Town of Register v

Fortner, 262 Ga. App. 507, 586 S.E.2d 54 (2003). Delivery drivers. — In a personal injury action filed by an injured driver, the trial court granted summary judgment to a bus delivery courier on grounds that the delivery person who the driver alleged caused the accident was an independent contractor, and not the courier’s employee as: (1) the courier did not control how the delivery person carried out the delivery of the bus, or what route to take in making the delivery; (2) the delivery person was required to comply with all governmental requirements, was required to maintain log books, and was required to pay all incidental fees and taxes; and (3) a requirement that the bus be delivered the next day was placed on the delivery person by the buyer, and not the courier. Larmon v. CCR Enters., 285 Ga. App. 594, 647 S.E.2d 306 (2007). Uninsured motorist coverage. — Insurer was properly granted summary judgment in an insured’s action for uninsured motorist coverage because there was no evidence of actual physical contact between the insured and an unknown driver, who allegedly struck either a manhole cover or the bottom of a construction barrel that then struck the insured’s car, nor was there any corroborating eyewitness evidence. Hambrick v. State Farm Fire & Cas. Co., 260 Ga. App. 266, 581 S.E.2d 299 (2003). Teenager driving past curfew. — In a case in which the injured parties sought punitive damages from a motorist who collided with their vehicle because the motorist was a minor whose license did not allow the minor to drive after 1:00 a.m., and the collision occurred after 1:00 837 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) a.m., the minor was entitled to partial summary judgment dismissing the punitive damages claim because the time the motorist was driving did not proximately cause the accident, nor was the motorist’s action part of a pattern or policy of dangerous driving, such as driving while intoxicated or speeding excessively. Brooks v. Gray, 262 Ga. App. 232, 585 S.E.2d 188 (2003). Pending cross action. — Motion for summary judgment will lie on the ground of pendency of substantially the same cross-claim filed against the party in a former action. Reeves Transp. Co. v. Gamble, 126 Ga. App. 165, 190 S.E.2d 98 (1972). Summary judgment proper notwithstanding failure to show factual issues when counterclaim could not stand on own. — Because a housing authority failed to show that factual issues regarding the counterclaim brought by a husband and wife alleging violations of the Open Records Act, O.C.G.A. § 50-18-70 et seq., must have been decided in its favor, the trial court erred in granting summary judgment in favor of the authority on this claim; but since the husband and wife did not appeal the summary judgment for the authority on their slander claim, and since the civil conspiracy claim could not stand without this underlying tort, summary judgment for the authority on this issue was proper. Strange v. Hous. Auth. of Summerville, 268 Ga. App. 403, 602 S.E.2d 185 (2004). Oral contract to make a will. — Trial court properly granted summary judgment for an executor in a suit by a child of the decedent alleging that the decedent orally contracted to leave a portion of the decedent’s estate to the child as: (1) the validity of an agreement to make a will was a substantive matter for choice of law purposes, so Florida law applied; (2) oral contracts to make a will were invalid under Fla. Stat. ch. 732.701(1); and (3) the decedent’s child failed to identify any terms in an earlier will made by the decedent that stemmed from a contract to 9-11-56 leave a portion of the estate to the child. Harper v. Harper, 267 Ga. App. 553, 600 S.E.2d 659 (2004). Probate of will. — If the evidence authorizes it, a superior court is empowered to grant summary judgment probating a will in solemn form so as to administer a decedent’s estate. Taylor v. Donaldson, 227 Ga. 496, 181 S.E.2d 340, cert. denied, 404 U.S. 805, 92 S. Ct. 163, 30 L. Ed. 2d 38 (1971). On appeal to the superior court from the probate court of a proceeding to probate a will, under O.C.G.A. § 9-11-56, either party may move for summary judgment. Tony v. Pollard, 248 Ga. 86, 281 S.E.2d 557 (1981). Trial court properly granted the widow’s and the co-executor’s motion for summary judgment and denied the family members’ motion against the decedent’s widow and the co-executor for partial summary judgment in the family members’ lawsuit seeking their alleged share of the portion of the decedent’s estate that the decedent inherited under the decedent’s father’s will, because of the transfer documents from a family settlement that occurred under the father’s will and because the decedent left a lineal descendent surviving the descendent in decedent’s adopted child. Haley v. Regions Bank, 277 Ga. 85, 586 S.E.2d 633 (2003). Summary judgment, pursuant to O.C.G.A. § 9-11-56, was reversed because a genuine issue of material fact remained as to whether a transfer of money to the decedent’s child before the decedent died was an advancement on the child’s inheritance, and whether the child breached a fiduciary duty as a result. Walters v. Stewart, 263 Ga. App. 475, 588 S.E.2d 248 (2003). Trial court erred in granting summary judgment pursuant to O.C.G.A. § 9-11-56 to will caveators in a will propounder’s action seeking to probate a decedent’s will because the decedent had sufficiently signed the will on the signature line of the self-proving clause, pursuant to O.C.G.A. § 53-2-40.1, and there existed two competent witness signatures, which were sufficient for attestation purposes; accordingly, the statutory requirements for proper execution of a will under O.C.G.A. § 53-2-40 838 appeared to have been met and a jury issue was raised as to whether, in fact, the requirements were met. Miles v. Bryant, 277 Ga. 362, 589 S.E.2d 86 (2003). Will provision did not require the executors to fund a marital trust with non-publicly traded stock, and did not conflict with the executor’s power to fund the trust with assets the executor deemed advisable; since the will empowered the executors to sell the estate’s assets and did not require them to fund the trust with the specific stock, the parol evidence rule barred use of an affidavit of the attorney who prepared the will to shed light on the testator’s intent, and summary judgment in favor of a wife and against the executors was reversed. Reynolds v. Harrison, 278 Ga. 495, 604 S.E.2d 184 (2004). In a probate action, because the testatrix’s older four children failed in their burden of showing undue influence at the time that the will was executed, and an affidavit submitted by one of the testatrix’s older children did not change this result, as such consisted of inadmissible hearsay, the superior court properly granted summary judgment to the testatrix’s youngest child. Barber v. Holmes, 282 Ga. 768, 653 S.E.2d 448 (2007). Co-executors’ conduct in an estate administration. — Trial court erred in granting summary judgment to the co-executors in claims of breach of fiduciary duty and constructive fraud or conspiracy filed by the beneficiaries of an estate because it was necessary for a jury to decide whether the co-executors breached their fiduciary duties to the beneficiaries or committed constructive fraud or engaged in a conspiracy through their actions due to the factual questions that arose regarding the co-executors’ actions. Bloodworth v. Bloodworth, 260 Ga. App. 