Morris-Bancroft Paper Co

v. Coleman, 188 Ga. App. 809, 374 S.E.2d 544, cert. denied, 188 Ga. App. 912, 374 S.E.2d 544 (1988). Statement of affiant ‘‘upon information and belief’’ cannot be considered, as this evidence is not upon the personal knowledge of the affiant. Gann v. Mills, 124 Ga. App. 238, 183 S.E.2d 523 (1971). Basis for professional expert’s opinion must be shown. — Expert’s affidavit in opposition to a motion for summary judgment in a malpractice suit must state the particulars; the affidavit must establish the minimum requirements of professional conduct applicable to the various professional categories of the defendants involved, and set forth how or in what way the various defendants deviated therefrom. Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 397 S.E.2d 576 (1990). Unsworn allegations made on best of lawyer’s knowledge not evidence. — Unsworn allegations are not evidence, nor do they rise to that level when accompanied by an affidavit made, not upon personal knowledge, but upon ‘‘the best of [lawyer’s] knowledge,’’ which is just a variation of ‘‘information and belief.’’ Heavey v. Security Mgt. Co., 129 Ga. App. 83, 198 S.E.2d 694 (1973). Personal knowledge held shown. — Although the attached verification did not state that the allegations of the complaint were made upon the plaintiff ’s personal knowledge, as required in order to be considered on a motion for summary judgment, the allegation that the defendant did not give the plaintiff proper notice of foreclosure was sufficient to affirmatively indicate that such allegation was within the plaintiff ’s personal knowledge. Rapps v. Cooke, 234 Ga. App. 131, 505 S.E.2d 566 (1998). Appellee’s affidavit regarding the profits of a business satisfied the personal knowledge requirement of O.C.G.A. § 9-11-56(e). The affidavit showed that the appellee was the manager of the business, that the appellee was familiar with its records and accounts, and that the appellee’s statements concerning the business’s financial statements were based on 898 the appellee’s personal knowledge. Ellison v. Hill, 288 Ga. App. 415, 654 S.E.2d 158 (2007), cert. denied, 2008 Ga. LEXIS 282 (Ga. 2008). Bank officer’s affidavit attesting to the authenticity of a line of credit agreement, note, and guaranties, confirming the occurrence of default, and setting out the outstanding indebtedness, was sufficiently made on personal knowledge despite the creditors’ objections that the officer had no personal involvement in the transactions. Windham & Windham, Inc. v. Suntrust Bank, 313 Ga. App. 841, 723 S.E.2d 70 (2012). On a lessor’s motion for summary judgment on a lease and guaranty, although the lessor successor’s assistant general counsel’s initial affidavit was not made on personal knowledge and demonstrated no familiarity with the lessor’s business records, the deficiencies were cured in a second affidavit filed eight months before the trial court’s decision. Triple T-Bar, LLC v. DDR Southeast Springfield, LLC, 330 Ga. App. 847, 769 S.E.2d 586 (2015). Personal knowledge held not shown. — Affidavit did not meet requirements of subsection (e) of O.C.G.A. § 9-11-56 when, although the affiant indicated that the affiant had personal knowledge of the codefendant’s prior conduct, the affidavit did not reflect that the affiant was even present at the time of the alleged battery, or that the affiant had any personal knowledge of the codefendant’s conduct at that time or the circumstances of the battering by the defendant upon the plaintiff. Johnson v. Crews, 165 Ga. App. 43, 299 S.E.2d 99 (1983). Doctor’s statements in medical records constituted hearsay and, although the records were attached to an affidavit, the relevant information was not within the affiant’s personal knowledge. Georgia Farm Bureau Mut. Ins. Co. v. Allen, 228 Ga. App. 607, 492 S.E.2d 339 (1997). C. Records and Supporting Documentation Records should be attached to affidavit. — When records relied upon and referred to in an affidavit are neither attached to the affidavit nor included in the record and clearly identified in the 9-11-56 affidavit, the affidavit is insufficient. Pratt v. Tri City Hosp. Auth., 193 Ga. App. 473, 388 S.E.2d 69 (1989). In a medical malpractice action, because it was undisputed that the record on appeal failed to include the medical records on which the parents’ expert’s conclusions were based, the parents failed to comply with O.C.G.A. § 9-11-56(e), hence, the trial court did not err when the court granted summary judgment against the parents on this basis. Conley v. Children’s Healthcare of Atlanta, Inc., 279 Ga. App. 792, 632 S.E.2d 409 (2006). Attorney-in-fact for the entity serving as manager of a lender’s assignee could authenticate the business records of the lender and the assignee in support of an action to collect on three promissory notes, pursuant to O.C.G.A. § 24-8-803(6); however, as to the third note, the affidavit failed to attach the payment history and that claim failed. Ware v. Multibank 2009-1 RES-ADC Venture, LLC, 327 Ga. App. 245, 758 S.E.2d 145 (2014). Attachment of all records not required. — When depositions of doctors and documents identified and referred to by the doctors provided a sufficient factual basis for an expert’s opinions as to the care provided by the defendants, the fact that other records listed by the expert were not in the record was not fatal to the expert’s affidavit. Washington v. Georgia Baptist Medical Ctr., 223 Ga. App. 762, 478 S.E.2d 892 (1996), aff ’d in part and rev’d in part, Porquez v. Washington, 268 Ga. 649, 492 S.E.2d 665 (1997). Sufficiency of affidavit relating to records made in regular course of business. — Affidavit submitted in support of a motion for summary judgment which satisfies the requirements of Ga. L. 1952, p. 177, §§ 1-3 (see now O.C.G.A. § 24-8-803), relating to records made in the regular course of business, likewise meets the requirement of subsection (e) of Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56). Thomasson v. Trust Co. Bank, 149 Ga. App. 556, 254 S.E.2d 881 (1979). Absent preliminary proof required to qualify under Ga. L. 1952, p. 177, §§ 1-3 (see now O.C.G.A. § 24-8-803), relating to records made in the regular course of 899 Evidence on Motion (Cont’d) 4. Affidavits (Cont’d) C. Records and Supporting Documentation (Cont’d) business, the affiant’s statements as to facts, knowledge of which the affiant obtained from records not personally kept by the affiant, were hearsay and had no probative value. Thomasson v. Trust Co. Bank, 149 Ga. App. 556, 254 S.E.2d 881 (1979). When the plaintiff ’s affidavit referred to certain business records purportedly supporting the plaintiff ’s motion, but the records were not attached to the affidavit, the references to the business records cannot be used to support the motion. Val Preda Motors v. National Uniform Serv., 195 Ga. App. 443, 393 S.E.2d 728 (1990). Expert’s affidavit may not rely on unintroduced documents. — Court may not consider an expert’s affidavit which is based solely upon documentation which is neither a part of the record nor attached to the affidavit. Landers v. Georgia Baptist Medical Ctr., 175 Ga. App. 500, 333 S.E.2d 884 (1985); Augustine v. Frame, 206 Ga. App. 348, 425 S.E.2d 296 (1992). Expert’s affidavit was not sufficient, to support the movant’s motion for summary judgment when the affidavit did not show the statements made therein were from the witness’ personal knowledge, the affidavit did not pierce the pleadings on each basis for imposing liability, and even assuming the expert was qualified, the affidavit did not establish when the expert examined the property in question or that the expert was personally familiar with the property. King v. Sheraton Savannah Corp., 194 Ga. App. 618, 391 S.E.2d 457 (1990). Expert affidavit is insufficient to oppose the defendant’s motion for summary judgment if the documents on which the affiant relies in forming the expert’s opinions are not certified or sworn, even if unsworn copies are attached to the affidavit, and if the expert’s affidavit relies on the plaintiff ’s affidavit, when the plaintiff ’s affidavit does not contain sufficient facts on which the expert, relying on the affidavit alone, could base the expert’s opinions. 9-11-56 Johnson v. Srivastava, 199 Ga. App. 696, 405 S.E.2d 725 (1991). Unsupported affidavit of expert witness. — When the affidavit of the plaintiff ’s expert would have created a genuine issue of fact as to whether a qualified inspector should have found visible evidence of termite infestation but for the absence from the record of the supporting material relied upon by the expert, it was not probative to contradict the defendant’s affidavit, and the defendant was entitled to judgment as a matter of law. Gunnin v. Swat, Inc., 195 Ga. App. 344, 393 S.E.2d 700 (1990). Erroneous exhibit attached to affidavit. — Trial court erred in entering summary judgment in favor of the plaintiff when there was no evidence authorizing such judgment since Exhibit ‘‘B’’ attached to the affidavit of the custodian of plaintiff ’s accounts attached to the motion for summary judgment was clearly erroneous in the calculations reaching the balance due the plaintiff. Fowler v. Ford Motor Credit Co., 180 Ga. App. 738, 350 S.E.2d 319 (1986). X-ray films require certification. — X-ray films relied on by physician-affiant in medical malpractice case were material requiring certification under subsection (e) of O.C.G.A. § 9-11-56. Bush v. Legum, 176 Ga. App. 395, 336 S.E.2d 284 (1985). Medical records not attached. — When the medical records upon which a medical expert reached the expert’s conclusions were not attached to the expert’s affidavit or included in the record, the affidavit was insufficient to meet the evidentiary standards under subsection (e) of O.C.G.A. § 9-11-56 on a motion for summary judgment and, as a matter of law, lacked any probative value. Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 505 S.E.2d 232 (1998). Medical records attached. — Summary judgment was properly granted in favor of a doctor, the doctor’s anesthesiology clinic, and others since the doctor properly attached to the affidavit a certified copy of the medical record which was referred to in the affidavit, and the affidavit was made upon the doctor’s personal knowledge, and rather than relying on the complained-of medical record in reaching 900 the doctor’s conclusions, merely concurred in the possible causes of the injuries at issue. Oakes v. Magat, 263 Ga. App. 165, 587 S.E.2d 150 (2003). D. Application Trial court did not err in converting motion to dismiss into a motion for summary judgment in a medical malpractice case; the patient did not object to the trial court’s decision, and even if the patient was not clear as to the trial court’s intent, the patient did not show that the patient would have filed additional affidavits, briefs, or other supporting documentation had the patient been given additional time to do so in the context of a motion for summary judgment. Tucker v. Thomas C. Talley, M.D., P.C., 267 Ga. App. 820, 600 S.E.2d 778 (2004). Affidavit of neurologist found sufficient to create issue of fact as to testamentary capacity. Baldwin v. First Tenn. Bank, 251 Ga. 561, 307 S.E.2d 919 (1983). Affidavit asserting diligent service efforts insufficient. — Statements in a plaintiff ’s affidavit asserting that diligent efforts were made to serve an owner prior to the order for service by publication and that the owner hid to avoid service were bare conclusions that were neither supported by facts nor based on personal knowledge, and thus the affidavit was properly stricken; a statement in a process server’s affidavit that, in the process server’s professional opinion, the owner was intentionally evading service of process, was also a bare conclusion, not supported by facts, about the owner’s true motives and intent, and was also properly stricken. Baxley v. Baldwin, 279 Ga. App. 480, 631 S.E.2d 506 (2006). Affidavit asserting plainly that, to affiant’s knowledge, mother did not sign deed, raises issue for a jury to determine as to genuineness of the deed. Mathews v. Brown, 235 Ga. 454, 219 S.E.2d 701 (1975). Letter to plaintiff not considered affidavit. — Letter from a person who had inspected a vehicle destroyed by fire, addressed to the plaintiff, did not qualify as an affidavit and the contents of the letter therefore amounted to no more than factual allegations additional to those in 9-11-56 the pleadings. Barber v. Threlkeld Ford, 199 Ga. App. 787, 406 S.E.2d 249 (1991). Reliance on technical manuals. — Trial court abused the court’s discretion under O.C.G.A. § 9-11-56(c) in refusing to permit an injured party to supplement the party’s response to a manufacturer’s reliance, for the first time at the summary judgment hearing, on a technical manual not produced during discovery; the injured party was prejudiced by the ruling, which was not in accordance with the intent of the Georgia Civil Practice Act, O.C.G.A. Ch. 11, T. 9, to promote justice and not to obstruct the administration of justice. Hunter v. Werner Co., 258 Ga. App. 379, 574 S.E.2d 426 (2002). Affidavit opinion as to cause of accident properly struck. — Police officer’s affidavit stated that a van owner and the owner’s friend chased a thief who stole the van and did not lose sight of the van, and opined that a crash between the van and two accident victims would not have occurred but for the chase. The trial court properly struck portions of the affidavit that consisted of the officer’s opinions based on the officer’s conversations with the van owner and were not based on physical evidence that the jurors without training in accident investigation might be unable to properly evaluate, such as skid marks, distances, and the positions and damage to the vehicles. Whitlock v. Moore, 312 Ga. App. 777, 720 S.E.2d 194 (2011), cert. denied, 2012 Ga. LEXIS 304, 321 (Ga. 2012). 5. Opinion Evidence No absolute rule against opinion evidence. — Rule that opinion evidence cannot be used to support grant of summary judgment is not absolute. Tony v. Pollard, 248 Ga. 86, 281 S.E.2d 557 (1981). Opinion testimony insufficient for summary judgment. — Summary judgment can never issue based solely upon opinion evidence; in all such cases, the jury must decide the case. Ginn v. Morgan, 225 Ga. 192, 167 S.E.2d 393 (1969). Opinion testimony of ultimate fact to be decided is never sufficient to authorize a grant of summary judgment. State Hwy. Dep’t v. Charles R. Shepherd, Inc., 119 Ga. 901 Evidence on Motion (Cont’d) 5. Opinion Evidence (Cont’d) App. 872, 168 S.E.2d 922 (1969); Jordan v. Scherffius, 121 Ga. App. 685, 175 S.E.2d 97 (1970); Galloway v. Banks County, 139 Ga. App. 649, 229 S.E.2d 127 (1976); Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977). Opinion evidence is not permissible as basis for summary judgment although it may be used in opposition. Summer v. Allison, 127 Ga. App. 217, 193 S.E.2d 177 (1972). Testimony that amounts to no more than opinion does not require grant of motion for summary judgment. Lockhart v. Beaird, 128 Ga. App. 7, 195 S.E.2d 292 (1973). Summary judgment can never issue based solely upon opinion evidence. Hawkins v. Greenberg, 159 Ga. App. 302, 283 S.E.2d 301 (1981), overruled on other grounds, Haynes v. Hoffman, 164 Ga. App. 236, 296 S.E.2d 216 (1982), overruled on other grounds, Smith v. Finch, 285 Ga. 709, 681 S.E.2d 147 (2009). Opinions which are nothing more than ultimate conclusions of fact and law are of no probative value and must be disregarded on a motion for summary judgment. Adkins v. Adkins, 168 Ga. App. 151, 308 S.E.2d 432 (1983). Opinion used to preclude summary judgment. — While opinion evidence adduced by respondent is sufficient to preclude the grant of summary judgment, it does not follow that introduction of opinion evidence by the movant will authorize the grant of summary judgment. Harrison v. Tuggle, 225 Ga. 211, 167 S.E.2d 395 (1969). While opinion evidence adduced by the nonmovant is sufficient to preclude grant of summary judgment, it does not follow that introduction of opinion evidence by the movant will authorize the grant thereof, since no burden is on the respondent to rebut the movant’s case until the movant has first removed, by affidavits, admissions, interrogatories, etc., all jury questions from the case. Davidson Mineral Properties, Inc. v. Gifford-Hill & Co., 235 Ga. 176, 219 S.E.2d 133 (1975). Opinion evidence cannot be utilized for 9-11-56 the granting of a summary judgment motion; however, opinion evidence in affidavits can be sufficient to preclude the granting of a summary judgment motion. Stevens v. Wakefield, 160 Ga. App. 353, 287 S.E.2d 49 (1981), rev’d on other grounds, 249 Ga. 254, 290 S.E.2d 58 (1982). Grant of summary judgment cannot be supported by opinion evidence, but opinion evidence in affidavits can be sufficient to preclude the grant of a summary judgment. Lee v. Lee, 194 Ga. App. 606, 391 S.E.2d 654, cert. denied, 194 Ga. App. 912, 391 S.E.2d 654 (1990). Opinion evidence precluding summary judgment. — While opinion evidence is not sufficient to authorize a grant of summary judgment, it may preclude grant of a motion therefor. Aetna Cas. & Sur. Co. v. Cowan Supply Co., 125 Ga. App. 155, 186 S.E.2d 556 (1971). Opinion evidence can be sufficient to preclude grant of summary judgment. Dickson v. Dickson, 238 Ga. 672, 235 S.E.2d 479 (1977). If plaintiff must produce expert’s opinion in order to prevail at trial, and the defendant produces an expert’s opinion in the defendant’s favor on a motion for summary judgment but the plaintiff fails to produce a contrary expert opinion in opposition to that motion, there is no genuine issue to be tried by the jury and it is not error to grant summary judgment to the defendant. Howard v. Walker, 242 Ga. 406, 249 S.E.2d 45 (1978); Golden v. Payne, 152 Ga. App. 800, 264 S.E.2d 292 (1979); Parker v. Knight, 245 Ga. 782, 267 S.E.2d 222 (1980); Lawrence v. Gardner, 154 Ga. App. 722, 270 S.E.2d 9 (1980); Davidson v. Shirley, 616 F.2d 224 (5th Cir. 1980); Hawkins v. Greenberg, 159 Ga. App. 302, 283 S.E.2d 301 (1981); Hardinger v. Park, 159 Ga. App. 729, 285 S.E.2d 212 (1981); Jones v. Wike, 654 F.2d 1129 (5th Cir. 1981); Savannah Valley Prod. Credit Ass’n v. Cheek, 248 Ga. 745, 285 S.E.2d 689 (1982). If the plaintiff must produce an expert’s opinion that the defendant was negligent in order to avoid the grant of a directed verdict in favor of the defendant, the plaintiff must also produce an expert’s opinion in order to avoid the grant of 902 summary judgment in favor of the defendant when the defendant moves for summary judgment solely on the basis of the defendant’s own affidavit, submitted in the defendant’s capacity as an expert, that the defendant was not negligent. Payne v. Golden, 245 Ga. 784, 267 S.E.2d 211 (1980). Expert opinion supporting allegations of both parties. — Simply because the defendant is initially responsible for production of certain expert witnesses, the defendant is not entitled to summary judgment when experts the defendant relies upon also offer expert testimony which a jury could find supports the plaintiff ’s allegations of medical negligence. Lawrence