IN THE SUPREME COURT OF THE
STATE OF GEORGIA
KAREN H. PFEIFFER, Appellant,
v.
GEORGIA DEPARTMENT OF TRANSPORTATION, Appellee.
Case No. S01G1656

 BRIEF OF GEORGIA TRIAL LAWYERS ASSOCIATION
AS AMICUS CURIAE

Statement of Interest of Amicus Curiae. The Georgia Trial Lawyers Association, comprised of over 2,000 members of the State Bar of Georgia, is committed to the preservation of the jury system. It submits the following brief against positions advocated by the appellee DOT that would weaken the rights of citizens to trial by jury through increasing the gaming aspects of summary judgment practice.

SUMMARY OF THE ARGUMENT

At issue in this case is the very meaning of "law" in the standard for granting summary judgment, which requires showing that the party "is entitled to judgment as a matter of law." Under DOT's proposal, "law" does not mean the laws of the United States and Georgia. Instead, "law" means that minute subset of federal and state law that is specified in the brief filed in opposition to a motion for summary judgment. DOT argues that a party opposing a motion for summary judgment waives the right to argue any law not argued in the responsive brief, and thus that the movant's burden to show that it is entitled to judgment as a matter of "law" is limited to those "laws" asserted later in the responsive brief.

This amicus will show that the rule of Dental One is built into OCGA § 9-11-56 and results from decades of judicial interpretation of that statute. Those interpretations require the trial court to determine the law independently of the parties' arguments, and on appeal, the appellate court to make its own determination of the law. That review is controlled exclusively by the state of the record and the state of the law at the time appeal, not by the legal authorities cited by either party or by the judge in the court below for their respective positions, and not even by a party's failure to oppose the motion. In this legal setting, stare decisis requires that the rule of Dental One be retained.

DOT's proposed alternative rule, as DOT would apply it, is a novel and completely unwarranted expansion of rules regarding preservation of error. DOT's rule would prevent parties on appeal from supporting the same position they took in the trial court with additional legal authorities, a rule which no case cited by DOT supports. This would have the effect of defeating valid claims, claims that are supported by law, simply because they were omitted from briefs in response to motions for summary judgment. In turn, this would defeat the purpose of summary judgment procedure, which is to weed out the invalid claims and reserve the valid ones for trial.

ARGUMENT AND CITATION OF AUTHORITY

I. THE RULE OF DENTAL ONE IS THOROUGHLY CONSISTENT WITH THE ENTIRE FABRIC OF GEORGIA'S SUMMARY JUDGMENT LAW.

Twice in the past five years, this court has unanimously held that a party opposing summary judgment may assert on appeal issues of law other than those issues it raised in the trial court. Dental One Assoc., Inc. v. JKR Realty Assoc., Ltd., 269 Ga. 616, 501 S.E.2d 497 (1998), and American Central Ins. Co. v. Lee, 273 Ga. 880, 548 S.E.2d 338 (2001). This court reasoned that the issue on any appeal from a summary judgment is whether the moving party met the requirements of OCGA § 9-11-56(c) to show (1) that there is no genuine issue of material fact, and (2) that the movant is entitled to judgment as a matter of law. 269 Ga. at 617; 273 Ga. at 883.

Far from being an aberration, the rule of Dental One takes the statutory standard seriously, and it is fully consistent with a multitude of other cases applying that standard.

A. OCGA § 9-11-56(c) and (e) require the trial and appellate court to make an independent determination of the law.

The statutory standard for granting a motion for summary judgment is whether the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." OCGA § 9-11-56(c). The movant thus has a two-part burden, first to show that there is no genuine issue of material fact, and second to show that law requires a judgment for the movant. Youngblood v. Gwinnett Rockdale Newton Community Service Bd., 273 Ga. 715, 717-18, 545 S.E.2d 875 (2001). This case is about the second showing. To assert that the movant is entitled to judgment as a matter of law is to assert that there is no law, federal, state, statutory, regulatory, judicial, or otherwise, that would authorize a judgment for the opposing party. The movant thus stands before the entire corpus of law and proclaims that no part of the law contradicts movant's right to judgment. If the movant is right, summary judgment should be granted; if not, summary judgment should be denied.

