Brown v. Seaboard Construction Co.
317 Ga. App. 667
Ga. Ct. App.2012Background
- Brown and Mangram sue Seaboard for injuries from a 2005 road defect.
- Seaboard moves for summary judgment based on Swan affidavits claiming post-1997 DOT responsibility.
- Trial court denied then granted summary judgment on renewed motion citing DOT control per OCGA § 32-2-2(a)(1).
- Swan affidavit sequence: initial on-road work not after 1997; later stating DOT repaving in 1997 with 1998 completion and DOT acceptance.
- Brown and Mangram argue the Swan affidavits are contradictory and rely on unattached business records; appeal follows.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Swan affidavits contradictory? | Swan's third affidavit clarifies, not contradicts earlier statements. | Affidavits contradict prior statements and create inconsistency. | Not contradictory; permissible clarification. |
| Can Swan's third affidavit rely on unattached business records? | Affidavit basing on personal knowledge and related records is permissible. | Referenced records not attached render affidavit insufficient. | Affidavit insufficient; records not attached cannot support summary judgment. |
| Did the remaining evidence create no genuine issue of material fact? | Depositions and records show genuine issues precluding summary judgment. | Record supports DOT responsibility and binds judgment. | Trial court erred; summary judgment reversed. |
Key Cases Cited
- Lau’s Corp. v. Haskins, 261 Ga. 491 (1991) (summary judgment standard; de novo review and no genuine issue)
- Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (1986) (testimony of self-interested witness; contradiction rule)
- Powers v. Hudson & Keyse, LLC, 289 Ga. App. 251 (2008) (business records not attached; Affidavit based on records insufficient)
- Val Preda Motors v. Nat. Uniform Svc., 195 Ga. App. 443 (1990) (business records and manager’s knowledge cannot support SJ without attachment)
- Cornelius v. Hutto, 252 Ga. App. 879 (2001) (affidavit not contradictory when adding clarifying information)
- Fraker v. C. W. Matthews Contracting Co., 272 Ga. App. 807 (2005) (DOT control and responsibility over state highway system)