v. Gardner, 154 Ga. App. 722, 270 S.E.2d 9 (1980). Conflicting expert testimony precludes summary judgment. — Given the conflict between the experts’ testimony concerning an obviously hazardous condition, and the inferences to be drawn from the absence of prior accidents, a question of fact exists whether a defective condition existed which the defendant, in the exercise of ordinary care in keeping the defendant’s premises safe in the more than 30 years the defendant has owned the premises, knew or should have known would cause injury to an invitee. Haire v. City of Macon, 200 Ga. App. 744, 409 S.E.2d 670, cert. denied, 200 Ga. App. 896, 409 S.E.2d 670 (1991). Opinion evidence on competency of party to contract insufficient. — In a case in which the issue is whether one of the parties had the requisite mental capacity to make a contract, opinion evidence will not authorize the grant of summary judgment that such party was competent. McCraw v. Watkins, 242 Ga. 452, 249 S.E.2d 202 (1978). Seller’s affidavit as to value insufficient. — Genuine issue of fact is not raised by the seller’s own affidavit as to the value of property in a suit for specific performance. Baker v. Jellibeans, Inc., 252 Ga. 458, 314 S.E.2d 874 (1984). Opinion evidence that marriage not irretrievably broken. — When the respondent files an affidavit expressing the respondent’s opinion that the marriage is not irretrievably broken and that 9-11-56 there are genuine prospects for reconciliation, then summary judgment should be denied. Bryan v. Bryan, 248 Ga. 312, 282 S.E.2d 892 (1981). In legal malpractice action, attorney-defendant may make affidavit as expert in the attorney’s own behalf. In view of the presumption that legal services are performed in an ordinary skillful manner, the movant is then required to produce an expert’s affidavit, unless there is ‘‘clear and palpable’’ negligence. Rose v. Rollins, 167 Ga. App. 469, 306 S.E.2d 724 (1983). Statements held to be conclusions bearing on ultimate fact. — In an action against a tavern owner arising out of an alleged battery by one patron upon another, statements in the owner’s affidavit that the owner had no reason to anticipate the actions of the patron and that the owner could not by exercise of reasonable care have discovered or prevented injury were conclusions bearing on the ultimate fact to be decided and could not be utilized on a summary judgment motion. Johnson v. Crews, 165 Ga. App. 43, 299 S.E.2d 99 (1983). 6. Medical Opinion Evidence Medical malpractice plaintiff cannot prevail on conclusory opinion. — Plaintiff in a medical malpractice case cannot prevail on a motion for summary judgment by merely presenting a conclusory opinion that the defendant was negligent or failed to adhere to the professional standard. Plaintiff must state the particulars and establish the parameters of the acceptable professional conduct and set forth how or in what way the defendant deviated therefrom. Loving v. Nash, 182 Ga. App. 253, 355 S.E.2d 448 (1987); Connell v. Lane, 183 Ga. App. 871, 360 S.E.2d 433 (1987). Records must be sworn or certified. — To be sufficient to controvert the defendant’s expert opinion and create an issue of fact in a medical malpractice case, the plaintiff ’s expert must base the expert’s opinion on medical records which are sworn or certified copies, or upon the expert’s own personal knowledge, and the expert must state the particulars in which the defendant’s treatment of the plaintiff 903 Evidence on Motion (Cont’d) 6. Medical Opinion Evidence (Cont’d) was negligent. Loving v. Nash, 182 Ga. App. 253, 355 S.E.2d 448 (1987). Failure of opposing party to present expert evidence in malpractice case. — When the opposing party does not present an expert medical opinion to counter the defendant physician’s expert opinion in a medical malpractice case, the physician is entitled to summary judgment. Aaron v. Harrison, 160 Ga. App. 172, 286 S.E.2d 762 (1981). Absent evidence of causation in an action under the Federal Employers’ Liability Act provided by the employee’s treating physician as the doctor based a diagnosis on an incomplete medical history of the employee without considering earlier lung-related illnesses, and while unaware of the employee’s prior chemical exposure and treatment by other physicians, the trial court properly granted an employer’s motion for partial summary judgment on the employee’s claim for benefits. Shiver v. Ga. & Fla. Railnet, Inc., 287 Ga. App. 828, 652 S.E.2d 819 (2007), cert. denied, No. S08C0394, 2008 Ga. LEXIS 330 (Ga. 2008). Sufficiency of doctor’s expert opinion in malpractice case. — Doctor’s own affidavit as an expert that the doctor had not negligently performed the doctor’s medical duties is a sufficient expert opinion to establish grounds for summary judgment in a malpractice action unless the plaintiff-patient refutes such testimony by an expert opinion that the defendant’s treatment was not reasonable under the circumstances. Gragg v. Spenser, 159 Ga. App. 525, 284 S.E.2d 40 (1981). Physician moving for summary judgment in a medical malpractice case may rely on the physician’s own affidavit, submitted in the physician’s capacity as an expert, that the physician was not negligent; to avoid summary judgment, the plaintiff must then produce expert testimony to the contrary. Hardinger v. Park, 159 Ga. App. 729, 285 S.E.2d 212 (1981). Sufficiency of affidavit of non-treating physician. — When in the plaintiff ’s expert’s affidavit, the affiant, a non-treating physician, states that the 9-11-56 affiant’s opinions are based, at least in part, on the affiant’s personal knowledge of the facts of the case, and the affiant goes on to state the particulars in which the affiant believes the defendants were negligent, the affidavit is sufficient to raise a genuine issue of material fact and preclude the trial court’s grant of summary judgment. Crawford v. Phillips, 173 Ga. App. 517, 326 S.E.2d 593 (1985). Plaintiff ’s expert in a medical malpractice action was entitled to base the expert’s opinions upon medical records which the expert reviewed and would be the same facts introduced hypothetically at trial since all documents referenced in the expert’s affidavit were part of the record prior to the hearing on the summary judgment motion. Hall v. Okehi, 194 Ga. App. 721, 391 S.E.2d 787 (1990). When the plaintiff ’s expert’s affidavit does not state that the expert has any ‘‘personal knowledge of the facts of the case,’’ and in fact states that the expert’s knowledge concerning the case is confined to uncertified medical records, the affidavit is insufficient to create a question of material fact (notwithstanding that, in reality, it is always questionable whether an affidavit statement of a non-treating physician has substantially more ‘‘knowledge’’ than derived from a personal review of the medical records). Crawford v. Phillips, 173 Ga. App. 517, 326 S.E.2d 593 (1985). Testimony of plaintiff ’s medical witnesses as to the probability of a connection between an automobile accident and the plaintiff ’s later physical problems was sufficient to avoid summary judgment for the defendant, the driver of the other car. Holley v. Smallwood, 174 Ga. App. 365, 330 S.E.2d 136 (1985). Application of the contradictory testimony rule was improper. — In a medical malpractice case brought by a married couple, it was error to grant summary judgment to the defendants based on the finding that the testimony of the couple’s expert was conflicting and lacking in credibility; application of the contradictory testimony rule was improper when the testimony was that of a non-party expert witness, and accordingly, notwithstanding the inconsistencies in the ex- 904 pert’s testimony, the trial court should have given the couple the benefit of the most favorable version of such testimony as a whole which the jury would be authorized to accept. Whitley v. Piedmont Hosp., Inc., 284 Ga. App. 649, 644 S.E.2d 514 (2007), cert. denied, 2007 Ga. LEXIS 626, 651 (Ga. 2007). While an expert witness can base opinions on medical records reviewed by the witness, subsection (e) of O.C.G.A. § 9-11-56 requires that sworn or certified copies of such material be attached to the affidavit. If such medical records are not part of the record in the case, the records would have no probative value. Lance v. Elliott, 202 Ga. App. 164, 413 S.E.2d 486 (1991). 7. Oral Testimony Subsection (c) construed. — It is not the general purpose of subsection (c) of this section to permit use of oral testimony. Price v. Star Serv. & Petro. Corp., 119 Ga. App. 171, 166 S.E.2d 593 (1969). Section makes no reference to oral testimony. — This section refers strictly to affidavits, depositions, answers to interrogatories, and admissions on file, but does not refer to oral testimony. Johnson v. Aetna Fin., Inc., 139 Ga. App. 452, 228 S.E.2d 299 (1976). Motions not generally heard on oral testimony. — Generally, motions for summary judgment are not heard on oral testimony. Orr v. Woodruff-Robinson, Inc., 142 Ga. App. 861, 237 S.E.2d 463 (1977). Oral evidence may be used with proper notice. — Evidence on motion for summary judgment may be heard orally in some instances, provided proper notice is given. Orr v. Woodruff-Robinson, Inc., 142 Ga. App. 861, 237 S.E.2d 467 (1977). When motion for summary judgment is to be heard on oral testimony, proper notice must be given to the opposite party, unless notice is waived. Myers v. McLarty, 150 Ga. App. 432, 258 S.E.2d 56 (1979). No obligation to permit use. — Law creates no obligation on court to permit use of oral evidence at a hearing on a motion for summary judgment. Gunter v. National City Bank, 239 Ga. 496, 238 S.E.2d 48 (1977). 