) must be read together. Jones v. Howard, 153 Ga. App. 137, 264 S.E.2d 587 (1980).
To determine whether affidavits in support of a motion for summary judgment are properly before the court considering the motion, O.C.G.A. §§ 9-11-6 and9-11-56 must be read together. Bailey v. Dunn, 158 Ga. App. 347, 280 S.E.2d 388 (1981); Citizens & S. Nat'l Bank v. Dorsey, 159 Ga. App. 784, 285 S.E.2d 242 (1981).
Service of affidavits with motion for summary judgment.
- Provision of subsection (d) of this section that when a motion is supported by an affidavit, affidavit shall be served with the motion applies to affidavits in support of a motion for summary judgment. Wall v. Citizens & S. Bank, 145 Ga. App. 76, 243 S.E.2d 271 (1978), overruled on other grounds, McKeever v. State, 189 Ga. App. 445, 375 S.E.2d 899 (1988).
Ga. L. 1967, p. 226, §§ 5, 6 and 25 (see now O.C.G.A. §§ 9-11-6(d) and9-11-56(e)) require affidavits in support of a motion for summary judgment to be served with the motion, unless a movant seeks and obtains an extension from the court pursuant to subsection (b), and any such extension should also ensure that the party opposing the motion will have 30 days within which to respond. Jones v. Howard, 153 Ga. App. 137, 264 S.E.2d 587 (1980).
Trial court did not err in denying motions to strike the amended affidavits of a bank employee on the ground that the affidavits were not filed contemporaneously with the bank's motions for summary judgment because the trial court extended the time for filing the amended affidavits pursuant to O.C.G.A. § 9-11-6(d); the bank explained the bank's reasons for filing the amended affidavits. Shropshire v. Alostar Bank of Commerce, 314 Ga. App. 310, 724 S.E.2d 33 (2012).
Burden on movant to invoke court's discretion.
- When affidavit made in support of summary judgment motion is not served with the motion, the burden is on the movant, not the opposing party, to invoke the trial court's discretion with regard to late filing, and an objection by the opposing party at a hearing instead of by motions is not a waiver of that objection. Jones v. Howard, 153 Ga. App. 137, 264 S.E.2d 587 (1980).
Failure to request extension or show excusable neglect.
- When no request is made prior to making a motion for summary judgment for enlargement of the time to file and serve affidavits, nor a finding of excusable neglect in failing to serve the affidavits with notice of the motion for summary judgment, the movant for summary judgment has failed to proceed in a manner that would permit the trial court to exercise the court's discretion. Jones v. Howard, 153 Ga. App. 137, 264 S.E.2d 587 (1980).
Affidavits not timely served.
- Even though subsection (d) of O.C.G.A. § 9-11-6 and O.C.G.A. § 9-11-56(c) require an opposing affidavit to be served at least one day prior to a summary judgment hearing, the trial court is vested with discretion to consider affidavits not so served. Liberty Nat'l Life Ins. Co. v. Houk, 248 Ga. 111, 281 S.E.2d 583 (1981).
Untimely secondary affidavit voided summary judgment.
- Trial court improperly relied upon the defendant's second affidavit in granting the defendant's motion for summary judgment when the second affidavit, not filed in a timely fashion, contained new averments specifically relied upon by the trial court. Corry v. Robinson, 207 Ga. App. 167, 427 S.E.2d 507 (1993).
Differentiation between response to summary judgment motion and supporting affidavit not required.
- In determining whether to strike an affidavit as untimely filed, the trial court is not required to differentiate between a response to a summary judgment and an affidavit filed in support of such a motion, as subsection (d) of O.C.G.A. § 9-11-6 provides that opposing affidavits must be served no later than one day before the date of the hearing and O.C.G.A. § 9-11-5(d) provides that all papers served upon a party shall be filed with the court within the time allowed for service. Crucet v. Bovis, Kyle & Burch, 180 Ga. App. 765, 350 S.E.2d 322 (1986).
Dismissal of counter-affidavit proper when filing untimely.
- Trial court did not abuse the court's discretion in ruling that a counter-affidavit filed in opposition to a motion for summary judgment was untimely when counsel had notice of a hearing as originally scheduled for over a month prior to that hearing yet had not procured counter-affidavits to those filed by the movant, a week's continuance had been granted with counsel having been expressly advised that the summary judgment statute would be followed closely, and the counter-affidavit was not mailed nor otherwise served until the very day of the hearing as rescheduled. Saville v. Purvis, 172 Ga. App. 116, 322 S.E.2d 321 (1984).
