Proffered evidence of negligence insufficient.

- When the plaintiffs failed to tender a copy of the Manual on Uniform Traffic Control Devices (MUTCD) into evidence, even though the MUTCD was evidence of a minimum standard of care, the trial court could not determine if MUTCD created negligence per se. Donaldson v. DOT, 236 Ga. App. 411, 511 S.E.2d 210 (1999).

While portions of the Manual on Uniform Traffic Control Devices (MUTCD) were testified to by expert witnesses sufficient to establish a minimum standard of care for ordinary negligence purposes, such testimony was insufficient for either the trial or the appellate court to determine that such portion of MUTCD created negligence per se. Donaldson v. DOT, 236 Ga. App. 411, 511 S.E.2d 210 (1999).

Proper procedure in disposing of matters in abatement before trial is found in Ga. L. 1972, p. 689, §§ 4 and 5 (see now O.C.G.A. § 9-11-12(d)) and subsection (b) of Ga. L. 1968, p. 1104, § 10 (see now O.C.G.A. § 9-11-43). Ogden Equip. Co. v. Talmadge Farms, Inc., 232 Ga. 614, 208 S.E.2d 459 (1974); Kirkpatrick v. Mackey, 162 Ga. App. 876, 293 S.E.2d 461 (1982); Dawson v. McCart, 169 Ga. App. 434, 313 S.E.2d 135 (1984); Derbyshire v. United Bldrs. Supplies, Inc., 194 Ga. App. 840, 392 S.E.2d 37 (1990).

Motions in abatement are heard under the provisions of subsection (b) of O.C.G.A. § 9-11-43, which contemplates consideration of evidence not appearing on the face of the record. Manufacturers Nat'l Bank v. Tri-State Glass, Inc., 201 Ga. App. 253, 410 S.E.2d 808 (1991).

If appellant's summary judgment motion is considered as raising a real party in interest defense, it was properly denied. An objection on this ground may be made at any time up to and including a trial on the merits, which the appellant did in the appellant's motion in limine and motion for a directed verdict. No case, however, should be dismissed for this reason until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest. Accordingly, if the appellant renews this objection, the trial court should consider this issue under O.C.G.A. § 9-11-43(b). Golden Pantry Food Stores, Inc. v. Lay Bros., Inc., 266 Ga. App. 645, 597 S.E.2d 659 (2004).

Defendant was not entitled to a jury trial on a motion to set aside for lack of jurisdiction over the person as jurisdiction is a question for the court. Montgomery v. USS Agri-Chemical Div., 155 Ga. App. 189, 270 S.E.2d 362 (1980).

Motion to dismiss for lack of jurisdiction of the defendant, when tried on affidavits pursuant to subsection (b) of O.C.G.A. § 9-11-43, does not become a motion for summary judgment. Terrell v. Porter, 189 Ga. App. 778, 377 S.E.2d 540 (1989).

Consideration of affidavit in motion to dismiss.

- In a breach of contract action between a business and an advertiser, while the best evidence rule required the advertiser to produce the first affidavit provided by the advertiser's senior director of business affairs, and the trial court erred in considering the affidavit without requiring the affidavit's production, given that the second affidavit showed that the parties entered into the contract at issue, which included the forum selection clause, the trial court properly considered the affidavit to that effect to support the advertiser's motion to dismiss on personal jurisdiction grounds. Consequently, when this second affidavit was not filed in violation of O.C.G.A. § 9-11-6(d), the trial court properly considered the second affidavit. Alcatraz Media, LLC v. Yahoo! Inc., 290 Ga. App. 882, 660 S.E.2d 797 (2008).

Hearing on jurisdiction and venue defenses.

- Preliminary hearing over defenses of lack of jurisdiction over the person or subject matter and improper venue, whether made in pleading or by motion, may be heard and determined before trial on the application of any party, and at such hearing factual issues shall be determined by the trial court; moreover, there is no reason why the same type of factual determination should not be made by the trial court in a motion to set aside. Montgomery v. USS Agri-Chemical Div., 155 Ga. App. 189, 270 S.E.2d 362 (1980).

Procedural requirements for motion to dismiss complied with.