There is no place in this statute for a construction that the movant has a lesser burden, as if the statute read that a movant must prove that the movant "is entitled to a judgment as a matter of whatever law the opposing party identifies within the next 30 days." To the contrary, the statute requires the movant to show its entitlement to judgment as a matter of law and that the court independently decide this point of law, whether the opposing party files a response or not. OCGA § 9-11-56(e) states that "If [the non-moving party] does not so respond [with evidence creating a material issue of fact], summary judgment, if appropriate, shall be entered against him." (Emphasis supplied.) "[T]he emphasized language makes clear that the movant must have met all of the requirements entitling him or her to summary judgment [including showing] that the moving party is entitled to judgment as a matter of law." Sanders v. Colwell, 248 Ga. 376, 378-79, 283 S.E.2d 461 (1981) (emphasis in the original).

As a result, the trial court must make an independent determination of the appropriateness of summary judgment. This requirement presupposes that a judge is a minister of the law, not just a moderator between competing claims, and is thus consistent with Georgia's jurisprudence. Heard v. Heard, 99 Ga. App. 864, 869, 110 S.E.2d 76 (1959); Stephen W. Brown Radiology Assoc. v. Gowers, 157 Ga. App. 770, 786, 278 S.E.2d 653 (1981). A judge is not just a figurehead to sit by and see injustice occur, but has the right and duty to supervise the entire case to see that justice is done. Wadlington v. Wadlington, 235 Ga. 582, 583-84, 221 S.E.2d 1 (1975).

Because of de novo review, the appellate court must also make an independent determination of the appropriateness of summary judgment. Porquez v. Washington, 268 Ga. 649, 652 (2, 3), 492 S.E.2d 665 (1997) (appellate court has duty to review record de novo, even though it must address contentions not ruled upon by the trial court). Because each court must independently determine whether the movant is entitled to judgment as a matter of all the law, not just part of the law, the rule of Dental One is a necessary consequence of the statute itself. Hence, when DOT criticizes the case law applying the rule of Dental One as being without reason (DOT Supp. Br., 12, 14), the shortest reply is that the statute is written that way, and if movants wish to obtain the benefits of summary judgment, they must bear the burden at all stages of showing that there is no law that would authorize a judgment for the opponent.

B. Many cases recognize that the legal arguments made by the parties do not control the propriety of summary judgment.

Dental One is not the first or last case to recognize that the positions taken, or not taken, by the parties cannot control whether summary judgment is appropriate, or specifically, that "[i]t is the evidence of record, not the assertions and objections made by counsel at the hearing, which determines the validity or invalidity of the grant of summary judgment." Dental One, 269 Ga. at 617-18. Dental One cites Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727, 728-29(1), 426 S.E.2d 387 (1992), which holds that an appellate court must determine whether the motion meets the statutory standard. Dental One also cites Griffin v. Wittfeld, 143 Ga. App. 485, 238 S.E.2d 589 (1977), which states:

It is not a prerequisite for the review of the enumerated errors, that the plaintiff object to or make an issue of these errors at the trial below, when the alleged errors are asserted as reasons why the trial court should not have granted the defendant's motion for summary judgment.

143 Ga. App. at 486, quoting Binswanger Glass Co., Inc. v. Beers Constr. Co., 141 Ga. App. 715, 718-19, 234 S.E.2d 363 (1977). To like effect, see Southern Protective Products Co. v. Leasing International, Inc., 134 Ga. App. 945, 216 S.E.2d 725 (1975), which states that:

[T]he granting of [a summary judgment] motion is not 'appropriate' within the meaning of Rule 56(e) ... unless 'the moving party is entitled to a judgment as a matter of law.' ... We must therefore 'carefully scrutinize' the movant's papers to determine whether it is entitled to judgment as a matter of law, regardless of the opponent's response or lack thereof.

