Dallas Blue Haven Pools, Inc. v. Taslimi, 73015

• Decision Date: 15 October 1986
• Docket Number: No. 73015,73015
• Citation: 350 S.E.2d 265,180 Ga.App. 734
• Parties: DALLAS BLUE HAVEN POOLS, INC. v. TASLIMI.
• Court: Georgia Court of Appeals

Page 265

350 S.E.2d 265

180 Ga.App. 734

DALLAS BLUE HAVEN POOLS, INC. v. TASLIMI.

No. 73015.

Court of Appeals of Georgia.

Oct. 15, 1986.

Rehearing Denied Nov. 4, 1986.

James B. Deal, John W. Gibson, Atlanta, for appellant.

Leslie S. Trachtman, David R. LaVance, Jr., Mark A. Kelley, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

The defendant below, Dallas Blue Haven Pools, Inc., appeals from the grant of summary judgment to the plaintiff, Fereydoun Taslimi. Taslimi filed this action seeking recovery for an alleged breach (by non-payment) of a promissory note in the amount of $25,000. Defendant answered and admitted execution of the note and non-payment of any interest payment, but alleged he had contracted with a corporation, Commons Limited, for construction of business premises, and there was a total or partial failure of consideration because of faulty workmanship and materials provided by Commons. Defendant contends Taslimi is the "successor in interest" to Commons. Plaintiff filed a motion for summary judgment, but did not file for a rule nisi or for notice of motion requesting a hearing. See OCGA § 9-11-119. The motion for summary judgment was filed July 23, 1985. Plaintiff filed a brief and an affidavit in support. The affidavit contained sufficient facts to establish a prima facie case entitling plaintiff to judgment, unless controverted. Defendant obtained stipulations extending time within which to file a response, on two different occasions, to September 16, 1985. However, defendant never filed a response within the time agreed upon. Defendant's counsel obtained an order granting him a leave of absence from September 26 to October 8, 1985. On September 27, 1985, the trial court signed its order granting summary judgment to plaintiff, citing the fact that defendant had not filed a response to the motion. Defendant's motion for reconsideration was denied, and this appeal followed. Held:

1. Defendant contends the trial court erred in granting the motion for summary judgment "without setting a hearing." We do not agree. By order, on February 19, 1985, the Georgia Supreme Court promulgated the Uniform Rules for the Superior Courts, effective July 1, 1985. See 253 Ga. 801. Rule 6.3 thereof, provides that "[u]nless otherwise ordered by the court all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing.... Oral argument on any motion shall be permitted upon written request." Defendant argues that this rule contravenes OCGA § 9-11-56(c), which provides, in pertinent part: "The motion [for summary judgment] shall be served at least 30 days before the time fixed for the hearing." Defendant's argument ostensibly is supported by decisional authority of this court. In Premium Distrib. Co. v. National Distrib. Co., 157 Ga.App. 666, 668, 278 S.E.2d 468, we held: "Our reading of Code Ann. § 81A-156 [now OCGA § 9-11-56] reveals a clear legislative intent that a hearing be held at which oral argument may be made." This interpretation has been followed in Sentry Ins. v. Echols, 174 Ga.App. 541(1), 330 S.E.2d 725; Hosch v. Pickett, 172 Ga.App. 13, 16, 321 S.E.2d 777; Hillis v. First Nat. Bank of Waynesboro, 168 Ga.App. 408, 309 S.E.2d 404. However, it must be noted that all of these cases preceded the effective date of the Uniform Superior Court Rules.

Our Supreme Court promulgated the Uniform Superior Court Rules pursuant to a delegation of authority in the Ga. Const. of 1983, Art. VI, Sec. IX, Par. I. Such rule-making is an authorized delegation of authority. Harrell v. Courson, 234 Ga. 350, 352, 216 S.E.2d 105; see generally 16 C.J.S. 489, Const.Law §§ 153, 154; 1 AmJur2d 897, Admin.Law § 101. We have found no binding decisional authority interpreting constitutional delegation of authority to a governmental body in a rule-making role. But this issue is analogous to the case of a rule made by a state agency in conformity with a statutory delegation of authority, and decisional authority exists for that type delegation. Georgia Real Estate Comm. v. Accelerated Courses, 234 Ga. 30, 35, 214 S.E.2d 495; Glustrom v. State, 206 Ga. 734, 736, 58 S.E.2d 534. When determining the effect of rules made by a governmental body under delegation of federal statutory authority, we found "those regulations have the force and effect of a Federal statute." Knight v. Wingate, 205 Ga. 133, 137, 52 S.E.2d 604. And, in construction of a statutory delegation of rule-making authority to the Georgia Public Service Commission, it was held that "such rules and regulations have the same force and effect as that of a statute." Georgia Public Svc. Comm. v. Jones Transp., 213 Ga. 514, 515(1), 100 S.E.2d 183.

