Home Builders Ass’n of Savannah v

Chatham County, 276 Ga. 243, 577 S.E.2d 564 (2003). Since a jury issue existed as to the extent of the accord and satisfaction of a hospital’s claims for treatment provided to a company’s employees, and the company’s liability for any remaining claims for the employees, summary judgment was improperly granted to the company. Hosp. Auth. v. Pyrotechnic Specialties, Inc., 263 Ga. App. 886, 589 S.E.2d 644 (2003). Employment termination dispute. — Because an employment agreement did not specifically define what was meant by the word ‘‘due,’’ as such term was used in determining what compensation the employee was entitled to through the effective date of the employee’s termination, summary judgment on the employee’s breach of contract claim regarding what amount of compensation the employee was to receive was erroneously entered. Reichman v. Southern Ear, Nose & Throat Surgeons, P.C., 266 Ga. App. 696, 598 S.E.2d 12 (2004). Impact of failure to submit sworn statements. — Vacation and remand of 9-11-56 the denial of a motion for summary judgment by the principals of a corporation was appropriate because the trial court denied the motion for the reason that the principals did not present sworn statements to negate alleged facts, but the court did not consider the issues pertaining to the ground that was asserted by the principals in the motion. Meredith v. Thompson, 312 Ga. App. 697, 719 S.E.2d 592 (2011). Lack of personal jurisdiction. — Trial court erred in denying summary judgment pursuant to O.C.G.A. § 9-11-56 to a guarantor in a company’s action to collect on a promissory note; the guarantor was not subject to personal jurisdiction in Georgia pursuant to O.C.G.A. § 9-10-91 as the guarantor was a resident of Illinois and was never in Georgia during the course of the negotiations, the guarantor did not initiate or solicit the sale of a restaurant to the guarantor’s son, and the guarantor agreed to guaranty the note only after a company requested the guaranty as a condition of the sale, and therefore the guarantor did not purposefully take advantage of the privilege of doing business in Georgia. Stuart v. Peykan, Inc., 261 Ga. App. 46, 581 S.E.2d 609 (2003). Subject matter jurisdiction is a matter in abatement to be resolved pursuant to § 9-11-12(b). — Because subject matter jurisdiction is a matter in abatement, jurisdiction had to be resolved on a motion pursuant to O.C.G.A. § 9-11-12(b), and not by a motion for summary judgment. First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883, 655 S.E.2d 605 (2008). Proper if no independent claim to support attorney fee claim. — Because there were no viable independent counterclaims remaining in a construction company’s claims against a labor supplier, the construction company could no longer assert a claim for attorney fees and litigation costs under O.C.G.A. § 13-6-11 and, accordingly, summary judgment under O.C.G.A. § 9-11-56 to the supplier was proper. Langley v. Nat’l Labor Group, Inc., 262 Ga. App. 749, 586 S.E.2d 418 (2003). Conversion from motion to dismiss. — Because the trial court, without objec- 869 Propriety of Summary Judgment (Cont’d) tion, considered a contract between the parties and both parties relied heavily on the contract language before the trial court, the movant’s motion to dismiss was converted to a motion for summary judgment. Cox v. Athens Reg’l Med. Ctr., Inc., 279 Ga. App. 586, 631 S.E.2d 792 (2006). Partial summary judgment. — In an action between a car dealer and the dealer’s customer, the trial court did not err in granting partial summary judgment to the former, on the latter’s claims for fraud, willful misrepresentation, theft, conversion, compensatory and punitive damages, and travel expenses as the claims would have ultimately failed at the bench trial; thus, the propriety of the trial court’s partial summary judgment order on these claims was a moot question and was not addressed by the court. Rise v. GAPVT Motors, Inc., 288 Ga. App. 246, 653 S.E.2d 320 (2007). Because: (1) evidence demonstrating an agency relationship between the grantees and the grantor of a security deed was lacking, and (2) the mere lapse of time was insufficient to establish the affirmative defense of laches, partial summary judgment was properly entered in the trustee’s favor on that claim based on mutual mistake as well as an order invalidating the foreclosure sale upon the deed. Harvey v. Bank One, N.A., 290 Ga. App. 55, 658 S.E.2d 824 (2008). Burdens on Motion for Summary Judgment 1. In General Duty of each party to present case in full. — It is the duty of each party at a hearing on a motion for summary judgment to present that party’s case in full. Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974); Thomas v. Allstate Ins. Co., 133 Ga. App. 193, 210 S.E.2d 361 (1974); HFC v. Rogers, 137 Ga. App. 315, 223 S.E.2d 462 (1976); Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976); Colodny v. Dominion Mtg. & Realty Trust, 141 Ga. App. 139, 232 S.E.2d 601 (1977); Hip Pocket, 9-11-56 Inc. v. Levi Strauss & Co., 144 Ga. App. 792, 242 S.E.2d 305 (1978); Walsey v. American Fletcher Nat’l Bank & Trust Co., 151 Ga. App. 104, 258 S.E.2d 760 (1979); DOT v. Garrett, 154 Ga. App. 104, 267 S.E.2d 643 (1980). Grounds of motion need not be specified. — Motion for summary judgment is not subject to dismissal for failure to specify grounds upon which the motion relies. Shockley v. Zayre of Atlanta, Inc., 118 Ga. App. 672, 165 S.E.2d 179 (1968). Insufficient evidence of assumption of risk. — Summary judgment was properly denied to an electric installation company in an action by a restaurant employee who suffered a severe shock when the employee touched a heated table, which was allegedly caused by a plug that was not grounded and by a loose electrical wire as the company did not prove that the employee assumed the risk of the injury as a matter of law when the employee put the employee’s hands on the table after a customer informed the employee that the customer received a mild shock; whether the employee appreciated the risk of the injury was an issue for jury determination as it was not established that the employee fully appreciated the risk faced by touching the table, given the information. D & S Elec., Inc. v. Batson, 270 Ga. App. 210, 606 S.E.2d 37 (2004). Speculation insufficient evidence. — Trial court properly granted summary judgment to the company on the widow’s wrongful-death claim as the widow did not present any evidence that the actions of the driver of the company’s truck in running over her husband caused his death. The husband had been lying in the middle of the roadway after he was thrown from his motorcycle while traveling at a high rate of speed when it was struck by a truck that suddenly pulled out into the middle of the road, and witnesses could not tell if the husband was alive or dead at the time the company’s truck drove over him less than a minute after the first accident, which meant that only speculation, not proof, was involved in whether he was dead by the time the company’s truck accidentally drove over him while trying to avoid his motorcycle in the road. Mobley v. Nabisco, Inc., 264 870 Ga. App. 352, 590 S.E.2d 741 (2003). 2. Burden on Movant Generally Movant must pierce opponent’s affirmative defense. — Party moving for summary judgment has the burden of piercing the opponent’s affirmative defense. Peppers v. Siefferman, 153 Ga. App. 206, 265 S.E.2d 26 (1980); Olympic Dev. Group, Inc. v. American Druggists’ Ins. Co., 175 Ga. App. 425, 333 S.E.2d 622 (1985); First Union Nat’l Bank v. J. Reisbaum Co., 190 Ga. App. 234, 378 S.E.2d 317 (1989). Movant must establish absence of defenses. — On a motion for summary judgment, the burden is on the movant to conclusively establish the absence or nonexistence of any defense. Fletcher v. Ford, 189 Ga. App. 665, 377 S.E.2d 206 (1988), cert. denied, 189 Ga. App. 912, 377 S.E.2d 206 (1988). Burden of showing lack of genuine issue and entitlement to judgment. — Burden of showing the absence of a genuine issue of any material fact rests on the party moving for summary judgment. Shadix v. Dowdney, 117 Ga. App. 720, 162 S.E.2d 245 (1968); Sullivan Enters., Inc. v. Stockton, 118 Ga. App. 542, 164 S.E.2d 336 (1968); Matthews v. North Cobb Tire Co., 120 Ga. App. 269, 170 S.E.2d 57 (1969); Anderson v. Redwal Music Co., 122 Ga. App. 247, 176 S.E.2d 645 (1970); Lockhart v. Walker, 124 Ga. App. 241, 183 S.E.2d 503 (1971); Mitchell v. Calhoun, 229 Ga. 757, 194 S.E.2d 421 (1972); Benson Paint Co. v. Williams Constr. Co., 128 Ga. App. 47, 195 S.E.2d 671 (1973); Whitehead v. Capital Auto. Co., 239 Ga. 460, 238 S.E.2d 104 (1977); Southern Trust Ins. Co. v. Clark, 148 Ga. App. 579, 251 S.E.2d 823 (1978); Taylor v. Taylor, 243 Ga. 506, 255 S.E.2d 32 (1979); Scroggins v. Whitfield Fin. Co., 152 Ga. App. 8, 262 S.E.2d 168 (1979); Romanik v. Buitrago, 153 Ga. App. 886, 267 S.E.2d 301 (1980); Edwards v. McTyre, 246 Ga. 302, 271 S.E.2d 205 (1980); Jonesboro Tool & Die Corp. v. Georgia Power Co., 158 Ga. App. 755, 282 S.E.2d 211 (1981); Hanover Ins. Co. v. Nelson Conveyor & Mach. Co., 159 Ga. App. 13, 282 S.E.2d 670 (1981); Mallard v. Jenkins, 179 Ga. App. 582, 347 S.E.2d 339 (1986). 