Hall v. Massally

329 Ga.App. 136

764 S.E.2d 161

HALL et al.

v.MASSALLY.

No. A14A1150.

Court of Appeals of Georgia.

Sept. 24, 2014.

Cherri Latoya Shelton, Tucker, for appellants.

Worsham, Corsi, Scott & Knighten, Andrea Eddings Dobur, Atlanta, for appellee.

Opinion

BARNES, Presiding Judge.

Curtis Hall, Irina Hall, and minor Scarlett Hall appeal the trial court's grant of summary judgment to Rachel Massally in this suit for personal injuries resulting from an automobile collision. Because the record establishes the existence of genuine issues of material fact for a jury to determine, we reverse.

Shortly after Massally deposed Curtis and Irina Hall, the trial court granted the motion of the Halls' attorney to withdraw from the case. Six months later, Massally filed transcripts of the Halls' depositions with the trial court clerk, and three months after that Massally moved for summary judgment, relying in part on the Halls' depositions. In her motion, Massally argued that the Halls “failed to provide any admissible evidence that Defendant did anything wrong to cause the subject accident.”

Approximately a week after the Halls' response to the motion was due, the Halls acting pro se asked the trial court by letter for permission to respond to the motion out of time, contending they had not received a copy of it. The trial court issued a rule nisi, directing the Halls to show cause why Massally's motion for summary judgment should not be granted. On the day of the hearing, an attorney for the Halls filed an entry of appearance and a response to the motion, which included the affidavit of a witness. The witness said that after Massally passed him at about 90 mph, he saw smoke and dust “just down the road,” then saw Massally's car “go over the median and skid into a parking lot” and saw the Halls' car go over the curb into the grass.

Massally objected to the late-filed response and affidavit, and the trial court ruled that it would not consider the affidavit. Massally's counsel argued that Massally had been driving in the right-hand turn lane and had the right-of-way when Mr. Hall drove into her lane and hit her, although the record contains no evidence from Massally in the form of an affidavit or deposition. The Halls' counsel responded that she had initially been retained to represent the Halls for the limited purpose of attempting to negotiate a settlement, and that in the course of reviewing the court's docket she discovered the unanswered motion for summary judgment. She recommended that the Halls ask the court for an extension of time to file a response, which they did, and the court then scheduled the motion hearing without ruling on their request.

As to the merits of the motion, the Halls argued that their deposition testimony was properly before the court and established the existence of questions of fact sufficient to withstand summary judgment. The trial court responded that the plaintiffs had presented “nothing for consideration by the Court.” The trial court further noted that in their complaint, the Halls alleged that the accident was a rear-end collision, but “all the evidence before the court is that it was a side-impact collision.” The court further commented that the depositions showed that Mr. Hall “moved into a lane that the defendant was in lawfully traveling.” Four days after the hearing, the trial court issued an order stating that “after considering the entire record, the Court finds that there exists no genuine issue as to any material fact and Defendant is entitled to judgment as a matter of law.”

1. The Halls contend that the trial court erred in granting summary judgment to Massally because, among other things, the evidence of record establishes the existence of genuine issues of material fact for a jury to determine. We agree.

On appeal from the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law.

(Citation omitted.) Clo White Co. v. Lattimore, 263 Ga.App. 839, 590 S.E.2d 381 (2003). “Under Uniform ...