466, 579 S.E.2d 858 (2003). Processioning proceeding. — When the protestant in a processioning proceeding pleaded a defense of res judicata and moved for summary judgment on this ground, the supporting motion with the record of a prior processioning proceeding between the same parties concerning the same issue of boundary, and in which the protestant obtained judgment, and the 9-11-56 applicant made no contrary showing, a motion for summary judgment was properly granted. Souther v. Kichline, 124 Ga. App. 111, 183 S.E.2d 87 (1971). Promissory note. — Ordinarily, summary judgment offers a speedy and efficient disposition of a case if there is an executed promissory note and the sole question is how much, if any, is due. Pollard v. First Nat’l Bank, 169 Ga. App. 598, 313 S.E.2d 785 (1984). Because a guarantor’s daughter and son-in-law’s bankruptcy plan did not identify the guarantor’s obligation on promissory notes that the guarantor co-signed in favor of a bank, the inquiry mandated by 11 U.S.C. § 1322(b)(1) was not performed, the guarantor’s liability to the bank was not discharged by the bankruptcy court’s judgment, the bank was entitled to recover principal and interest due on the promissory notes in an action filed in state court, and the state trial court properly granted the bank’s motion for summary judgment against the guarantor. Hampton v. Bank of Lafayette, 259 Ga. App. 677, 578 S.E.2d 486 (2003). In an action filed by a trust on a promissory note and guaranty against a guarantor, the trial court properly granted the trust summary judgment as the guarantor’s unsworn affidavit did not qualify as competent evidence creating a factual issue as to the issue of whether the guarantor was entitled to a setoff; moreover, the court disagreed that the guaranty showed that the guarantor signed the guaranty in a representative capacity. Keane v. Annice Heygood Trevitt Support Trust, 285 Ga. App. 155, 645 S.E.2d 641 (2007). Former member of a golf club was not entitled to summary judgment in the club’s suit on a promissory note for an installment plan of a non-refundable membership as the member breached the note by failing to pay the final two installments, the club was entitled to keep the sums paid as liquidated damages, consideration was adequate, the fees paid for initiation were not contingent on the continuation of a membership, and nothing in the record showed that the membership contract was ever rescinded. Bonem v. Golf Club of Ga., Inc., 264 Ga. App. 573, 591 S.E.2d 462 (2003). 839 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) After obtaining consent from the probate court to sell construction equipment an executrix’s decedent secured with a promissory note, the executrix was entitled to summary judgment as to the tort claims alleged against the decedent’s corporation, after the corporation wrongfully retained possession of the equipment, converted two certificates of deposit, and the decedent’s liability on the notes was extinguished under a provision of a stock sales agreement; furthermore, evidence was presented that the corporation’s failure to release the equipment prevented the equipment’s sale to third parties and thereby constituted a breach of a duty to mitigate damages. Midway R.R. Constr. Co. v. Beck, 281 Ga. App. 412, 636 S.E.2d 110 (2006). In an action to recover on two promissory notes, because material fact issues remained regarding the consideration given for the promissory notes, creating an ambiguity for which parol evidence was admissible, and as to whether the notes were signed as part of the same transaction, summary judgment to either the lender or the debtor was inappropriate. Foreman v. Chattooga Int’l Techs., Inc., 289 Ga. App. 894, 658 S.E.2d 470 (2008). Negotiable instruments. — Trial court did not err in granting summary judgment to a bank and a credit union on claims of conversion, civil conspiracy, and for attorney fees and punitive damages as: (1) no probative evidence existed that the buyer received delivery of the check, and thus, it never became a holder of the instrument at issue or entitled to enforce it; (2) no evidence was presented that the bank and credit union acted in concert against the buyer; (3) no evidence of misconduct or bad faith on the part of the bank or the credit union was presented; but, the trial court properly found that a genuine issue of material fact existed as to whether the bank and the credit union were holders in due course. Hartsock v. Rich’s Emples. Credit Union, 279 Ga. App. 724, 632 S.E.2d 476 (2006). 9-11-56 Debtor and creditors. — Trial court erred in entering summary judgment for a creditor in a debtor’s suit seeking to quiet title as: (1) a co-debtor paid the creditor’s note in full, which extinguished the debt; (2) once the note was paid, the collateral should have been released; (3) the creditor could not assign the note to the co-debtor; (4) the co-debtor had only a right to contribution as there was no indication that the co-debtor was a surety under the co-debtor’s agreement with the debtor; and (5) O.C.G.A. § 9-13-78 was inapplicable as the statute pertained to co-defendants against whom a judgment had been obtained. Johnson v. AgSouth Farm Credit, 267 Ga. App. 567, 600 S.E.2d 664 (2004). In an action to recover the balance of the money owed under a loan, because the guarantor of the loan failed to show the lack of an adequate foundation for the admitted evidence, a claim that the trial court erred in admitting the loan history report as a business record failed; hence, the proponent bank was properly granted summary judgment on the issue. Ishak v. First Flag Bank, 283 Ga. App. 517, 642 S.E.2d 143 (2007). Trial court’s order granting summary judgment to a collection company, and against a debtor, in the former’s deficiency action, was upheld on appeal as it was not based on inadmissible hearsay, but upon records admissible under the business records exception to the hearsay rule, and was dispositive of the debtor’s counterclaims, which arose out of the company’s request for a deficiency judgment. Boyd v. Calvary Portfolio Servs., 285 Ga. App. 390, 646 S.E.2d 496 (2007). Because genuine material fact issues remained as to a portion of the indebtedness owed to a creditor by a debtor, the creditor was not entitled to summary judgment as to that portion; moreover, the debtor was not entitled to a credit for the debtor’s payment to the creditor as one of the signatories on the account admitted that such was made on behalf of another corporation the debtor’s president and vice-president owned. Sweet Water Tree Farm, Inc. v. J. Frank Schmidt & Son, Inc., 287 Ga. App. 455, 651 S.E.2d 787 (2007). 