Cain v. Moore

Beasley, Judge,

concurring specially.

I concur in that part of the opinion which concludes that this direct appeal must be dismissed because it is from an order denying a motion to set aside a judgment, which requires an application under OCGA § 5-6-35 (a) (8).

I do not agree that the motion was based on equitable grounds. Plaintiff complained that the court in effect granted a default summary judgment, basing it on the lack of a response by plaintiff, which the court interpreted as meaning that the motion was unopposed. USCR 6.5 sets out what a response to a summary judgment motion shall include, and USCR 6.2 provides that a party opposing any motion shall respond within 30 days. But OCGA § 9-11-56 (c) only allows summary judgment if the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” There is no such thing as a default summary judgment. Hughes v. Montgomery Contracting Co., 189 Ga. App. 814, 815 (377 SE2d 723) (1989); McGivern v. First Capital &c. Prop., Ltd., 188 Ga. App. 716, 717 (1) (373 SE2d 817) (1988). This is a legal, not an equitable, ground.

The trial court cited Henderson v. Caughran, 182 Ga. App. 657 (356 SE2d 721) (1987), as authority, but in that case, where defendant’s response to plaintiff’s motion for summary judgment was beyond the 30-day limit so was correctly not considered, the record sup*729ported summary judgment for plaintiff.

Decided March 10, 1993. Joyner & Joyner, Gordon L. Joyner, for appellant. Michael J. Bowers, Attorney General, Alfred L. Evans, Jr., Mark H. Cohen, Senior Assistant Attorneys General, Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, M. B. Satcher III, for appellees.

It was plaintiff’s primary ground for the motion in this case that, as a matter of law, the record did not support summary judgment even without a response to defendant’s motion. OCGA § 9-11-60 (d) allows motions to set aside when there is a nonamendable defect on the face of the record, which is what plaintiff’s contention was. This, too, is a legal rather than an equitable ground. Plaintiff argued below that there were two conflicting affidavits, which created a genuine issue of material fact: the expert’s affidavit filed with the complaint pursuant to OCGA § 9-11-9.1 and defendant Dr. Moore’s affidavit, which was filed in support of his motion for summary judgment.

Plaintiff explained in his motion that the reason he had not filed a response, although he contended he did not need one to defeat summary judgment, was because of a family crisis, and that this was also the reason for the time period before filing the motion in the still-pending case. But this did not create an equitable ground. Actually, OCGA § 9-11-60 (f) allows such motions within three years from the entry of judgment; plaintiff’s motion was filed within eight months.

Nevertheless, we cannot rule on the legal merits of appellant’s motion because he has followed the wrong route to this court.