9-11-56 Burden is on the movant for summary judgment to establish contentions relied on to authorize such judgment by proper affidavits or other permitted evidence when such contentions are controverted by the pleadings of the adverse party. Massey v. National Homeowners Sales Serv. Corp., 225 Ga. 93, 165 S.E.2d 854 (1969). In summary judgment proceedings, the burden is on the movant to demonstrate the lack of a substantial factual issue. Brown v. Sheffield, 121 Ga. App. 383, 173 S.E.2d 891 (1970); Gregory v. Vance Publishing Corp., 130 Ga. App. 118, 202 S.E.2d 515 (1973), overruled on other grounds, Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651, 334 S.E.2d 188 (1985). Burden of proof is on the movant to establish an entitlement to summary judgment by proper affidavits and other permitted evidence. Mica-Top Fixture Co. v. Frank G. Shattuck Co., 124 Ga. App. 100, 183 S.E.2d 15 (1971). Burden is upon the movant to affirmatively show that there is no genuine issue of material fact and that the movant is entitled to summary judgment. Smith v. Sandersville Prod. Credit Ass’n, 229 Ga. 65, 189 S.E.2d 432 (1972); Lawson Prods., Inc. v. Rousey, 132 Ga. App. 726, 209 S.E.2d 125 (1974); Peachtree Bottle Shop, Inc. v. Bessemer Sec. Corp., 134 Ga. App. 729, 215 S.E.2d 692 (1975); Stratton & McLendon, Inc. v. Cameron-Brown Co., 140 Ga. App. 430, 231 S.E.2d 447 (1976); Cumberland Assocs. v. Market Assistants, Inc., 142 Ga. App. 483, 236 S.E.2d 109 (1977). Burden of establishing the nonexistence of any genuine issue of fact is upon the moving party on a motion for summary judgment, and all doubts are to be resolved against the movant. Lansky v. Goldstein, 136 Ga. App. 607, 222 S.E.2d 62 (1975); Williams v. Trust Co., 140 Ga. App. 49, 230 S.E.2d 45 (1976). Movant has the burden to prove the nonexistence of any genuine issue of material fact, and in so determining, the court will treat the respondent’s paper with considerable indulgence. Fletcher v. Ford, 189 Ga. App. 665, 377 S.E.2d 206, cert. denied, 189 Ga. App. 912, 377 S.E.2d 206 (1988). 871 Burdens on Motion for Summary Judgment (Cont’d) 2. Burden on Movant Generally (Cont’d) Because an insurer carried the insurer’s burden of showing that the representation of an insured’s business was false, and that the representation was material in that the representation changed the nature, extent, or character of the insurance coverage risk, the trial court did not err in granting the insurer summary judgment. Marchant v. Travelers Indem. Co., 286 Ga. App. 370, 650 S.E.2d 316 (2007). When burden shifts. — Burden of showing the absence of a genuine issue of material fact rests on the party moving for summary judgment; the burden does not shift until the pleadings are pierced. Allen & Bean, Inc. v. American Bankers Ins. Co., 153 Ga. App. 617, 266 S.E.2d 295 (1980). On a motion for summary judgment, the burden of proof is squarely on the moving party, and does not shift to the respondent unless the movant, by affidavits or other evidence, shows a prima facie right to such judgment. Ramseur v. American Mgt. Ass’n, 155 Ga. App. 340, 270 S.E.2d 880 (1980). Burden of proof is shifted when the moving party makes a prima facie showing that the movant is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against that party. Trust Co. Bank v. Stubbs, 203 Ga. App. 557, 417 S.E.2d 373, cert. denied, 203 Ga. App. 908, 417 S.E.2d 373 (1992). Prima facie case not established. — In an action based on a personal guaranty because the guaranty agreement left blank the name of the principal debtor, it was unnecessary for the appellants to present rebuttal evidence or respond to the motion because the evidence the appellee presented did not establish a prima facie case entitling the appellee to summary judgment. Ellis v. Curtis-Toledo, Inc., 204 Ga. App. 704, 420 S.E.2d 756 (1992). In an action to collect on a debt filed by a creditor’s assignee, the trial court erroneously granted summary judgment in 9-11-56 the amount of the debt owed, plus interest because the assignee failed to attach to either the motion for summary judgment or affidavit prepared by the legal account manager the necessary documents that purported to establish the debt owed by the debtor. Powers v. Hudson & Keyse, LLC, 289 Ga. App. 251, 656 S.E.2d 578 (2008). Burden is upon the movant to establish a lack of a genuine issue of fact and the right to judgment as a matter of law, and any doubt as to the existence of such an issue is resolved against the movant. Holland v. Sanfax Corp., 106 Ga. App. 1, 126 S.E.2d 442 (1962) (decided under Ga. L. 1959, p. 234, § 1 et seq.). Movant must negate at least one essential element. — Moving party has the burden of negating at least one of the essential elements of the opponent’s case, and of establishing that no genuine issues of material fact remain. Vizzini v. Blonder, 165 Ga. App. 840, 303 S.E.2d 38 (1983); Progressive Ins. Co. v. Kelly, 181 Ga. App. 181, 351 S.E.2d 544 (1986). Best way to preserve a party’s fundamental right to a jury trial is to require the moving party to negate by proof an essential element of the nonmoving party’s claim. Hepner v. Southern Ry., 182 Ga. App. 346, 356 S.E.2d 30 (1987). Uncontradicted evidence required. — Burden is on the moving party to establish every element necessary to sustain a grant of the motion by uncontradicted evidence. Berrien v. Avco Fin. Servs., Inc., 123 Ga. App. 862, 182 S.E.2d 708 (1971). Plaintiff is entitled to summary judgment only if it appears without contradiction that there is no genuine issue of fact, and the burden is on the plaintiff to establish every element necessary to sustain a grant of the motion by uncontradicted evidence. Berrien v. Avco Fin. Servs., Inc., 123 Ga. App. 862, 182 S.E.2d 708 (1971). Evidence must be of necessary certitude. — On a motion for summary judgment by the plaintiff, the burden is upon the plaintiff to produce evidence of the necessary certitude, that is, that demands a finding as a matter of law that the defenses pled are untrue. Hurston v. Dealer Serv. Plan, Inc., 141 Ga. App. 148, 872 232 S.E.2d 641 (1977); Sun First Nat’l Bank v. Gainesville 75, Ltd., 155 Ga. App. 70, 270 S.E.2d 293 (1980). Evidence must conclusively eliminate all material issues. — To prevail on a motion for summary judgment, the movant has the burden to produce the evidence that conclusively eliminates all material issues in the case. Kohlmeyer & Co. v. Bowan, 130 Ga. App. 386, 203 S.E.2d 630 (1973); Fountain v. World Fin. Corp., 144 Ga. App. 10, 240 S.E.2d 558 (1977). Movant must show truth of essential matters. — It is the obligation of the movant for summary judgment to show positively the truth of the matters that are essential to a judgment in the movant’s behalf. Watkins Prods., Inc. v. England, 123 Ga. App. 179, 180 S.E.2d 265 (1971). Defendant movant’s evidence must refute plaintiff ’s allegations and show truth. — In order to pierce allegations of material fact contained in the plaintiff ’s petition, evidence offered by the defendant on a motion for summary judgment must unequivocally refute those allegations and must clearly show what is the truth of the matter alleged. Watkins v. Nationwide Mut. Fire Ins. Co., 113 Ga. App. 801, 149 S.E.2d 749 (1966) (decided under former Ga. L. 1959, p. 234, § 1 et seq.). It is not sufficient if evidence merely preponderates toward the defendant’s theory rather than the plaintiff ’s, or if it does no more than disclose circumstances under which satisfactory proof of the plaintiff ’s case on trial will be highly unlikely. Watkins v. Nationwide Mut. Fire Ins. Co., 113 Ga. App. 801, 149 S.E.2d 749 (1966) (decided under Ga. L. 1959, p. 234, § 1 et seq.). Shifting of burden to plaintiff respondent to produce rebuttal evidence. — When the defendant has made a motion for summary judgment, which motion is