840 Action to collect unpaid credit card debt. — Because an action filed by a creditor to collect unpaid credit card charges was based on a written contract, and not an open account, the trial court properly held that the six-year limitations period under O.C.G.A. § 9-3-24 applied, supporting summary judgment in the creditor’s favor; moreover, because the transaction at issue was a written contract, the form of the debtor’s acceptance was immaterial. Hill v. Am. Express, 289 Ga. App. 576, 657 S.E.2d 547 (2008), cert. denied, 2008 Ga. LEXIS 490 (Ga. 2008). Actions against financial institutions. — In an action filed by a bank customer’s son after the bank paid the customer the proceeds of a certificate of deposit (CD) the customer purchased in both the customer’s name and the son’s name, alleging violations of the son’s rights in the CD, the appellate court held that the bank was protected from liability by O.C.G.A. §§ 7-1-816 and 7-1-820 because the customer’s telephone request for redemption was made in accordance with conditions of the customer’s account and the bank’s regulations, and the appellate court affirmed the trial court’s judgment granting summary judgment for the bank. South v. Bank of Am., 260 Ga. App. 91, 579 S.E.2d 80 (2003). When a debtor who purchased credit disability insurance sued a creditor for wrongful repossession, the trial court erroneously granted summary judgment to the creditor, under O.C.G.A. § 9-11-56(c), because the creditor had an obligation to look to the credit disability insurance first before repossessing the debtor’s vehicle. Corbin v. Regions Bank, 258 Ga. App. 490, 574 S.E.2d 616 (2002). Bankruptcy. — In a Chapter 7 bankruptcy proceeding, a debtor’s failure to remit lottery proceeds from the debtor’s retail store to the Georgia Lottery Corporation satisfied the defalcation while acting in a fiduciary capacity exception to the discharge provision under § 523(a)(4) of the Bankruptcy Code, 11 U.S.C. § 523(a)(4); thus, summary judgment in favor of the Corporation on the issue of liability was proper. Georgia Lottery Corp. v. Thompson (In re Thompson), 296 B.R. 9-11-56 563 (Bankr. M.D. Ga. 2003). Re-acceptance of vehicle after alleged revocation. — Buyer’s acts of ownership over a truck after informing the buyer’s creditor that the buyer would be returning the truck constituted, as a matter of law, re-acceptance of the vehicle; therefore, there was no genuine issue of fact with respect to the buyer’s revocation of acceptance and the trial court did not err in granting summary judgment. Olson v. Ford Motor Co., 258 Ga. App. 848, 575 S.E.2d 743 (2002). Repossession of vehicle. — Trial court properly granted summary judgment to an auto dealer, a mortgage broker, and a lender on the accused person’s claim for tortious interference with business relations; even if it was assumed that the accused person had established all the other elements of tortious interference regarding the repossession of a vehicle another person bought using the accused person’s name, the accused person did not offer any proof that they acted maliciously by reporting the repossession. Blakey v. Victory Equip. Sales, inc., 259 Ga. App. 34, 576 S.E.2d 38 (2002). Summary judgment was properly entered for a credit union on an owner’s claim for wrongful possession as the owner defaulted on the agreement with the credit union by failing to pay the storage fees for the car which resulted in a garageman’s lien; under O.C.G.A. § 11-9-601(a), as the owner was in default, the credit union could, pursuant to O.C.G.A. § 11-9-609(a), take possession of the collateral, and under O.C.G.A. § 11-9-610, the credit union could sell the collateral. Endsley v. Robins Fed. Credit Union, 267 Ga. App. 512, 600 S.E.2d 441 (2004). In a civil action arising from a creditor’s repossession of a debtor’s vehicle, summary judgment on a debtor’s conversion and punitive damages claims against a creditor was reversed as the trial court erroneously found that the debtor’s failure to demand that the creditor return the subject vehicle was fatal to the claim, given that the creditor wrongfully repossessed and then sold the car subject to the parties’ finance agreement, and hence no demand was necessary; but, as the debtor 841 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) did not challenge summary judgment on the debtor’s emotional distress claim, the judgment was upheld. Williams v. Nat’l Auto Sales, Inc., 287 Ga. App. 283, 651 S.E.2d 194 (2007). Duty to warn in products liability action. — Because the trial court granted summary judgment to a spine plate manufacturer pursuant to O.C.G.A. § 9-11-56, based on the doctrine of learned intermediary, in the patient’s failure to warn claim, it was clear that the trial court determined that the warning given by the manufacturer to the physician was adequate or reasonable as a matter of law and, accordingly, the Court of Appeals should have reviewed the patient’s arguments on that doctrine in the patient’s appeal. McCombs v. Synthes, 277 Ga. 252, 587 S.E.2d 594 (2003). Real-party-in-interest objection. — Summary judgment cannot properly be granted to a defendant on the basis of a real-party-in-interest objection. Warshaw Properties v. Lackey, 170 Ga. App. 101, 316 S.E.2d 482 (1984). Since a real-party-in-interest objection is a matter in abatement and does not go to the merits of an action, such an objection cannot be disposed of by means of summary judgment but is properly disposed of pursuant to a motion to dismiss. Fleming v. Caras, 170 Ga. App. 579, 317 S.E.2d 600 (1984). Trial court erred in granting summary judgment pursuant to O.C.G.A. § 9-11-56 to a boat owner in an action arising from a boat/jet ski accident; although the plaintiffs were not proper parties to the action, as the plaintiffs did not own the jet ski and did not hold any valid subrogation claim, a real party in interest defense pursuant to O.C.G.A. § 9-11-17 was not a proper subject for summary judgment, and the trial court should have dismissed the action. Franco v. Cox, 265 Ga. App. 514, 594 S.E.2d 717 (2004). Third-party beneficiaries. — When an attorney sued a former client’s ex-spouse to enforce a lien on the former client’s former marital residence, which 9-11-56 was titled in the ex-spouse’s name, the attorney was entitled to summary judgment because the ex-spouse’s separation agreement with the former client provided for the satisfaction of liens against the former client, and the attorney was an unnamed third-party beneficiary of that separation agreement. Northen v. Tobin, 262 Ga. App. 339, 585 S.E.2d 681 (2003). RICO. — Because the plaintiffs, in neither the complaint nor the evidence in opposition to a motion for summary judgment, produced any evidence raising the issue that the defendants committed two predicate criminal acts indictable under state or federal law and within one of the categories allowing an action under the federal Racketeer Influenced and Corrupt Organization statute, 18 U.S.C. § 1961 et seq., summary judgment for the defendant was proper. Roth v. Connor, 235 Ga. App. 866, 510 S.E.2d 550 (1998). Court properly denied the defendants’ motion for summary judgment in a bank’s state RICO action because a genuine issue of fact remained as to the defendants’ participation in a pattern of racketeering activity sufficient to ground liability under O.C.G.A. § 16-14-4(a); the jury could also reasonably find that the defendants were knowing and voluntary participants in a racketeering enterprise sufficient to establish liability under O.C.G.A. § 16-14-4(b). Faillace v. Columbus Bank & Trust Co., 269 Ga. App. 866, 605 S.E.2d 450 (2004). Termination of employment. — Because a decision to terminate the plaintiff was made after the plaintiff had tendered a resignation, which resignation triggered a provision in the plaintiff ’s Buy-Sell Agreement that required the repurchase of the plaintiff ’s stock, the price for which would decrease if the plaintiff was fired for cause, and because the evidence, construed in the plaintiff ’s favor, supported an inference that the president’s stated reasons for terminating the plaintiff were contrived, there was some evidence from which a jury could infer a lack of good faith on the part of the president, and the trial court erred in granting partial summary judgment on the issue of whether the plaintiff was fired for good cause. Phillips v. Key Servs., Inc., 235 Ga. App. 564, 510 S.E.2d 304 (1998). 