Hughes v. Montgomery Contracting Co., Inc., 77768

• Decision Date: 10 January 1989
• Docket Number: No. 77768,77768
• Citation: 377 S.E.2d 723,189 Ga.App. 814
• Parties: HUGHES v. MONTGOMERY CONTRACTING COMPANY, INC.
• Court: Georgia Court of Appeals

Page 723

377 S.E.2d 723

189 Ga.App. 814

HUGHES v. MONTGOMERY CONTRACTING COMPANY, INC.

No. 77768.

Court of Appeals of Georgia.

Jan. 10, 1989.

Ben Swain McElmurray, Jr., Augusta, for appellant.

Fulcher, Hagler, Reed, Obenshain, Hanks & Harper, and John I. Harper, Augusta, for appellee.

BANKE, Presiding Judge.

The appellant filed suit against the appellee on February 3, 1988, to recover damages arising from an automobile collision which was alleged to have occurred on June 18, 1985. The complaint alleged that the statute of limitation for filing the action had been tolled by OCGA § 9-3-90 because the appellant had been incarcerated for a period of time following the accident. The appellee filed a motion for summary judgment on April 13, 1988, pointing out that by virtue of a 1984 amendment to OCGA § 9-3-90, imprisonment no longer operates to toll the limitation period for filing a lawsuit. See Ga.L.1984, p. 580 § 1.

A hearing on the motion for summary judgment was initially set for May 13, 1988, but was rescheduled for May 26 at the appellant's request. When the appellant did not appear at the rescheduled hearing, the trial court announced that the motion for summary judgment would be granted and asked the appellee to draw an order. On June 2, 1988, the appellee submitted such an order, but on that same day the appellant amended his complaint to allege that the statute of limitation had been tolled pursuant to OCGA § 9-3-90(a) (as amended by Ga.L.1984, p. 580, § 1), due to mental disability on his part. An order granting the motion for summary judgment was ultimately entered on July 22, 1988, following a hearing held on June 27, 1988. The appellant contends on appeal that the appellee failed to pierce the allegations of his amended complaint with regard to the tolling of the limitation period and that the grant of summary judgment was consequently improper. The appellee contends that the grant of the motion was authorized based on the appellant's failure to file a timely response to it, in accordance with Rule 6.2 of the Uniform Rules of the Superior Court. Held:

"Rule 6.2 requires opposition response to motions to be filed within thirty days of the service of the motion. Rule 6.5 requires that a response to a motion for summary judgment 'shall include a separate, short and concise statement of each of the material facts as to which it is contended there exists a genuine issue to be tried.' As stated in Mills v. J.E. Sharber Oil Co., 181 Ga.App. 81, 82 (351 SE2d 275) (1986), and as is apparent from the holding in Jacobsen v. Muller, 181 Ga.App. 382(2) (352 SE2d 604) (1986), ... [these] requirements are in addition to those set out in the Civil Practice Act." West v. Nodvin, 183 Ga.App. 645, 646(1), 359 S.E.2d 729 (1987). Accord Spikes v. Citizens State Bank, 179 Ga.App. 479(1), 347 S.E.2d 310 (1986). However, "[t]here is no such thing as a 'default summary judgment.' By failing to respond to a motion for summary judgment, a party merely waives his right to present evidence in opposition to the motion. It does not automatically follow that the motion should be granted. 'A motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and evidence that the party so moving is entitled to prevail.' [Cit.]" McGivern v. First Capital Income...