- Order denying motion to dismiss which expressly referred to such motion and stated that ruling was made after oral argument on the issue and after consideration of the pleadings, affidavits, and deposition, comported with procedural requirements that motion to dismiss be determined in accordance with Ga. L. 1972, p. 689, §§ 4 and 5 (see now O.C.G.A. § 9-11-12(d)) and subsection (b) of Ga. L. 1968, p. 1104, § 10 (see now O.C.G.A. § 9-11-43). Hart v. DeLowe Partners, Ltd., 147 Ga. App. 715, 250 S.E.2d 169 (1978).

Oral evidence on summary judgment motion not required.

- While there maybe circumstances in which the court may, in the court's sound discretion, permit use of oral evidence at a hearing on a motion for summary judgment as, for example, when both parties agree, there is no requirement that the court do so. Johnson v. Aetna Fin., Inc., 139 Ga. App. 452, 228 S.E.2d 299 (1976).

In hearing on motion for new trial, judge may direct that matter be heard on affidavits or partly on oral testimony or on depositions. Johnson v. Johnson, 244 Ga. 155, 259 S.E.2d 88 (1979).

Court to give notice and direction of oral hearing.

- In order for motion to be heard orally, statute requires that court make such direction and give notice thereof. Johnson v. Aetna Fin., Inc., 139 Ga. App. 452, 228 S.E.2d 299 (1976).

Consideration of oral testimony.

- Nothing in subsection (b) of O.C.G.A. § 9-11-43 precludes a court from considering oral testimony at a hearing on a motion to dismiss for insufficient service. Franchell v. Clark, 241 Ga. App. 128, 524 S.E.2d 512 (1999).

In a wrongful death action against the Georgia Department of Public Safety in which the decedent died from injuries sustained in a high-speed chase with the Georgia State Patrol officers, although the decedent's daughter stated in a supplemental brief that the trial court disallowed the parties to test the evidence through live testimony, the daughter did not point to any place in the record where the trial court made such a ruling; the daughter did not seek to introduce any live testimony at the hearing on the motion to dismiss; and the Civil Practice Act, O.C.G.A. § 9-11-1 et seq., permitted the trial court to make its determination on written submissions. James v. Ga. Dep't of Pub. Safety, 337 Ga. App. 864, 789 S.E.2d 236 (2016).

Reliance on affidavit justified.

- When affidavit does not recite that the affidavit was based on personal knowledge, but the information therein is consistent with and cumulative of the documentary evidence, and it is uncontroverted by the counter-affidavit or other evidence, the court is entitled to rely on the affidavit. Lott v. Liberty Mut. Ins. Co., 154 Ga. App. 474, 268 S.E.2d 686 (1980).

Trial court erred in dismissing a public employee's Georgia Whistle Blower Statute, O.C.G.A. § 45-1-4, suit as moot as: (1) the employer, the Georgia Department of Corrections, continued to employ grandfathered pharmacists according to an affidavit submitted under O.C.G.A. § 9-11-43; (2) the employee had been a grandfathered pharmacist while employed by the Department; and (3) the appellate court saw no reason, but for the alleged retaliatory action, that the employee would not remain employed as a pharmacist with the Department; the employee's retirement from the Department made the matter moot only if the employee did not want to return to work or could not because the employee was past the mandatory retirement age, but these facts were not apparent from the stipulation that the employee had retired. Hughes v. Ga. Dep't of Corr., 267 Ga. App. 440, 600 S.E.2d 383 (2004).

Summary judgment motion improper.

- When it is necessary to consider matters outside the pleadings in ruling on a motion to dismiss for failure to prosecute the action in the name of the real party-in-interest, this should be done under the provisions of subsection (b) of O.C.G.A. § 9-11-43 and not by way of a motion for summary judgment under O.C.G.A. § 9-11-56. Warshaw Properties v. Lackey, 170 Ga. App. 101, 316 S.E.2d 482 (1984).

Motion to dismiss not converted to summary judgment.

- Defendant's motion to dismiss for lack of personal jurisdiction, insufficiency of process, and insufficiency of service of process was not converted to a summary judgment motion upon consideration of matters outside the pleadings and, thus, dismissal was not directly appealable under the summary judgment statute. Church v. Bell, 213 Ga. App. 44, 443 S.E.2d 677 (1994).

Tender of evidence to support motion to set aside judgment.