842 Summary judgment pursuant to O.C.G.A. § 9-11-56(c) was properly granted to the defendants, a city, a city mayor, and a city council, in a police chief ’s action alleging wrongful termination and tortious interference with business relations as the defendants acted within the defendants’ authority in discharging the police chief for falsifying another police officer’s application for training; further, the chief was an at-will employee and, accordingly, the chief ’s employment was terminable at will and such action did not give rise to a claim for alleged wrongful termination. Wilson v. City of Sardis, 264 Ga. App. 178, 590 S.E.2d 383 (2003). Sexual harassment and retaliation. — Although the supervisor’s isolated attempt to kiss the employee was clearly inappropriate and reprehensible, alone it was insufficient to create a jury question regarding the employee’s claim of sexual harassment from a hostile work environment; thus, summary judgment was appropriately granted. Furthermore, the employer was entitled to summary judgment on the employee’s retaliation claim after the employee resigned; the employee could not show that the employer took any adverse employment action against the employee by requiring the employee to leave on the original date the employee chose. Liebno v. Drexel Chem. Co., 262 Ga. App. 517, 586 S.E.2d 67 (2003). Battery. — Grant of partial summary judgment pursuant to O.C.G.A. § 9-11-56 to a physician in a patient’s action alleging breach of fiduciary duty and battery arising from an alleged failure to obtain valid consent prior to performing a medical procedure was erroneous because the physician had represented to the patient that the patient’s orthopedic surgeon had been made aware of the treatment plans and had approved the plans, but there was no direct evidence that the surgeon had actually received the plans and had been aware of the plans and approved of the plans; accordingly, the jury could have found that the physician misrepresented that situation with an intent to deceive pursuant to O.C.G.A. § 51-6-2(b), which would have constituted sufficient fraud to have vitiated the consent. Petzelt v. 9-11-56 Tewes, 260 Ga. App. 802, 581 S.E.2d 345 (2003). Employee’s claim of battery. — Grant of summary judgment in favor of the employee on the employee’s claim of battery was reversed because there were factual issues regarding whether a co-worker’s conduct constituted an offensive touching and whether the touching was intentional. Vasquez v. Smith, 259 Ga. App. 79, 576 S.E.2d 59 (2003). Public employee’s freedom of speech. — Summary judgment was properly granted to the defendants on the employee’s claim that the employee was dismissed for exercising the constitutional right to free speech, in violation of 42 U.S.C. § 1983, because the employee’s speech, made during an internal investigation of university officers, was made primarily in the employee’s role as an employee and not as a citizen; thus, the speech was not constitutionally protected. Jones v. Bd. of Regents of the Univ. Sys. of Ga., 262 Ga. App. 75, 585 S.E.2d 138 (2003). Local government personnel issues. — Because a county tax commissioner’s employees were within the county’s civil service system, the county was properly granted summary judgment and, hence, the county’s personnel director was authorized to refuse to implement raises to the employees as the commissioner sought; moreover, the commissioner’s reliance on O.C.G.A. § 36-1-21 did not change the result as that statute expressly applied only to civil service systems created by county governing authorities, and the civil service system at issue was created by the Georgia General Assembly. Ferdinand v. Bd. of Comm’rs, 281 Ga. 643, 641 S.E.2d 787 (2007). Exclusivity doctrine of the Georgia Workers’ Compensation Act. — Trial court properly granted summary judgment in favor of a co-worker and an employer as the exclusivity doctrine of the Georgia Workers’ Compensation Act, specifically O.C.G.A. § 34-9-11(a), barred an employee’s assault and battery and intentional infliction of emotional distress claims against a co-worker, and the employee’s negligent retention and respondeat superior claims against the 843 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) employer as the claims were ancillary to a physical occurrence arising in the course of employment; the injuries were incurred when the co-worker inflicted a minor punch or poke on the employee, not an incidental contact, which showed some level of physical harm. Lewis v. Northside Hosp., Inc., 267 Ga. App. 288, 599 S.E.2d 267 (2004). In a wrongful death action, the trial court erred in denying an employer’s motion for summary judgment against the claims filed by the decedent’s parents, as those claims were limited by the exclusivity provisions of the Georgia Workers’ Compensation Act, given evidence that the decedent’s death arose out of and in the course of employment, pursuant to O.C.G.A. § 34-9-1(4). Burns Int’l Sec. Servs. Corp. v. Johnson, 284 Ga. App. 289, 643 S.E.2d 800 (2007). State preemption of county ordinance. — Because the plain language of O.C.G.A. § 16-11-173 expressly precluded a county from regulating the carrying of firearms in any manner, a county ordinance attempting to regulate the carrying of firearms was preempted by the statute; thus, the trial court erred in concluding otherwise and by denying summary judgment to a citizen and advocacy group on those grounds. GeorgiaCarry.Org, Inc. v. Coweta County, 288 Ga. App. 748, 655 S.E.2d 346 (2007). Whistleblowers. — Summary judgment was erroneously granted to the board of regents on the employee’s claim under O.C.G.A. § 45-1-4, the ‘‘whistleblower’’ statute, because a jury issue existed regarding whether ‘‘action’’ was taken against the employee for purposes of § 45-1-4; the record contained at least some circumstantial evidence that the employee was dismissed in reprisal for the employee’s investigation into the university’s officers and for disclosing information of fraud in connection with the investigation. Jones v. Bd. of Regents of the Univ. Sys. of Ga., 262 Ga. App. 75, 585 S.E.2d 138 (2003). Breach of implied warranties of merchantability and fitness for par- 9-11-56 ticular purpose. — Seller was denied summary judgment on the customer’s action alleging breach of implied warranties of merchantability and fitness for a particular purpose; the customer’s failure to serve the seller with notice of the defect in the product until two years and three days after the customer suffered an injury was, by itself, not enough of a delay to prejudice the seller and bar relief. Wal-Mart Stores, Inc. v. Wheeler, 262 Ga. App. 607, 586 S.E.2d 83 (2003). Conversion. — Denial of summary judgment as to a claim that funds were allegedly converted to the defendants’ personal use was reversed because there was no evidence in the record to support such a claim. Harris v. Gilmore, 265 Ga. App. 841, 595 S.E.2d 651 (2004). Consignment. — While a buyer of a motor home on consignment was entitled to summary judgment after the dealer never paid the consignors, when the consignors refused to execute an assignment and warranty of title when the buyer sought the same, the buyer was entitled to damages, including reasonable attorney’s fees under