9-11-56 Discretion of court. — While there may be circumstances in which the court may, in the court’s sound discretion, permit use of oral evidence at the hearing on a motion for summary judgment as, for example, when both parties agree, there is no requirement that the court do so. Johnson v. Aetna Fin., Inc., 139 Ga. App. 452, 228 S.E.2d 299 (1976). In the exercise of sound discretion the trial court may permit the introduction of oral evidence, but there is no obligation that the court do so, and if the court does, it must be done in strict conformity with the law. Pierce v. Gaskins, 168 Ga. App. 446, 309 S.E.2d 658 (1983). Introduction over objection not permitted. — Trial court is without authority to permit introduction of oral testimony over the opposing party’s objection. Pierce v. Gaskins, 168 Ga. App. 446, 309 S.E.2d 658 (1983). Denial of use of oral testimony not reversible error. — Denial of request to permit use of oral testimony on hearing on motion for summary judgment is not ground for reversal. Price v. Star Serv. & Petro. Corp., 119 Ga. App. 171, 166 S.E.2d 593 (1969). Writing requirement. — Evidentiary hearing on issue of damages following the defendant’s default is subject to requirement that findings of fact and conclusions of law be in writing. Marsh v. Way, 170 Ga. App. 300, 316 S.E.2d 599 (1984). Undisputed testimony of witnesses admitted in probate court will sustain grant of summary judgment admitting the will to probate. Norton v. Georgia R.R. Bank & Trust, 248 Ga. 847, 285 S.E.2d 910 (1982), aff ’d, 253 Ga. 596, 322 S.E.2d 870 (1984). Construction of Evidence and Inferences Respondent’s papers given considerable indulgence. — Movant’s papers should be carefully scrutinized, while opposing party’s papers are treated with considerable indulgence. Herrington v. Stone Mt. Mem. Ass’n, 119 Ga. App. 658, 168 S.E.2d 633, rev’d on other grounds, 225 Ga. 746, 171 S.E.2d 521 (1969); Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969); Ham v. 905 Construction of Evidence and Inferences (Cont’d) Ham, 230 Ga. 43, 195 S.E.2d 429 (1973); Gregory v. Vance Publishing Corp., 130 Ga. App. 118, 202 S.E.2d 515 (1973); Lansky v. Goldstein, 136 Ga. App. 607, 222 S.E.2d 62 (1975); Piano & Organ Ctr., Inc. v. Southland Bonded Whse., Inc., 228 S.E.2d 615 (1976); Danny’s Cabinet Shop, Inc. v. G & M Fire Extinguisher Sales & Serv., Inc., 149 Ga. App. 215, 253 S.E.2d 802 (1979); Sun First Nat’l Bank v. Gainesville 75, Ltd., 155 Ga. App. 70, 270 S.E.2d 293 (1980). Movant’s proof is carefully scrutinized while respondent’s proof is treated with indulgence. Whitehead v. Capital Auto. Co., 239 Ga. 460, 238 S.E.2d 104 (1977). In determining whether any genuine issue of material fact exists, the court will treat the respondent’s paper with considerable indulgence. Mallard v. Jenkins, 179 Ga. App. 582, 347 S.E.2d 339 (1986). Court must carefully scrutinize movant’s papers to determine whether the movant is entitled to judgment as a matter of law, regardless of the opponent’s response or lack thereof. Southern Protective Prods. Co. v. Leasing Int’l, Inc., 134 Ga. App. 945, 216 S.E.2d 725 (1975). Allegations of both the complaint and answer must be taken as true in a summary judgment case, unless the movant successfully pierces the allegations so as to show that no material issue of fact remains. Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 195 S.E.2d 277 (1972); 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). Allegations of both the petition and the answer must be taken as true in a summary judgment case, unless the movant successfully pierces the allegations so as to show that no material issue of fact remains. Cotton States Mut. Ins. Co. v. Martin, 110 Ga. App. 309, 138 S.E.2d 433 (1964); Butterworth v. Pettitt, 223 Ga. 355, 155 S.E.2d 20 (1967) (decided under former Ga. L. 1959, p. 234, § 1 et seq.). 9-11-56 Piercing pleadings required before summary judgment. — Absent piercing of the pleadings, court errs in granting summary judgment. State Farm Mut. Auto. Ins. Co. v. Wendler, 115 Ga. App. 452, 154 S.E.2d 772 (1967). On motion for summary judgment, pleadings of opposing party must be taken as true until it appears beyond controversy that no fact issue exists. Joiner v. Mitchell County Hosp. Auth., 125 Ga. App. 1, 186 S.E.2d 307 (1971), aff ’d, 229 Ga. 140, 189 S.E.2d 412 (1972); Duke Enters., Inc. v. Espy, 140 Ga. App 527, 231 S.E.2d 522 (1976); Sapp v. ABC Credit & Inv. Co., 243 Ga. 151, 253 S.E.2d 82 (1979). Evidence construed favorably to nonmovant and unfavorably to movant. — Party opposing motion for summary judgment is entitled to liberal construction in that party’s favor of the pleadings and evidence. Saunders v. Vikers, 116 Ga. App. 733, 158 S.E.2d 324 (1967); Dollar v. First Bank, 153 Ga. App. 789, 266 S.E.2d 566 (1980); Mixon v. Georgia Bank & Trust Co., 154 Ga. App. 32, 267 S.E.2d 483 (1980). On motions for summary judgment, evidence must be construed most favorably toward the party opposing the granting of summary judgment; and most unfavorably toward the party applying for the motion. State Hwy. Dep’t v. Charles R. Shepherd, Inc., 119 Ga. App. 872, 168 S.E.2d 922 (1969); Pritchard v. Neal, 139 Ga. App. 512, 229 S.E.2d 18 (1976); Drake v. Leader Nat’l Ins. Co., 153 Ga. App. 314, 265 S.E.2d 114 (1980). All evidence adduced on a motion for summary judgment, including the testimony of the party opposing the motion, was to be construed more strongly against the movant. Tri-Cities Hosp. Auth. v. Sheats, 247 Ga. 713, 279 S.E.2d 210 (1981). All ambiguities and conclusions on consideration of summary judgment must be construed most favorably toward the respondent and against the movant. North v. Toco Hills, Inc., 160 Ga. App. 116, 286 S.E.2d 346 (1981). Evidence must be construed most favorably to party opposing motion for summary judgment. McCarty v. Na- 906 tional Life & Accident Ins. Co., 107 Ga. App. 178, 129 S.E.2d 408 (1962) (decided under former Ga. L. 1959, p. 234, § 1 et seq.); Harris v. Stucki, 116 Ga. App. 371, 157 S.E.2d 507 (1967); Chandler v. Gately, 119 Ga. App. 513, 167 S.E.2d 697 (1969); Summer v. McCrory Corp., 146 Ga. App. 515, 249 S.E.2d 768 (1978); Keappler v. Allen, 152 Ga. App. 746, 264 S.E.2d 37 (1979); Mixon v. Georgia Bank & Trust Co., 154 Ga. App. 32, 267 S.E.2d 483 (1980). Nonmovant given benefit of reasonable doubts and inferences. — Party opposing the motion is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists, and the trial court must give that party the benefit of all favorable inferences that may be drawn from the evidence. Holland v. Sanfax Corp., 106 Ga. App. 1, 126 S.E.2d 442 (1962) (decided under former Ga. L. 1959, p. 234, § 1 et seq.); Malcom v. Malcolm, 112 Ga. App. 151, 144 S.E.2d 188 (1965) (decided under former Ga. L. 1959, p. 234, § 1 et seq.); 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.); Blount v. Seckinger Realty Co., 167 Ga. App. 778, 307 S.E.2d 683 (1983). Party opposing motion for summary judgment must be given the benefit of all favorable inferences. McCarty v. National Life & Accident Ins. Co., 107 Ga. App. 178, 129 S.E.2d 408 (1962) (decided under Ga. L. 1959, p. 234, § 1 et seq.); Ussery v. Koch, 115 Ga. App. 463, 154 S.E.2d 879 (1967), overruled on other grounds, Raven v. Dodd’s Auto Sales & Serv., Inc., 117 Ga. App. 416, 160 S.E.2d 633 (1968). Party opposing motion for summary judgment must be given benefit of all reasonable doubts. McCarty v. National Life & Accident Ins. Co., 107 Ga. App. 178, 129 S.E.2d 408 (1962) (decided under former Ga. L. 1959, p. 234, § 1 et seq.). Party opposing motion for summary judgment is to be given benefit of all reasonable doubts in determining whether a genuine issue exists, and the trial court must give that party the benefit of all favorable inferences that may be drawn from the evidence. Chapman v. Turnbull Elevator, Inc., 116 Ga. App. 661, 9-11-56 158 S.E.2d 438 (1967); State Hwy. Dep’t v. Charles R. Shepherd, Inc., 119 Ga. App. 872, 168 S.E.2d 922 (1969); Anderson v. Redwal Music Co., 122 Ga. App. 247, 176 S.E.2d 645 (1970); Cotton States Mut. Ins. Co. v. Proudfoot, 123 Ga. App. 397, 181 S.E.2d 305 (1971), later appeal, 126 Ga. App. 799, 191 S.E.2d 870 (1972), and 230 Ga. 169, 196 S.E.2d 131 (1973); Burton v. National Indem. Co., 123 Ga. App. 402, 181 S.E.2d 107 (1971); Lawson Prods., Inc. v. Rousey, 132 Ga. App. 726, 209 S.E.2d 125 (1974); Warner v. Arnold, 133 Ga. App. 174, 210 S.E.2d 350 (1974). On motion for summary judgment, evidence must be construed most favorably to party opposing the motion, and the opposing party must be given the benefit of all reasonable doubts and all favorable inferences. Weekes v. Parker, 120 Ga. App. 549, 171 S.E.2d 660 (1969). Law is very strict respecting motions for summary judgment and any doubt must be resolved in favor of respondent in such motions. Boston Ins. Co. v. Barnes, 120 Ga. App. 585, 171 S.E.2d 626 (1969). All inferences must be resolved in favor of party opposing motion for summary judgment. W.J. Bremer, Inc. v. United Bonding Ins. Co., 122 Ga. App. 183, 176 S.E.2d 633 (1970); Scroggins v. Whitfield Fin. Co., 152 Ga. App. 8, 262 S.E.2d 168 (1979). Every inference will be indulged in favor of defendants and all doubts will be resolved against plaintiff moving for summary judgment. Winkles v. Brown, 227 Ga. 33, 178 S.E.2d 865 (1970). Evidence must be construed most favorably to the opposing party, and the trial court must give the opposing party the benefit of all favorable inferences that may be drawn from the