SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
June 12, 2015
In the Court of Appeals of Georgia
A15A0580. SMITH et al. v. DILL’S BUILDERS, INC.
MILLER, Judge.
Dill’s Builders, Inc. (“DBI”) filed suit against Sharon T. Smith and Meiko A.
Camp (collectively, “the Defendants”) to collect the balance due on a contract to
build a new home. The trial court granted summary judgment to DBI, finding that
Smith’s affidavit in response to DBI’s motion was insufficient to establish genuine
issues of material fact. The Defendants appeal, contending that (1) summary judgment
was premature as to Camp because the trial court failed to resolve pending
jurisdictional issues, and (2) summary judgment was not warranted because genuine
issues of material fact remain as to whether DBI adequately performed under the
contract. For the reasons that follow, we reverse and remand.
On appeal from a grant of summary judgment, we conduct a de
novo review of the evidence to determine if there exists a genuine issue
of material fact and whether the undisputed facts, viewed in the light
most favorable to the nonmoving party, entitle the movant to judgment
as a matter of law.
(Citation omitted.) Capital Color Printing v. Ahern, 291 Ga. App. 101, 102 (661
SE2d 578) (2008).
Viewed in the Defendants’ favor, the evidence shows that on January 21, 2006,
Smith and her daughter, Camp, executed a written contract with DBI for the
construction of a new house. In executing the contract, Smith and Camp approved the
drawings and specifications prepared by DBI. The contract price was $167,795, and
the contract provided that the house would be completed within six months of the
start date. On the same date that the contract was executed, Smith signed a blank
change order, which Smith alleged was later completed by DBI.
During construction, Smith complained to DBI about discrepancies between
the plans and the usuable square footage of the house, as well as the workmanship of
the construction. Following completion of the house in October 2006, Smith and DBI
conducted a walk-through, and Smith noted several issues that needed to be fixed.
DBI promised to have the problems repaired, but failed to do so. After Smith refused
to pay the balance on the contract, DBI sent Smith a demand letter requesting
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payment of $25,049 plus penalties and fees. DBI then filed a lien against the property
and, later, this suit.
In their answer, the Defendants generally denied DBI’s allegations and raised
counterclaims for breach of contract, fraud, and slander of title, based on allegations
that DBI did not meet contractual obligations in constructing the house,
misrepresented the usable square footage of the house, and filed an invalid lien. In
their answer, the Defendants also moved to dismiss the complaint against Camp based
on insufficiency of process, alleging that Camp was not personally served with the
summons, the summons against Camp was served on Smith, and Camp was not living
with Smith at the time.
DBI subsequently moved for summary judgment. In support of its motion, DBI
submitted affidavits stating that Smith approved change orders and allowed overages
which increased the contract price of the house to $173,044, and that the Defendants
failed to pay the final statement. DBI presented evidence showing that Smith
approved DBI’s construction drawings, the drawings made no representations about
the usable space, and Smith understood that she should have the drawings reviewed
by a professional architect or engineer before construction started.
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In response, Smith submitted her own affidavit averring, inter alia, that DBI
reduced the usable square footage of the house, she did not approve changes that
increased the cost of the house, and DBI failed to fix issues with the house as
contractually required. The trial court granted summary judgment to DBI, concluding
that Smith’s affidavit was insufficient to support the Defendants’ general denials,
affirmative defenses, and counterclaims.
1. The Defendants contend that the trial court prematurely granted summary
judgment to DBI against Camp because it needed to first rule on the service and
jurisdictional defenses raised in their answer. We agree.
When the record reflects that a judgment was rendered by a [trial]
court which has failed to address a properly preserved jurisdictional
issue, this Court . . . will reverse the judgment and remand the case for
consideration of the pending jurisdictional issue.
(Citation omitted.) Rome v. Polyidus Partners LP, 322 Ga. App. 175, 176 (1) (744
SE2d 363) (2013).