O.C.G.A. § 40-3-32(a) caused thereby. Smith v. Hardeman, 281 Ga. App. 402, 636 S.E.2d 106 (2006). Debtor/creditor issues. — Summary judgment under O.C.G.A. § 9-11-56(c) was properly granted to a creditor in the creditor’s action seeking to collect on a debt since the debtor’s defense consisted of a claim in recoupment, pursuant to O.C.G.A. §§ 13-7-2 and 13-7-13, based on personal injuries the debtor suffered from the negligent conduct of the creditor; the court ruled that such a defense was not applicable to the creditor’s claim because the claims were legally distinct. Long v. Reeves Southeastern Corp., 259 Ga. App. 257, 576 S.E.2d 641 (2003). Desecration of cemetery. — Summary judgment for the secretary of a land company was affirmed in a case brought by family members claiming that acts committed by the land company allegedly desecrated the family members’ family cemetery because affidavits submitted by the secretary attested to the fact that the secretary never acted outside of the scope of the secretary’s authority as an officer of the land company, did not personally di- 844 rect, supervise, or control the operator who cleared the land in question, and did not personally direct, supervise, or directly take part in the land clearing that allegedly resulted in the desecration; the burden shifted to the family members, who put forth no affidavits or other evidence that demonstrated the secretary’s individual liability for the alleged tortious acts. Ceasar v. Shelton, No. A04A0717, 2004 Ga. App. LEXIS 355 (Mar. 15, 2004). Georgia Recreational Purposes Act defense. — Trial court erred in granting summary judgment for a school board as to an injured party’s personal injury claim based on the Georgia Recreational Purposes Act, specifically O.C.G.A. §§ 51-3-22 and 51-3-23, as the school board presented no evidence that the playground was open to the public and the injured party presented evidence that the playground: (1) was fenced-in; (2) was only for the use of children enrolled in the school; and (3) was not open to any segment of the general public. Hart v. Appling County Sch. Bd., 266 Ga. App. 300, 597 S.E.2d 462 (2004). Tort action. — One spouse’s claim for damages for a motorcycle accident against the other spouse involved only a tort claim, and was not a divorce case within the meaning of Ga. Const. 1983, Art. VI, Sec. VI, Para. III(6), even though the spouse sought a divorce in another count of the complaint, and the Supreme Court of Georgia did not have jurisdiction over the interlocutory appeal of the denial of the other spouse’s motion to dismiss, which had been treated as a motion for summary judgment; the spouse claimant’s argument that the appeal fell within the Supreme Court of Georgia’s appellate jurisdiction over constitutional issues was rejected as no allegedly unconstitutional statutes were specified, and argued only that the interspousal tort immunity doctrine, as codified in O.C.G.A. § 19-3-8, was unconstitutional as applied. Gates v. Gates, 277 Ga. 175, 587 S.E.2d 32 (2003). Trial court did not err in granting summary judgment to the defendants in a tort action, based on a bankruptcy court’s order confirming their Chapter 11 plan, which discharged the tort claim and barred the plaintiffs from continuing their 9-11-56 suit as the plaintiffs did not dispute that their tort claim was within the scope of the defendants’ discharge in bankruptcy; further, the trial court correctly concluded that such constituted a defense which barred the plaintiffs’ tort action to collect the discharged claim. Roy v. Garden Ridge, L.P., 283 Ga. App. 74, 640 S.E.2d 665 (2006). In a parent’s suit as a next friend to the parent’s daughter, the trial court erred in denying summary judgment to a retailer and the retailer’s employees on the parent’s claim of tortious misconduct as no evidence was presented that the child victim was the retailer’s business invitee, but was merely a licensee under both O.C.G.A. §§ 51-3-1 and 51-3-2 as the child merely entered the business with the sole intent to use the restroom; however, summary judgment was properly denied as to the invasion of privacy, intentional infliction of emotional distress, false imprisonment, false arrest, and damages claims filed by the parent against the defendants. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008). Tort claim arising from flooding. — Trial court properly granted summary judgment to the city on the claimant’s tort claims arising from the back up of a sewer that flooded the claimant’s home as no genuine dispute existed that the claimant did not file a written ante litem notice with the city within six months of the happening of the event that gave rise to the claim, the first flooding. The claimant was required to file written notice within that time even though the claimant alleged the flooding was a continuing nuisance as the city was entitled to notice arising from the first flooding so the city could attempt to fix the problem, and the claimant’s failure to timely give the city written notice meant the city could not be held liable. Cundy v. City of Smyrna, 264 Ga. App. 535, 591 S.E.2d 447 (2003). Slander claims. — In a suit between feuding neighbors, the trial court properly held that the words spoken by one against the other, which the latter alleged were disparaging against America’s loss on September 11, 2001, were not slanderous 845 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) as the words were an expression of pure opinion, which was neither provable as true nor as false; as a result, the neighbor who uttered the allegedly slanderous comments was entitled to summary judgment on the other’s claim of slander per se. Bullard v. Bouler, 286 Ga. App. 218, 649 S.E.2d 311 (2007). Stalking arising to invasion of privacy. — Because: (1) evidence was presented that the appellee denied the intent required under the stalking statute, O.C.G.A. § 16-5-90; and (2) a motion quashing a subpoena for the appellee’s cell phone records was proper as those cell phone records were not reasonably calculated to lead to the discovery of admissible evidence or information relevant to the intrusiveness of the appellee’s behavior, the trial court properly denied partial summary judgment on the appellant’s stalking claim and entered an order quashing a subpoena for appellee’s cell phone records; but, because the appellee’s alleged repeated actions of following the appellant and taking pictures arose to an invasion of privacy, summary judgment was inappropriate. Anderson v. Mergenhagen, 283 Ga. App. 546, 642 S.E.2d 105 (2007). Action brought by auctioneer for tort of auction company. — When an auctioneer sought damages from the auction company for whom the auctioneer worked and the principal because the auctioneer was arrested in another state for contracting and advertising for an auction without a license, the auction company and principal were entitled to summary judgment because the auctioneer did not show the auction company or principal violated any duty owed the auctioneer that caused the auctioneer’s injury, as the auctioneer knew, when the auctioneer advertised and contracted for the auction in the other state; further, the auction company did not have a license to conduct an auction in that state so the auctioneer did not establish the elements necessary to recover for the auction company’s or principal’s alleged tortious conduct under 9-11-56 O.C.G.A. § 51-1-1. Morris v. Gavin, Inc., 268 