# Pfeiffer v. Georgia Department of Transportation

> Supreme Court of Georgia · November 26, 2002 · 275 Ga. 827

URL: https://www.frixlaw.com/law-library/cases/9615352

## Case

- **Full name:** Pfeiffer v. Georgia Department of Transportation
- **Court:** Supreme Court of Georgia
- **Decided:** November 26, 2002
- **Citations:** 275 Ga. 827; 2002 Fulton County D. Rep. 3536; 573 S.E.2d 389; 2002 Ga. LEXIS 1072
- **Precedential status:** Published
- **Opinion:** Dissent by Carley
- **Judges:** Fletcher, Benham, Hunstein, Carley
- **Cited by:** 162 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9615352

## How later opinions describe it (automated extraction)

- reaffirming that "[w]hen the record fails to contain the facts supporting the grant of summary judgment, the non-movant may argue this ground to the appellate court regardless of whether the non-movant asserted an 'objection to the prima facie case' "
- holding that absent prescribed special circumstances, an appellate court need not consider arguments raised for the first time on appeal
- holding that a party could not seek to reverse a grant of summary judgment by raising a new argument for the first time on appeal

## Opinion text

Carley, Justice,
dissenting.
Karen Pfeiffer brought suit against the Georgia Department of Transportation (DOT), seeking to recover for the wrongful death of her husband. The trial court granted summary judgment in favor of DOT, and Ms. Pfeiffer appealed. In support of her contention that the trial court erroneously granted the motion, she advanced several evidentiary arguments which the Court of Appeals declined to consider on the ground that they were neither raised nor ruled on below. Pfeiffer v. Department of Transp., 250 Ga. App. 643, 647 (3) ( 551 SE2d 58 ) (2001). We granted Ms. Pfeiffer’s petition for certiorari, and today a majority of this Court affirms that holding.
As the majority correctly notes, the purpose of both the Court of Appeals and this Court is to correct errors of law committed in lower tribunals. Georgia Dept. of Natural Resources v. Coweta County, 261 Ga. 484 ( 405 SE2d 470 ) (1991); Harmon v. Southern R. Co., 123 Ga. App. 309 (2) ( 180 SE2d 604 ) (1971). When the appeal is from the grant of summary judgment, however, the paramount legal issue presented for determination is whether the trial court correctly held that no genuine issue of material fact remains and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). The appellate courts of this state have long recognized that, in addressing the issue of whether the trial court erred in that regard, the particular arguments that the parties may have advanced below are irrelevant. “It is the grant itself that is to be reviewed for error, and not the analysis employed. [Cit.]” Albany Oil Mill v. Sumter EMC, 212 Ga. App. 242, 243 (3) ( 441 SE2d 524 ) (1994). “[A] trial court does not *831 sit as the trier of fact, but ‘review(s) the evidence and determine(s) whether a prima facie case has been proven by the movant.’ [Cits.]” Baker a Brannenl Goddard Co., 274 Ga. 745, 747 (1) ( 559 SE2d 450 ) (2002). “It 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. [Cits.]” Dental One Assoc. v. JKR Realty Assoc., 269 Ga. 616, 617 (1) ( 501 SE2d 497 ) (1998). “Legal argument presented to the trial court as to whether the material already on file authorizes the grant of summary judgment is not evidence.” Baker v. Brannen/Goddard Co., supra at 747 (1).
It is the responsibility of the trial court to review the evidence and determine whether a prima facie case has been proven by the movant. It is not the obligation of the non-moving party to object to the movant’s failure to meet its evidentiary burden. [Cits.]
Dental One Assoc. v. JKR Realty Assoc., supra at 618 (1).
The purpose of summary judgment is certainly the expeditious resolution of litigation. See Crutcher v. Crawford Land Co., 220 Ga. 298, 303 (3) ( 138 SE2d 580 ) (1964). Nevertheless, the appellate courts have a constitutional obligation to review the grant of a motion for summary judgment to determine whether the ruling was correct. Contrary to what the Court of Appeals held and what this Court now holds in this case, the subject of appellate review is the trial court’s ruling on the evidence, not the nonmovant’s arguments in opposition.
[T]he issue in an appeal from the grant of summary judgment is whether the movant met the burden established by OCGA § 9-11-56 (c) and, in addressing that issue on appeal, the non-moving party is entitled to advance all arguments without regard to whether they were raised by way of objections below.