supported by affidavits, depositions, or other evidentiary matter showing a prima facie right on the part of the defendant to have summary judgment rendered in the defendant’s favor, duty is cast upon the plaintiff to produce rebuttal evidence at the hearing thereof, by introduction of depositions or affidavits suffi- 9-11-56 cient to show to the court that there is a genuine issue of fact to be decided by the jury. Cochran v. Southern Bus. Univ., Inc., 110 Ga. App. 666, 139 S.E.2d 400 (1964) (decided under former Ga. L. 1959, p. 234, § 1 et seq.). Burden is upon the movant to establish a lack of a genuine issue of fact and a right to summary judgment as a matter of law, and any doubt as to the existence of such an issue is resolved against the movant. Georgia Mut. Ins. Co. v. Morgan, 115 Ga. App. 520, 154 S.E.2d 720 (1967); Chapman v. Turnbull Elevator, Inc., 116 Ga. App. 661, 158 S.E.2d 438 (1967); Boston Ins. Co. v. Barnes, 120 Ga. App. 585, 171 S.E.2d 626 (1969); Lawson v. Duke Oil Co., 155 Ga. App. 363, 270 S.E.2d 898 (1980). Burden is upon the party moving for summary judgment, and the party opposing the motion is given benefit of all favorable inferences that may be drawn from the evidence. International Bhd. of Boilermakers v. Newman, 116 Ga. App. 590, 158 S.E.2d 298 (1967); Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969); Carr v. Young, 120 Ga. App. 464, 170 S.E.2d 834 (1969), overruled on other grounds, Stanger v. Cato, 182 Ga. App. 498, 356 S.E.2d 97 (1987). Burden is upon the movant to pierce the pleadings and to establish a lack of a genuine issue of fact and the movant’s right to judgment as a matter of law; any doubt as to the existence of such issue or issues is resolved against the movant, and the opposing party is given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. Caldwell v. Gregory, 120 Ga. App. 536, 171 S.E.2d 571 (1969); Connors v. City Council, 120 Ga. App. 499, 171 S.E.2d 578 (1969); Chastain v. Atlanta Gas Light Co., 122 Ga. App. 90, 176 S.E.2d 487 (1970). Party moving for summary judgment has the burden of showing the absence of a genuine issue of any material fact; and if the trial court is presented with a choice of inferences to be drawn from the facts, all inferences of fact from the proofs proffered at the hearing must be drawn against the movant and in favor of the opposing party. Fountain v. World Fin. Corp., 144 Ga. App. 873 Burdens on Motion for Summary Judgment (Cont’d) 2. Burden on Movant Generally (Cont’d) 10, 240 S.E.2d 558 (1977). Burden when movant does not have burden of proof at trial. — Movant for summary judgment has the burden of proof even as to issues upon which the opposing party would have the trial burden. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969); Lansky v. Goldstein, 136 Ga. App. 607, 222 S.E.2d 62 (1975); Danny’s Cabinet Shop, Inc. v. G & M Fire Extinguisher Sales & Serv., Inc., 149 Ga. App. 215, 253 S.E.2d 802 (1979). On motion for summary judgment, the burden of establishing the nonexistence of any genuine issue of fact is upon the moving party, and all doubts are to be resolved against the movant; the movant has that burden even as to issues upon which the opposing party would have the trial burden. Ham v. Ham, 230 Ga. 43, 195 S.E.2d 429 (1973); Black v. Hamilton, 133 Ga. App. 881, 212 S.E.2d 449 (1975); Piano & Organ Ctr., Inc. v. Southland Bonded Whse., Inc., 139 Ga. App. 480, 228 S.E.2d 615 (1976). Burden to show that there is no genuine issue of material fact rests on the party moving for summary judgment, whether the moving party or the opposing party would at trial have the burden of proof on the issue concerned, and rests on the moving party whether the moving party is required to show existence or nonexistence of facts. Southern Bell Tel. & Tel. Co. v. Beaver, 120 Ga. App. 420, 170 S.E.2d 737 (1969); Central of Ga. Ry. v. Woolfolk Chem. Works, Ltd., 122 Ga. App. 789, 178 S.E.2d 710 (1970); Kroger Co. v. Cobb, 125 Ga. App. 310, 187 S.E.2d 316 (1972). If the party upon whom the burden of proof upon trial does not lie, makes motion for summary judgment, all the evidence adduced on that motion, including testimony of the party opposing the motion, is construed most strongly against the movant. Burnette Ford, Inc. v. Hayes, 227 Ga. 551, 181 S.E.2d 866 (1971), overruled on other grounds, Tri-Cities Hosp. Auth. v. Sheats, 247 Ga. 713, 279 S.E.2d 9-11-56 210 (1981); Hospital Auth. v. AGN Mfg., Inc., 124 Ga. App. 159, 183 S.E.2d 58 (1971); Burnette Ford, Inc. v. Hayes, 124 Ga. App. 65, 183 S.E.2d 78 (1971); Epps Air Serv., Inc. v. DeKalb County, 147 Ga. App. 195, 248 S.E.2d 300 (1978); Roberson v. Home Ins. Co., 149 Ga. App. 590, 254 S.E.2d 908 (1979); Brooks v. Douglas, 154 Ga. App. 54, 267 S.E.2d 495 (1980); Combs v. Adair Mtg. Co., 155 Ga. App. 432, 270 S.E.2d 828 (1980); Aiken v. Drexler Shower Door Co., 155 Ga. App. 436, 270 S.E.2d 831 (1980); Pugh v. Frank Jackson Lincoln-Mercury, Inc., 165 Ga. App. 292, 300 S.E.2d 227 (1983). On motion for summary judgment by a party on whom the burden of proof does not lie on the trial of the case, all the evidence must be construed against the movant and in favor of the party opposing the motion. Pugh v. Frank Jackson Lincoln-Mercury, Inc., 165 Ga. App. 292, 300 S.E.2d 227 (1983). To prevail at summary judgment under O.C.G.A. § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff ’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of the plaintiff ’s claim, that claim tumbles like a house of cards. Lee v. Dep’t of Natural Res. of Ga., 263 Ga. App. 491, 588 S.E.2d 260 (2003). Allegation of incapacity in the plaintiff ’s complaint must be met by some evidentiary matter in order for the defendant movant to pierce the pleadings on a motion for summary judgment. Keith v. McLanahan, 147 Ga. App. 342, 249 S.E.2d 128 (1978). Hospital entitled to summary judgment in personal injury action. — Hospital was entitled to summary judgment in an action brought by one of the hospital’s physicians, who was injured after tripping in the staff parking lot, when 874 the physician was unable to link the cause of the injury and the hospital’s responsibility for that cause. Baldwin County Hosp. Auth. v. Martinez, 204 Ga. App. 840, 420 S.E.2d 760, cert. denied, 204 Ga. App. 921, 420 S.E.2d 760 (1992). If evidence insufficient, timely responsive brief irrelevant. — Because the evidence relied upon by the movant was insufficient to support the movant’s motion for summary judgment, regardless of the timeliness of the brief in response to the motion, the movant was not entitled to summary judgment. Hill v. Loren, 187 Ga. App. 71, 369 S.E.2d 260, cert. denied, 187 Ga. App. 907, 369 S.E.2d 260 (1988). Movant asserting forgery as defense. — Movant who asserts forgery as a defense has the burden of proof that the signature is not authentic and, if so, not authorized, even though the respondent holder in due course would have such burden at trial. Southtrust Bank v. Parker, 226 Ga. App. 292, 486 S.E.2d 402 (1997). Burden not met. — In response to the defendant’s motion for partial summary judgment, the plaintiff did not come forward with any specific evidence in support of the plaintiff ’s claim that the defendant wrongfully, illegally, or fraudulently calculated the plaintiff ’s premiums; therefore, the defendant was entitled to summary judgment on that portion of the counterclaim. T & R Custom, Inc. v. Liberty Mut. Ins. Co., 227 Ga. App. 144, 488 S.E.2d 705 (1997). 