Hayes v. Fernandez

Banke, Chief Judge. The appellant sued the appellees to recover for alleged medical malpractice. The trial court granted the appellees’ motion for summary judgment on the ground that the affidavits filed by the appellant in response to the motion were not timely under Rule 21 of the local rules of the Superior Court of Clayton County. Held: Although Rule 21 is not before us, and we may not take judicial cognizance of it (see Harris v. Harris, 228 Ga. 562 (1) (187 SE2d 139) (1972)), it is apparent from the trial court’s order, as well as the briefs of the parties, that the appellant’s response was filed within the time limitations imposed by the CPA and that the court’s order was accordingly in error. OCGA § 9-11-56 (c) provides, in pertinent part, that “[t]he adverse party prior to the day of hearing may serve opposing affidavits.” In accordance with this code section, it has been held that “[t]he party opposing a motion for summary judgment has until the day prior to the hearing to serve opposing affidavits, unless the trial court in its discretion permits them to be served at a later date [OCGA § 9-11-6 (d)].” Gross v. Pyrofax Gas Corp., 151 Ga. App. 130 (259 SE2d 137) (1979). The actual filing of the response with the court need not be accomplished, under the statute, until the date of the hearing itself. See Martin v. Newman, 162 Ga. App. 725 (2) (293 [333] SE2d 18) (1982); Suttle v. Northside Realty Assoc., 171 Ga. App. 928 (2) (321 SE2d 424) (1984). Decided October 3, 1985. Robert C. Edwards, for appellant. William L. Ballard, Michael V. Stephens II, Sidney F. Wheeler, Robert D. Roll, for appellees. The record in this case establishes that the hearing on the appellees’ summary judgment motion was set for January 9, 1985, and that the appellant both filed and served his opposing brief and affidavits on January 7, 1985. “Local court rules ‘may control the flow of business, the bearing of cases, etc., but may not contravene the substantive framework of the CPA.’ [Cit.]” Gilbert v. Decker, 165 Ga. App. 11, 12 (299 SE2d 65) (1983). Judgment reversed. McMurray, P. J., and Benham, J., concur.