332 Ga. App. 491
Ga. Ct. App.2015Background
- Smith and her daughter Meiko Camp contracted with Dill’s Builders, Inc. (DBI) on Jan. 21, 2006 to build a house for $167,795; Smith signed a blank change order the same day which she later claimed DBI filled in.
- Construction completed in Oct. 2006; Smith complained about reduced usable square footage and workmanship during a post-completion walk-through and identified items DBI agreed to repair but purportedly did not fix.
- Smith withheld final payment; DBI claimed final balance due (with increased contract price due to change orders/overages) and filed a lien and suit to collect the balance.
- Defendants (Smith and Camp) answered, raising counterclaims for breach of contract, fraud, and slander of title; Camp also asserted insufficient service of process and lack of personal jurisdiction in her answer.
- DBI moved for summary judgment submitting affidavits that Smith approved change orders and the plans, and that the final balance remained unpaid; Smith submitted an affidavit denying approval of change orders and asserting DBI failed to perform repairs required by the contract.
- The trial court granted summary judgment to DBI, finding Smith’s affidavit insufficient; the Court of Appeals reversed and remanded.
Issues
| Issue | Plaintiff's Argument (DBI) | Defendant's Argument (Smith / Camp) | Held |
|---|---|---|---|
| Whether summary judgment was premature as to Camp because jurisdiction/service defenses remained unresolved | DBI argued merits could be decided without separately resolving Camp’s service/jurisdiction defenses | Camp argued she preserved insufficient service and lack of personal jurisdiction defenses and the court had to decide those first | Reversed as to Camp; court must first address service and personal-jurisdiction defenses before ruling on merits |
| Whether Smith’s affidavit was sufficient to create genuine issues of material fact about DBI’s performance and final payment due | DBI contended Smith’s affidavit was conclusory/hearsay and insufficient to defeat summary judgment | Smith asserted personal-knowledge facts: alleged nonapproval of change orders, DBI’s failure to perform agreed repairs, and contract language allowing withholding amounts from final payment | Reversed as to Smith; affidavit was sufficient to raise genuine issues on performance, approval of change orders, and amount due |
| Whether the trial court properly struck Smith’s counterclaims due to affidavit insufficiency | DBI argued counterclaims fail because affidavit lacked admissible factual support | Smith argued her affidavit plus contract provisions supported counterclaims (breach, fraud, slander of title) | Reversed: because affidavit raises genuine issues, summary judgment on counterclaims was improper |
| Standard for affidavits opposing summary judgment | DBI implied Smith’s affidavits failed the personal-knowledge / nonconclusory standard | Smith relied on personal knowledge and contemporaneous contract provisions to satisfy OCGA § 9-11-56(e) requirements | Court applied established affidavit standards and found Smith’s affidavit met personal-knowledge and factual support requirements |
Key Cases Cited
- Capital Color Printing v. Ahern, 291 Ga. App. 101 (2008) (describing de novo review on appeal from summary judgment)
- Rome v. Polyidus Partners LP, 322 Ga. App. 175 (2013) (trial court must address preserved jurisdictional issues before deciding merits)
- Shropshire v. Alostar Bank of Commerce, 314 Ga. App. 310 (2012) (preservation of personal-jurisdiction and service defenses requires reassertion in response to summary-judgment motion)
- Baiye v. Gober, 254 Ga. App. 288 (2002) (premature to rule on merits without resolving service/jurisdiction defenses)
- Bogart v. Wisconsin Institute for Torah Study, 321 Ga. App. 492 (2013) (nonmoving party must set out specific facts in opposing affidavits to create genuine issues)
- Liles v. Innerwork, Inc., 279 Ga. App. 352 (2006) (affidavits opposing summary judgment must be personal-knowledge, admissible, and not conclusory)
- Ellison v. Hill, 288 Ga. App. 415 (2007) (personal-knowledge requirement met where material parts of affidavit are within affiant’s personal knowledge)