3. Burden on Nonmovant No conflict exists between this rule and the mandate of Superior Court Rule 6.5; rather, that rule’s requirement of filing a statement of material facts in issue is in addition to and not contrary to the Code provision. Mills v. J.E. Sharber Oil Co., 181 Ga. App. 81, 351 S.E.2d 275 (1986). Options of respondent to motion. — Respondent may resist a motion for summary judgment by doing nothing, relying on the failure of the movant to remove all issues of fact from the case, or by presenting evidence showing an issuable fact. Benefield v. Malone, 110 Ga. App. 607, 139 S.E.2d 500 (1964), later appeal, 112 Ga. 9-11-56 App. 408, 145 S.E.2d 732 (1965); Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 195 S.E.2d 277 (1972) (decided under Ga. L. 1959, p. 234, § 1 et seq.). One page response inadequate. — Summary judgment was not authorized merely because a defendant filed a one-page response that contained no substantive argument and failed to comply with Ga. Unif. Super. Ct. R. 6.5. Milk v. Total Pay & HR Solutions, Inc., 280 Ga. App. 449, 634 S.E.2d 208 (2006). Upon a wife’s request for year’s support, because a son never presented argument or evidence to contest the amount sought by the wife, never sought a hearing on the issue, and failed to rebut the wife’s claim of entitlement to that support, the son’s claims of error on appeal from an order granting the wife summary judgment in the superior court lacked merit. In re Estate of Avery, 281 Ga. App. 904, 637 S.E.2d 504 (2006). Opposing party not required to refute evidence until burden carried. — No duty devolves upon the opposing party to produce rebuttal evidence until a prima facie showing is made by the movant. Matthews v. North Cobb Tire Co., 120 Ga. App. 269, 170 S.E.2d 57 (1969); Lockhart v. Walker, 124 Ga. App. 241, 183 S.E.2d 503 (1971); Houston v. Doe, 136 Ga. App. 583, 222 S.E.2d 131 (1975); Lawrence v. Gardner, 154 Ga. App. 722, 270 S.E.2d 9 (1980). Burden of proof always lies with the movant for summary judgment, and this burden must be carried by the movant before the opposing party is required to refute evidence submitted by the movant. Guthrie v. Monumental Properties, Inc., 141 Ga. App. 21, 232 S.E.2d 369 (1977). If a prima facie showing is made that the moving party is entitled to judgment as a matter of law, the opposite party must come forward with rebuttal evidence at that time or suffer judgment against the opposing party. Meade v. Heimanson, 239 Ga. 177, 236 S.E.2d 357 (1977). Opposing party in a summary judgment proceeding is under no duty to present counter evidence in opposition to the motion for summary judgment until the moving party has produced evidence demanding that judgment. Peoples Bank v. 875 Burdens on Motion for Summary Judgment (Cont’d) 3. Burden on Nonmovant (Cont’d) Austin, 159 Ga. App. 223, 283 S.E.2d 81 (1981); Horton v. Wombles, 182 Ga. App. 214, 355 S.E.2d 124 (1987). Although it is true that on motion for summary judgment, the burden of establishing the nonexistence of any genuine issue of fact is upon the moving party, the burden of proof is shifted when the moving party makes a prima facie showing that the movant is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against the party. Leonaitis v. State Farm Mut. Auto. Ins. Co., 186 Ga. App. 854, 368 S.E.2d 775, cert. denied, 186 Ga. App. 918, 368 S.E.2d 775 (1988). Once the moving party for summary judgment has carried the movant’s burden of making out a prima facie case, the burden shifts and the opposite party must come forward with rebuttal evidence or suffer judgment against the opposing party. Hinkley v. Building Material Merchants Ass’n, 187 Ga. App. 345, 370 S.E.2d 201 (1988). Once the party moving for summary judgment has made a prima facie showing that the movant is entitled to judgment as a matter of law, the burden shifts to the nonmovant, who must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact. Weldon v. Del Taco Corp., 194 Ga. App. 174, 390 S.E.2d 87 (1990); Southern Gen. Ins. Co. v. Davis, 205 Ga. App. 274, 421 S.E.2d 780 (1992). Until the moving party produces evidence or materials that prima facie pierce the pleadings of the opposing party, no duty rests upon the opposing party to produce any counter evidence or materials in affirmative support of its side of the issue as made by the pleadings. Southern Bell Tel. & Tel. Co. v. Beaver, 120 Ga. App. 420, 170 S.E.2d 737 (1969); Guthrie v. Monumental Properties, Inc., 141 Ga. App. 21, 232 S.E.2d 369 (1977); Sun First Nat’l Bank v. Gainesville 75, Ltd., 155 Ga. App. 70, 270 S.E.2d 293 (1980). 9-11-56 Until the movant produces proof that pierces the pleadings, there is no requirement that the opposing party offer counterproof. Anderson v. Redwal Music Co., 122 Ga. App. 247, 176 S.E.2d 645 (1970); Sapp v. ABC Credit & Inv. Co., 243 Ga. 151, 253 S.E.2d 82 (1979). Respondent has no burden whatever; the burden of proving a right to summary judgment lies with the movant. Watkins Prods., Inc. v. England, 123 Ga. App. 179, 180 S.E.2d 265 (1971). Until movant shows absence of material issue. — Respondent in summary judgment proceeding is not ever required to rebut a motion until the movant has carried the burden of showing no material issue. Ginn v. Morgan, 225 Ga. 192, 167 S.E.2d 393 (1969); Mica-Top Fixture Co. v. Frank G. Shattuck Co., 124 Ga. App. 100, 183 S.E.2d 15 (1971). Entitlement to judgment. — On motion for summary judgment, the respondent has no burden at all until the movant has first shown that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law on the basis of the pleadings and the affidavits. Doughty v. Associates Com. Corp., 152 Ga. App. 575, 263 S.E.2d 493 (1979). Until such time as judgment is demanded, the defendant respondent to the plaintiff ’s motion for summary judgment is not required to produce any evidence. Maxwell v. Columbia Realty Venture, 155 Ga. App. 289, 270 S.E.2d 704 (1980). By proper affidavits and permitted evidence. — It is only when a motion for summary judgment is supported by proper affidavits or other permitted evidence that the adverse party had a duty to produce evidence of fact. Massey v. National Homeowners Sales Serv. Corp., 225 Ga. 93, 165 S.E.2d 854 (1969). Burden shifts to nonmovant when prima facie showing made. — If a motion for summary judgment is supported by affidavits, depositions, or other evidentiary matter showing a prima facie right in the movant to have judgment rendered in the movant’s favor, the duty is cast upon the opposing party to produce rebuttal evidence at the hearing sufficient to show existence of a genuine issue of 876 fact. Germaine v. Webster’s Shopping Ctr., Inc., 116 Ga. App. 547, 158 S.E.2d 682 (1967); Stephens County v. Gaines, 128 Ga. App. 662, 197 S.E.2d 424 (1973); Lawyers Title Ins. Corp. v. Noland Co., 140 Ga. App. 114, 230 S.E.2d 102 (1976). One opposing a motion for summary judgment must present the essence of the party’s case or else suffer judgment. Meade v. Heimanson, 239 Ga. 177, 236 S.E.2d 357 (1977). Burden is on moving party to show that no material issues of fact exist; burden of proof can be shifted, however, when a prima facie showing is made that the moving party is entitled to judgment as a matter of law, and the opposite party must come forward with rebuttal evidence at that time, or suffer judgment against the opposing party. Skinner v. Humble Oil & Ref. Co., 145 Ga. App. 372, 243 S.E.2d 732 (1978); Herman v. Walsh, 154 Ga. App. 712, 269 S.E.2d 535 (1980). Summary judgment in workers’ compensation case. — Pretermitting whether the trial court correctly determined that no benefits had been paid under Georgia’s Workers’ Compensation Act, and thus the employer had no right of subrogation to the tort claim settlement proceeds, the trial court’s order granting partial summary judgment to the employee extinguishing the employer’s subrogation lien had to be affirmed as the employer failed to carry the employer’s burden of showing that the injured employee was fully and completely compensated within the meaning of O.C.G.A. § 34-9-11.1(b). Paschall Truck Lines, Inc. v. Kirkland, 287 Ga. App. 497, 651 S.E.2d 804 (2007). Nonmovant must present alternative theories. — If the movant for summary judgment presents evidence that shows that there is no genuine issue of material fact, the movant has met the movant’s burden, and the burden then shifts to the opposite party to present any alternative theories, if such exist, which would support the opposing party’s action and within which genuine issues of fact remain. Culwell v. Lomas & Nettleton Co., 148 Ga. App. 478, 251 S.E.2d 579 (1978). Nonmovant must meet and controvert specific facts set forth by the mov- 9-11-56 ing party. Stone Mt. Mem. Ass’n v. Herrington, 225 Ga. 746, 171 S.E.2d 521 (1969); Hartline-Thomas, Inc. v. H.W. Ivey Constr. Co., 161 Ga. App. 91, 289 S.E.2d 296 (1982); City of Cordele v. Turton’s, Inc., 163 Ga. App. 327, 293 S.E.2d 560 (1982). Summary judgment in favor of a consulting group was proper since an entertainment club, which presented evidence on the club’s behalf, failed to present evidence that refuted the consulting group’s evidence establishing the entertainment club’s breach of a contract and the amount of damages due to the consulting group as a consequence of that breach of contract. Oasis Goodtime Emporium I, Inc. v. Crossroads Consulting Group, LLC, 255 Ga. App. 375, 565 S.E.2d 573 (2002). Nonmoving party must set forth specific facts showing genuine issue. — If the party moving for summary judgment has presented evidence of the necessary servitude, the opposing party must, in opposing affidavits, set forth specific facts showing a genuine issue to be decided by the jury. Hyman v. Horwitz, 148 Ga. App. 647, 252 S.E.2d 74 (1979). When a motion for summary judgment is made, the adverse party may not rest upon the allegations of the pleadings, but must set forth specific facts showing there is a genuine issue for trial. Oliver v. Thomas, 158 Ga. App. 388, 280 S.E.2d 416 (1981); Curtis v. J.L. Todd Auction Co., 159 Ga. App. 863, 285 S.E.2d 596 (1981). When a motion for summary judgment is submitted and supported by evidence, the adverse party may not rest upon the case as made, but must set forth specific facts and present the case in full in order to show there is a genuine issue for trial. Alghita v. Universal Inv. & Mfg. Co., 167 Ga. App. 562, 307 S.E.2d 99 (1983). Opposing affidavits must set forth specific facts. — Mere conclusions are not sufficient to overcome allegations or admissions in an opposing motion for summary judgment, if the moving party has presented evidence of the necessary certitude; the opposing party must, in the opposing affidavits, set forth specific facts showing a genuine issue to be decided by a jury. Scroggins v. Whitfield Fin. Co., 152 Ga. App. 8, 262 S.E.2d 168 (1979). 