Savannah Valley Production Credit Ass'n v. Cheek

• Court: Georgia Supreme Court
• Writing for the Court: WELTNER; All the Justices concur, except JORDAN, C. J., and SMITH
• Citation: Savannah Valley Production Credit Ass'n v. Cheek, 285 S.E.2d 689, 248 Ga. 745 (Ga. 1982)
• Decision Date: 06 January 1982
• Docket Number: No. 38095,38095
• Parties: SAVANNAH VALLEY PRODUCTION CREDIT ASSOCIATION v. Ann K. CHEEK.

Page 689

285 S.E.2d 689

248 Ga. 745

SAVANNAH VALLEY PRODUCTION CREDIT ASSOCIATION v. Ann K. CHEEK.

No. 38095.

Supreme Court of Georgia.

Jan. 6, 1982.

Robert D. Matthews, Hartwell, for Savannah Valley Production Credit ass'n.

Joseph S. Skelton, Walter E. Leggett, Jr., Hartwell, for Ann Kesler Cheek.

WELTNER, Justice.

We have received from the Georgia Court of Appeals the following certified question:

"This case involves the grant of summary judgment based upon expert opinion testimony, as well as the record on appeal to the superior court from a probate court after which a motion for summary judgment was filed and granted.

"1. Does the rule as expressed in such cases as Howard v. Walker, 242 Ga. 406, 249 S.E.2d 45 (a 4/1/2 decision); Payne v. Golden, 245 Ga. 784, 267 S.E.2d 211 (a 5/2 decision); and Parker v. Knight, 245 Ga. 782, 267 S.E.2d 222 (a 5/2 decision), as to summary judgment based upon expert testimony apply only to medical and legal malpractice cases, or does it apply to all types of professional malpractice cases as well as the use of expert testimony as to the value of real property?

"2. Does the rule apply to all situations where expert opinion is used in summary judgment cases?

"3. Please advise whether or not the rule in Ginn v. Morgan, 225 Ga. 192, 167 S.E.2d 393; Harrison v. Tuggle, 225 Ga. 211, 167 S.E.2d 395, and such progeny, to the effect that opinion testimony may not be used to support summary judgment, are still valid or have they been modified so as to apply only to 'non-expert opinion cases?' See Howard v. Walker, 242 Ga. 406, 408, 249 S.E.2d 45, supra. Please note that the rulings in these cases (Ginn and Harrison, supra) are based upon the fact that in opinion evidence cases, 'the captains of decisions as to credibility of witnesses' are the members of the jury, and they 'must decide the case.'

"4. Where in a summary judgment proceeding evidence is presented to prove an issue which may be based upon non-expert opinion testimony and/or expert opinion testimony, in the event expert opinion testimony is used, then in that event, will the opposing party in summary judgment be required to produce expert opinion testimony to controvert said expert opinion testimony, or may non-expert opinion testimony be used to controvert expert opinion testimony?"

Most of these questions may be resolved by reference to our opinion in Howard v. Walker, supra:

"The seminal case in Georgia regarding opinion evidence in summary judgment cases was Ginn v. Morgan, 225 Ga. 192(2), 167 S.E.2d 393 (1969). In that case of first impression the court said (225 Ga. at 193-194, 167 S.E.2d 393): 'Thus, we reach the solid conclusion that a summary judgment can never issue based solely upon opinion evidence.' However, that case involved opinion evidence by nonexpert witnesses as to the value of land and the mental competency of the seller. That decision did not consider the differences between cases in which opinions of nonexperts are admissible (as there) versus cases in which only opinions of experts are admissible (as here), and it did not consider differences between cases in which expert opinions are admissible but not essential (as there) versus cases in which at least one expert's opinion is mandatory (as here). In other words, Ginn v. Morgan, supra, was not the type of case in which the plaintiff must produce expert opinion testimony in order to be entitled to have the case considered by a jury and to that extent it was dicta.

"In the case now before us, in order for the plaintiff to recover he must produce opinion testimony of an expert witness. Berman v. Rubin, 138 Ga.App. 849, 853, 227 S.E.2d 802 (1976).

"Although not required to do so at trial, the defendant here has produced an expert's opinion in support of his motion for summary judgment. The plaintiff, although required at a minimum to produce a contrary expert opinion at trial in order to prevail, produced no contrary opinion in opposition to the motion for summary judgment. In a case such as this there is no genuine issue to be resolved by a jury.

"We hold that in those cases where the plaintiff must produce an expert's opinion in order to prevail at trial, when the defendant produces an expert's opinion in his favor on motion for summary judgment and the plaintiff fails to produce a contrary expert opinion in opposition to that motion, then there is no genuine issue to be tried by the jury and it is not error to grant summary judgment to the defendant. Anderson v. Crippen, 122 Ga.App. 27, 176 S.E.2d 196 (1970); Dickerson v. Hulsey, 138 Ga.App. 108, 225 S.E.2d 464 (1976).

"Ginn v. Morgan, supra, and its progeny continue to be correct insofar as nonexpert opinion cases are concerned and insofar as motions for summary judgment in favor of plaintiffs are concerned." Howard v. Walker, supra, 242 Ga. at 407, 249 S.E.2d 45.

The principles enunciated in Howard are applied consistently in Parker v. Knight, supra, and Payne v. Golden.

Hence, the answer to Question One will depend upon whether or not a contention of fact is capable of proof only by expert testimony which, of course, would include medical and legal malpractice cases. Shea v. Phillips, 213 Ga. 269(2), 98 S.E.2d 552 (1957); Berman v. Rubin, supra.

Because the value of real property may be established both by expert opinion evidence and otherwise, matters relative to the establishing of such value are without the rule, and are governed by the principles of Harrison v. Tuggle, ...