This Court granted a writ of certiorari to the Court of Appeals in Union Carbide Corp. v. Fields,
As set forth in the opinion of the Court of Appeals, and as revealed in the record before the trial court, the facts of the case are the following. Rhonda Fields (“Mrs. Fields”) suffers from peritoneal mesothelioma allegedly contracted as a result of her childhood exposure to asbestos dust from various sources. She and her husband (“the Fields”) alleged in their complaint, and the accompanying sworn information form of Mrs. Fields, see OCGA § 51-14-7, that Georgia-Pacific, LLC and Union Carbide Corporation (“Defendants”), as well as a number of other companies, were responsible for either mining, manufacturing, processing, importing, converting, compounding, selling, or distributing the asbestos-containing products to which Mrs. Fields was exposed. The Fields separately reached settlements with a number of nonparty entities and original defendants, and in pleadings subsequent to the original complaint, omitted any allegation that Central Moloney, Inc. (“Central Moloney”), Nehring Electrical Works Company (“Nehring”), Phelps Dodge Cable & Wire
As the case proceeded in the trial court, the Fields moved for partial summary judgment on the issue of nonparty fault, seeking to preclude Defendants from presenting the potential fault of the non-party entities for purposes of apportioning potential damages. The state court granted the motion, and the Court of Appeals affirmed.
1. In Division 1 (d) of its opinion, the Court of Appeals addressed the Defendants’ argument that summary judgment on this issue was inappropriate because the Defendants had
presented sufficient evidence, in the form of allegations contained in the Fieldses’ complaint and in Mrs. Fields’ sworn information form, to preclude summary judgment on their nonparty defense as it pertained to the potential fault of nonparties Central Moloney, Nehring, Phelps Dodge, Southern States, and Southwire.
Union Carbide, supra at 562 (footnote omitted). The Court of Appeals held that
[a]s an initial matter, unverified allegations in a plaintiff’s complaint are generally not evidence for purposes of defeating summary judgment. See Jones v. City of Willacoochee,299 Ga. App. 741 , 742 (683 SE2d 683 ) (2009). Nor are allegations in a verified complaint. See Fletcher v. Hatcher,278 Ga. App. 91 , 93 (2) (628 SE2d 169 ) (2006) (“We do not consider the allegations in plaintiffs’ verified complaint to be evidence, because the verification therein was based on ‘the best of plaintiffs’ knowledge and belief.’ ”) (punctuation omitted). “As personal knowledge (not belief) is required in a verification for summary judgment purposes, plaintiffs’ complaint contains mere allegations and not sworn statements.” (Citation and footnote omitted.) Id. Mrs. Fields’ sworn information form is no different than a verification form submitted in support of a complaint — that is, Mrs. Fields’ form*501 explicitly stated that the information contained therein was based upon the “best of her knowledge and belief.”
Union Carbide, supra at 562 (1) (d). However, neither of the opinions relied upon by the Court of Appeals pertains to this situation; both cases dealt with arguments presented by plaintiffs that the allegations in their own pleadings served to defeat the motion for summary judgment made by the opposing party. See Jones, supra; Fletcher, supra. Rather, the law governing this situation is expressed in then-effective OCGA § 24-3-30, which read: “Without offering the same in evidence, either party may avail himself of allegations or admissions made in the pleadings of the other.” (Emphasis supplied.) See current OCGA § 24-8-821.
Further, the admissions and allegations upon which the Defendants wished to rely in meeting the motion for summary judgment were admissions of fact, i.e., that Mrs. Fields had been exposed to asbestos-containing products which the nonparty entities had produced or distributed. As such, they were not “ ‘merely the opinion or conclusion of the pleader as to law or fact,’ ” Howell Mill/Collier Assoc. v. Pennypacker’s, Inc.,
The Fields contend that Mrs. Fields lacked personal knowledge as to the facts appearing in the sworn information form, stated the facts “to the best of her knowledge and belief,” and the admissions are thus prevented from being considered evidence in any manner. However, that is of no moment.