Dental One Assoc. v. JKR Realty Assoc., supra at 617. See also American Central Ins. Co. v. Lee, 273 Ga. 880, 883 (2) ( 548 SE2d 338 ) (2001). So long as the record is before it, an appellate court can readily review the evidence to determine whether genuine issues of material fact remain and, if none does, whether the movant is entitled to judgment as a matter of law. Thus, neither the Court of Appeals nor this Court fulfills its constitutional obligation by declining to consider all arguments as to the insufficiency of the evidence raised by the nonmoving party in opposition to the grant of summary judgment. The appellate court “must . . . ‘carefully scrutinize’ the *832 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. [Cits.]” Southern Protective Products Co. v. Leasing International, 134 Ga. App. 945, 946 (1) ( 216 SE2d 725 ) (1975). Thus, if DOT failed to meet its initial evidentiary burden as the movant for summary judgment, then Ms. Pfeiffer “was entitled to urge the record’s lack of evidence in that regard as a reason for reversing the grant of summary judgment, even if [she] did not ‘object’ on that precise basis in the trial court. [Cits.]” Dental One Assoc. v. JKR Realty Assoc., supra at 618 (1). See also American Central Ins. Co. v. Lee, supra at 883 (2).
The majority offers no viable rationale for departing from the controlling authority of Dental One Assoc. and American Central Ins. Co. Both cases clearly stand for the proposition that “the issue” in an appeal from the grant of summary judgment is whether the movant met the burden established by OCGA § 9-11-56 (c) and, in addressing “that issue on appeal,” the non-movant is entitled to urge “all arguments” even though they were not raised below. Dental One Assoc. v. JKR Realty Assoc., supra at 617; American Central Ins. Co. v. Lee, supra at 883 (2). Nothing in either of those recent decisions conflicts with Lau’s Corp. v. Haskins, 261 Ga. 491 ( 405 SE2d 474 ) (1991), which dealt with the evidentiary burden on the parties. Insofar as the constitutional obligations of the courts of this state are concerned, Dental One Assoc. and American Central Ins. Co. are completely consistent with the recognition in Lau’s Corp. v. Haskins, supra at 495 (4), that
summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. (Emphasis supplied.)
Nothing in Lau’s Corp. remotely suggests that that judicial review of the evidence is limited by the “arguments” presented by the parties. As to that issue, Dental One Assoc. and American Central Ins. Co. are merely the latest in a long series of opinions holding that
[i]t is not a prerequisite for review of the enumerated errors, that [the appellant] 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 appellee’s] motion for summary judgment. [Cits.]
Binswanger Glass Co. v. Beers Constr. Co., 141 Ga. App. 715, 719 (5) ( 234 SE2d 363 ) (1977).
*833 Decided November 26, 2002
Reconsideration denied December 13, 2002.
Ford & Barnhart, James L. Ford, Sr., Peek, Cobb, Edwards & Ashton, Thomas S. Edwards, Jr., for appellant.
The rule adopted by the majority is contrary to the long-standing principle, exemplified by Dental One Assoc. and American Central Ins. Co., that “[a]n appellate court in reviewing a lower court decision will look to the basic question, which is whether or not the judgment is valid as a matter of law; the reasons contained in the judgments are not controlling. [Cit.]” Adams v. Emory University Clinic, 179 Ga. App. 620, 621 ( 347 SE2d 670 ) (1986). However, those prior decisions and that well-recognized rule now have been cast aside, so that henceforth the scope of appellate review of the grant of summary judgment will be completely dependent upon the specific “arguments” advanced below by the nonmoving party. The bar of this state should be apprised that, by its radical departure from existing authority, the Court today has rendered the transcript of the hearing on the motion an indispensable part of an appeal, since, without it, the appellate court must now presume that no “arguments” were raised below and that nothing was thus preserved for review. See generally Hodge v. Lott, 251 Ga. App. 288, 290 (1) ( 553 SE2d 652 ) (2001). This result applies despite our recent unanimous holding that “the transcript is not usually necessary in an appeal from the grant of a motion for summary judgment. [Cit.]” Baker v. Brannen/Goddard Co., supra at 747 (1). Moreover, it is no longer true that, on appeal from the grant of summary judgment, the appellate courts conduct “a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. [Cits.]” Youngblood v. Gwinnett Rockdale Newton Community Service Bd., 273 Ga. 715, 717-718 (4) ( 545 SE2d 875 ) (2001). Now, this Court and the Court of Appeals must first study the transcript to determine whether the nonmoving party met the burden imposed by today’s opinion to state any and all possible “arguments” in opposition to the motion.
It is abundantly clear, that precedent compels a reversal of the Court of Appeals’ judgment, and a remand of the case to that Court with direction that it consider the merits of Ms. Pfeiffer’s arguments in opposition to DOT’s motion for summary judgment. Because the majority fails to follow that established course, I dissent.
I am authorized to state that Justice Benham and Justice Hun-stein join in this dissent.
*834 Bondurant, Mixson & Elmore, Frank M. Lowrey IV, Whelchel, Brown, Readdick & Bumgartner, J. Thomas Whelchel, for appellee.
Reynolds & McArthur, Charles M. Cork III, amicus curiae.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9615352. Public record. Not legal advice.