The appellants brought the present action to recover damages for the appellee’s alleged fraud in connection with the sale to them of an automobile. The appellee moved for summary judgment on January 22, 1988, without requesting oral argument. However, the trial court nevertheless determined that a hearing should be held on the motion and on January 27, 1988, issued an order directing the appellants to appear in court on April 8, 1988, to show cause why the motion should not be granted. On April 7, the day prior to the scheduled hearing, the appellants filed their response to the summary judgment motion, along with a supporting affidavit. The hearing scheduled for April 8 was apparently cancelled; and on April 11, the trial court entered an order granting summary judgment to the appellee. In doing so, the court ruled that the appellants’ response to the appellee’s motion was untimely and could not be considered because it had not been filed within 30 days of the appellee’s motion, as required by Rule 6.2 of the Uniform Rules for the State Courts. The trial court indicated in its order that it had taken the case “under advisement” on April 4, 1988 — i.e., four days prior to the scheduled hearing and three days prior to the filing of the appellants’ response. Held:
1. The Civil Practice Act specifies that the respondent in a summary judgment proceeding may serve opposing affidavits “prior to the day of hearing.” OCGA § 9-11-56 (c). Accord OCGA § 9-11-56 (d). However, Rule 6.2 of the Uniform Rules for the State Courts requires that, “[u]nless otherwise ordered by the judge, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion, or on the date of the hearing (if one is held)
whichever occurs sooner.”
Effective September 19, 1986, the preamble to the Uniform Superior Court Rules was amended to provide as follows: “It is not the intention, nor shall it be the effect, of these rules to conflict with the Constitution or substantive law, either per se or in individual actions and these rules shall be so construed and in case of conflict shall yield to substantive law.”
Although OCGA § 9-11-56 (c) does not require that a hearing be set on a motion for summary judgment where none is requested, see
Dallas Blue Haven Pools v. Taslimi,
2. The alleged fraud perpetrated on the appellants consisted of misrepresentations regarding the appellee’s intention to repair certain defects in the vehicle of which the appellants were concededly aware prior to the consummation of the sale. These defects consisted of a torn seat and the existence of bubbles in a protective coating which had been applied over the paint. The appellants allege that the appellee never had any intention of effectuating the promised repairs. However, there was the uncontroverted evidence that the vehicle was serviced and repaired by the appellee on numerous occasions subsequent to the sale, at no charge to the appellants, and that the work performed included removal and reinstallation of the right front seat to correct a misstitch and wet sanding, buffing, and waxing of the paint to eliminate the bubbles. When the appellants continued to express dissatisfaction with the paint repairs, the car was examined by the Chrysler Customer Service Satisfaction Arbitration Board, which ultimately determined that the paint was in good condition and that it required no further repairs.
We hold that this uncontroverted evidence conclusively negated the allegation that the appellee never intended to make good on its promise to perform the repairs in question. See generally
Ga. Real Estate Comm. v. James,
Judgment affirmed.