Harrison v. Tuggle
| Decision Date | 20 March 1969 |
| Docket Number | Nos. 25099,25100,s. 25099 |
| Citation | 225 Ga. 211,167 S.E.2d 395 |
| Parties | Clark HARRISON, Chairman of the Board of Commissioner of DeKalb County et al. v. R. S. TUGGLE, Sr., et al. R. S. TUGGLE, Sr., et al. v. Clark HARRISON, Chairman of the Board of Commissioner of DeKalb County et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. It is not error to sustain a motion to strike a defensive plea which shows on its face that it is not applicable to the issues involved in the case.
2. While opinion evidence is sufficient in a proper case to present a jury issue and thus preclude a summary judgment, yet opinion testimony of the ultimate fact to be decided in the case is never sufficient to authorize the grant of a summary judgment.
This is the second appearance of this case before this court. On the first appearance Tuggle v. Manning, 224 Ga. 29, 159 S.E.2d 703 it was held that the plaintiffs' petition was not subject to the defendants' motion to dismiss for failure to state a claim, and that such petition set forth a claim which would authorize a finding that the zoning ordinances of DeKalb County limiting the plaintiffs' property to 'single family residential R-85' are unreasonable and arbitrary where the effect was to freeze such property in an undeveloped condition because the only use for which such property was reasonably and economically suited was 'local commercial C-1.' After the case was remanded to the trial court the defendants filed an amendment alleging as a 'second defense' that under a 'catchall' zoning ordinance if the R-85 zoning was invalid then the property automatically fell into a classification of 'single family residential R-100.' A motion to strike such second defense was sustained and thereafter a judgment granting the plaintiffs' motion for summary judgment was rendered. The defendants appeal from the grant of the summary judgment and the plaintiffs filed a cross appeal and enumerate as error the failure to strike certain portions of the counter-affidavits filed by the defendants in opposition to the plaintiffs' motion for summary judgment.
George P. Dillard, Herbert O. Edwards, Robert E. Mozley, Decatur, for appellants.
Emmet J. Bondurant, Kilpatrick, Cody, Rogers, McClatchey & Regenstein, George B. Haley, Jr., Charles L. Weatherly, Atlanta, for appellees.
1. The trial court correctly struck the 'second defense' filed by the defendants. The effect of such plea was to allege a 'catchall' zoning classification which would be applicable to the plaintiffs' property if the 'single family residential R-85' zoning was declared void. The 'catchall' classification quoted in the pleadings is by its terms applicable only where an area of the county is not shown on the zoning map of the county and would have no application to an area shown on the zoning map but zoned in an arbitrary and unreasonable manner so as to be void.
2. A motion for summary judgment is properly granted where 'there is no genuine issue as to any material fact and * * * the moving party is entitled to a judgment as a matter of law.' Ga.L.1966, pp. 609, 660 (Code Ann. § 81A-156(c)).
In the present case the question to be decided is whether the property is reasonably suited for 'single family residential R-85' and if not, is it reasonably suitable for any purpose other than a shopping center? This is a question of fact which must be decided from evidence City of Acworth v. Western & Atlantic R. Co., 159 Ga. 610(3), 126 S.E. 454. Witnesses may proceed to answer such question as a 'fact' yet in the final analysis it is the witnesses' opinions that are being expressed. An expert may give his opinion merely because he is an expert (Code § 38-1710), and any witness may give his opinion if he testifies to the facts on which such opinion is based (Code § 38-1708), but in no case where the facts are before...
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Summer v. Allison
...Opinion evidence is not permissible as a basis for the grant of summary judgment, though it may be used in opposition. Harrison v. Tuggle, 225 Ga. 211(2), 167 S.E.2d 395.5 26 U.S.C. § 6337(a) Before sale.-'Any person whose property has been levied upon shall have the right to pay the amount......
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Walker v. Metropolitan Atlanta Rapid Transit Authority
...authorize a summary judgment. [Cits.]" Galloway v. Banks County, 139 Ga.App. 649, 651, 229 S.E.2d 127 (1976). See Harrison v. Tuggle, 225 Ga. 211, 212, 167 S.E.2d 395 (1969); Ginn v. Morgan, 225 Ga. 192, 167 S.E.2d 393 (1969). Where the expert's opinion is merely cumulative of other evidenc......
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Anderson v. Crippen, 45027
...the basis for the grant of a summary judgment whether contradicted or not. Ginn v. Morgan, 225 Ga. 192, 167 S.E.2d 373; Harrison v. Ruggle, 225 Ga. 211, 167 S.E.2d 395. It is here contended that all malpractice actions fall within this category. In Truluck v. Funderburk, 119 Ga.App. 734, 16......
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Dickson v. Dickson
...125 Ga.App. 485, 486, 188 S.E.2d 118, 119 (1970). See also Ginn v. Morgan, 225 Ga. 192, 167 S.E.2d 393 (1969) and Harrison v. Tuggle, 225 Ga. 211, 167 S.E.2d 395 (1969). If the movant's affidavit sets forth evidentiary facts showing refusal to cohabit and the lack of any prospects for recon......