- Trial court shall give directions as to how evidence is to be presented, either by affidavit, deposition, oral testimony, or any combination, and notice of any hearing on the motion to set aside the judgment. Herringdine v. Nalley Equip. Leasing, Ltd., 238 Ga. App. 210, 517 S.E.2d 571 (1999).

Second sentence of subsection (c) presupposes compliance with first sentence.

- Second sentence of subsection (c) of this section concerns determination of foreign law; it presupposes that first sentence, as to notice, has been complied with, and is conditional thereon. Souchak v. Close, 132 Ga. App. 248, 207 S.E.2d 708 (1974).

Notice requirement instituted by subsection (c).

- On its face, subsection (c) of this section ends requirement that foreign law must be pled and proved, substituting instead the requirement that the party who wishes to introduce law of a foreign state or country must give reasonable written notice of that party's intention. Old Hickory Prods. Co. v. Hickory Specialties, Inc., 366 F. Supp. 913 (N.D. Ga. 1973).

Notice of intention to rely on foreign law required.

- Subsection (c) of this section requires that whoever would rely on foreign law must give notice of such intention to the other party. Ramseur v. American Mgt. Ass'n, 155 Ga. App. 340, 270 S.E.2d 880 (1980).

When the first notice of intent to rely upon foreign law was made at a hearing on a motion for directed verdict, the notice was insufficient to provide the court and opposing counsel an opportunity to prepare. Fortson v. Fortson, 204 Ga. App. 827, 421 S.E.2d 106 (1992).

Notice of intent to rely on foreign law filed some two weeks before pretrial conference is sufficient compliance with O.C.G.A. § 9-11-43. Shannon v. Toronto-Dominion Bank, 168 Ga. App. 279, 308 S.E.2d 682 (1983).

Oral notice by defendant given during argument in support of motion for directed verdict of the defendant's intention to rely on Alabama law was statutorily unsound and required reversal of directed verdict in the defendant's favor. Plant v. Trust Co., 164 Ga. App. 387, 297 S.E.2d 37 (1982).

Responsibility on party wishing to raise foreign law issue.

- Subsection (c) of this section places responsibility on the party who intends to raise an issue concerning the law of another state. Souchak v. Close, 132 Ga. App. 248, 207 S.E.2d 708 (1974).

Notice pleading philosophy of subsection (c) of this section places upon the party intending to rely upon laws of another state the responsibility of providing the opponent, as well as the court, with notice of such intent. Berry v. Jeff Hunt Mach. Co., 148 Ga. App. 35, 250 S.E.2d 813 (1978).

Notice of intent is required to raise an issue of foreign law, to establish such law by compliance with statutory means, or cause a duty to be imposed on a court to judicially recognize any relevant, existing foreign law. Samay v. Som, 213 Ga. App. 812, 446 S.E.2d 230 (1994).

Because a former president did not give adequate notice of the intention for Delaware law to apply to a corporation's misappropriation of corporate opportunity claim, the trial court did not err when the court applied Georgia law; the president did not raise the issue of the applicability of Delaware law until a post-trial motion. Brewer v. Insight Tech., Inc., 301 Ga. App. 694, 689 S.E.2d 330 (2009), cert. denied, No. S10C0678, 2010 Ga. LEXIS 455 (Ga. 2010).

Trial court did not err in applying Georgia law in a bank's action against a limited liability company (LLC) and guarantors for breach of a promissory note and guaranty agreements because the LLC and guarantors failed to give proper notice that the guarantors intended to raise an issue concerning Mississippi law pursuant to O.C.G.A. § 9-11-43(c); in their written response to the motion for summary judgment, the LLC and guarantors relied exclusively on Georgia law. Kensington Partners, LLC v. Beal Bank Nev., 311 Ga. App. 196, 715 S.E.2d 491 (2011).

Foreign statutes need not be pled in order to be relied upon. Atlanta Newspapers, Inc. v. Shaw, 123 Ga. App. 848, 182 S.E.2d 683 (1971).

Pleading and proof requirement.

- Proof of law or regulations, other than the Official Code of Georgia and state regulations promulgated under the Administrative Procedure Act, O.C.G.A. Ch. 13, T. 50, must be pled and proved under O.C.G.A. § 9-11-43, because judicial notice cannot be taken of rules, regulations, and ordinances not authorized for publication. Donaldson v. DOT, 236 Ga. App. 411, 511 S.E.2d 210 (1999).