Ga. App. 771, 603 S.E.2d 1 (2004). Products liability. — Under the learned intermediary doctrine, a warning included with a plate surgically implanted into a consumer by the consumer’s physician stating that the plate could break when subjected to the increased loading associated with delayed union or non-union, and such occurred to the consumer, was adequate and reasonable under the circumstances of the case; thus, summary judgment against the consumer was properly entered. McCombs v. Synthes (U.S.A.), 266 Ga. App. 304, 596 S.E.2d 780 (2004). Because: (1) a couple failed to present sufficient evidence to show an original manufacturing defect in their used car at the time the car left the car’s manufacturer; (2) two product recalls did not apply to the vehicle; and (3) the doctrine of res ipsa loquitur did not apply, summary judgment was properly granted to the car’s manufacturer on the couple’s negligent manufacturing, failure to warn, and one of the spouse’s loss of consortium claim; moreover, even if the trial court erred in considering the affidavits submitted by the manufacturer’s expert, such did not amount to reversible error. Miller v. Ford Motor Co., 287 Ga. App. 642, 653 S.E.2d 82 (2007). Privileged communications. — Attorney’s statements regarding a doctor made in the form of two phone messages to the doctor’s patients were privileged as the statements were made in anticipation of a lawsuit the attorney was preparing to file, were not slanderous, and did not interfere with the doctor’s business relations; thus, the attorney was entitled to summary judgment on the doctor’s claims of slander and tortious interference with business relations. Vito v. Inman, 286 Ga. App. 646, 649 S.E.2d 753 (2007), cert. denied, 2007 Ga. LEXIS 770 (Ga. 2007). Creation of easement by implication. — Trial court erred in granting summary judgment, pursuant to O.C.G.A. § 9-11-56, to a property owner who sought an easement by implication of law pursuant to O.C.G.A. § 44-9-1 over an adjoining property owners’ land as the record was insufficient to support such a determina- 846 tion; the parties’ accounts of how the land was divided upon foreclosure from the original grantor differed greatly and there were no deeds, deed assignments, dates, or foreclosure information provided in the record in order to properly determine if such an easement was created. Boyer v. Whiddon, 264 Ga. App. 137, 589 S.E.2d 709 (2003). Condemnation actions. — In a condemnation action, partial summary judgment was properly granted in favor of the Georgia Department of Transportation because an owner was unable to recover losses for business damages as the evidence showed that the owner was not actually conducting a business on the condemned land, despite the fact that a lease agreement between the owner and a lessee gave the owner some control over the business operations of a service station and store located on the property. Davis Co. v. DOT, 262 Ga. App. 138, 584 S.E.2d 705 (2003). Statutes of limitations. — Motion for summary judgment is the proper procedure by which to secure a ruling on the statute of limitations. Houston v. Doe, 136 Ga. App. 583, 222 S.E.2d 131 (1975). Although the act that originally caused the nuisance might not have been committed within the period of limitations of the action, the defendant presented some evidence that the groundwater contamination was a continuing tort that continued to inflict damages in the four years prior to the suit; therefore, summary judgment was inappropriate when based upon the suit being time barred. Tri-County Inv. Group v. Southern States, Inc., 231 Ga. App. 632, 500 S.E.2d 22 (1998). Trial court properly granted summary judgment to a driver in the victim’s action stemming from a vehicular collision on the basis that service did not relate back to the time of filing the complaint as the victim did not ensure that the suit was being filed in the proper county. Williams v. Bragg, 260 Ga. App. 377, 579 S.E.2d 800 (2003). In a medical malpractice action, because the trial court erroneously applied the five-year statute of repose contained in O.C.G.A. § 9-3-71(b), and not O.C.G.A. § 9-3-73, in finding that the parents’ 9-11-56 amended negligence complaint against certain doctors and nurses was time-barred, the trial court erred in entering summary judgment against the parents; further, the trial court also erred in finding that the doctors and nurses were rendering care to only the mother, and not the mother and the newborn child. Johnson v. Thompson, 286 Ga. App. 810, 650 S.E.2d 322 (2007), cert. denied, 2008 Ga. LEXIS 90 (Ga. 2008). Because a sublessee failed to file its claims under a divisible sublease within the six-year period after the claims arose, pursuant to the requirements of O.C.G.A. § 9-3-24, and a different limitations period applicable to construction contracts and express warranties did not apply, partial summary judgment to the sublessor as to the time-barred claims was properly entered. New Morn Foods, Inc. v. B & B Egg Co., 286 Ga. App. 29, 648 S.E.2d 428 (2007). Because a belated claim in a breach of contract action filed against an alleged homebuilder’s partner did not relate back to the date of the original complaint, as required by O.C.G.A. § 9-11-15(c), summary judgment in favor of the homebuilder was correctly granted based on the expiration of the six-year limitation period under O.C.G.A. § 9-3-24. Wallick v. Lamb, 289 Ga. App. 25, 656 S.E.2d 164 (2007). Tree limb hitting vistor to property. — In a case brought against a property owner by an injured person who was hurt when a limb fell from a tree in the property owner’s yard and struck the injured person, summary judgment for the property owner was affirmed because the property owner’s expert signed an affidavit in which the expert stated that because there were green leaves growing on the limb, the average person would not have known that the limb was diseased and in which the expert also stated that the tree was healthy, with no visible signs of stress and no visible signs of existing hazards; there was no evidence that the tree was diseased or decayed, and thus there was no prior notice to the property owner that the tree may have constituted a dangerous condition. Klein v. Weaver, 265 Ga. App. 390, 593 S.E.2d 913 (2004). 847 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) Forfeiture. — Massage parlor operator was entitled to summary judgment in a civil forfeiture action instituted by the State of Georgia in connection with a Georgia Racketeer Influenced and Corrupt Organizations Act action because the state merely rested on the state’s allegations used to procure a search warrant and did not have admissible evidence, documentary or testimonial, to support the state’s allegations that the operator had engaged in the predicate acts of prostitution, federal money laundering, mail fraud, and Travel Act violations, both individually and in conspiracy with others. Pabey v. State, 262 Ga. App. 272, 585 S.E.2d 200 (2003). Inverse condemnation action. — City was properly granted summary judgment in an inverse condemnation suit because the city’s change in making a road a one-way street did not disturb the direct vehicular access existing from the owners’ land to the abutting street; thus, there was no compensable taking, despite the fact that access was less convenient. Hanson v. City of Roswell, 262 Ga. App. 671, 586 S.E.2d 341 (2003). Trial court properly granted partial summary judgment to a county in an action filed against the county by a competitor in the water supply business because a claim of inverse condemnation arising from the county’s operation of a competing water supply system and resulting loss of business was not based on physical damage to the competitor’s property, but rather left the claim extant, whether advanced under a theory of trespass or inverse condemnation. Jones v. Putnam County, 289 Ga. App. 290, 656 S.E.2d 912 (2008). Immunity of city for death of fleeing suspect. — Appellate court erred in denying a city’s motion for summary judgment in a police pursuit case as the statute stating that a city could be held liable for injuries sustained during a police pursuit, under certain circumstances, applied only to innocent persons who were injured and not to fleeing suspects unless it was 9-11-56 shown the officer intended to injure the suspect; since no such showing was made, the parents of the fleeing suspect who was killed trying to drive away from the officer could not recover from the city. City of Winder v. McDougald, 276 Ga. 866, 583 S.E.2d 879 (2003). 