Realty Contractors, Inc. v. Citizens & Southern National Bank

245 S.E.2d 342, 146 Ga. App. 69, 1978 Ga. App. LEXIS 2253

• Court: Court of Appeals of Georgia
• Decided: May 3, 1978
• Docket: 55748, 55749
• Status: Published

Opinions

Deen, Presiding Judge.

Realty Contractors, Inc. and Burton J. Epstein appeal from the grant of appellee’s motion for summary judgment complaining that the trial court failed to consider the entire record in granting appellee’s motion.

After ruling on the motion, the court admitted: "I have, except for the depositions that were opened that were not cited by counsel, not brought to the court’s attention, the court frankly has not read those. He has passed on without reading them. It is noted nothing was said about Fannin’s or Baer’s deposition that was relevant, and the court would rule you waived anything in those depositions that might have been relevant.”

"Since this court is not empowered to rule upon matters not ruled upon below, thus eliminating from consideration here the depositions. . . not considered below, and since the party opposing the motion for summary judgment is to be given the benefit of all reasonable doubts in determining whether a genuine issue of material fact exists (Burnette Ford, Inc. v. Hayes, 227 Ga. 551 (181 SE2d 866); Capital Auto. Co. v. General Motors Acceptance Corp., 119 Ga. App. 186 (166 SE2d 584)), it is our view that the judgment must be reversed and the case remanded for the trial court to enter a new order after taking into consideration 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any...’ CPA § 56 (c) (Code Ann. § 81A-156 (c)). 'Nowhere in the statute [CPA § 56] is there any requirement that these items be introduced into evidence. In fact, it seems to us, that due to the harsh nature of the remedy involved, a trial judge should always search the entire record before granting a motion for summary judgment, and should not limit himself to the evidence introduced at the hearing.’ Thompson v. Abbot, 226 Ga. 353, 355 (174 SE2d 904). (Emphasis supplied.)” Jackson v. Couch Funeral Home, Inc., 131 Ga. App. 695 (206 SE2d 718) (1974).

Argued April 4, 1978 Decided May 3, 1978 Rehearing denied May 22, 1978.

Further, " '[t]he parties need not formally offer their outside matter as evidence or have it marked as an exhibit at the hearing on the motion. Given this process, the court is obliged to take account of the entire setting of the case on a Rule 56 motion. In addition to the pleadings, it will consider all papers of record, as well as any material prepared for the motion that meets the standard prescribed in Rule 56 (e). The court must consider the material submitted by both of the parties, of course.’ 10 Wright & Miller, Federal Practice and Procedure: Civil § 2721, p. 476. (Emphasis supplied.)” Jackson v. Couch Funeral Home, Inc., supra, p. 696.

Accordingly, this judgment must be reversed and remanded.

Judgment reversed and remanded.

Smith, J., concurs. Banke, J., concurs specially. Macey & Zusmann, Thomas R. Todd, Jr., Steven Schaikewitz, for appellants. Alston, Miller & Gaines, Jack H. Senterfitt, for appellee.