Court need not consider motion supported by untimely affidavits.
- Trial court's "failure to rule" on a motion to consider additional evidence in opposition to a grant of summary judgment is not error when the affidavits to be filed would be untimely. Splish Splash Waterslides, Inc. v. Cherokee Ins. Co., 167 Ga. App. 589, 307 S.E.2d 107 (1983).
Affidavits supplied before court's decision considered.
- When the trial court made no decision at the summary judgment hearing but took the matter under advisement, and it was undisputed that the defendant supplied the supporting affidavits before the trial court's decision on the matter, the trial court was authorized to consider the evidence submitted by the defendant. Howell Mill/Collier Assocs. v. Gonzales, 186 Ga. App. 909, 368 S.E.2d 831 (1988).
Objection to the timeliness of an affidavit submitted in response to a motion for summary judgment will be deemed waived unless the objection is itself timely raised in the trial court. Pruitt v. Tyler, 181 Ga. App. 174, 351 S.E.2d 539 (1986).
Waiver for failure to object.
- When the plaintiff failed to raise an objection below to the defendant's affidavit on the ground that the objection was not timely filed and served, the plaintiff's contentions in that regard will not be considered on appeal. Mahaffey v. First Nat'l Bank, 157 Ga. App. 844, 278 S.E.2d 729 (1981).
Any error arising from a failure to file timely an affidavit in support of a motion for summary judgment is waived by the adverse party's failure to object to the filing of the affidavit in question in the trial court. Southeastern Hose, Inc. v. Prudential Ins. Co. of Am., 167 Ga. App. 356, 306 S.E.2d 308 (1983).
Failure of a maker and guarantors to obtain rulings on their motions to strike the amended affidavits of a bank employee on the ground that the affidavits were not filed contemporaneously with the bank's motions for summary judgment resulted in a waiver of appellate review of the issue. Shropshire v. Alostar Bank of Commerce, 314 Ga. App. 310, 724 S.E.2d 33 (2012).
Mere reference to local court rules is not sufficient notice.
- Subsection (d) of O.C.G.A. § 9-11-6, O.C.G.A. § 9-11-56, and the spirit of the summary judgment procedure contemplate that the respondent shall have actual notice of a day upon which the matter will be heard and judgment rendered upon the record then existing. A mere reference to the local court rules sent by the attorney does not give such actual notice and opportunity to be heard. Ferguson v. Miller, 160 Ga. App. 436, 287 S.E.2d 363 (1981).
Discretion as to late affidavits.
- Strict requirement that affidavits in support of motions for summary judgment shall be served with the motion is not absolute, but trial judges may exercise judicial discretion to permit the late filing of affidavits. Citizens & S. Nat'l Bank v. Dorsey, 159 Ga. App. 784, 285 S.E.2d 242 (1981).
Record must show court allowed late filing.
- Affidavit made in opposition to motion for summary judgment not served at least one day before the hearing is barred by the Civil Practice Act (see now O.C.G.A. Ch. 11, T. 9) from consideration as evidence unless the record discloses the trial court, in the exercise of the court's discretion, has allowed the affidavit to be served and considered. Talley v. City Tank Corp., 158 Ga. App. 130, 279 S.E.2d 264 (1981); Brown v. Rowe, 178 Ga. App. 575, 344 S.E.2d 245 (1986).
On a motion for summary judgment in a wrongful death against an adult care home, the trial court erred in disregarding supplemental briefing by the parties; the trial court authorized the supplemental briefing itself and the opposing party had not objected. Blake v. KES, Inc., 329 Ga. App. 742, 766 S.E.2d 138 (2014).
Court's error in conducting hearing in absence of proper service of notice of the hearing, on the motion for summary judgment, on plaintiff was not harmless since the plaintiff was deprived of the plaintiff's statutory right to file opposing affidavits up to one day before the hearing. Goodwin v. Richmond, 182 Ga. App. 745, 356 S.E.2d 888 (1987).
Failure to give notice of hearing.