Here, Camp raised the defenses of insufficient service of process and lack of
personal jurisdiction in her answer and reasserted these defenses in her response to
DBI’s motion for summary judgment. Consequently, Camp preserved these issues for
adjudication. See Shropshire v. Alostar Bank of Commerce, 314 Ga. App. 310, 315-
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316 (4) (724 SE2d 33) (2012). Compare Rome, supra, 322 Ga. App. at 176-177 (1)
(lack of personal jurisdiction not preserved where defendant raised the issue in his
answer but failed to reassert or reserve the defense in moving for summary judgment).
The trial court did not rule on Camp’s service and personal jurisdiction
defenses, either in its order granting summary judgment to DBI or otherwise.
Therefore, the trial court’s grant of summary judgment on the merits of DBI’s claims
against Camp was premature. See Shropshire, supra, 314. Ga. App. at 316 (4); Baiye
v. Gober, 254 Ga. App. 288, 290 (2) (562 SE2d 249) (2002) (it was premature for the
trial court to rule on the merits of the case without addressing the defendants’ service
and jurisdictional defenses). Accordingly, we reverse the grant of summary judgment
against Camp and remand for the trial court to consider her service and jurisdictional
defenses. See Shropshire, supra, 314. Ga. App. at 316 (4).
2. The Defendants also contend that the trial court erred in granting summary
judgment to DBI against Smith because Smith’s affidavit created genuine issues of
material fact as to whether DBI adequately performed under the contract, and whether
as a result, DBI was entitled to full payment under the contract. We agree.
“A party opposing a motion for summary judgment, where the moving party
has presented evidence of the necessary certitude, must, in [her] opposing affidavits,
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set forth specific facts showing a genuine issue to be decided.” (Citations omitted.)
Bogart v. Wisconsin Institute for Torah Study, 321 Ga. App. 492, 495 (3) (739 SE2d
465) (2013). In order to be considered by the trial court, affidavits
opposing summary judgment must be made on personal knowledge and
must set forth such facts as would be admissible in the evidence. All
hearsay evidence, unsupported conclusions, and the like, must be
stricken or eliminated from consideration in a motion for summary
judgment. A self-serving, conclusory affidavit not supported by fact or
circumstances is insufficient to raise a genuine issue of material fact.
(Footnote omitted.) Liles v. Innerwork, Inc., 279 Ga. App. 352, 353 (1) (631 SE2d
408) (2006).
Here, Smith averred that DBI agreed and was contractually obligated to fix the
issues noted during the walk-through, and DBI failed to do so. In addition to her own
statements, Smith cited the building contract at issue, which provides that, at the
walk-through,
[a]ll mutually agreed items shall be listed. The dollar value to be
withheld by the Owner for each item shall be mutually agreed upon by
the Owner and DBI. These amounts shall be [withheld] from the final
payment, then shall be paid to DBI as soon as each individual item has
been completed. The final payment, less the withheld amounts, shall be
paid immediately and before items are completed.
Moreover, Smith averred that she did not approve the change orders completed by
DBI. Whether Smith approved the change orders, and whether any amounts should
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be withheld from the final payment due to unresolved building issues, are issues that
would affect the amount due to DBI.
Since Smith was a party to the building contract and was present during the
walk-through, her affidavit is based on personal knowledge. See Ellison v. Hill, 288
Ga. App. 415, 417 (1) (654 SE2d 158) (2007) (“The personal knowledge requirement
set forth in OCGA § 9-11-56 (e) is met where the contents of the pleading indicate
that material parts of it are statements within the personal knowledge of the affiant,
as opposed to being made upon information and belief.”) (footnote omitted).
Therefore, contrary to the trial court’s ruling, Smith’s affidavit was sufficient to
establish the existence of genuine issues of material fact as to the final payment due
to DBI. Consequently, we reverse the grant of summary judgment to DBI on its
claims against Smith. Since the trial court also concluded that Smith’s counterclaims
failed because her affidavit was insufficient, the trial court also erred in granting
summary judgment to DBI on Smith’s counterclaims. Accordingly, we reverse.
Judgment reversed and remanded. Andrews, P. J., and Branch, J., concur.
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