Georgia law applied in an action arising out of a Louisiana divorce decree because neither party met the requirements in O.C.G.A. §§ 9-11-43(c) and former24-7-24 (see now O.C.G.A. § 24-9-922) that the parties give notice and thereafter prove the law of another state. Davis v. Davis, 310 Ga. App. 512, 713 S.E.2d 694 (2011).

Pleading and proof requirement discarded.

- With enactment of subsection (c) of this section, requirement of pleading and proof of foreign law as a question of fact was discarded, along with attendant presumption of identity of common law. Old Hickory Prods. Co. v. Hickory Specialties, Inc., 366 F. Supp. 913 (N.D. Ga. 1973).

When law of South Carolina was not pled or proved, law of Georgia would be applied in interpreting and giving effect to custody judgment of such sister state. Sandifer v. Lynch, 244 Ga. 369, 260 S.E.2d 78 (1979).

Foreign law presumed same as Georgia law.

- When no evidence as to Kentucky law was introduced, it will be presumed to be the same as Georgia law. Earley v. Earley, 165 Ga. App. 483, 300 S.E.2d 814 (1983).

When a question is raised whether or not service by certified mail in Georgia as to a foreign suit was proper under foreign law, in the absence of such proof, the law of this state obtains, and when the evidence before the trial court fails to disclose that the defendant in the foreign court was served according to the Georgia long-arm statute, the trial court errs in granting summary judgment in favor of the plaintiff. Southeastern Metal Prods., Inc. v. Horger, 166 Ga. App. 205, 303 S.E.2d 536 (1983).

Absent proper introduction and proof of the law of a sister state, it is presumed that such foreign law is the same as that of Georgia. Abruzzino v. F & M Bank, 168 Ga. App. 639, 309 S.E.2d 911 (1983).

In an action to domesticate a New York default judgment, the trial court properly applied Georgia law because the judgment debtor did not give notice pursuant to subsection (c) of O.C.G.A. § 9-11-43, nor did the debtor prove New York law as required by former O.C.G.A. § 24-7-24 (see now O.C.G.A. § 24-9-922). Giarratano v. Glickman, 232 Ga. App. 75, 501 S.E.2d 266 (1998).

No judicial notice of foreign law absent notice or evidence thereof.

- When party gave no notice in the party's pleadings or other reasonable written notice of intent to raise issue of law of sister state, nor was any evidence adduced as to such law, the court could not take judicial notice thereof. Lauer v. Bodner, 137 Ga. App. 851, 225 S.E.2d 69 (1976).

Subsection (c) controls determination of substantive foreign law. Old Hickory Prods. Co. v. Hickory Specialties, Inc., 366 F. Supp. 913 (N.D. Ga. 1973).

Subsection (c) of this section governs state courts' consideration of laws of other states, as well as other countries. Old Hickory Prods. Co. v. Hickory Specialties, Inc., 366 F. Supp. 913 (N.D. Ga. 1973).

Subsection (c) of this section, as a whole, governs the determination of foreign law. Ramseur v. American Mgt. Ass'n, 155 Ga. App. 340, 270 S.E.2d 880 (1980).

One objective of subsection (c) is to abandon fact characterization of foreign law and to make the process of determining alien law identical with the method of ascertaining domestic law to the extent possible. Old Hickory Prods. Co. v. Hickory Specialties, Inc., 366 F. Supp. 913 (N.D. Ga. 1973).

Determination of foreign law as cooperative venture.

- Notice requirement of subsection (c) of this section and mode of proof were deliberately left flexible and informal to encourage court and counsel to regard determination of foreign law as a cooperative venture requiring open and unstructured dialogue among all concerned; thus, judicial practice of automatically refusing to engage in research or to assist or direct counsel would be inconsistent with one of that subsection's basic premises. Old Hickory Prods. Co. v. Hickory Specialties, Inc., 366 F. Supp. 913 (N.D. Ga. 1973).

Courts should take active role in process of ascertaining foreign law. Old Hickory Prods. Co. v. Hickory Specialties, Inc., 366 F. Supp. 913 (N.D. Ga. 1973).