- In a personal injury case, the trial court erred in granting partial summary judgment to the property owner because the court conducted a hearing on the motion for summary judgment despite the court's failure to give written notice to the parties of the hearing date as required by O.C.G.A. § 9-11-6(d). Cofield v. Halpern Enters., 316 Ga. App. 582, 730 S.E.2d 63 (2012).
Response to motion for summary judgment filed on date of hearing is timely, notwithstanding the language in subsection (d) of this section requiring all papers after the complaint to be filed within the time allowed for service. Gross v. Pyrofax Gas Corp., 151 Ga. App. 130, 259 S.E.2d 137 (1979); Martin v. Newman, 162 Ga. App. 725, 293 S.E.2d 18 (1982).
Time for service of affidavits opposing summary judgment.
- Ga. L. 1967, p. 226, §§ 5, 6 and 25 (see now O.C.G.A. §§ 9-11-6(d) and9-11-56(c)) should be read together so as to vest in the court discretion to permit opposing affidavits to a motion for summary judgment to be served at some other time than that provided in Ga. L. 1967, p. 226, § 25 (see now O.C.G.A. § 9-11-56). Sasser & Co. v. Griffin, 133 Ga. App. 83, 210 S.E.2d 34 (1974).
Generally, affidavits must be served on the opposing parties, and affidavits made in opposition to a motion for summary judgment not served at least one day before the hearing are barred. Johnson v. Aetna Fin., Inc., 139 Ga. App. 452, 228 S.E.2d 299 (1976).
Party opposing motion for summary judgment has until the day prior to the hearing to serve opposing affidavits, unless the trial court in the court's discretion permits the affidavits to be served at a later date. Gross v. Pyrofax Gas Corp., 151 Ga. App. 130, 259 S.E.2d 137 (1979).
Trial court, in the court's discretion, can consider affidavit filed on day of the hearing. Leagan v. Levine, 158 Ga. App. 293, 279 S.E.2d 741 (1981).
Trial court's decision to consider affidavits not reversed absent abuse of discretion.
- Affidavit made in opposition to a motion for summary judgment should, under O.C.G.A. § 9-11-56(c) and subsection (d) of O.C.G.A. § 9-11-6, be served on the opposite party at least one day prior to hearing the motion; the court has discretion to consider affidavits not so filed, however, and the court's ruling on this issue will not be reversed unless there is an abuse of discretion. Liberty Nat'l Life Ins. Co. v. Houk, 157 Ga. App. 540, 278 S.E.2d 120, aff 'd, 248 Ga. 111, 281 S.E.2d 583 (1981).
Trial court cannot exercise the court's discretion under O.C.G.A. § 9-11-6 if no request is made for an extension of time within which to file and serve affidavits prior to making a motion for summary judgment, and there is no finding of excusable neglect in failing to serve the affidavits with notice of the motion for summary judgment. Bailey v. Dunn, 158 Ga. App. 347, 280 S.E.2d 388 (1981).
Late-filed affidavit in opposition.
- Affidavit made in opposition to a motion for summary judgment may be admitted without objection, the time of service may be waived, or the court may for some other reason find it in the interest of justice to consider the evidence. Liberty Nat'l Life Ins. Co. v. Houk, 157 Ga. App. 540, 278 S.E.2d 120, aff 'd, 248 Ga. 111, 281 S.E.2d 583 (1981).
Borrowers received sufficient notice under O.C.G.A. § 9-11-6(d) of a summary judgment hearing because the borrowers' counsel received notice of a hearing on a lender's summary judgment motion in January 2005 and the summary judgment hearing was held on March 3, 2005. Hawk v. DaimlerChrysler Servs. N. Am., LLC, 275 Ga. App. 712, 621 S.E.2d 828 (2005).
When timely response to motion filed, oral argument erroneously denied.
- Because the responding party timely responded to a summary judgment motion, pursuant to Ga. Unif. Super. Ct. R. 6.3, given the appellate court's construction of both O.C.G.A. §§ 1-3-1 and9-11-6, the trial court erred in denying that party oral argument on the motion and in granting summary judgment to the movant. Green v. Raw Deal, Inc., 290 Ga. App. 464, 659 S.E.2d 856 (2008).
Additional Time after Mailing
Rationale underlying subsection (e) of this section is to insure that a party is not unduly burdened by uncertainty of postal delivery. Akins v. Magbee Bros. Lumber & Supply Co., 152 Ga. App. 904, 264 S.E.2d 334 (1980).
