Spikes v. Citizens State Bank

• Decision Date: 24 June 1986
• Docket Number: Nos. 71797,71798,s. 71797
• Citation: 347 S.E.2d 310,179 Ga.App. 479
• Court: Georgia Court of Appeals
• Parties: SPIKES v. CITIZENS STATE BANK (two cases).

Page 310

347 S.E.2d 310

179 Ga.App. 479

SPIKES v. CITIZENS STATE BANK (two cases).

Nos. 71797, 71798.

Court of Appeals of Georgia.

June 24, 1986.

Phillip M. Eddings, Stephen L. Berry, St. Marys, for appellant.

Gerald E. Wilkerson, St. Marys, John J. Ossick, Jr., Kingsland, for appellee.

BENHAM, Judge.

Appellant, Johnny Spikes, allegedly made an oral agreement with his uncle, Bobby Spikes, in March 1975 that Johnny would pay the arrearage and make regular payments on a note Bobby executed in 1972. The note, held by appellee Citizens State Bank ("Citizens"), was backed by a deed to secure the debt for a piece of real estate appellant's uncle owned. Bobby allegedly agreed to execute a warranty deed to appellant for the property in exchange for the note payments. Appellant further alleged that an agent of appellee Citizens consented to the agreement between Bobby and appellant, and promised to execute and deliver the deed to appellant for Bobby. Appellant moved onto the property and began making payments, although he did not have the deed. Citizens did not execute and deliver the deed as promised and in 1978 instituted foreclosure proceedings against the real property to recover on the 1972 note and a 1976 note that Bobby made, both of which were in arrears at that time and were secured by the property. After the foreclosure proceedings began, appellant's uncle executed a deed to Kingsland Church of God ("Kingsland") in exchange for its payment of the full amount still owed on both of the notes. Kingsland then filed suit against appellant to gain possession of the property. Appellant filed suit against Citizens, claiming it fraudulently misrepresented that it would prepare and deliver the deed if he assumed his uncle's 1972 loan payments. The trial court consolidated the cases, and after discovery Citizens filed a motion for summary judgment, to which appellant did not respond. The trial court granted judgment in favor of Citizens, and appellant seeks a reversal. We affirm.

1. Appellant contends that Citizens' motion for summary judgment should not have been granted because an oral hearing was not held and no 30-day notice of hearing was given, citing OCGA § 9-11-56 and Ferguson v. Miller, 160 Ga.App. 436, 287 S.E.2d 363 (1981). He further argues that the Uniform Court Rules of the Superior Courts ("Rules") 6.2 and 6.3 conflict with OCGA § 9-11-56 insofar as they attempt to remove one's right to notice and a hearing on summary judgment motions. We do not find that the Rules conflict with OCGA § 9-11-56 as appellant contends. Moreover, we conclude that appellant did receive adequate notice of the hearing and that he chose to ignore it, which resulted in the trial court's ruling on the motion without his response.

The Rules, created in accordance with the directive of Art. VI, Sec. IX, Par. I of the 1983 Georgia Constitution, apply to all parties and attorneys who have business in the various superior courts of this state. In this way the Rules differ substantially from the myriad local rules under which the various courts had been operating until July 1, 1985. On that date, all persons who used the superior courts were deemed to have knowledge of the Rules and were expected to comply with them. Rule 6.2 requires a party who opposes a motion to file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion unless otherwise ordered by the trial judge. The rule does not conflict with OCGA § 9-11-56 (c), which requires that "the motion be served at least 30 days before the time fixed for hearing," nor does the rule impose any new requirement on a party; now, as before, he may choose not to respond and run the risk of having judgment rendered against him. Rule 6.2 puts parties on notice that the time for hearing will be no less than 31 days after service of the summary judgment motion unless otherwise ordered, since the trial judge would by that time have received the opposing party's response to the motion. The rule also provides an opportunity to be heard, by allowing a 30-day period for response to the motion. The hearing would be by means of the trial court's review of the parties' contentions as filed, since a "hearing" does not necessarily mean an oral hearing or argument, but contemplates notice to the respondent that the matter will be heard and taken under advisement as of a certain day. Ferguson v. Miller, supra at 437, 287 S.E.2d 363.

If appellant wanted to present oral argument, all he needed to do was request it in writing as provided in Rule 6.3 and it would have been permitted. Rule 6.3 does not conflict with OCGA § 9-11-56, since it does not "[require] that litigants seek a hearing or waive it, [nor does it invest] the trial court with discretion to deny to parties a right granted by statute." Premium Distrib. Co. v. Nat. Distrib. Co., 157 Ga.App. 666, 669, 278 S.E.2d 468 (1981). "The obvious purpose of a hearing on a motion for summary judgment is to provide counsel with an opportunity to persuade the court and to provide the court with an opportunity to interrogate counsel." Id. at 670, 278 S.E.2d 468. Rules 6.2 and 6.3 meet that purpose.

Our review of the record reveals that appellant's failure to comply with Rules 6.2 and 6.3 resulted in his loss of opportunity to persuade the trial court. It is undisputed that appellant did not file a response pursuant to Rule 6.2. Neither did he file a written request for oral hearing pursuant to Rule 6.3. The trial court entered summary judgment in appellees' favor on August 23, more than two months after appellee's motion was filed. Under the circumstances, appellant had sufficient notice that judgment was imminent and gave up his opportunity to be heard. See Premium Distrib. Co., supra.

In his briefs, appellant claims that he offered to respond to the motion. We cannot consider appellant's "Exhibit A," a copy of a letter dated August 14, 1985, in which he says he could respond to the motion in the next two weeks, as part of the record since it was not included therein. Strickland v. American Motorists Ins. Co., 149 Ga.App. 690, 256 S.E.2d 92 (1979). Since appellant failed to comply in any way with the Rules under which he was supposed to operate, he cannot be heard to complain that the wheels of justice have rolled over him.

2. Appellant contends that even if the Rules apply to his situation, the trial court nevertheless committed reversible error in granting Citizens' motion for summary judgment. W...