evidence. Textile Prods., Inc. v. Fitts Cotton Goods, Inc., 124 Ga. App. 421, 184 S.E.2d 14 (1971); Smith v. Sandersville Prod. Credit Ass’n, 229 Ga. 65, 189 S.E.2d 432 (1972); Peachtree Bottle Shop, Inc. v. Bessemer Sec. Corp., 134 Ga. App. 729, 215 S.E.2d 692 (1975); City of Rome v. Turk, 235 Ga. 223, 219 S.E.2d 97 (1975); Indian Trail Village, Inc. v. Smith, 139 Ga. App. 691, 229 S.E.2d 508 (1976); Cumberland Assocs. v. Market Assistants, Inc., 142 Ga. App. 483, 236 S.E.2d 109 (1977); Jarriel v. Preferred 907 Construction of Evidence and Inferences (Cont’d) Risk Mut. Ins. Co., 155 Ga. App. 136, 270 S.E.2d 238 (1980). Party opposing motion for summary judgment is to be given benefit of all reasonable doubts in determining whether genuine issue exists. Smith v. Sandersville Prod. Credit Ass’n, 229 Ga. 65, 189 S.E.2d 432 (1972); Peachtree Bottle Shop, Inc. v. Bessemer Sec. Corp., 134 Ga. App. 729, 215 S.E.2d 692 (1975); National Life Assurance Co. v. Massey-Ferguson Credit Corp., 136 Ga. App. 311, 220 S.E.2d 793 (1975); Cumberland Assocs. v. Market Assistants, Inc., 142 Ga. App. 483, 236 S.E.2d 109 (1977). Party resisting motion for summary judgment is given benefit of all favorable inferences that may be drawn from the evidence. Benson Paint Co. v. Williams Constr. Co., 128 Ga. App. 47, 195 S.E.2d 671 (1973); 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); Mattison v. Travelers Indemn. Co., 157 Ga. App. 372, 277 S.E.2d 746 (1981). All inferences, all ambiguities, and all doubts are resolved against the movant for summary judgment and in favor of the party opposing the grant of summary judgment. Summers v. Milcon Corp., 134 Ga. App. 182, 213 S.E.2d 515 (1975). Opposing party is given the benefit of all reasonable doubts and favorable inferences that may be drawn from the evidence, and the moving party is entitled to judgment as a matter of law only if there is no genuine issue as to any material fact. Hip Pocket, Inc. v. Levi Strauss & Co., 144 Ga. App. 792, 242 S.E.2d 305 (1978). Party opposing the motion for summary judgment is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence. Eiberger v. West, 247 Ga. 767, 281 S.E.2d 148 (1981). All inferences of fact from the proof proffered at the hearing must be drawn against the movant and in favor of the party opposing the motion. Jonesboro Tool 9-11-56 & Die Corp. v. Georgia Power Co., 158 Ga. App. 755, 282 S.E.2d 211 (1981). Parties opposing the motion are entitled to all favorable inferences and the evidence is to be construed most strongly in their favor. Hanover Ins. Co. v. Nelson Conveyor & Mach. Co., 159 Ga. App. 13, 282 S.E.2d 670 (1981). On a motion for summary judgment, the evidence must be construed most strongly against the movant, and the party opposing the motion is entitled to all inferences that may fairly and reasonably be drawn in support of the nonmovant’s case. Vizzini v. Blonder, 165 Ga. App. 840, 303 S.E.2d 38 (1983). On a motion for summary judgment, the party opposing the motion is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence; this is so even when the movant is the party on whom the burden of proof at trial does not lie. Georgia Int’l Life Ins. Co. v. Huckabee, 175 Ga. App. 343, 333 S.E.2d 618 (1985). In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion; moreover, opinion evidence can be sufficient to preclude the grant of summary judgment. Mitchell v. Rainey, 187 Ga. App. 510, 370 S.E.2d 673 (1988). Evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in the nonmovant’s favor. Barber v. Perdue, 194 Ga. App. 287, 390 S.E.2d 234 (1989), cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 414 (1990). When the evidence is ambiguous or doubtful, the party opposing the motion must be given the benefit of all reasonable doubts and all favorable inferences and such evidence must be construed most favorably to the party opposing the motion. Jordan v. Ailstock, 230 Ga. 67, 195 S.E.2d 425 (1973); Match Point, Ltd. v. Adams, 148 Ga. App. 673, 252 S.E.2d 90 (1979), overruled on other grounds, Mock v. Canterbury Realty Co., 152 Ga. App. 872, 264 S.E.2d 489 (1980); Reese v. Sand- 908 ers, 153 Ga. App. 654, 266 S.E.2d 313 (1980). Construction of testimony of parties. — Although general rule is that upon trial of case testimony of party litigant, when self-contradictory or ambivalent, must be construed against the litigant, yet on motion for summary judgment made by party upon whom burden of proof does not lie at trial, all evidence must be construed against the movant and in favor of the party opposing the motion. Columbia Drug Co. v. Cook, 127 Ga. App. 490, 194 S.E.2d 286 (1972); Benton Bros. Ford Co. v. Cotton States Mut. Ins. Co., 157 Ga. App. 448, 278 S.E.2d 40 (1981). In dealing with summary judgments, the rule concerning construction of party’s testimony is to adopt that construction favorable to the opposing party when conflicting testimony comes from a litigant. Johnson v. Curenton, 127 Ga. App. 687, 195 S.E.2d 279 (1972). All evidence and materials submitted on a motion for summary judgment, including testimony of the parties, must be construed most strongly against the movant. Keheley v. Benham, 155 Ga. App. 59, 270 S.E.2d 285 (1980). Once the trial court has eliminated the favorable portions of contradictory testimony, the court must take all testimony on motion for summary judgment as the testimony then stands, and construe the testimony in favor of the party opposing the motion in determining whether summary judgment should be granted. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680 (1986). Vague or contradictory testimony. — Rule as to construing evidence most favorably to the party opposing the motion for summary judgment applies to testimony of that party, even though the testimony may be vague and contradictory. Jordan v. Ailstock, 230 Ga. 67, 195 S.E.2d 425 (1973); Gregory v. Vance Publishing Corp., 130 Ga. App. 118, 202 S.E.2d 515 (1973); Match Point, Ltd. v. Adams, 148 Ga. App. 673, 252 S.E.2d 90 (1979); Aiken v. Drexler Shower Door Co., 155 Ga. App. 436, 270 S.E.2d 831 (1980). ‘‘Contradictory testimony rule’’ applies to testimony presented in support or response to a motion for summary judg- 9-11-56 ment. This rule provides that a party’s self-conflicting testimony is to be construed against the party. If a reasonable explanation is offered for the contradiction, however, the inconsistency will not be construed against the party witness. The burden rests on the party giving the contradictory testimony to tender the reasonable explanation, and whether this has been done is an issue of law. Stone v. Dayton Hudson Corp., 193 Ga. App. 752, 388 S.E.2d 909 (1989). If no explanation is given for the conflict in testimony or a party’s explanation is determined to be unreasonable, the trial court must eliminate the favorable portions of the contradictory testimony and then take all testimony on motion for summary judgment, as it then stands, and construe the evidence in favor of the party opposing the motion in determining whether summary judgment should be granted. Stone v. Dayton Hudson Corp., 193 Ga. App. 752, 388 S.E.2d 909 (1989). Self-contradictory statements. — When the respondent to a motion for summary judgment makes deliberate and intentional self-contradictory statements about a material issue of fact, that party’s unfavorable testimony may be used against that party. Ward v. Griffith, 162 Ga. App. 194, 290 S.E.2d 290 (1982). Contradictions by movant to be resolved against movant. — When a party directly contradicts themselves, the conflict will be resolved against the party on a motion for summary judgment unless a reasonable explanation is offered. Georgia Farm Bureau Mut. Ins. Co. v. Nolan, 180 Ga. App. 28, 348 S.E.2d 554 (1986). Conflict or contradiction in testimony of opposing party, must be construed in the opposing party’s favor; such contradictions, at the most, may themselves create a conflict in the evidence, as well as a question of credibility, which is solely for the jury. Keheley v. Benham, 155 Ga. App. 59, 270 S.E.2d 285 (1980). When the deponent’s testimony is somewhat vague and inconsistent, but does not disclose an attempt to confuse or mislead the court, although such inconsistency might weaken the deponent’s case at trial it does not, as a matter of law, entitle the movant to summary judgment. Aiken v. 909 Construction of Evidence and Inferences (Cont’d) Drexler Shower Door Co., 155 Ga. App. 436, 270 S.E.2d 831 (1980). Inconsistencies between plaintiff nonmovant’s affidavit and deposition immaterial. — On motion for summary judgment made by the defendant, it is immaterial that there are inconsistencies between the plaintiff ’s affidavit and the deposition, as that part of the plaintiff ’s testimony most favorable to the plaintiff ’s position will be taken as true. Columbia Drug Co. v. Cook, 127 Ga. App. 490, 194 S.E.2d 286 (1972); Roberson v. Home Ins. Co., 149 Ga. App. 590, 254 S.E.2d 908 (1979). But see Davis v. Ferrell, 118 Ga. App. 690, 165 S.E.2d 313 (1968), construing plaintiff ’s deposition testimony which conflicted with his affidavit most strongly against him. Intentional or deliberate selfcontradictions. — When a party is intentionally or deliberately self-contradictory, the court may be justified in taking against the party that version of the party’s testimony which is most unfavorable to the party. 