Whenever possible, foreign law issues should be resolved on their merits and on the basis of a full evaluation of the available materials. Old Hickory Prods. Co. v. Hickory Specialties, Inc., 366 F. Supp. 913 (N.D. Ga. 1973).

Subsection (c) supersedes case law, precluding use of Southern Reporter as a relevant source of Florida law, if the trial court so decides, irrespective of whether the Florida cases as therein reported are or are not "published by authority." Smith v. Davis, 121 Ga. App. 704, 175 S.E.2d 28 (1970).

Tennessee "slip opinions" were not "published by authority" and were therefore not binding on the court, with or without introduction of proof. Swafford v. Globe Am. Cas. Co., 187 Ga. App. 730, 371 S.E.2d 180, cert. denied, 187 Ga. App. 909, 371 S.E.2d 180 (1988).

Consideration of any relevant material permitted.

- Subsection (c) of this section permits court to consider any material relevant to foreign law issue, whether submitted by counsel or unearthed by the court's own research, without regard to the material's admissibility under the rules of evidence. Old Hickory Prods. Co. v. Hickory Specialties, Inc., 366 F. Supp. 913 (N.D. Ga. 1973).

Burden of proof of validity of foreign judgment in action to domesticate.

- Although law which provides that judicial notice or recognition of foreign laws will not occur unless the foreign laws are produced to the court was modified by subsection (c) of this section, if the defendant defends an action to domesticate by making a collateral attack on the foreign judgment, the burden is not on the defendant to prove that the judgment is no good under the foreign law. Ramseur v. American Mgt. Ass'n, 155 Ga. App. 340, 270 S.E.2d 880 (1980).

When collateral attack is made on a foreign judgment for lacking elements necessary for full faith and credit, the burden is on the party who wishes to have the judgment enforced to prove that the judgment is good under the laws of the state where rendered. Ramseur v. American Mgt. Ass'n, 155 Ga. App. 340, 270 S.E.2d 880 (1980).

When jurisdiction is neither alleged nor proved a foreign default judgment, the issue may be raised in this state in defense of an action on the judgment in a state court, but this does not shift the burden of proving lack of jurisdiction under foreign law to the defendant. Ramseur v. American Mgt. Ass'n, 155 Ga. App. 340, 270 S.E.2d 880 (1980).

Mere proof or admission of fact of duly certified and attested foreign judgment is not prima facie proof of anything except that the judgment was rendered. Ramseur v. American Mgt. Ass'n, 155 Ga. App. 340, 270 S.E.2d 880 (1980).

Foreign order found improperly certified in accordance with Georgia law. See Southeastern Metal Prods., Inc. v. Horger, 166 Ga. App. 205, 303 S.E.2d 536 (1983).

Intent to rely on federal law.

- O.C.G.A. § 9-11-43(c) does not require notice of intent to rely on federal law. Six Flags over Ga. II, L.P. v. Kull, 276 Ga. 210, 576 S.E.2d 880 (2003).

Foreign law on common law marriages.

- Wife's reliance on Alabama law to support her claim of a common law marriage was necessary because the lex loci is the general rule adhered to by courts in questions of marriage; Georgia, like other states not generally recognizing common law marriages, will recognize as valid a common law marriage established under the laws of another state. Norman v. Ault, 287 Ga. 324, 695 S.E.2d 633 (2010).

Am. Jur. 2d.

- 3 Am. Jur. 2d, Affidavits, §§ 6, 18, 19. 29 Am. Jur. 2d, Evidence, §§ 109 et seq., 258 et seq. 75 Am. Jur. 2d, Trial, § 248 et seq.

C.J.S.

- 32 C.J.S., Evidence, § 842 et seq. 35B C.J.S., Federal Civil Procedure, § 978 et seq. 88 C.J.S., Trial, § 158 et seq. 98 C.J.S., Witnesses, § 437 et seq.

ALR.

- Federal Rule 43(a) as applied to testimony concerning transaction or conversation with person deceased, 170 A.L.R. 1242.

Necessity and propriety of counteraffidavits in opposition to motion for new trial in civil case, 7 A.L.R.3d 1000.

Pleading and proof of law of foreign country, 75 A.L.R.3d 177.

Admissibility of oral testimony at state summary judgment hearing, 53 A.L.R.4th 527.

Closed-circuit television witness examination, 61 A.L.R.4th 1155.