42 U.S.C. § 1983 action. — Janitorial service owner’s 42 U.S.C. § 1983 claim against a police detective, a police chief, and a police department could not withstand summary judgment because the police detective properly relied upon a trustworthy source to establish probable cause to arrest the owner for a theft from a customer’s spa without investigating. Means v. City of Atlanta Police Dep’t, 262 Ga. App. 700, 586 S.E.2d 373 (2003). Abusive litigation. — Because a construction company’s counterclaims alleging abusive litigation under O.C.G.A. §§ 9-15-14 and 51-7-80 et seq., alleged in the pleading that the claims constituted ‘‘notice’’ to assert such claims under O.C.G.A. § 51-7-81, the trial court properly determined that the claims were not counterclaims and, accordingly, dismissed the claims for want of subject matter jurisdiction under O.C.G.A. § 9-11-12(h)(3); it was also found that the required notice provided in O.C.G.A. § 51-7-84(b) was not provided prior to the filing of a claim, nor was the prior litigation ended in the defendants’ favor, both of which were requirements in order to bring such a claim, and disposing of the claim under a summary judgment analysis, pursuant to O.C.G.A. § 9-11-56, was proper. Langley v. Nat’l Labor Group, Inc., 262 Ga. App. 749, 586 S.E.2d 418 (2003). Because the Court of Appeals of Georgia merely found in a prior action between the parties that an employer failed to prove the employer’s claims against a former employee at trial, and that holding did not amount to a binding determination that those claims were without substantial justification or that the employer engaged in abusive litigation, the trial court properly granted summary judgment to the employer as to the former employee’s abusive litigation claims; moreover, although questions of reasonableness were generally for the jury, given that the employer was successful at every stage of the litiga- 848 tion prior to the appeal, the trial court was authorized to determine as a matter of law that the company acted in good faith in filing and pursuing the company’s claims. Bacon v. Volvo Serv. Ctr., Inc., 288 Ga. App. 399, 654 S.E.2d 225 (2007). Punitive damages. — When a company sued the company’s accountants for punitive damages regarding their participation in a sale of the company’s assets because they did not notify the company’s principal of the sale, summary judgment was properly granted in favor of the accountants because the accountants’ failure to inform the principal of the sale and their participation in the sale breached no duty the accountants owed the company and was attributable to the company’s and principal’s own failure to apprise the accountants that the corporation represented as the company’s parent was no longer the parent and was not authorized to approve the sale. R.W. Holdco, Inc. v. Johnson, 267 Ga. App. 859, 601 S.E.2d 177 (2004). Summary judgment was properly entered for a realtor and a developer as to a landowner’s punitive damages claims as the realtor and the developer were entitled to summary judgment on the landowner’s underlying claims. Sorrow v. Hadaway, 269 Ga. App. 446, 604 S.E.2d 197 (2004). Because the appeals court found that other intentional tort claims survived summary judgment which would authorize the imposition of punitive damages if the jury were to find that a retailer and the retailer’s employees acted with a wanton disregard of a nine-year-old child’s rights, the trial court did not err by denying summary judgment on these grounds. Todd v. Byrd, 283 Ga. App. 37, 640 S.E.2d 652 (2006), overruled on other grounds, Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d. 7 (2008). In a legal malpractice action, because the evidence sufficiently showed that the client was precluded from seeking punitive damages in the underlying suit against the opposing party, the attorney being sued was properly granted summary judgment on the issue. Brito v. Gomez Law Group, LLC, 289 Ga. App. 625, 658 S.E.2d 178 (2008). 9-11-56 Tax issues. — Summary judgment for a county board of tax assessors (BTA) in a taxpayer’s suit seeking injunctive relief and a writ of mandamus compelling a board of equalization (BOE) to adjudicate its appeal of a reassessment for one tax year was reversed as: (1) there were no objective criteria in place for choosing businesses for audits when the taxpayer was chosen for a four-year audit; (2) there was evidence that the BTA attempted to thwart the taxpayer’s statutory right to prompt adjudication of its appeal before the BOE under O.C.G.A. § 48-5-311; and (3) there was a jury question as to whether the audit was begun by an accounting firm or the BTA for an improper purpose in violation of O.C.G.A. § 48-5-299(a). Parisian, Inc. v. Cobb County Bd. of Tax Assessors, 263 Ga. App. 332, 587 S.E.2d 771 (2003). County and the county tax commission were entitled to summary judgment as a matter of law in an action filed by a trucking company seeking a refund for ad valorem taxes the company paid as it was undisputed at trial that the company failed to timely file for either an apportionment in two subject years, as required by Ga. Comp. R. & Regs. r. 560-11-7-.02, and that the company did not appeal the company’s ad valorem assessment within 45 days of the assessment in either year, pursuant to O.C.G.A. § 48-5-311; furthermore, O.C.G.A. § 48-5-380, which allowed a taxpayer to seek a refund up to three years after paying an erroneous or illegal tax, did not apply. Trans Link Motor Express, Inc. v. Dougherty County, 265 Ga. App. 10, 592 S.E.2d 859 (2003). In a bench trial, in which an order was issued establishing the 1997 fair market value of the taxpayer’s property at a value of $4,709,000, which was an amount greater than the value set by the board of equalization, but when the taxpayer paid taxes in 1997, 1998, and 1999, based on the board of equalization’s 1997 valuation and when because the 1997 value of the taxpayer’s property was finally determined to be $4,709,000, the taxpayer automatically returned the property in 1998 and 1999 at that value, the taxpayer underpaid taxes for the 1997, 1998, and 1999 tax years and the tax assessors were en- 849 Applicability to Certain Actions, Proceedings, Issues, and Defenses (Cont’d) titled to a summary judgment finding that the taxpayer had underpaid taxes and that the taxpayer owed additional sums; furthermore, the statutory notice requirements of O.C.G.A. § 48-5-306 did not preclude summary judgment. Pine Pointe Hous., L. P. v. Bd. of Tax Assessors, 269 Ga. App. 855, 605 S.E.2d 443 (2004). Because taxpayer’s assignee lacked standing to claim a refund of ad valorem taxes allegedly overpaid by the assignor, the trial court erred in finding that the assignee was entitled to the refund; as a result, the court also erred in denying the respective counties summary judgment on the issue. Clayton County v. HealthSouth Holdings, Inc., 288 Ga. App. 406, 654 S.E.2d 143 (2007). Sovereign immunity. — Trial court erred in granting a school board’s motion for summary judgment as to an injured party’s personal injury claim based on sovereign immunity as: (1) the trial court applied the wrong version of Ga. Const. 