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). Only if party testifying in that party’s own behalf intentionally or deliberately contradicts oneself in order to confuse or mislead the court so as to elude summary judgment shall the more favorable portion of the contradictory testimony be treated as though it did not exist. Aiken v. Drexler Shower Door Co., 155 Ga. App. 436, 270 S.E.2d 831 (1980). Explanation by party of contradictions. — Rule in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680 (1986), that when a party offers a reasonable explanation for contradictory testimony the inconsistency will not be used against the party, applies to the movants for summary judgment as well as the respondents, so that if a movant for summary judgment provides a reasonable explanation for a contradiction, the inconsistency will not be con- 9-11-56 strued against the movant. However, the reasonable explanation merely permits the favorable portion of the contradictory testimony to remain as evidence to be considered; it does not operate to eliminate the unfavorable testimony so as to establish any fact authorizing the grant of summary judgment. Gentile v. Miller, Stevenson & Steinichen, Inc., 257 Ga. 583, 361 S.E.2d 383 (1987). Contradictory statements by nonparty witnesses. — Requirement that testimony of a party who personally offers to be a witness in one’s own behalf is to be construed most strongly against that party, when passing upon a motion for summary judgment, does not apply to contradictory statements by witnesses who are not parties to the litigation. Miller v. Douglas, 235 Ga. 222, 219 S.E.2d 144 (1975). Effect of burden of proof at trial. — Doubts are to be resolved against the movant, even if at trial opposing party would have burden of proof. Whitehead v. Capital Auto. Co., 239 Ga. 460, 238 S.E.2d 104 (1977). All evidence adduced on motion for summary judgment, including testimony of party upholding the motion, is construed more strongly against the movant, even though the movant may not be the party upon whom the burden of proof lies at trial. Combs v. Adair Mtg. Co., 245 Ga. 296, 264 S.E.2d 226 (1980). Application of Prophecy rule. — Appellate court properly found that the company was not entitled to summary judgment as even though the Prophecy rule applied such that a party could adopt the party’s unsworn statement that the party affirmed under oath even when the unsworn statement contradicted the party’s later, sworn testimony, the record did not show that the employee affirmed under oath that portion of the employee’s unsworn statement that the company relied on to obtain summary judgment in the employee’s personal injury case, and, thus, the employee was entitled to rely on the employee’s later, more favorable deposition testimony, which created a genuine issue of material fact and precluded summary judgment. CSX Transp., Inc. v. Belcher, 276 Ga. 522, 579 S.E.2d 737 (2003). 910 Insufficient evidence. — Defendants may prevail under subsection (e) of 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 a plaintiff ’s case. Bandy v. Mills, 216 Ga. App. 407, 454 S.E.2d 610 (1995). Circumstantial evidence as basis for summary judgment. — Trial court’s denial of the first possible motorist and second possible motorist’s summary judgment motion was error as the motorist and the passenger conceded that the second possible driver was neither the owner nor the driver of the car that struck the motorist and the passenger’s vehicle, and circumstantial evidence failed to point more strongly to a conclusion opposite the direct testimony of the first possible driver and the second possible driver that their car which struck the motorist and the passenger’s vehicle had been stolen on the night in question and, therefore, the first possible driver was not driving the car when the car struck the motorist and passenger’s vehicle. Rosales v. Davis, 260 Ga. App. 709, 580 S.E.2d 662 (2003). More specificity required to support motion. — When the administrative law judge used the improper legal standard when the judge granted summary judgment to the Georgia Environmental Protection Division on grounds that the draft permit included the name of the receiving body of water in the fact sheet attached with the draft permit, more specificity was required and, thus, reversal of the summary judgment order was warranted. Hughey v. Gwinnett County, 278 Ga. 740, 609 S.E.2d 324 (2004). Clear and convincing evidence to support appointment of conservator. — Similar to a ruling on a motion for summary judgment in a civil action, because a parent’s gravely-impaired judgment, which combined with a physical frailty and impaired vision, made the parent vulnerable to exploitation by a new person living with the parent, the probate court properly concluded that the parent lacked sufficient understanding to make significant responsible decisions concern- 9-11-56 ing the management of the parent’s property; moreover, because the parent chose not to include the transcript of the evidence in the appellate record, and, as any pre-trial ruling on the parent’s capabilities was, after a trial determining the matter, harmless if not moot, the probate court’s ruling was upheld. Yetman v. Walsh, 282 Ga. App. 499, 639 S.E.2d 491 (2006). Time and Notice for Hearing of Motion for Summary Judgment Spirit of the summary judgment procedure. — Granting motion for summary judgment without affording opposite side time provided or without giving notice or opportunity to be heard does not comport with spirit of this section. Peoples Fin. Corp. v. Jones, 134 Ga. App. 649, 215 S.E.2d 711 (1975). Denial of motion for extension of time proper. — Because a motion for an extension of time to respond to a summary judgment motion and conduct additional discovery failed to set forth specific reasons why additional time was necessary and failed to include the affidavit required under O.C.G.A. § 9-11-56(f ), a trial court acted within the court’s discretion in declining to grant the requested extension of time. Smyrna Dev. Co. v. Whitener Ltd. P’ship, 280 Ga. App. 788, 635 S.E.2d 173 (2006). Notice of affirmative defense. — Affirmative defense of limitations cannot be raised for the first time orally at a hearing on a summary judgment motion without any notice to the opposing party. Hansford v. Robinson, 255 Ga. 530, 340 S.E.2d 614 (1986). Phrase ‘‘at any time’’ is simply used to distinguish between times plaintiffs and defendants have in which to file a motion for summary judgment; it means at any time before a trial begins in which a final judgment is to be rendered, and does not mean that a motion for summary judgment may be filed without any time limit whatsoever. Braselton Bros. v. Better Maid Dairy Prods., Inc., 110 Ga. App. 515, 139 S.E.2d 124 (1964) (decided under former Ga. L. 1959, p. 234, § 1 et seq.). Party may move for summary judgment at any time. — Party against 911 Time and Notice for Hearing of Motion for Summary Judgment (Cont’d) whom claim is asserted may move at any time for summary judgment. Fierer v. Ashe, 147 Ga. App. 446, 249 S.E.2d 270 (1978); Christian v. Allstate Ins. Co., 152 Ga. App. 358, 262 S.E.2d 621 (1979). Defendant may move at any time for summary judgment, with or without supporting affidavits. Nimmer v. Strickland, 242 Ga. 430, 249 S.E.2d 233 (1978). Notice and hearing required. — Subsection (c) of O.C.G.A. § 9-11-56 requires notice to an adverse party and a hearing. Ferguson v. Miller, 160 Ga. App. 436, 287 S.E.2d 363 (1981). Trial court erred in granting summary judgment on an election candidate’s claim for defamation by a radio broadcast as the candidate did not have a full and fair opportunity to meet and attempt to controvert the assertions with respect to that claim. Howard v. Pope, 282 Ga. App. 137, 637 S.E.2d 854 (2006). Party must have 30 days’ notice of hearing and an opportunity to respond to a motion for summary judgment. Leverich v. Roddenberry Farms, Inc., 253 Ga. 414, 321 S.E.2d 328 (1984). When a motion to dismiss was converted to a motion for summary judgment, and nothing in the record reflected that the plaintiff received any notice that the motion would be heard, the dismissal of the complaint was error. Barrett v. Wharton, 196 Ga. App. 688, 396 S.E.2d 603 (1990). Granting the plaintiffs motion for summary judgment without holding a hearing or fixing a time for a hearing thereon and without giving the defendant notice of the time when judgment would be rendered is a procedural shortcoming requiring reversal. Smith v. Conley, 152 Ga. App. 589, 263 S.E.2d 453 (1979). Actual notice. — Spirit of the summary judgment procedure contemplates that the respondent shall have actual notice of a day upon which the matter will be heard and judgment rendered upon the record then existing. A mere reference to the local court rules sent by the attorney does not give such actual notice and an 9-11-56 opportunity to be heard. Ferguson v. Miller, 160 Ga. App. 436, 287 S.E.2d 363 (1981). Failure to give notice. — It is error to grant final relief without giving party opposing motion statutory requirement of notice prior to a hearing on the merits of the claim for final relief. Royston v. Royston, 236 Ga. 648, 225 S.E.2d 41 (1976). Court’s error in conducting a hearing on the defendant’s motion in absence of proper service of notice of the hearing on the plaintiff was not harmless since the plaintiff was deprived of the plaintiff ’s statutory right to file opposing affidavits up to one day before the hearing. Goodwin v. Richmond, 182 Ga. App. 745, 356 S.E.2d 888 (1987). When a trial court orally noted that a limitations period did not bar a lessor’s action to recover for a lessee’s alleged default in the lessee’s financing obligations for office equipment, such was not controlling since the trial court’s written order sua sponte granted