Rapps v. Cooke

• Decision Date: 26 August 1998
• Docket Number: No. A98A0982, No. A98A1002.
• Citation: 234 Ga. App. 131,505 S.E.2d 566
• Parties: RAPPS v. COOKE et al. (Two Cases).
• Court: Georgia Court of Appeals

505 S.E.2d 566

234 Ga. App. 131

RAPPS v. COOKE et al. (Two Cases).

Nos. A98A0982, A98A1002.

Court of Appeals of Georgia.

August 26, 1998.

Betsy L. Rapps, pro se.

Marvin C. Berkowitz, Alpharetta, for appellees.

ANDREWS, Chief Judge.

Betsy Luise Rapps and her husband purchased real property from James and Ellen Cooke and executed a note and deed to secure debt over the property in favor of the Cookes. After the Rappses defaulted by failing to make payments due on the note, the Cookes foreclosed on the property under the terms of the deed to secure debt and purchased the property at the foreclosure sale. Betsy Rapps sued the Cookes alleging wrongful foreclosure, defamation of title, and fraud. The Cookes answered denying the allegations and counterclaimed for a writ of possession. The trial court subsequently granted the Cookes' motion for summary judgment on the claims against them and on their counterclaim for a writ of possession. In Case No. A98A0982, Rapps appeals from the summary judgment order. On motion by the Cookes, the trial court required that Rapps post a supersedeas bond on appeal. In Case No. A98A1002, Rapps appeals from the order requiring the supersedeas bond.

Case No. A98A0982

1. Rapps claims the trial court erred by granting the motion for summary judgment because the Cookes did not produce evidence in support of the motion sufficient to show that no genuine issue of material fact remained for trial.

Rapps failed to file a timely response to the Cookes' motion for summary judgment and did not appear at the hearing on the motion. Because there is no such thing as a default summary judgment, Rapps' failure to timely respond to the motion does not automatically entitle the Cookes to summary judgment in their favor. McGivern v. First Capital Income Properties, 188 Ga.App. 716, 717, 373 S.E.2d 817 (1988). A failure to respond to a motion for summary judgment results in waiver of the right to present evidence in opposition to the motion, but the moving party must still show from the pleadings and the evidence that summary judgment is appropriate. Id. Accordingly, we consider whether the record supported the grant of summary judgment in favor of the Cookes, but we give no consideration to untimely responsive materials filed by Rapps after the hearing on the motion.

The Cookes' motion for summary judgment was not supported by affidavit, deposition testimony, answers to interrogatories, or admissions. See OCGA § 9-11-56; Holland v. Sanfax Corp., 106 Ga.App. 1, 126 S.E.2d 442 (1962). Although the motion contained a statement of facts as to which the Cookes contended there was no genuine issue to be tried, submitted pursuant to Uniform Superior Court Rule 6.5, the right to summary judgment is not shown by mere reference to the Rule 6.5 statement of facts. The statement of facts under Rule 6.5 is not evidence for purposes of summary judgment, and Rapps' lack of response thereto did not amount to an admission of fact. Waits v. Makowski, 191 Ga.App. 794, 796, 383 S.E.2d 175 (1989).

The record reflects, however, that the trial court based the grant of summary judgment on sworn oral testimony given at the hearing on the motion by James Cooke which verified the allegations, evidence, and statement of facts presented by the Cookes in support of the motion for summary judgment. Generally, a trial court may exercise its sound discretion to permit the introduction of oral evidence in support of a motion for summary judgment. Pierce v. Gaskins, 168 Ga.App. 446, 450, 309 S.E.2d 658 (1983). For example, the trial court may choose to consider oral evidence at the hearing on the motion when the parties so stipulate and arrangements have been made to report the evidence so that it can be reduced to writing and filed in the record. Price v. Star Svc., etc., Corp., 119 Ga.App. 171, 179, 166 S.E.2d 593 (1969). Pursuant to OCGA § 9-11-43(b), the trial court may direct that the motion for summary judgment be heard on oral testimony by entering an order so notifying the parties. Johnson v. Aetna Finance, 139 Ga. App. 452, 453, 228 S.E.2d 299 (1976); Forest Lakes Home Owners Assn. v. Green Indus., 218 Ga.App. 890, 893-894, 463 S.E.2d 723 (1995). When the trial court admits oral evidence in support of a motion for summary judgment, there must be compliance with the requirements for considering evidence on summary judgment. Pierce, 168 Ga.App. at 450, 309 S.E.2d 658. This includes the requirement that, absent a stipulation by the parties or an order of the trial court extending the time for filing, only supporting material filed at least 30 days before the hearing shall be considered for the movant. Porter Coatings v. Stein Steel, etc., Co., 247 Ga. 631-632, 278 S.E.2d 377 (1981); Gunter v. Hamilton Bank, etc., 201 Ga.App. 379, 381, 411 S.E.2d 115 (1991); OCGA §§ 9-11-56(c); 9-11-6(b), (d); Pierce, 168 Ga.App. at 450, 309 S.E.2d 658. "[This requirement] is designed to give the opposing party fair opportunity to contradict the supporting material relied upon by the movant." Porter Coatings, 247 Ga. at 631, 278 S.E.2d 377.

Here, there was no order of the trial court notifying the parties that the motion would be heard on oral testimony, and the oral evidence given by James Cooke in support of the motion for summary judgment was not filed at least 30 days before the hearing. There was no stipulation by the parties or order of the trial court altering the 30-day notice requirement. Nevertheless, by failing to appear at the hearing to object, Rapps waived the right to notice and acquiesced in the trial court's consideration of the untimely oral material. Gunter, 201 Ga. App. at 381,411 S.E.2d 115; Peppers v. Elder, 248 Ga. 136-137, 281 S.E.2d 582 (1981).

Despite the waiver, there is no transcript of the sworn testimony given by Mr. Cooke nor any record of this oral evidence prepared in compliance with OCGA § 5-6-41, so we are unable to review the evidence to determine whether it provided a sufficient basis to support the trial court's grant of summary judgment. See Springer v. Gaffaglio, 190 Ga.App. 272, 273-274, 378 S.E.2d 691 (1989). Without any record of the oral evidence, and there being no other evidence in compliance with OCGA § 9-11-56 submitted by the Cookes in support of the motion,¹ we conclude that the Cookes failed to show by the record that there was no evidence sufficient to create a jury issue on Rapps' claim of wrongful foreclosure. In this regard, the allegation in Rapps' verified complaint that the Cookes declared a default and foreclosed without giving her the notice required under the terms of the deed to secure debt was sufficient to create a factual issue as to wrongful foreclosure. Although the attached verification did not state that the allegations of the complaint were made upon Rapps' personal knowledge, as required in order to be considered under OCGA § 9-11-56(e), the allegation that the Cookes did not give her proper notice was sufficient to affirmatively indicate that this allegation was within Rapps' personal knowledge. Moore v. Goldome Credit Corp., 187 Ga.App. 594, 596, 370 S.E.2d 843 (1988); Morris-Bancroft Paper Co. v. Coleman, 188 Ga.App. 809, 811, 374 S.E.2d 544 (1988); Hansen v. Mt. Yonah Scenic Estates Club, 227 Ga.App. 258, 259, 488 S.E.2d 732 (1997).

We find no error in the trial court's...