Robertson v. Wheeler, 429 S.E.2d 714 (Ga. Ct. App. 1993). · Go Syfert
Robertson v. Wheeler, 429 S.E.2d 714 (Ga. Ct. App. 1993). Cases Citing This Book View Copy Cite
11 citation events (8 in the last 25 years) across 1 distinct court.
Strongest positive: McRae v. Hogan (gactapp, 2012-10-05)
Top citers, strongest first. 5 distinct citers. How cited ↗
discussed Cited as authority (rule) McRae v. Hogan
Ga. Ct. App. · 2012 · confidence medium
The order itself makes clear that the decision was based on the fact that McRae failed to timely respond to the motion. 7 See, e.g., Robertson v. Wheeler, 208 Ga. App. 68, 69 (1) ( 429 SE2d 714 ) (1993) (order plainly stated that court found no issue of fact because defendants failed to respond to motion for summary judgment).
discussed Cited as authority (rule) Quinn v. City of Cave Spring
Ga. Ct. App. · 2000 · confidence medium
Clinton Sumner, Jr, John A. Owens, for appellee. 1 See Pearson v. Small World Day Care Center, 234 Ga. App. 843, 844 (2) (a) ( 508 SE2d 200 ) (1998); Robertson v. Wheeler, 208 Ga. App. 68, 69 (1) ( 429 SE2d 714 ) (1993). 2 Moore v. Food Assoc., 210 Ga. App. 780, 781 ( 437 SE2d 832 ) (1993). 3 Stephens v. State Farm &c.
discussed Cited as authority (rule) Pearson v. Small World Day Care Center, Inc.
Ga. Ct. App. · 1998 · confidence medium
“The failure of the non-moving party to file the pleadings required by USCR 6.2 does not entitle the moving party to the grant of summary judgment. [Cits.]” Robertson v. Wheeler, 208 Ga. App. 68, 69 (1) (429 *845 SE2d 714) (1993).
discussed Cited "see" Neely v. Jones (2×)
Ga. Ct. App. · 2003 · signal: see · confidence high
See Robertson v. Wheeler, 208 Ga. App. 68, 69 (1) ( 429 SE2d 714 ) (1993) (reversal necessary because trial court’s order explicitly stated that failure to respond to motion was basis for granting summary judgment).
discussed Cited "see, e.g." Cameron v. Miles (2×)
Ga. Ct. App. · 2011 · signal: see also · confidence medium
Co., 183 Ga. App. 577, 578 ( 359 SE2d 441 ) (1987) (“[T]he failure of a party either to respond to interrogatories or to seek a protective order authorizes the imposition of immediate sanctions without the preliminary necessity of an order to compel.” (citation omitted)). 8 Wetherington, 153 Ga. App. at 305 (2) (citation and punctuation omitted); see also Sterling, Winchester & Long, LLC v. Loyd, 280 Ga. App. 416, 419 (4) ( 634 SE2d 188 ) (2006). 9 See, e.g., Baker v. Brannen/Goddard Co., 274 Ga. 745, 747 (1) ( 559 SE2d 450 ) (2002). 10 Neely v. Jones, 264 Ga. App. 795, 796 ( 592 SE2d 447 …
Retrieving the full opinion text from the archive…
ROBERTSON
v.
WHEELER Et Al.
A92A2127.
Court of Appeals of Georgia.
Mar 19, 1993.
429 S.E.2d 714
David M. Cox, for appellant., Landrum & Landrum, Phillip M. Landrum, Jr., Susan Landrum, for appellees.
Birdsong, Beasley, Andrews.
Cited by 6 opinions  |  Published
Birdsong, Presiding Judge.

Oscar Robertson entered into a contract in which he agreed to pay John Wheeler, Sylvia Wheeler Roberts, and Roy Roberts (“the sellers”) $1,065,000 for certain real property, and they agreed to furnish marketable title to the property. When Robertson did not appear at the closing, the sellers filed the suit seeking specific performance.

Robertson’s enumeration of error contends the trial court erred in granting summary judgment because the summary judgment was based solely on his failure to file a response to the sellers’ motion for summary judgment and statement of disputed facts. Indeed, the order granting summary judgment to the sellers reads as follows: “The court notes that there is no response to plaintiffs’ motion for summary judgment, as well as no statement of disputed facts; therefore, this court finds no genuine dispute of fact as to liability for breach of contract for the sale of land, and plaintiffs are entitled to summary judgment as to liability as a matter of law.” The order, however, denied summary judgment to the sellers on their entitlement to specific performance of the contract because the trial court found a genuine issue of material fact on whether there was a 16-year gap in the sellers’ title to the property.

Robertson’s motion for summary judgment contended the sellers could not deliver a marketable title to the land due to a claim against the mineral rights by another party and a 16-year gap in the title of the property to be sold. The court denied the motion, however, as it did not find the mineral rights claim was a defect as a matter of law justifying the failure to close, and the court found a genuine issue of material fact existed on whether the 16-year gap in the title was a defect in title justifying the right to refuse to close. Robertson has not sought appellate review of this decision.

The lower court next considered the sellers’ motion for summary judgment and granted partial summary judgment on the issue of[*69] breach of contract. Robertson now appeals from this grant of summary judgment to the sellers. Held:

Decided March 19, 1993. David M. Cox, for appellant. Landrum & Landrum, Phillip M. Landrum, Jr., Susan Landrum, for appellees.

1. The failure of the non-moving party to file the pleadings required by USCR 6.2 does not entitle the moving party to the grant of summary judgment. Wyse v. Potamkin Chrysler-Plymouth, 189 Ga. App. 64, 65 (374 SE2d 785); Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595 (370 SE2d 843). Accordingly, it was error for the lower court to grant summary judgment to the sellers solely because Robertson had not filed the required pleadings. Although the sellers contend the trial court did not grant them summary judgment because Robertson failed to file a response to the motion and failed to file a statement of disputed facts, the order quoted above plainly states that was the reason for granting summary judgment. See Derbyshire v. United Builders &c., 194 Ga. App. 840, 843 (1) (392 SE2d 37). Therefore, the trial court’s order allows us to reach no other reasonable conclusion.

2. Moreover, our independent review of the record shows the trial court denied the sellers’ motion for summary judgment on specific performance and Robertson’s motion for summary judgment because the trial court found a genuine issue of material fact existed on whether the 16-year gap was a “defect in title justifying the right to refuse to close,” and the deposition of the sellers’ title attorney in the record stated that such a gap in the sellers’ title was revealed by his examination of the title. Although the record shows that the sellers planned to establish that they acquired title through prescription (see OCGA § 44-5-160 et seq.), whether the title was so acquired under this evidence is a jury issue. See Fambro v. Davis, 256 Ga. 326, 328 (348 SE2d 882). Accordingly, the grant of summary judgment to the sellers must be reversed.

Judgment reversed.

Beasley, P. J., and Andrews, J., concur.