summary judgment to the lessor on a finding that all defenses were barred by a prior order of the Bankruptcy Court; however, when there was no indication that proper notice had been provided to the lessee, it was determined that the lessee had not been given a full opportunity to address the basis on which the summary judgment order had been entered. Carroll v. Finova Capital Corp., 265 Ga. App. 517, 594 S.E.2d 720 (2004). In a wrongful foreclosure action, the trial court erred in conducting a hearing on the defendants’ motion to dismiss and in converting the motion to dismiss into a motion for summary judgment by considering evidence outside the pleadings, without giving the plaintiff prior notice as the trial court’s notice of hearing stated that the court was conducting a status conference, and the notice made no mention of the defendants’ motion to dismiss. Garner v. US Bank Nat’l Ass’n, 329 Ga. App. 86, 763 S.E.2d 748 (2014). Statutorily mandated service requirement waived. — Even though the defendant was never served with a motion for summary judgment, since the trial court gave the defendant fair notice of, 912 and an opportunity to respond to, the motion, the statutorily-mandated service requirement was waived. Ferguson v. Duron, Inc., 244 Ga. App. 19, 534 S.E.2d 142 (2000). Receipt of notice of claim. — Summary judgment for an insurer was reversed as factual issues remained as to whether an insurance agency was able to accept notices of claims on behalf of an insurer as a fiduciary and as a dual agent. Bowen Tree Surgs., Inc. v. Canal Indem. Co., 264 Ga. App. 520, 591 S.E.2d 415 (2003). Grant of summary judgment without notice at hearing on motion to compel. — It was error to grant summary judgment in the defendant’s favor in the plaintiff ’s absence at a hearing on a motion to compel, without notice to the plaintiff that summary judgment would be heard or that a judgment for money damages would be sought on grounds entirely distinct from those pled in a prior summary judgment motion, and by support of an affidavit of which the plaintiff had no notice. Jackson v. Bekele, 152 Ga. App 417, 263 S.E.2d 225 (1979). Hearing motion before discovery complete. — Trial court did not abuse the court’s discretion by hearing the plaintiff ’s motion for summary judgment before discovery was complete. Garner v. Roberts, 238 Ga. App. 738, 520 S.E.2d 255 (1999). Ruling on summary judgment motion instead of discovery motion. — Trial court did not abuse the court’s discretion in not ruling on a motion to compel discovery prior to ruling on a motion for summary judgment because the questions from the discovery procedure sought to clearly invade the attorney-client privilege. NationsBank v. SouthTrust Bank, 226 Ga. App. 888, 487 S.E.2d 701 (1997). Trial court’s consideration of a summary judgment motion by the defendant was premature as the plaintiffs raised discovery issues that required judicial scrutiny; accordingly, the case had to be remanded to permit consideration of the plaintiffs’ motion to compel discovery that was denied by the trial court. Parks v. Hyundai Motor Am., Inc., 258 Ga. App. 876, 575 S.E.2d 673 (2002). 9-11-56 Hearing of Motion for Summary Judgment Purpose of hearing. — Obvious purpose of hearing on motion for summary judgment is to provide counsel with an opportunity to persuade the court and to provide the court with an opportunity to interrogate counsel. Premium Distrib. Co. v. National Distrib. Co., 157 Ga. App. 666, 278 S.E.2d 468 (1981). Hearing procedure is designed to give the opposing party fair opportunity to contradict the supporting material relied upon by the movant. Porter Coatings v. Stein Steel & Supply Co., 247 Ga. 631, 278 S.E.2d 377 (1981). Subsection (c) of O.C.G.A. § 9-11-56 requires that hearing date be set and hearing conducted before a motion for summary judgment is granted; the failure of the trial court to do so is error. Premium Distrib. Co. v. National Distrib. Co., 157 Ga. App. 666, 278 S.E.2d 468 (1981). ‘‘Hearing’’ does not necessarily mean an oral hearing, but O.C.G.A. § 9-11-56 at the very least contemplates notice to the respondent that the matter will be heard and taken under advisement as of a certain day. Ferguson v. Miller, 160 Ga. App. 436, 287 S.E.2d 363 (1981). ‘‘Hearing’’ means opportunity to respond. — Hearing referred to in subsection (c) of O.C.G.A. § 9-11-56 simply means an opportunity to respond. If the adverse party is given this opportunity, then the party has been heard within the meaning of that statute. Brown v. Shiver, 183 Ga. App. 207, 358 S.E.2d 862 (1987). Both respondent and movant have a right to be heard as provided in O.C.G.A. § 9-11-56. Sentry Ins. v. Echols, 174 Ga. App. 541, 330 S.E.2d 725 (1985). Duty of each party at a hearing on the motion for summary judgment is to present each party’s case in full. Bible Farm Serv., Inc. v. House Hasson Hdwe. Co., 157 Ga. App. 358, 277 S.E.2d 341 (1981); Walter E. Heller & Co. v. Aetna Bus. Credit, Inc., 158 Ga. App. 249, 280 S.E.2d 144 (1981). Opposing party to present evidence at time of hearing. — When there has been an order to show cause under a motion for summary judgment, the time for the opposite party to present that 913 Hearing of Motion for Summary Judgment (Cont’d) party’s relevant evidence, if any, is at the time of the hearing on the order to show cause, and if this is not done, it is too late to complain later. Scales v. Peevy, 103 Ga. App. 42, 118 S.E.2d 193 (1961) (decided under former Ga. L. 1959, p. 234, § 1 et seq.). Time for party opposing motion for summary judgment to present relevant evidence or show satisfactory reasons for nonproduction is at hearing on an order to show cause, and if this is not done, it is too late to complain later. King v. Fryer, 107 Ga. App. 715, 131 S.E.2d 203 (1963); Planters Rural Tel. Coop. v. Chance, 108 Ga. App. 146, 132 S.E.2d 90 (1963) (decided under former Ga. L. 1959, p. 234, § 1 et seq.). Defendant’s failure to demand hearing does not constitute waiver of that right. Premium Distrib. Co. v. National Distrib. Co., 157 Ga. App. 666, 278 S.E.2d 468 (1981). Hearing sanctioned even if motion never filed. — In a procedural context, the Civil Practice Act, O.C.G.A. Ch. 11, T. 9, sanctions the hearing of a motion for summary judgment even though no such motion is ever filed. Richmond Leasing Co. v. First Union Bank, 188 Ga. App. 843, 374 S.E.2d 746, cert. denied, 188 Ga. App. 912, 374 S.E.2d 746 (1988). Denial of motion does not negate need for hearing. — Necessity of a hearing in accordance with O.C.G.A. § 9-11-56 is not abrogated merely because the motion is ultimately denied. Sentry Ins. v. Echols, 174 Ga. App. 541, 330 S.E.2d 725 (1985). Failure to hold hearing. — When the record and the briefs of the parties reflect that, while a hearing on the motion was scheduled and the parties notified, no hearing was actually held, the appropriate course of action is to remand the case to the trial court for a determination as to whether the respondent waived the respondent’s right to a hearing. Hillis v. First Nat’l Bank, 168 Ga. App. 408, 309 S.E.2d 404 (1983). While it was error for the trial court to fail to hold a hearing on a motion for 9-11-56 summary judgment, which was granted, as the losing parties did not show harm by the denial of their right to a hearing — not stating what defense they expected to raise and not arguing that the grant of summary judgment was improper — a reversal was not demanded. Harper v. Birmingham Trust Nat’l Bank, 171 Ga. App. 618, 320 S.E.2d 622 (1984). Failure of a trial court to hold a hearing on a motion for summary judgment prior to a ruling thereon is error; nonetheless, that error is not reversible absent a showing of harm. Sentry Ins. v. Echols, 174 Ga. App. 541, 330 S.E.2d 725 (1985); Christensen v. State, 219 Ga. App. 10, 464 S.E.2d 14 (1995). Purpose of the 30 day waiting period required by O.C.G.A. § 9-11-56 is to place the opposing party on notice as to the material relied upon by the movant in support of the motion so that the opposing party might have sufficient opportunity to prepare a response. Benton Bros. Ford Co. v. Cotton States Mut. Ins. Co., 157 Ga. App. 448, 278 S.E.2d 40 (1981). Statutory requisite that, unless waived or extended, supporting material must be on file at least 30 days before a summary judgment hearing is an implementation of the fundamental principle of due process. Bonds v. John Wieland Homes, Inc., 177 Ga. App. 254, 339 S.E.2d 318 (1985). Service of motion less than 30 days before hearing. — When motion for summary judgment is served less than 30 days before the time fixed for hearing, but no prejudice occurs to the party opposing the motion, the trial court may properly proceed with the hearing. Cel-Ko Bldrs. & Developers, Inc. v. BX Corp., 136 Ga. App. 777, 222 S.E.2d 94 (1975). Waiver of 30-day requirement. — The 30-day requirement under subsection (c) of O.C.G.A. § 9-11-56 can be waived. Mobley v. Coast House, Ltd., 182 Ga. App. 305, 355 S.E.2d 686 (1987). When the trial court inquired of counsel the best time available to hear the several pending motions and respondent’s attorney expressly asked the court to rule upon all motions for summary judgment at one time and no mention or objection was made by the attorney that only six days had expired between the time of filing and 914 the time of ruling on several of the motions, any defect as to the timeliness of the granting of the disputed motions for summary judgment was waived. Mobley v. Coast House, Ltd., 182 Ga. App. 305, 355 S.E.2d 686 (1987). Court did not err in holding a hearing on a summary