When three-day rule replaced by "rule of reason."
- When and only when notice is effectuated by regular mail, and statutes prescribe that another method will satisfy the notice requirement, three-day extension gives way to a "rule of reason" for which there is no sound argument to the contrary; however, when transmittal by ordinary mail is the prescribed method of giving notice, and statutes specify that such mailing (not certified or registered) will satisfy notice requirement, the fact that the legislature specified that such mailing alone is sufficient to satisfy the notice requirement is a sound argument to the contrary. Favors v. Travelers Ins. Co., 150 Ga. App. 741, 258 S.E.2d 554 (1979); DeLoach v. Georgia Firemen's Pension Fund, 213 Ga. App. 202, 444 S.E.2d 137 (1994).
Subsection (e) of Ga. L. 1967, p. 226, §§ 5 and 6 (see now O.C.G.A. § 9-11-6) is not applicable to computations under former Code 1933, § 20-506 (see now O.C.G.A. § 13-1-11), relating to enforcement of obligations to pay attorney's fees on notes, etc. Calvert Fire Ins. Co. v. Environs Dev. Corp., 601 F.2d 851 (5th Cir. 1979).
Three-day rule applied.
- Order granting summary judgment on the 32nd day after filing and service of a motion for summary judgment was premature, when the plaintiff had served the defendants with notice via regular mail and therefore had 33 days from the date of mailing to respond to the motion. Pyramid Constr. Co. v. Star Mfg. Co., 195 Ga. App. 644, 394 S.E.2d 598 (1990).
When a habeas corpus petitioner cross-appealed the trial court's decision after the warden appealed it, the petitioner's cross-appeal was timely because it was filed within the 15 days allowed by O.C.G.A. § 5-6-38(a) plus the 3-day extension provided in O.C.G.A. § 9-11-6(e), as the warden's notice of appeal was mailed to the petitioner. Head v. Thomason, 276 Ga. 434, 578 S.E.2d 426, cert. denied, 540 U.S. 957, 124 S. Ct. 409, 157 L. Ed. 2d 294 (2003), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).
Because a party served the party's requests for admissions by mail, three days were added to the prescribed thirty-day response period pursuant to O.C.G.A. § 9-11-6(e). Patel v. Columbia Nat'l Ins. Co., 315 Ga. App. 877, 729 S.E.2d 35 (2012).
RESEARCH REFERENCES
Am. Jur. 2d.
- 61B Am. Jur. 2d, Pleading, § 856 et seq. 74 Am. Jur. 2d, Time, § 12 et seq.
C.J.S.- 35A C.J.S., Federal Civil Procedure, § 23. 71 C.J.S., Pleading, § 167 et seq. 86 C.J.S., Time, §§ 4, 16.
ALR.
- Interlocutory decree as subject to modification after term other than for correction of clerical errors, 169 A.L.R. 121.
Difference between date of affidavit for service by publication and date of filing or of order for publication as affecting validity of service, 46 A.L.R.2d 1364.
Effectiveness of stipulation of parties or attorneys, notwithstanding its violating form requirements, 7 A.L.R.3d 1394.
Validity of service of summons or complaint on Sunday or holiday, 63 A.L.R.3d 423.
Stipulation extending time to answer or otherwise proceed as waiver of objection to jurisdiction for lack of personal service: state cases, 77 A.L.R.3d 841.
ARTICLE 3 PLEADINGS AND MOTIONS
Cross references.
- Motions in civil actions, Uniform Superior Court Rules, Rule 6.
Reply, Uniform State Court Rules, Rule 6.2.
Commencement of proceedings in Juvenile Court, Uniform Rules for the Juvenile Courts of Georgia, Rules 4.1 - 4.7 and 5.1 - 5.3.
Filing of petition in Juvenile Court proceedings, Uniform Rules for the Juvenile Courts of Georgia, Rules 6.1 - 6.9.
Motions in probate court, Uniform Rules for the Probate Courts, Rule 6.
RESEARCH REFERENCESLitigating Construction Liens, 53 Am. Jur. Trials 367.
ALR.- Libel and slander: reports of pleadings as within privilege for reports of judicial proceedings, 20 A.L.R.4th 576.