These holdings are in accordance with the general view of the United States Supreme Court, that rules adopted in the exercise of a governmental body's delegated authority "acquire[s] the force of law and become[s] an integral part of the Act [cit.] to be judicially noticed." Lilly v. Grand Trunk Western R. Co., 317 U.S. 481, 488, 63 S.Ct. 347, 352, 87 L.Ed. 411. Another Supreme Court decision stated the same principle slightly different. It held that "[t]he regulation having been made by the commission in pursuance of constitutional statutory authority, it has the same force as though prescribed in terms by the statute." Atchison, Topeka, etc., R. Co. v. Scarlett, 300 U.S. 471, 474, 57 S.Ct. 541, 543, 81 L.Ed. 748; accord Public Utilities Comm. v. United States, 355 U.S. 534, 542, 78 S.Ct. 446, 451, 2 L.Ed.2d 470. Our Georgia Supreme Court is in agreement that a regulation, within the scope of the delegated authority "has the force and effect of law." Atkins v. Manning, 206 Ga. 219, 221, 56 S.E.2d 260. However, Atkins added a caveat that the "rules must not be inconsistent with the legislative act or any State or Federal law...." Id. at 220, 56 S.E.2d 260. Here, the defendant contends Rule 6.3 of the Uniform Superior Court Rules is in conflict with OCGA § 9-11-56(c), and has cited the aforementioned cases by this court holding that a hearing is required before a trial court can rule upon a motion for summary judgment.

We can resolve this issue in any one of three ways. First, Rule 6.3 was promulgated by a governmental body pursuant to a constitutional delegation of authority, and the rule has the force and effect emanating from the delegating authority, the Constitution. Hence, even if the rule were contrary to the statute, the constitutional rule would control.

Secondly, the decisions of the Court of Appeals pre-date the effective date of the Uniform Rules and the statute, which does not per se require an oral hearing, were never interpreted in the context of the rules issued by the Supreme Court. This issue of the absence of an oral hearing by Rule 56(c) has not been decided by the Supreme Court, but the Georgia Supreme Court may be considered to have been aware of the provisions of OCGA § 9-11-56(c), and the decisions of this court at the time it issued the Uniform Rules for the Superior Courts, and must have reached its own decision as to legality of Rule 6.3, for we can never assume that the Georgia Supreme Court intended to do an unconstitutional act. Glustrom v. State, supra 206 Ga. at 739, 58 S.E.2d 534. Hence, the Supreme Court must have found no inconsistency between Rule 6.3 and OCGA § 9-11-56(c).

Such a finding would follow the majority rule of the federal courts. Although earlier federal cases interpreting Rule 56(c) of the federal rules, which is identical to Georgia CPA Rule 56 except for the number of days, were divided as to whether a hearing at which oral argument could be made was required, the overwhelming weight of current decisions finds that reference to a "hearing" in Rule 56(c) "does not necessarily mean an oral hearing. What the rule contemplates is 10-day advance notice to the adverse party that the matter will be heard and taken under advisement as of a certain day. This provides the adverse party with an opportunity to prepare and submit affidavits, memoranda and other materials for the court to consider when ruling on the motion. If the adverse party is given this opportunity, then he has been heard within the meaning of Rule 56." Kibort v. Hampton, 538 F.2d 90, 91 (5th Cir.1976); accord Daniels v. Morris, 746 F.2d 271, 274 (5th Cir.1984); Clark Equip. Credit Corp. v. Martin Lumber Co., 731 F.2d 579 (8th Cir.1984); Moore v. State of Fla., 703 F.2d 516 (11th Cir.1983); Allied Chemical Corp. v. Mackay, 695 F.2d 854 (5th Cir.1983); Capital Films v. Charles Fries Productions, 628 F.2d 387, 391 (5th Cir.1980). The U.S. Supreme Court agrees that due process does not require an opportunity for oral argument on every question of law. Federal Communications Comm. v. WJR, 337 U.S. 265, 69 S.Ct. 1097, 93 L.Ed. 1353.

Third, federal courts have reached the conclusion that when Rules 56(c) (OCGA § 9-11-56(c)), Rule 78 (OCGA § 9-11-78), and Rule 83 (OCGA § 9-11-83) are considered in conjunction, it is permissible for court rules to provide that an oral argument hearing is not required unless the party...