877 Burdens on Motion for Summary Judgment (Cont’d) 3. Burden on Nonmovant (Cont’d) Mere statement of conclusion insufficient. — Adverse party must set forth ‘‘specific facts’’; the opposing party cannot merely state a conclusion. Norris v. Kunes, 166 Ga. App. 686, 305 S.E.2d 426 (1983). When motion to dismiss is converted. — When matters outside the pleadings are considered by the trial court on a motion to dismiss for failure to state a claim, the motion is converted to a motion for summary judgment pursuant to O.C.G.A. § 9-11-56, and the trial court has the burden of informing the party opposing the motion that the court will consider matters outside the pleadings and that, if the opposing party so desires, the party has no less than 30 days to submit evidence in response to the motion for summary judgment; moreover, when patients in a class action suit against a hospital acquiesced in the hospital’s submission of evidence in support of their motion to dismiss, and in effect, requested that the motion be converted into one for summary judgment by submitting evidence and by urging the trial court and the appeals court to consider it, the patients waived the right to any formal 30-day notice from the trial court. Davis v. Phoebe Putney Health Sys., 280 Ga. App. 505, 634 S.E.2d 452 (2006). ‘‘Plaintiff breached the contract’’ insufficient response. — In a suit on account, the trial court does not err in granting the plaintiff ’s motion for summary judgment while reserving ruling on the defendant’s counterclaim, if the defendant does nothing other than allege generally in the defendant’s answer that ‘‘plaintiff breached the contract.’’ Concert Promotions, Inc. v. Haas & Dodd, Inc., 167 Ga. App. 883, 307 S.E.2d 763 (1983). Because the plaintiff failed to carry the burden of piercing the defendant’s defense of release, it was not necessary that the defendant come forward with evidence sufficient to show the release, and since the plaintiff was not entitled to judgment as a matter of law, the trial court did not err by denying the 9-11-56 court’s motion for summary judgment. Howell Mill/Collier Assocs. v. Gonzales, 186 Ga. App. 909, 368 S.E.2d 831 (1988). Imputing liability to owner of car. — In a passenger’s personal injury action against an owner of another vehicle that had been negligently driven by another, causing it to collide with the car in which the passenger was riding, summary judgment was properly granted to the owner under O.C.G.A. § 9-11-56 since the passenger did not offer evidence to support the passenger’s claim for imputing liability on the owner, pursuant to O.C.G.A. § 51-2-2, beyond the passenger showing that the owner owned and insured the vehicle; it was noted that the true test of liability for imputing liability was not the title or ownership, but rather the agency. Collins v. Hamilton, 259 Ga. App. 52, 576 S.E.2d 42 (2002). Punitive damages. — In a case in which the defendant filed interrogatories requesting that the plaintiffs give ‘‘each and every fact’’ upon which the plaintiffs relied in support of their general allegations that the defendant’s ‘‘wilful and wanton’’ conduct authorized a recovery of punitive damages and the plaintiffs responded that the plaintiffs were relying upon the fact that the defendant was physically unable to drive an automobile and had continued to drive notwithstanding the defendant’s limitations, but the defendant, in support of the motion for summary judgment, submitted the defendant’s own affidavit, as well as that of a physician, both of which were to the fact that, at the time of the collision, the defendant was physically capable of driving safely and without restriction, and in opposition, the plaintiffs submitted only the affidavit of a witness who stated that, on one prior occasion, the witness had seen the defendant drive dangerously and recklessly as to speed and following too closely, but without injurious result, the plaintiffs failed to produce specific facts that would rebut the defendant’s evidence of the lack of aggravating circumstances so the trial court correctly granted the defendant partial summary judgment on the issue of punitive damages. Currie v. Haney, 183 Ga. App. 506, 359 S.E.2d 350, cert. denied, 183 Ga. App. 905, 359 S.E.2d 350 (1987). 878 Affidavit showing refusal to cohabit. — If the party moving for summary judgment files an affidavit setting forth evidentiary facts showing refusal to cohabit and the lack of any prospects for reconciliation, summary judgment will be granted unless there is an opposing affidavit showing that the movant has not refused to cohabit or has shown prospects for reconciliation. Bryan v. Bryan, 248 Ga. 312, 282 S.E.2d 892 (1981). Reference to depositions filed after summary judgment motion not permitted. — Because depositions relied upon by a husband and wife in their personal injury and loss of consortium action were not filed prior to the time a motion for summary judgment was ruled upon, their reference to the testimony contained therein could not be considered, and their brief in opposition to the summary judgment motion citing the testimony was not proper evidence for opposing the motion. Parker v. Silviano, 284 Ga. App. 278, 643 S.E.2d 819 (2007). Failure to present evidence of actual knowledge supporting negligent entrustment claim. — In a personal injury action asserting negligent entrustment, because the injured party failed in the burden of presenting evidence that a passenger in the opposing vehicle had actual knowledge of the incompetent driving of that vehicle’s driver, or of facts from which such knowledge could be inferred, due to that driver’s intoxication, summary judgment in the passenger’s favor was properly entered; the injured party failed to prove an essential element of the entrustment claim. Williams v. Ngo, 289 Ga. App. 44, 656 S.E.2d 193 (2007). 4. Burdens When Defendant Is Movant Burden on the defendant’s motion for summary judgment is on the defendant to pierce the pleadings and to show conclusively that the plaintiff has no right to recover. Reed v. Batson-Cook Co., 122 Ga. App. 803, 178 S.E.2d 728 (1970). Movant defendant must effectively pierce any state of facts contained in the plaintiff ’s complaint or those that may be proved in connection therewith so as to preclude as a matter of law the plaintiff ’s 9-11-56 right to prevail under any theory alleged. Morton v. Stewart, 153 Ga. App. 636, 266 S.E.2d 230 (1980). When the movant is the defendant, the movant has the additional burden of piercing the plaintiff ’s pleadings and affirmatively negating one or more essential elements of the complaint. Corbitt v. Harris, 182 Ga. App. 81, 354 S.E.2d 637 (1987). If a motion for summary judgment is made by a defendant, that defendant shoulders the burden of disproving the plaintiff ’s case, that is, the defendant must affirmatively disprove the case by uncontroverted evidence that demands a finding that no genuine issue as to any material fact remains, and the defendant is entitled to a judgment as a matter of law. Equitable Life Assurance Soc’y v. Reynolds, 186 Ga. App. 608, 367 S.E.2d 879 (1988). When the defendant moves for summary judgment, the defendant has the burden of piercing the pleadings and affirmatively negating one or more essential elements of the plaintiff ’s case. Church v. SMS Enters., 186 Ga. App. 791, 368 S.E.2d 554 (1988). Defendant may demonstrate that there is no genuine issue of material fact to be decided by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff ’s case. Brown v. Brewer, 237 Ga. App. 145, 513 S.E.2d 10 (1999). Defendant must unequivocally refute allegations. — In order to pierce allegations of material fact contained in the plaintiff ’s petition, evidence offered by the defendant on a motion for summary judgment must unequivocally refute those allegations and must clearly show what is the truth of the matter alleged. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969); Matthews v. North Cobb Tire Co., 120 Ga. App. 269, 170 S.E.2d 57 (1969); Supreme Oil Co. v. Brock, 129 Ga. App. 863, 201 S.E.2d 659 (1973). Movant’s evidence must be of necessary certitude. — On a motion for 879 Burdens on Motion for Summary Judgment (Cont’d) 4. Burdens When Defendant Is Movant (Cont’d) summary judgment in favor of the defendant on the ground that the plaintiff has no valid claim, the defendant has the burden of producing evidence of the necessary certitude that negates the plaintiff ’s claim. Central of Ga. Ry. v. Woolfolk Chem. Works, Ltd., 122 Ga. App. 789, 178 S.E.2d 710 (1970); Kroger Co. v. Cobb, 125 Ga. App. 310, 187 S.E.2d 316 (1972). Movant’s evidence must negate one essential element under every theory of recovery. — In order for the defendant to prevail on a motion for summary judgment, pleadings, uncontradicted evidence, or admission must negate an essential element of recovery. Seligman & Latz of Atlanta, Inc. v. Grant, 116 Ga. App. 539, 158 S.E.2d 483 (1967). Burden is on the defendant who moves for summary judgment to produce evidence that conclusively negates at least one essential element entitling the plaintiff to recover under every theory fairly to be drawn from pleadings and evidence. Goodwin v. Mullins, 122 Ga. App. 84, 176 S.E.2d 551 (1970); Central of Ga. Ry. v. Woolfolk Chem. Works, Ltd., 122 Ga. App. 789, 178 S.E.2d 710 (1970); Reed v. Batson-Cook Co., 122 Ga. App. 803, 178 S.E.2d 728 (1970); Lockhart v. Beaird, 128 Ga. App. 7, 195 S.E.2d 292 (1973); Turner v. Noe, 127 Ga. App. 870, 195 S.E.2d 463 (1973); Moss v. Central of Ga. R.R., 135 Ga. App. 904, 219 S.E.2d 593 (1975); Horner v. Savannah Valley Enters., Inc., 138 Ga. App. 117, 225 S.E.2d 458 (1976). To entitle the defendant to summary judgment, undisputed facts, as disclosed by the pleadings and evidence, must negate at least one essential element entitling the plaintiff to recovery and under every theory fairly drawn from the pleadings and evidence and, if necessary, prove the negative or nonexistence of an essential element affirmatively asserted by the plaintiff. Epps Air Serv., Inc. v. DeKalb County, 147 Ga. App. 195, 248 S.E.2d 300 (1978); Lawrence v. Gardner, 154 Ga. App. 722, 270 S.E.2d 9 (1980); Waller v. Transworld Imports, Inc., 155 Ga. App. 438, 271 S.E.2d 1 (1980). 9-11-56 Burden is on the defendant who moves for summary judgment to produce evidence that conclusively negates the essential elements entitling the respondent to recover under any theory that may be drawn fairly from the pleadings and the evidence. Fort v. Boone, 166 Ga. App. 290, 304 S.E.2d 465 (1983). To prevail on a motion for summary judgment, a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. Reed v. Adventist Health Systems/Sunbelt, 181 Ga. App. 750, 353 S.E.2d 523 (1987); Trust Co. Bank v. Stubbs, 203 Ga. App. 557, 417 S.E.2d 373, cert. denied, 203 Ga. App. 908, 417 S.E.2d 373 (1992). When the defendant is the movant, the defendant has the burden of negating conclusively at least one of the essential elements of the plaintiff ’s case. Ryder Truck Rental, Inc. v. Carter, 189 Ga. App. 43, 374 S.E.2d 830 (1988). Defendant may meet the burden for summary judgment under O.C.G.A. § 9-11-56 by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff ’s case; if there is no evidence sufficient to create a genuine issue as to any essential element of the plaintiff ’s claim, that claim tumbles like a house of cards, and all of the other disputes of fact are rendered immaterial. Sudduth v. Young, 260 Ga. App. 56, 579 S.E.2d 7 (2003). Defendant’s burden not carried by failure of evidence to prove plaintiff ’s case. — Defendant, on whom burden of proof at trial does not lie, and who on motion for summary judgment in the defendant’s favor does not pierce the issues made by the pleadings or disprove one or more of the essential elements of the plaintiff ’s case, does not carry the defendant’s burden merely because evidence submitted fails to prove the plaintiff ’s case. Continental Assurance Co. v. Rothell, 121 Ga. App. 868, 176 S.E.2d 259 (1970), aff ’d in part and rev’d in part on 880 other grounds, 227 Ga. 258, 181 S.E.2d 283, vacated on other grounds, 123 Ga. App. 423, 181 S.E.2d 541 (1971). Burden discharged by pointing out absence of evidence. — Defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out, by reference to the affidavits, depositions, and other documents in the record, that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991); Brown v. Buffington, 203 Ga. App. 402, 416 S.E.2d 883 (1992). Contrary to the plaintiff ’s argument, a driver and the driver’s passenger, in opposing the defendant motorist’s summary judgment motion in the plaintiffs’ action to recover for personal injuries and property damage, the motorist was not required to produce evidence to support the motorist’s assertion that the motorist was never served with process; rather, the motorist met the summary judgment burden by pointing out in the record that there was an absence of evidence to support the plaintiffs’ case in that regard and, specifically, that there was evidence that the sheriff ’s office had been unable to serve the motorist. Carter v. McKnight, 260 Ga. App. 105, 578 S.E.2d 901 (2003). Affirmative showing that plaintiff not entitled to recovery required. — To warrant entry of summary judgment in favor of the defendant, undisputed facts should show the right of the defendant to judgment with such clarity as to leave no room for controversy, and should show affirmatively that the plaintiff would not be entitled to recover under any discernible circumstances. Lockhart v. Walker, 124 Ga. App. 241, 183 S.E.2d 503 (1971); Buford-Clairmont, Inc. v. Jacobs Pharmacy Co., 131 Ga. App. 643, 206 S.E.2d 674 (1974); Allen & Bean, Inc. v. American Bankers Ins. Co., 153 Ga. App. 617, 266 S.E.2d 295 (1980). Evidence that merely preponder- 9-11-56 ates toward the defendant’s theory rather than the plaintiff ’s, or if it does no more than disclose circumstances under which satisfactory proof of the plaintiff ’s case on trial will be highly unlikely. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969); Matthews v. North Cobb Tire Co., 120 Ga. App. 269, 170 S.E.2d 57 (1969); Supreme Oil Co. v. Brock, 129 Ga. App. 863, 201 S.E.2d 659 (1973). Burden on nonmovant plaintiff. — If the defendant moves for summary judgment, there is no burden on the plaintiff to come forward with proof of the plaintiff ’s case until evidence adduced prima facie disproves an essential element of the plaintiff ’s theory of recovery. Continental Assurance Co. v. Rothell, 121 Ga. App. 868, 176 S.E.2d 259 (1970), aff ’d in part and rev’d in part on other grounds, 227 Ga. 258, 181 S.E.2d 283, vacated on other grounds, 123 Ga. App. 423, 181 S.E.2d 541 (1971). If the movant defendant’s showing on a summary judgment motion pierces material issues made by the pleadings, an evidentiary response by the plaintiff respondent is required for the plaintiff to avoid an adverse summary judgment. Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 195 S.E.2d 277 (1972). When the defendant makes a motion for summary judgment under O.C.G.A. § 9-11-56, which motion is supported by affidavits, depositions, or other evidentiary matters showing a prima facie right on the part of the defendant to have summary judgment rendered in the defendant’s favor, the duty is then cast upon the plaintiff to produce rebuttal evidence at the hearing on the motion, by the introduction of depositions, affidavits, or other evidence sufficient to show to the court that there is a genuine issue of fact to be decided by the jury. Rehak v. Mathis, 239 Ga. 541, 238 S.E.2d 81 (1977). Plaintiff need not produce evidence until the defendant’s evidence pierces the plaintiff ’s pleadings and demands a finding in the defendant’s favor on the particular issue of fact made by the pleadings. Fort v. Boone, 166 Ga. App. 290, 304 S.E.2d 465 (1983). Plaintiff is not required to respond to issues that are not raised in the defen- 881 Burdens on Motion for Summary Judgment (Cont’d) 4. Burdens When Defendant Is Movant (Cont’d) dant’s motion for summary judgment or to present the plaintiff ’s entire case on all allegations in the complaint; thus, until the defendant pierced the allegations of the complaint on a particular issue, the plaintiff was not required to respond to the motion on that issue. Hodge v. Sada Enters., Inc., 217 Ga. App. 688, 458 S.E.2d 876 (1995). If the defendant hospital makes a motion for summary judgment and the attending physician gives a medical affidavit that states a medical opinion that the alleged deviation from the standard of care has no causal connection with the injury or aggravated a pre-existing condition, such motion has pierced the plaintiff ’s pleadings, refuted causation, and shifted the burden to the plaintiff of coming forward with some evidence to create a material issue of fact. Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 505 S.E.2d 232 (1998). Once the defendant has carried burden of showing an absence of a genuine issue of fact, the plaintiff is required to offer refuting evidence, and if the plaintiff has failed to produce refuting evidence, the trial court’s grant of summary judgment is proper. Gilbert v. Jones, 187 Ga. App. 303, 370 S.E.2d 155 (1988). Standard for defendant’s burden. — When the defendant moving for summary judgment presents evidence apparently destroying the plaintiff ’s cause of action, the defendant meets the burden; the burden then shifts to the plaintiff to present any alternative theories, if such exist, which would support the action and within which genuine issues of fact remain. Gerald v. Ameron Automotive Ctrs., 145 Ga. App. 200, 243 S.E.2d 565 (1978), rev’d on other grounds, 245 Ga. 5, 262 S.E.2d 895 (1980). Nonmovant plaintiff need not prove entitlement to relief. — In opposing a motion for summary judgment, it is not necessary for the plaintiff to produce sufficient evidence to show that the plaintiff is entitled to the relief sought. 9-11-56 Wall v. Georgia Farm Bureau Mut. Ins. Co., 238 Ga. 275, 232 S.E.2d 555 (1977); Thomas v. McGee, 242 Ga. 441, 249 S.E.2d 242 (1978). If the movant defendant has pierced the allegations of the pleadings and shown the truth to the court, the defendant may receive a grant of summary judgment if there is no genuine issue of material fact considering the pleadings and available evidence. Fort v. Boone, 166 Ga. App. 290, 304 S.E.2d 465 (1983). Plaintiff ’s options of producing counterproof or doing nothing. — If the defendant moves for summary judgment, the plaintiff has the choice of producing counterproof and thus making an issue of fact, or doing nothing, that is, creating no issue of fact and suffering judgment. Brown v. J.C. Penney Co., 123 Ga. App. 233, 180 S.E.2d 364 (1971). If the defendant alleges that cashing of check and retaining proceeds constitutes accord and satisfaction, regardless of any protest, oral or written, and regardless of whether the other party is given notice of protest or any purported reservation of rights, the defendant thus undertakes to discharge a treble burden: not only that ordinarily imposed upon the proponent of an affirmative defense, but a second burden that requires the movant for summary judgment to establish that there exist no material issues of fact in the case, and yet a third that requires the movant who is also the defendant affirmatively to negate one or more essential elements of the case made out by the plaintiff. Wallace v. Harrison, 166 Ga. App. 461, 304 S.E.2d 487 (1983). In a ‘‘slip and fall’’ case, on a motion for summary judgment the burden was on the defendant store owner, as movant, to come forward with evidence tending to show that the defendant did not have constructive knowledge of the presence of the alleged hazard. Shiver v. Singletary, 186 Ga. App. 746, 368 S.E.2d 523, cert. denied, 186 Ga. App. 918, 368 S.E.2d 523 (1988). In a slip and fall case, if the plaintiff has alleged that the defendant had actual knowledge of a defect, the defendant-movant must proffer some evi- 882 dence that the defendant did not know of the defect, in order to proceed toward summary judgment. Baldwin County Hosp. Auth. v. Coney, 188 Ga. App. 339, 373 S.E.2d 252 (1988). Defendant’s motion granted absent testimony negating allegation. — In a product liability action, given the plaintiff ’s continued inability or unwillingness to cite any specific instances of the manufacturer’s alleged negligence in the design and manufacture of a van, the trial court was authorized under such circumstances to conclude that no such conduct had in fact occurred and that no material issue of fact remained to be tried with respect to this claim, even in the absence of sworn testimony affirmatively negating the allegation that such conduct had occurred. Collins v. Byrd, 204 Ga. App. 893, 420 S.E.2d 785, cert. denied, 204 Ga. App. 921, 420 S.E.2d 785 (1992). Evidence on Motion 1. In General Purpose of summary judgment procedures would not be advanced by artificial blockades against production of facts helpful in a determination of whether or not a jury issue exists, and this includes both oral and documentary evidence. Kiker v. Pinson, 120 Ga. App. 784, 172 S.E.2d 333 (1969). Conversion from motion to dismiss. — When matters outside the pleadings are considered by the trial court on a motion to dismiss for failure to state a claim, the motion is converted to a motion for summary judgment pursuant to O.C.G.A. § 9-11-56, and the trial court has the burden of informing the party opposing the motion that the court will consider matters outside the pleadings and that, if the opposing party so desires, the party has no less than 30 days to submit evidence in response to the motion for summary judgment. Morrell v. Wellstar Health Sys., Inc., 280 Ga. App. 1, 633 S.E.2d 68 (2006). List of forms of evidence not exclusive. — Forms of evidence listed in O.C.G.A. § 9-11-56 are not exclusive means of presenting evidence on a motion for summary judgment; the trial court 9-11-56 may consider any material which would be admissible or usable at trial. Benton Bros. Ford Co. v. Cotton States Mut. Ins. Co., 157 Ga. App. 448, 278 S.E.2d 40 (1981). Court will consider all materials which meet standards of this section. — Court is obliged to take account of the entire setting of the case on a summary judgment motion, and the court will consider all papers of record, as well as any material prepared for the motion that meets the standard prescribed in subsection (e) of O.C.G.A. § 9-11-56. Glisson v. Morton, 203 Ga. App. 77, 416 S.E.2d 134 (1992). Introduction of items in subsection (c). — There is no requirement under subsection (c) of this section that the items listed be introduced into evidence. Thompson v. Abbott, 226 Ga. 353, 174 S.E.2d 904 (1970), overruled on other grounds, Ogden Equip. Co. v. Talmadge Farms, Inc., 232 Ga. 614, 208 S.E.2d 459 (1974). Introduction of evidence not prerequisite to consideration. — Trial court properly considered defendant’s answers to interrogatories in passing on a motion for summary judgment, even though such answers were not introduced into evidence, as introduction of evidence is not a necessary condition for consideration of such evidence on summary judgment. Ford v. Georgia Power Co., 151 Ga. App. 748, 261 S.E.2d 474 (1979). Subsection (c) limits certain evidence considered on motion. — Subsection (c) of O.C.G.A. § 9-11-56 requires that only supporting material which is ‘‘on file’’ at least 30 days before the hearing shall be considered for the movant. Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631, 278 S.E.2d 377 (1981). Complaint is not evidence, and thus may not be considered in deciding a motion for summary judgment. Clements v. Hendi, 182 Ga. App. 118, 354 S.E.2d 700 (1987). Patient’s complaint was not evidence and thus could not be considered in deciding a motion for summary judgment. Wellstar Health Sys. v. Painter, 288 Ga. App. 659, 655 S.E.2d 251 (2007). Improper legal standard in withdrawal of admissions. — Because the 883 Evidence on Motion (Cont’d) 1. In General (Cont’d) trial court applied the wrong legal standard in refusing to allow the defendants to withdraw the defendants’ admissions, and should have applied the standard set forth in O.C.G.A. § 9-11-36(b) and considered whether withdrawal would serve the presentation of the merits and whether it would prejudice the plaintiffs, summary judgment was improper; moreover, the trial court erroneously held that summary judgment was proper because the defendants had shown no excuse for their former counsel’s failure to respond to the plaintiffs request for admissions as the defendants were not required to make such a showing. Sayers v. Artistic Kitchen Design, LLC, 280 Ga. App. 223, 633 S.E.2d 619 (2006). Documentary evidence. — Subsection (c) of this section does not preclude use of documentary evidence in a summary judgment proceeding. Kiker v. Pinson, 120 Ga. App. 784, 172 S.E.2d 333 (1969). Statement of facts. — Statement of facts submitted pursuant to Uniform Superior Court Rule 6.5 is not evidence for purposes of a motion for summary judgment. Rapps v. Cooke, 234 Ga. App. 131, 505 S.E.2d 566 (1998). Additional evidence. — O.C.G.A. § 9-11-56 does not prohibit successive motions for summary judgment based on additional evidence. Conversely, the statute does not prohibit the filing of additional evidence once a motion for summary judgment is denied. If a deficiency in evidence can be cured short of trial, then the obvious expedient of a motion more fully supported will achieve final resolution more quickly and inexpensively for all concerned. Hogans v. Food Giant, Inc., 185 Ga. App. 645, 365 S.E.2d 496 (1988); NeSmith v. Ellerbee, 203 Ga. App. 65, 416 S.E.2d 364 (1992). Competent and admissible evidence required. — ‘‘Genuine issue’’ test is not met unless evidence offered is competent and admissible. General Ins. Co. of Am. v. Camden Constr. Co., 115 Ga. App. 189, 154 S.E.2d 26 (1967) (decided under former Ga. L. 1959, p. 234, § 1 et seq.). 9-11-56 Case must be provable by competent evidence. — Depositions or affidavits offered in support of the plaintiff ’s case and in opposition to the defendant’s motion for summary judgment must affirmatively show that the plaintiff ’s case is provable by competent evidence. Cochran v. Southern Bus. Univ., Inc., 110 Ga. App. 666, 139 S.E.2d 400 (1964) (decided under former Ga. L. 1959, p. 234, § 1 et seq.). Deposition improperly excluded because it was an unsigned copy. — In a parents’ action against a care home arising out of the death of their adult son, the trial court erred in refusing to consider a copy of the deposition of the parents’ expert because it was not an original and had not been signed by the deponent; the copy contained the court reporter’s signed certification that the transcript was a true and complete record of the evidence given by the expert. Blake v. KES, Inc., 329 Ga. App. 742, 766 S.E.2d 138 (2014). Speculation insufficient. — Speculation which raises merely a conjecture or possibility is not sufficient to create even an inference of fact for consideration on summary judgment. Emory Univ. v. Smith, 260 Ga. App. 900, 581 S.E.2d 405 (2003). Showing of competency to testify required. — Affidavit which fails to show affirmatively that the affiant is competent to testify to matters stated therein fails to comply with subsection (c) of this section as to evidence under motions for summary judgment. Watkins Prods., Inc. v. England, 123 Ga. App. 179, 180 S.E.2d 265 (1971). Evidence in support of or in opposition to a motion for summary judgment, whether by deposition, affidavit, interrogatory, or otherwise, must show affirmatively that the affiant is competent to testify to matters stated therein. Crawford v. McDonald, 125 Ga. App. 289, 187 S.E.2d 542 (1972). Incompetent complainant. — When the complainant’s affidavit affirmatively revealed that the complainant was not competent to testify as to the matters stated therein, the affidavit would not support a motion for summary judgment. Ireland v. Matthews, 120 Ga. App. 510, 884 171 S.E.2d 387 (1969). Competence to testify as to law of foreign state. — When there is no showing that the defendant is competent to testify as to the law of the foreign state, the affidavit of the defendant as to such matters is without probative value on a motion for summary judgment. Ryle v. Ryle, 130 Ga. App. 680, 204 S.E.2d 339 (1974). Subsection (e) does not change proof required to defeat motion for summary judgment, when evidence submitted therewith has pierced the pleadings; it is merely a statutory amendment to reflect what has already been decided judicially as to the opposing evidence required. Prudential Ins. Co. of Am. v. Seagraves, 117 Ga. App. 480, 160 S.E.2d 912 (1968). Enactment of subsection (e) of this section did not eliminate requirement that pleadings be pierced. Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 195 S.E.2d 277 (1972). Consideration of entire setting of case. — Court is obliged to take account of the entire setting of a case on a motion for summary judgment; 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 subsection (e) of this section. Union Circulation Co. v. Trust Co. Bank, 146 Ga. App. 612, 247 S.E.2d 197 (1978). Court is obligated to take account of entire setting of case on a motion for summary judgment. Smith v. Jones, 154 Ga. App. 629, 269 S.E.2d 471 (1980). Trial judge should always search entire record before granting motion for summary judgment, and should not be limited to evidence introduced at hearing. Thompson v. Abbott, 226 Ga. 353, 174 S.E.2d 904 (1970), overruled on other grounds, Ogden Equip. Co. v. Talmadge Farms, Inc., 232 Ga. 614, 208 S.E.2d 459 (1974); Jackson v. Couch Funeral Home, 131 Ga. App. 695, 206 S.E.2d 718 (1974); Realty Contractors, Inc. v. Citizens & S. Nat’l Bank, 146 Ga. App. 69, 245 S.E.2d 342 (1978); Union Circulation Co. v. Trust Co. Bank, 146 Ga. App. 612, 247 S.E.2d 197 (1978); Sacks v. Bell Tel. Labs., Inc., 149 Ga. App. 799, 256 S.E.2d 87 (1979). 9-11-56 In ruling on motion for summary judgment, particularly one based upon a contract which is controlling, it is axiomatic that the court must search the entire record and consider all papers of record properly before the court. American Mut. Fire Ins. Co. v. Llewellyn, 142 Ga. App. 824, 237 S.E.2d 227 (1977). On consideration of summary judgments, trial court must look at the entire record. Lawson v. Duke Oil Co., 155 Ga. App. 363, 270 S.E.2d 898 (1980). Completion of discovery not required before ruling on motion. — In an action by the children of a decedent against the operators of a nursing home, the trial court was not required to allow the children to complete discovery before ruling on the operators’ motion for summary judgment. If the children needed additional discovery for their response to the motion, the children should have invoked O.C.G.A. § 9-11-56(f ). Carr v. Kindred Healthcare Operating, Inc., 293 Ga. App. 80, 666 S.E.2d 401 (2008). Additional evidence may be ordered by judge. — If there is doubt in the trial judge’s mind as to whether the movant has carried the burden of showing there is no substantial issue of material fact, the judge may require such additional evidence as the judge deems advisable and prescribe the method by which additional evidence must be presented. Benefield v. Malone, 110 Ga. App. 607, 139 S.E.2d 500 (1964), later appeal, 112 Ga. App. 408, 145 S.E.2d 732 (1965) (decided under former Ga. L. 1959, p. 234, § 1 et seq.). Parties need not formally offer outside matter as evidence or have the evidence marked as an exhibit at a hearing on the motion. Union Circulation Co. v. Trust Co. Bank, 146 Ga. App. 612, 247 S.E.2d 197 (1978); Smith v. Jones, 154 Ga. App. 629, 269 S.E.2d 471 (1980); Bimbo Bldrs., Inc. v. Stubbs Properties, Inc., 158 Ga. App. 280, 279 S.E.2d 730 (1981). Personal affidavit sufficient to raise jury issue. — When a party resisting a motion for summary judgment offers nothing more than the party’s own personal affidavit, even if assumed to be self-serving, the conflicting allegation in the parties’ competing affidavits may be 885 Evidence on Motion (Cont’d) 1. In General (Cont’d) enough to defeat the motion and require jury resolution. Shalom Farms, Inc. v. Columbus Bank & Trust Co., 169 Ga. App. 145, 312 S.E.2d 138 (1983). Affidavit based on information not in record. — When an affidavit offered by the plaintiff was based solely on information not part of the record in the case, the affidavit had no probative value in response to the motion for summary judgment. Nettles v. Laws, 172 Ga. App. 241, 322 S.E.2d 546 (1984). Affidavit from an out-of-state expert, whose conclusions were based on medical records not attached to the affidavit and not otherwise in the record, filed in opposition to a motion for summary judgment, was inadmissible under O.C.G.A. § 9-11-56. Oakes v.