134 Ga. App. at 946 (emphasis added). Likewise also, see Waits v. Makowski, 191 Ga. App. 794, 383 S.E.2d 175 (1989), which states:

Regardless of whether the specific point was argued before the trial judge the motion for summary judgment should not have been granted where there was evidence which would have sustained a basis for recovery by the plaintiffs.

191 Ga. App. at 797 (emphasis added); Barry v. Cantrell, 150 Ga. App. 439, 443, 258 S.E.2d 61 (1979) (same).

More recently, the same reasoning has led this court to conclude that the appellant's failure to include a transcript of oral arguments on the motion for summary judgment in the record on appeal was irrelevant to the review of the grant of summary judgment. Baker v. Brannen/Goddard Co., 274 Ga. 745, 747, 559 S.E.2d 450 (2002). The Court of Appeals has also recently held that the trial court on motion for summary judgment may determine that a contract is void even though neither party raises the issue, since the trial court has a duty to consider the entire record. Georgia Receivables, Inc. v. Welch, 242 Ga. App. 146, 149, 529 S.E.2d 164 (2000).

These cases show that a summary judgment stands or falls on the record and the law, not on the arguments made in the trial court.

C. Dental One is supported by the longstanding rule that there can be no default summary judgment; a non-moving party's failure to respond at all does not require summary judgment.

The cases holding that a motion for summary judgment cannot be granted simply because the opposing party has filed no opposition to it further prove that a party may raise arguments on appeal that were not raised below. These cases also undermine DOT's position that reversal is only a function of a "trial court's error in rejecting an argument advanced by a party." DOT Supp. Br. 11-12.

"The failure of the nonmoving party to file pleadings as required by the Uniform Superior Court Rules does not entitle the moving party to the grant of summary judgment." Quinn v. City of Cave Spring, 243 Ga. App. 598, 599, 532 S.E.2d 131 (2000). In other words, summary judgment may not be granted simply because the non-moving party failed to file any opposition to the motion. Pearson v. Small World Day Care Center, 234 Ga. App. 843, 844 (2)(a), 508 S.E.2d 200 (1998); Lee v. City of Atlanta, 219 Ga. App. 264, 265, 464 S.E.2d 879 (1995) ("On an unopposed motion for summary judgment, the court must still determine if ... the moving party is entitled to summary judgment as a matter of law"); Ackerman & Company v. Lostocco, 216 Ga. App. 242, 244, 454 S.E.2d 792 (1995); Robertson v. Wheeler, 208 Ga. App. 68, 69 (1), 429 S.E.2d 714 (1993); Dominiak v. Camden Tel. & Tel. Co., 205 Ga. App. 620, 622, 422 S.E.2d 887 (1992); Hudson v. Windholz, 202 Ga. App. 882, 885, 416 S.E.2d 120 (1992); Wilson v. Valentine, 199 Ga. App. 244, 244-45 (1), 404 S.E.2d 600 (1991); Petrey v. Brinsfield, 194 Ga. App. 863, 864, 392 S.E.2d 51 (1990); Hughes v. Montgomery Contracting Co., Inc., 189 Ga. App. 814, 815, 377 S.E.2d 723 (1989); McGivern v. First Capital Income Properties, Ltd., 188 Ga. App. 716, 717(1), 373 S.E.2d 817 (1988); Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595, 370 S.E.2d 843 (1988); Tony v. Pollard, 248 Ga. 86, 87, 281 S.E.2d 557 (1981) ("we agree that the grant of summary judgment should be based on the evidence submitted on the motion rather than respondent's failure to take advantage of the opportunity to file a brief"). This rule qualifies as well-settled.(1) Under it, the movant retains the burden of showing its entitlement to judgment as a matter of law, and trial and appellate courts retain their roles as servants of the law rather than moderators of a debate.

