Connell and Houser contracted as co-purchasers to acquire certain property owned by Tri-South Investments, Inc., (TSI), which is not a party to this litigation. A dispute thereafter arose between the two, as a result of which Connell attempted to secure other investors to take Houser’s place. When TSI refused to close the transaction without Houser, Connell brought the present action against him seeking damages for tortious interference with business or contractual relationships, defamation, and breach of contract. Following extensive discovery, the trial court granted summary judgment to Houser with respect to all of Connell’s substantive claims but ruled that a jury issue remained with respect to whether Connell was entitled to attorney fees as expenses of litigation. These appeals followed. Held:
1. Connell contends that the trial court erred in striking as untimely an affidavit which he filed one day before the hearing on Houser’s motion for summary judgment. However, there is nothing in the record to indicate that the court in fact struck this affidavit or otherwise refused to consider it. In its order, the court indicated that its ruling was based on consideration of the “entire record.” Absent any indication to the contrary, we must presume that the court considered all the evidence before it. Cf.
Pruitt v. Tyler,
2. Connell contends that certain deposition testimony submitted by Houser in support of his motion for summary judgment should not have been considered because it was filed less than 30 days prior to the hearing on the motion. See generally OCGA § 9-11-56 (c). However, it is well settled that consideration of untimely filed material will not warrant reversal of the court’s ruling on motion for summary judgment if the record demonstrates either that the material was harmless or that the respondent acquiesced in the court’s consideration of it. See
Porter Coatings v. Stein Steel &c. Co.,
In his motion for summary judgment, Houser expressly indicated that he was relying on the deposition testimony in question; and in his response, Connell himself made extensive reference to two of the depositions. Under such circumstances, we conclude that the trial court’s decision to consider this material did not constitute a manifest abuse of discretion. Accord Porter Coatings v. Stein Steel &c. Co., supra.
3. Connell further complains that certain affidavits submitted by Houser contained conclusory statements and inadmissible hearsay. However, the affidavits in question also contained statements which were not conclusory and were not based on hearsay, and no motion was made to strike the portions which were deemed to be objectionable. Even where a motion to strike is made, “ ‘ “(t)he trial judge may consider such affidavits, and he is bound by the uncontradicted evidentiary matter in such affidavits, irrespective of the opinions, ultimate facts, and conclusion of law stated therein.” [Cit.]’ [Cit.] Thus, the mere fact that the affidavits in question might contain certain averments which could be characterized as conclusions and hearsay, [would] not prohibit the trial judge from considering the admissible parts thereof and from granting summary judgment if appropriate.”
Vickers v. Chrysler Credit Corp.,
4. Connell contends that the court erred in concluding that the evidence of record negated his substantive claims for relief.
(a) Counts 1 and 2 of the complaint alleged malicious interference with business and/or contractual relationships. See generally
McDaniel v. Green,
(b) In Count 3 of the complaint, Connell alleged that Houser defamed him in statements made to several of his (Connell’s) business *160 associates and to his (Connell’s) attorney. However, the only alleged defamation which is substantiated by the record and asserted on appeal concerns an incident in which Houser allegedly called Connell a “son-of-bitch” in the presence of TSI’s vice-president. Pursuant to OCGA § 51-5-4 (b), special damages must be shown to establish a cause of action based on mere derogatory remarks. Since TSI’s vice-president testified in his affidavit that the company’s decision not to go through with the closing without Houser’s participation was not based on anything Houser had said, it is evident that no special damages resulted from the alleged remark. It follows that the trial court did not err in granting summary judgment to Houser on the defamation claim.
*160
(c) The trial court granted summary judgment to Houser on the breach of contract claim asserted in Count 4 of the complaint based on undisputed evidence that it was Connell rather than Houser who had initially refused to close the contract in accordance with its terms. “ ‘[W]hen one party to a bilateral contract of mutual dependent promises
absolutely
refuses to perform and repudiates the contract prior to the time of his performance, the innocent party is at liberty to consider himself absolved of any future performance of his part. . . .’ [Cit.]”
Coffee Butler Suc. v. Sacha,
5. In a cross-appeal, Houser contends that the trial court erred in denying his motion for summary judgment with respect to Connell’s prayer for expenses of litigation, including attorney fees. Expenses of litigation are not recoverable pursuant to OCGA § 13-6-11 unless other elements of damages are recoverable. See
Basic Four Corp. v. Parker,
Judgment affirmed in part and reversed in part.