Pruitt v. Tyler

Banke, Chief Judge.

This is a personal injury action arising from an automobile collision. The defendant moved for summary judgment based on his contention that the plaintiff had not suffered a “serious injury” within the meaning of OCGA § 33-34-2 (13) and was thus precluded from recovering damages for noneconomic loss pursuant to OCGA § 33-34-9 (a). The plaintiff appeals the grant of that motion.

The plaintiff admitted in response to interrogatories submitted by the defendant that she had suffered no lost wages, broken bones, or scars as a result of the accident and that her medical expenses had totalled only $99; and it was on the basis of these admissions that the *175trial court granted the defendant’s motion for summary judgment. The trial court made no mention in its order of the fact that several days prior to the hearing on the motion, but more than 30 days after the filing thereof, the plaintiff had filed an opposing affidavit in which she averred that she had had a paying boarder at the time of the collision for whom she was furnishing a room and two meals a day and that, for more than two weeks subsequent to the collision, she had been unable because of her injuries either to prepare these meals or to do housework in connection with maintaining her residence. At issue in this appeal is whether this affidavit was properly before the trial court and, if so, whether it created a material issue of fact with respect to whether the plaintiff suffered a “serious injury.” Held:

1. The Civil Practice Act specifies that “[t]he adverse party prior to the date of [the summary judgment] hearing may serve opposing affidavits.” OCGA § 9-11-56 (c). (Emphasis supplied.) See also OCGA § 9-11-6 (d). The certificate of service submitted in connection with the plaintiffs affidavit reflects that the affidavit was mailed to counsel for the defendant several days prior to the hearing on the motion for summary judgment. “ ‘Service by mail is complete upon mailing.’ [Cit.] Accordingly, the materials were served one day before the hearing as required by [OCGA §§ 9-11-6 (d) and 9-11-56 (c)].” Liberty Forest Prods, v. Interstate Paper Corp., 138 Ga. App. 153, 154 (225 SE2d 731) (1976). However, Rule 6.2 of the Uniform Superior Court Rules provides: “Unless otherwise ordered by the judge, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion.” By that standard, the affidavit was not timely submitted.

Pretermitting whether Rule 6.2 of the Uniform Superior Court Rules can be reconciled with OCGA §§ 9-11-6 (d) and 9-11-56 (c), it is clear that an objection to the timeliness of an affidavit submitted in response to a motion for summary judgment will be deemed waived unless it is itself timely raised in the trial court. See, e.g., Southeastern Hose v. Prudential Ins. Co., 167 Ga. App. 356, 358 (3) (306 SE2d 308) (1983); Williams v. Universal Decorators, 161 Ga. App. 165, 166 (2) (288 SE2d 115) (1982). See also Bell v. Sellers, 248 Ga. 424 (1), 426 (283 SE2d 877) (1981); Porter Coatings v. Stein Steel &c. Co., 247 Ga. 631 (278 SE2d 377) (1981), and Bradbury v. Mead Corp., 174 Ga. App. 601 (1) (330 SE2d 801) (1985).

Although the defendant asserts in his brief on appeal that he both objected to and moved to strike the plaintiffs affidavit at the time of the hearing on the summary judgment motion, there is nothing in the record to substantiate this, and the court’s order is silent on the issues of whether the affidavit was considered and, if not, why not. It is well settled that this court will not consider factual repre*176sentations made in a brief which are not supported by the record. See, e.g., Coopers & Lybrand v. Cocklereece, 157 Ga. App. 240, 245 (276 SE2d 845) (1981). If in fact the defendant made a timely objection to the affidavit but omitted to perfect the record to this effect, a procedure was still available to him pursuant to OCGA § 5-6-41 (f) by which the omission could have been corrected, even after the filing of the notice of appeal. See Boats for Sail v. Sears, 158 Ga. App. 74 (279 SE2d 314) (1981). Because this procedure was not utilized, we must conclude, on the basis of the record before us, that the plaintiff’s affidavit was not objected to and was thus properly before the trial court.

2. It is reasonably inferrable from the affidavit that the plaintiffs principal productive activity prior to the accident consisted of furnishing meals and maintaining a residence for herself and a paying boarder and that for a period of more than 10 days immediately following the automobile collision she was unable to engage in such activity. Cf. Garrison v. Hutton, 149 Ga. App. 39 (253 SE2d 406) (1979). Consequently, we must conclude that a material issue of fact exists as to whether the plaintiff suffered a “serious injury” within the contemplation of OCGA §§ 33-34-2 (2) and 33-34-2 (13), and we hold that the trial court erred in granting the defendant’s motion for summary judgment.

Judgment reversed.

Deen, P. J., Birdsong, P. J., Sognier, Ben-ham, and Beasley, JJ., concur. Deen, P. J., Benham and Beasley, JJ., also concur specially. McMurray, P. J., Carley and Pope, JJ., concur specially.