judgment motion only 15 days after the motion was supplemented with citations to authority, and did not deprive the nonmovants of the right to 30 days to respond, when the nonmovants waived expansion of the time and resetting of the trial by not only rejecting the court’s offer but by affirmatively asking the court to move forward with the summary judgment determination. Southern Trust Ins. Co. v. Georgia Farm Bureau Mut. Ins. Co., 194 Ga. App. 751, 391 S.E.2d 793 (1990). Nonmoving party waived the matter of the trial court’s failure to comply with the procedural mandate that the nonmoving party be afforded 30 days within which to respond to a motion as the nonmoving party for summary judgment failed to raise this procedural defect at the hearing. Dennisson v. Lakeway Publishers, Inc., 196 Ga. App. 85, 395 S.E.2d 366 (1990). Timeliness of hearing waived by appearance and argument. — When both parties appeared and argued plaintiff ’s motion to strike and dismiss (in effect a motion for summary judgment or judgment on the pleadings) on the day assigned, without objection as to time, no complaint may later be made as to the timeliness of the hearing. Connell v. Connell, 119 Ga. App. 485, 167 S.E.2d 686 (1969). Permissible not to require oral argument hearing unless requested. — When O.C.G.A. §§ 9-11-56, 9-11-78, and 9-11-83 are considered in conjunction, it is permissible for the court rules to provide that an oral argument hearing is not required unless the party requests a hearing. Dallas Blue Haven Pools, Inc. v. Taslimi, 180 Ga. App. 734, 350 S.E.2d 265 (1986), aff ’d, 256 Ga. 739, 354 S.E.2d 160 (1987). When timely response to motion filed, oral argument erroneously denied. — Because the responding party 9-11-56 timely responded to a summary judgment motion, pursuant to Ga. Unif. Super. Ct. R. 6.3, the trial court erred in denying that party oral argument on that motion and in granting summary judgment to the movant. Green v. Raw Deal, Inc., 290 Ga. App. 464, 659 S.E.2d 856 (2008). Entry of order prior to expiration of 30 day period. — Unless the record unequivocally demonstrates that the nonmovant’s defenses to the motion are wholly meritless and frivolous or the nonmovant fails to raise the procedural defect at the hearing, the trial court’s entry of an order on the motion prior to the expiration of 30 days from its service is reversible error, even though the trial court may ultimately determine on a renewed motion that the movant is entitled to summary judgment. Dixon v. Midland Ins. Co., 168 Ga. App. 319, 309 S.E.2d 147 (1983); U. S. Traffic Corp. v. Turcotte, 246 Ga. App. 187, 539 S.E.2d 884 (2000). Trial court’s error in initially ruling upon a motion for summary judgment before expiration of the 30-day response period was not prejudicial since the court reaffirmed the court’s grant of summary judgment after the expiration of the 30-day period during which time no response was made. Segrest v. Intown Value Hdwe., Inc., 190 Ga. App. 588, 379 S.E.2d 615 (1989). Trial court’s error in granting the defendants’ summary judgment motion prior to the end of the 30-day response period did not require reversal and remand when the plaintiff ’s action was barred by the exclusive remedy provision of the Workers’ Compensation Act, O.C.G.A. Ch. 9, T. 34. Larraga v. Aetna Cas. & Sur. Co., 222 Ga. App. 654, 475 S.E.2d 649 (1996). Entry of judgment for both movant and nonmovant plaintiffs permitted when defendant has notice of issues. — It is proper to enter summary judgment in favor of nonmovant party plaintiff as well as for movant party plaintiff, absent written notice or waiver thereof if issues are the same as those involved in the movant’s motion of which the opposite parties have notice. Cruce v. Randall, 245 Ga. 669, 266 S.E.2d 486 (1980). Continuance or refusal to allow filing when opposing affidavits not 915 Hearing of Motion for Summary Judgment (Cont’d) served prior to hearing. — There may be situations when failure to serve opposing affidavits prior to the day of hearing will result in the trial court refusing with propriety to allow the affidavits to be filed, or situations when the court may allow the affidavits to be filed but grant a motion for continuance. Simmons v. State Farm Mut. Auto. Ins. Co., 111 Ga. App. 738, 143 S.E.2d 55 (1965) (decided under former Ga. L. 1959, p. 234, § 1 et seq.). Conversion of Other Motions to Motions for Summary Judgment Conversion of motion to dismiss. — Party is entitled to notice of conversion of motion to dismiss into a motion for summary judgment as well as 30 days to respond to such motion. Riverhill Community Ass’n v. Cobb County Bd. of Comm’rs, 236 Ga. 856, 226 S.E.2d 54 (1976). When on a hearing on a motion to dismiss a complaint because of failure to state a claim, evidence is introduced and admitted by the court, the motion to dismiss is converted to one for summary judgment, and the opposing party must be given 30 days notice of the motion. Jaynes v. Douglas, 147 Ga. App. 678, 250 S.E.2d 14 (1978). Upon the trial court’s conversion of a motion to dismiss to one for summary judgment, being the first notice to the plaintiffs in the record that the motion was one for summary judgment, the plaintiffs were then entitled to 30 days to respond to the motion as converted before a ruling was made on the motion, and the entry of the trial court’s order on the summary judgment motion without allowing the plaintiffs 30 days to respond was error. Hart v. Sullivan, 197 Ga. App. 759, 399 S.E.2d 523 (1990). Attachment of an affidavit to a motion to dismiss does not constitute notice that the motion will be converted to a motion for summary judgment. Until the trial court decides whether to consider or exclude matters outside the pleadings, the mere attachment of an affidavit to a motion to dismiss should not be construed to constitute notice of the conversion of that 9-11-56 motion to dismiss into a summary judgment motion. Hart v. Sullivan, 197 Ga. App. 759, 399 S.E.2d 523 (1990). Trial court’s order denying dismissal of a fraud claim in a medical malpractice action against a doctor, upon a motion which the trial court treated as one for summary judgment when the court considered material beyond the pleadings, was reversed as there was no evidence that the doctor knew or even suspected that the patient had a pancreatic tumor, or that the doctor withheld information regarding the tumor; thus, the doctrine of equitable estoppel did not apply and the fraud claim was barred by the statute of repose, O.C.G.A. § 9-3-71(b). Balotin v. Simpson, 286 Ga. App. 772, 650 S.E.2d 253 (2007), cert. denied, 2007 Ga. LEXIS 803 (Ga. 2007). When a party did not object in the trial court to the conversion of a motion to dismiss for failure to state a claim into one for summary judgment, and the party did not challenge or address the conversion on appeal, any objection to the conversion was waived. Action Concrete v. Portrait Homes - Little Suwanee Point, LLC, 285 Ga. App. 650, 647 S.E.2d 353 (2007). When motions to dismiss asserted, among other things, that the complaint failed to state a claim and the trial court considered material beyond the pleadings in ruling on the motions to dismiss, those motions were required to be treated as motions for summary judgment, and the losing party maintained the right to a direct appeal from an order granting partial summary judgment. City of Demorest v. Town of Mt. Airy, 282 Ga. 653, 653 S.E.2d 43 (2007). Trial court erred in failing to grant a client’s request for a hearing on a former attorney’s motion to dismiss claims for legal malpractice and intentional infliction of emotional distress because the trial court considered matters outside the pleadings. Under O.C.G.A. § 9-11-12(b), the motion was required to be treated as one for summary judgment and disposed of as provided in O.C.G.A. § 9-11-56, and all parties were to be given a reasonable opportunity to present all material made pertinent to such a motion. Fitzpatrick v. Harrison, 300 Ga. App. 672, 686 S.E.2d 322 (2009). 916 Conversion of motion for judgment on pleadings. — When there is only a motion for judgment on the pleadings under consideration, which motion is converted into a motion for summary judgment by the presentation of matters outside the pleadings not excluded by the court, the trial judge must give reasonable opportunity to the opposing party to present all material pertinent to such motion; however, when a motion filed and heard is for summary judgment as well as judgment on the pleadings, and a motion for summary judgment is the only motion ruled upon, there is no requirement that the trial court offer the opposing party a reasonable opportunity to secure evidence or materials as the opposing party has already had notice that such would be required. Hanson v. Byers, 120 Ga. App. 298, 170 S.E.2d 315 (1969). Personal guarantor did not show that the guarantor was harmed by a trial court’s converting a bank’s motion for judgment on the pleadings to a motion for summary judgment because the guarantor did not show that given additional time the guarantor would have filed additional affidavits or other supporting documentation in response to the motion for summary judgment. Brooks v. Multibank 2009-1 RES-ADC Venture, LLC, 317 Ga. App. 264, 730 S.E.2d 509 (2012). Conversion of interlocutory injunction application. — Trial court has the authority to convert an application for interlocutory injunction into a motion for summary judgment. However, the court cannot do so without compliance with the provisions of subsection (c) of O.C.G.A. § 9-11-56. Charming Shoppes, Inc.