Dulsie Bryson, as administratrix of the estate of Richard Gingrich, sued Decían F. Keogh to set aside an allegedly fraudulent conveyance. The Superior Court of DeKalb County granted Bryson’s motion for summary judgment, and Keogh appeals this ruling. For reasons that follow, we reverse.
Before addressing the merits of the summary judgment action, we must address procedural issues, which preceded the trial court’s summary judgmеnt order. The record shows that Bryson filed suit in March 2007, and Keogh filed a timely answer. Keogh’s first attorney withdrew from the case in December 2007, and shortly thereafter
On December 31, 2009, the trial court apparently accepted and considered “confidential correspondence,” which it placed under seal.
In March 2011, Bryson filed a motion for default judgment. The motion was also not served on Penland.
Shortly thereafter, Penland filed a motion to set aside the default judgment under OCGA § 9-ll-60(d), alleging that he had received no notice of any trial calendars. In support of this allegation, Penland attached a copy of the legal notices from the local newspaper, which erroneously identified Keogh as a pro se litigant.
While the motion to set aside remained pending, Bryson filed a motion for summary judgment. According to Bryson, who is Gingriсh’s daughter, Keogh purchased property from her father in 2003. In connection with the purchase, Keogh executed a promissory note for the loan amount. Keogh also executed a security deed to secure the note, and the deed was recorded. After making only eight payments, Keogh obtained a document stating that the note had been satisfied and cancelling the security deed. Bryson contended that Gingrich’s signature on the document had been forged. In support of this contention, Bryson attached affidavits from herself, her sister, and Gingrich’s care giver who testified that Gingrich had crippling arthritis, which prevented him from signing legibly. All three opined that the signature on the document was not Gingrich’s.
1. Keogh contends that the trial court erred in dismissing his defensive pleadings for failure to appear because he did not receive notice of the proceedings. We agree. Under Georgia law, the trial court is required to provide notice of its trial calendar. See OCGA § 9-11-40 (c); Taylor v. Chester,
The trial court found that Keogh had not proven lack of notice because the newspaper copy of the trial court’s calendar was mere hearsаy. Pretermitting whether it was hearsay, it put the trial court on notice that the trial calendar was inaccurate. And it is the trial court’s duty to notify parties of the trial calendar. Taylor v. Chester,
To the extent the trial court found that Keogh was not entitled to notice of the default judgment proceedings, we disаgree. Under OCGA § 9-11-6 (d), motions and notices of a hearing must be served on an opposing party. “Where, as here, a party is represented by counsel, service shall be made by delivering a copy to the attorney or by mailing it to him at his last known address. OCGA § 9-11-5 (b). Compliance with the notice requirement is mandatory, not discretionary.” (Citation and punctuation omitted.) Randall v. Randall,
Finally, we find no support for the trial court’s conclusion that Keogh’s delay in challenging the June 22, 2010 order striking his answer precludes him from challenging the subsequent entry of default judgment. Keogh had no right to directly appeal the trial court’s order, which was interlocutory. See American Med. Sec. Group v. Parker,
2. In a related claim of error, Keogh contends thаt the trial court erred in denying his motion to set aside the default judgment. Ordinarily, an appeal from an order denying a motion to set aside under OCGA § 9-11-60 (d) must be made by application for discretionary aрpeal. See OCGA § 5-6-35 (a) (8). Here, however, we also have a final order on summary judgment, which may be directly appealed. See OCGA §§ 9-11-56 (h); 5-6-34 (a) (1). Under OCGA § 5-6-34 (d), where a direct appeal is properly taken,
all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellаte court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealаble by some other express provision of law contained in this Code section, or elsewhere. For purposes of review by the appellate court, one or more judgments, rulings, or ordеrs by the trial court held to be erroneous on appeal shall not be deemed to have rendered all subsequent proceedings nugatory; but the appellate court shall in all casеs review all judgments, rulings, or orders raised on*298 appeal which may affect the proceedings below and which were rendered subsequent to the first judgment, ruling, or order held erroneous.
Therefore, in view of the valid direct appeal, we may review the trial court’s ruling on Keogh’s motion to set aside. And, for the reasons discussed in Division 1, we conclude that the trial court erred in denying the motion. See Taylor v. Chester,
3. Keogh contends that the trial court erred in granting summary judgment. Again, we agree.
When reviewing a grant of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the еvidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the party opposing the motion. Summary judgment is proper when there is no genuine issue of mаterial fact and the movant is entitled to judgment as a matter of law. To defeat a motion for summary judgment, the respondent does not have to present conclusive proof to rebut the movant’s evidence; if the respondent produces or points to any specific evidence, even slight, in the record giving rise to a triable issue of material fact, then summary judgment must be denied.
(Citations and punctuation omitted.) Lee v. SunTrust Bank,
Under OCGA § 24-7-6, in the absence of direct evidence regarding the execution of any document, proof of handwriting may be offered by witnesses familiar with the handwriting of the person who allegedly signed the documеnt. This is not to say, however, that the proof is dispositive as a matter of law. See id. Whether a signature is valid is a factual issue that requires resolution by a jury. See id.; see also, e.g., Ham v. Ham,
Judgment reversed.
Notes
In a pending proceeding, judges are strictly limited in their ability to consider ex parte communications. See Code of Judicial Conduct Canon 3 (B) (7); USCRRule 4.1.
Although the motion has what appears to be a certificate of service, a close reading of the certificate discloses only that the original complaint was served in 2007.
In response, Keogh contended that the original security deed was cancelled in ordеr to sell the property, but that a new security deed was executed to secure the promissory note with a different piece of property.
This order was also prepared by Bryson’s attorney.
The cases upon which the trial court relied in finding Keogh dilatory involved a trial court’s discretion to open a default judgment once it hadbeen entered. See Rogers v. Coronet Ins. Co.,