D. Dental One is supported by the "right for any reason rule" of appellate practice.

The rule in Dental One is also supported by the "right for any reason rule" of appellate practice. Under this rule, although the trial court's stated reasons for granting summary judgment may be erroneous, the appellate court will affirm summary judgment if it is otherwise appropriate. This is because "it is the grant itself that is to be reviewed for error, and not the analysis employed." Albany Oil Mill, Inc. v. Sumter E.M.C., 212 Ga. App. 252, 243, 441 S.E.2d 524 (1994). "[T]he basic question [i]s whether or not the judgment, order, or decree is valid as a matter of law, and the reasons or argument contained in such judgment, order, or decree will not be controlling." Collins v. McPhail, 213 Ga. 626, 627, 100 S.E.2d 445 (1957).(2)

Ultimately underlying the "right for any reason rule" is the recognition, noted by Justice Bleckley, that "[t]he human mind is so constituted that in many instances it finds the truth when wholly unable to find the way that leads to it." Tony v. Pollard, 248 Ga. 86, 88, 281 S.E.2d 557 (1981), citing Lee v. Porter, 63 Ga. 345, 346 (1879). The same trait of "the human mind" that, on appeal, excuses a trial court's mistaken assertions regarding the law should also excuse a lawyer's failing to cite the best case, statute, or regulation for the lawyer's position in the trial court. See, e.g., Morey v. Dixie Lime & Stone Co., 134 Ga. App. 928, 930, 216 S.E.2d 657 (1975) (the felicitous phraseology that is possible after spending a month working on an appeal is not to be expected at end of a trial). Hence, an appellate court determines whether a summary judgment is proper on the merits of the judgment, and regardless of the wrong reasons cited in the trial court below.

E. Dental One is supported by the rule that the appellate court applies the law in effect at the time of appeal rather than the time of the judgment.

Further proof that the rule in Dental One, rather than DOT's rule of waiver, is the correct rule in Georgia comes from the rule that an appellate court applies the law at the time of its judgment rather than at the time of the trial court's judgment. This necessarily means that the appellate court is not bound by the law in existence at the time of the response to the motion for summary judgment, let alone that subset of the law contained in the response. Instead, the appellate court considers the entire state of the law at the time of its judgment.

An appellate court may reverse a trial court's decision which was correct under the state of the law when rendered, or affirm a decision that was incorrect under the same state of the law, and even though the trial court had no chance to consider the law that the appellate court would consider. City of Valdosta v. Singleton, 197 Ga. 194, 208, 28 S.E.2d 759 (1944). This applies to changes in judge-made law, Anepohl v. Ferber, 202 Ga. App. 552, 552, 415 S.E.2d 9 (1992), and in procedural rules. Long v. Bruner, 171 Ga. App. 124, 126, 318 S.E.2d 818 (1984). These cases further undermine DOT's position that reversal is only a function of a "trial court's error in rejecting an argument advanced by a party." DOT Supp. Br., 11-12.

F. Stare decisis requires adhering to this court's rulings in Dental One.

The rule of Dental One has been the unanimous decision of this court twice in the last five years. It has been recently re-applied by this court in the context of the transcript of oral arguments on motion for summary judgment. It is consistent with decades of summary judgment practice in this state. This practice is the judicial construction of a statute, and nothing in this practice has stirred the General Assembly to change the statute.

Under these circumstances, the doctrine of stare decisis is applicable. Young v. Williams, 274 Ga. 845, 560 S.E.2d 690 (2002) (court could not engraft a "continuous treatment" exception onto statute of limitation as previously construed); Etkind v. Suarez, 271 Ga. 352, 356-58 (5), 519 S.E.2d 210 (1999) (though reasoning of earlier case declining to recognize tort of wrongful birth could be debated, it would not be re-considered under doctrine of stare decisis).

The application of the doctrine of stare decisis is essential to the performance of a well-ordered system of jurisprudence. In most instances, it is of more practical utility to have the law settled and to let it remain so, than to open it up to new constructions, as the personnel of the court may change, even though grave doubt may arise as to the correctness of the interpretation originally given to it.