1983, Art. I, Sec. II, Para. IX(e), which was amended, prospectively, after the accident; (2) the applicable version of Ga. Const. 1983, Art. I, Sec. II, Para. IX(e) was that in effect at the time of the accident in 1990; and (3) the parties agreed that an insurance policy would have constituted a waiver of the board’s sovereign immunity, which implied that a policy existed; the case was remanded so that the trial court could reconsider the court’s decision in light of the correct law and any insurance policy. Hart v. Appling County Sch. Bd., 266 Ga. App. 300, 597 S.E.2d 462 (2004). In an action arising out of an arrest, despite the way the arrestee was treated, the trial court properly dismissed a complaint against a county, and granted summary judgment on the same complaint against a city on sovereign immunity grounds because the arrestee failed to show that the immunity had been waived. Scott v. City of Valdosta, 280 Ga. App. 481, 634 S.E.2d 472 (2006). In a tort action for personal injuries and property damage arising from an auto collision filed against a city, because the 9-11-56 facts did not involve an officer’s pursuit of a fleeing suspect, or damages caused by a fleeing suspect, O.C.G.A. § 40-6-6 did not apply to the action, and thus, the trial court erred in relying on the statute as a ground for granting summary judgment to the city on sovereign immunity grounds. Weaver v. City of Statesboro, 288 Ga. App. 32, 653 S.E.2d 765 (2007), cert. denied, 2008 Ga. LEXIS 221 (Ga. 2008). Official immunity for discretionary acts. — As a student’s personal injury damages claims against three school employees were based on the employees negligent failure to supervise the student when the student was with a non-party, and that such failure allegedly led to the student being molested by the third-party, the supervisory decisions made were discretionary acts requiring personal deliberation and judgment; hence, any reliance on O.C.G.A. § 19-7-5 did not provide a basis for civil liability against the employees for a negligent breach of a ministerial duty, and the student’s claims were barred by the doctrine of official immunity as a matter of law. Reece v. Turner, 284 Ga. App. 282, 643 S.E.2d 814 (2007). Display of skeletal remains by state. — Adult child’s tort claims against a state university board of regents for the autopsy, study, and display of the parent’s skeletal remains in a glass case in a medical school for decades were dismissed because the claims accrued no later than 1950, at which time sovereign immunity applied to Georgia and its agencies; thus, a trial court erred in denying the board’s motions for summary judgment and dismissal. Bd. of Regents v. Oglesby, 264 Ga. App. 602, 591 S.E.2d 417 (2003). Proceedings to renew judgment. — While O.C.G.A. § 9-12-21 did not prevent the assignee of a judgment from seeking to enforce the judgment in the amount the assignee paid for the judgment, O.C.G.A. § 9-12-21 intended the transfer of an entire judgment so the assignment of a part interest in a judgment required the judgment debtor’s consent in order to prevent the judgment debtor from being subjected to a multiplicity of suits arising from the same judgment; absent that consent, the assignee of a part interest in a judgment against the judgment debtor could not 850 seek to renew the judgment so the assignee, in a suit to renew the judgment, was not entitled to summary judgment. Rathbone v. Ward, 268 Ga. App. 822, 603 S.E.2d 20 (2004). Uninsured motorists. — Trial court properly granted an insurer’s summary judgment motion in an insured’s suit for uninsured motorist benefits as the insured’s suit against a deputy sheriff in the deputy’s official capacity was barred by the statute of limitations; the insured could not establish that the insured was legally entitled to recover from the deputy, as required by O.C.G.A. § 33-7-11(a)(1). Soley v. State Farm Mut. Auto. Ins. Co., 267 Ga. App. 606, 600 S.E.2d 707 (2004). Action to open intestate estate. — Putative heir’s action seeking an order opening the intestate estate was subject to the three-year statute of limitations contained in O.C.G.A. § 9-11-60(f ), and the trial court erred when the court denied a motion for summary judgment that was filed on behalf of a widow who administered the estate because the heir’s action was filed more than three years after the probate court issued an order discharging the widow as administrator. Moore v. Mack, 266 Ga. App. 847, 598 S.E.2d 525 (2004). Frivolous litigation. — In the absence of fact issues as to malice and lack of substantial justification, the trial court properly granted summary judgment to the attorney and the former client on a lawyer’s frivolous litigation claim against them. Furthermore, the filing of the abusive litigation suit outside the statute of limitations was justified and proper given the absence of any clear authority under Georgia law as to precisely when the statute of limitations commenced under O.C.G.A § 51-7-84(b). Land v. Boone, 265 Ga. App. 551, 594 S.E.2d 741 (2004). Premises liability. — Summary judgment was properly entered for a railroad as to an injured party’s premises liability claim based on a premises owner’s non-delegable duty to keep the premises safe for the protection of invitees. The railroad neither owned nor occupied the sidetrack that was the site of the accident. Assuming that the railroad did own the sidetrack, there was no evidence that the 9-11-56 railroad had any knowledge of the defective condition that was the result of its lessee’s use of a defective iron grate. The injured party conceded that the defective grate was not readily apparent and the injured party failed to show that the railroad would have discovered the defect had the railroad conducted a reasonable inspection. Mixon v. Ga. Cent. Ry., L.P., 266 Ga. App. 365, 596 S.E.2d 807 (2004). In a wrongful death action premised on both negligence and negligence per se filed on behalf of a mother’s deceased minor son, a premises owner was properly granted summary judgment as the independent contractor that hired the decedent, and not the premises owner, had sole control over its personnel, and the son’s hazardous occupation on the owner’s premises for a third party did not in and of itself demonstrate that the owner was in violation of Georgia’s child labor laws; thus, the appeals court declined to reach the issue of whether an owner who knew or had reason to know that the contractor’s independent contractor was employing a minor under the age of 16 to perform a dangerous occupation on the owner’s premises was in violation of O.C.G.A. § 39-2-2. Benson-Jones v.