It is incidental that this averred information may not have originated within plaintiff’s personal knowledge; having placed it within [the] pleading as a statement of fact, [plaintiff] cannot escape the effect of his pleading strategy merely by asserting that the pleaded information was based on matters within the knowledge of a third person. Admissions are received in evidence either as a hearsay exception or as non-hearsay (Green, Ga. Law of Evid. (3d ed.), Admissions,*502 § 234); suffice it to say that under either theory admissions are not rendered inadmissible through a claim of hearsay.
Walker, supra at 518 (1).
The Fields also contend that amendments to their original pleadings had the effect of withdrawing the admissions at issue. They are correct that withdrawal or amendment prevents the original admissions from serving as solemn admissions in judicio. See Richmond County v. Sibert,
the statements contained in [plaintiffs’] initial pleadings are controlling. [Former] OCGA § 24-3-30 provides that a party may avail himself of allegations contained in the other party’s pleadings without the necessity of offering them into evidence. [Cits.] In fact, a party to a suit will not even be allowed to disprove an admission made in his pleadings without first withdrawing it from the record. [Cit.] Where the pleading has been stricken, the admission contained therein remains to be utilized as evidence of fact which the admitting party can explain but may be unable to conclusively refute.
Strozier v. Simmons U.S.A. Corp.,
Although a party may withdraw or strike from the pleadings an admission in judicio by amendment and tender evidence to contravene such admission, the opposite party can tender in evidence the original admission in judicio against such party as an admission against interest. [Cits.] Even after its withdrawal, an opposing party “undeniably [has] a right to use it as evidence.” [Cit.]
R.D. Stallion Carpets, Inc. v. Dorsett Indus., L.P.,
2. In Division 1 (d) of its opinion, the Court of Appeals also stated that, even if Defendants relied upon the admissions made by the Fields to contest summary judgment, such would not be
sufficient to defeat summary judgment on Defendants’ non-party defense as . . . Defendants have not offered any evidence, expert or otherwise, showing that Mrs. Fields’s alleged exposure to these five nonparties’ products in fact contributed to the development of Mrs. Fields’s mesothelioma.
Union Carbide, supra at 562-563 (1) (d) (Footnote omitted.) However, the Court erred in advancing this as an alternative basis for affirming the grant of summary judgment.
In their motion for summary judgment, the Fields sought to pierce Defendants’ claim that it was appropriate for the jury to include the nonparty defendants in apportioning any damages that might be awarded. The Fields attempted to do so by showing that there was no evidence of Mrs. Fields’s exposure to products manufactured by the nonparty defendants; they did not attempt to attack Defendants’ contention by asserting that there was no evidence of any such exposure causing Mrs. Fields’s condition. In fact, the Fields did not argue any issue of causation, asserting only that “[t]he record reveals no evidence sufficient to create a jury question regarding the fact of Plaintiff Rhonda Fields’ alleged exposure to such asbestos-containing products.”
Of course, appellate courts apply the “right for any reason” rule when reviewing grants of summary judgment, City of Gainesville v. Dodd,
Judgment reversed.
Notes
It does not appear that Phelps Dodge was named as a defendant in the original complaint, or in any of the three amended complaints. In Mrs. Fields’s sworn information form under OCGA § 51-14-7, “Phelps Dodge Cable and Wire (BICC CABLES CORP.)” was named as a manufacturer of asbestos products to which Mrs. Fields was exposed; the original complaint, as well as the amended complaints, named as a defendant “GENERAL CABLE INDUSTRIES, INC., individually and as a successor in interest to BICC CABLES CORP.” For the purposes of this opinion, we assume that “Phelps Dodge” is incorporated in references to BICC CABLES CORP., or GENERAL CABLE INDUSTRIES, INC.
OCGA § 24-8-821, effective January 1, 2013, reads:
Without offering the same in evidence, either party may avail himself or herself of allegations or admissions made in the pleadings of the other.
Although the Fields cite cases in which it is noted that a party’s failure to withdraw an admission leaves the same to serve as a conclusive presumption of law, see, e.g., Nhan v.
Nothing in McReynolds v. Krebs,
In their motion, the Fields referred to “asbestos-containing products associated with any non-party whom Defendants wish to have listed on the jury form.”