271 Ga. at 357. For these reasons, the rule in Dental One should stand.

II. DOT's proposed rule should not be adopted.

Apart from contradicting statutory law and a large volume of case law, DOT's proposed rule suffers from a number of defects.

A. DOT's rule would be an unprecedented expansion of the rules it purports to apply.

DOT urges a rule of maximal waiver. DOT starts with a solid enough basis in the proposition that a party may not change theories of liability on appeal, citing only federal cases and cases from other states in which a plaintiff added on appeal alternative theories of liability that were not within the theory presented to the trial court. DOT Supp. Br. 1-7. Contrary to DOT's suggestion that Georgia's law is out of step with every other jurisdiction, id., 7 ("with the solitary exception of Georgia"), Georgia cases agree that new theories cannot be asserted on appeal to reverse a summary judgment. See, e.g., Barfield v. Barfield, 175 Ga. App. 167, 168, 333 S.E.2d 19 (1985) (too late to add theories not within complaint); Gerald v. Ameron Automotive Centers, 145 Ga. App. 200, 243 S.E.2d 565 (1978) (too late on appeal to convert slander case into negligence case).

If DOT stopped there, its position would be unobjectionable. Instead, DOT trades on the vagueness of the words "theory" and "argument" to claim that a party cannot add new citations of authority for the same legal proposition on appeal. Ms. Pfeiffer has never changed her theory that DOT had a legal duty to provide general safety to workers at a construction site. In the trial court, Pfeiffer cited one federal regulation to prove her theory and to rebut DOT's claim to be entitled to judgment as a matter of law. In the Court of Appeals, she cited other regulations and statutes to prove the same theory and rebut DOT's motion. DOT Supp. Br., 2. DOT here contends that she waived the right to cite these other regulations by not citing them in the trial court. If DOT is successful, it will have limited its burden of showing the absence of a duty "as a matter of law" to the set of law identified in Pfeiffer's brief in the trial court.

Under DOT's rule, reversal would occur only on "the trial court's error in rejecting an argument advanced by a party, not the failure of a party to raise the argument in the first place." Id., 12. Although DOT likens its proposed rule to similar rules for appellate review of jury instructions(3) and directed verdicts(4) (id., 8), DOT cites no case from any jurisdiction in which the appellate court precluded the appellant from citing a different case, statute, or regulation for the same legal proposition it asserted below, whether in jury instructions, on motion for directed verdict, or on motion for summary judgment.

B. DOT's rule would subvert the purpose of summary judgments in Georgia.

Summary judgment exists to eliminate sham issues and thereby narrow the issues so that only viable issues are tried. DOT's waiver rule, like all rules requiring preservation of error, is based on a notion of judicial economy. When pushed too far, as DOT's rule is, it would subvert the purpose that summary judgment procedure serves to separate the wheat of legal positions from the chaff.

Summary judgment is intended to determine if there is a material issue of fact to be tried, not to set up a technical pitfall for the unwary. Thacker v. Matthews Tuxedo, Inc., 183 Ga. App. 474, 475, 359 S.E.2d 231 (1987); Glenn v. MARTA, 158 Ga. App. 98, 99, 279 S.E.2d 481 (1981). Summary judgment is intended to filter out sham issues, Porter v. Felker, 261 Ga. 421, 421, 405 S.E.2d 31 (1991), not to filter out the valid issues. Under DOT's rule, though, it would be used to eliminate valid claims, namely those that are well founded in a particular law that, for one reason or another, is omitted from a brief opposing a motion for summary judgment. Omission from a brief cannot repeal or otherwise invalidate a law.

Judicial economy, though important, is not an ultimate value. Even if the litigation is "'tortured and protracted,' we must reject any unauthorized shortcut around our jury system." Ogletree v. Navistar International Transp. Corp., 271 Ga. 644, 647, 522 S.E.2d 467 (1999). "[Summary] judgment, wisely used, is a praiseworthy time-saving device. But, although prompt dispatch of judicial business is a virtue, it is neither the sole nor the primary purpose for which courts have been established." Wakefield v. A.R. Winter Co., 121 Ga. App. 259, 261, 174 S.E.2d 178 (1970). DOT's aggressive rule of waiver would treat too much wheat as chaff.

C. DOT's rule is contrary to the policy of the law to overlook defects that do not affect the substantial rights of the parties.

DOT's extreme waiver rule is the opposite of the policy of the law contained in OCGA § 9-11-61: "The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." A legal proposition, such as whether DOT had a duty to provide safety to specific people at a specific location, is something that may be determined by reference to controlling law. If the law creates a duty, a party's citation of a less compelling authority (case, statute, regulation) for the duty is at most a defect that does not affect the substantial rights of the parties.

D. If DOT's rule became the law, there would be no need for appellate briefs.

DOT is contending for a rule that prohibits a party from citing on appeal any law that supports the party's contentions below other than the law that was cited in the trial court. DOT cannot draw a distinction between case law or regulatory law for purposes of its waiver rule, which purports to be based in judicial economy and even jurisdiction (DOT Supp. Br. 10-12), neither of which allows such a distinction. This means, in turn, that an appellant may not bolster a position on appeal with additional cases, statutes, or regulations. This means, finally, that appellate briefs are needless; the parties may simply copy their trial court briefs and provide them to the appellate courts, since DOT contends that it is outside the appellate courts' jurisdiction to consider other cases or statutes.

E. DOT's rule would place appellate counsel in the anomalous position of citing only adverse law to the appellate court.

An appellant has an ethical duty to present to the appellate court any controlling adverse authorities that become known after the decision below. G.R.P.C. 3.3 (a)(3); Georgia Receivables, Inc. v. Kirk, 242 Ga. App. 801, 802-03, 531 S.E.2d 393 (2000). Under DOT's proposed rule, however, the appellant is prohibited from citing any favorable authorities that become known after the decision below.

CONCLUSION

The rule of Dental One should be retained because it is required by the statute itself, by decades of case law interpreting the statute, and by stare decisis. The alternative proposed by DOT should be rejected because it is an unwarranted expansion of a waiver principle that would be used to defeat valid claims rather than to eliminate sham claims.

Respectfully submitted, this ____ day of June, 2002.

/s/ CHARLES M. CORK, III

1. DOT argues contrary to this rule at p. 16 without acknowledging how well-settled it is.

2. Contrary to DOT's somewhat hyperbolic statement that on appeal from summary judgments, this Court applies a "wrong for any reason rule," DOT Supp. Br., 10, it is plain that this Court applies a "right for any reason" rule in summary judgment appeals. Dental One, 269 Ga. at 617, referring to division two.

3. But see, e.g., Christiansen v. Robertson, 237 Ga. 711, 712, 229 S.E.2d 472 (1976) (objecting to charge on sudden emergency without providing any citation of authority was adequate to support claim that the doctrine was not applicable); Dent v. Memorial Hosp. of Adel, 270 Ga. 316, 316-17, 509 S.E.2d 908 (1998) (objecting that charge left out possibility of liability based on simple negligence preserved error that charge erroneously required finding of professional negligence -- no legal authorities cited in the objection); Morey v. Dixie Lime & Stone Co., 134 Ga. App. 928, 930, 216 S.E.2d 657 (1975) (objecting to charge on particular ground that was only partly, but not entirely, true sufficed to preserve a challenge to the instruction on all grounds).

4. But see, e.g., Justus v. Justus, 198 Ga. App. 533, 535-36, 402 S.E.2d 126 (1991) (although motion for directed verdict raised only a failure to show the defendant knew a fact, directed verdict could be sustained on grounds the defendant had no duty to disclose her knowledge, because both were within the general position asserted that plaintiff failed to show elements of fraud -- hence assertion of a particular reason for one's position does not waive later assertion of other particular reasons for the same assertion).