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Lawskills.com Georgia Caselaw
GENTILE v. MILLER, STEVENSON & STEINICHEN, INC.
44665.
HUNT, Justice.
We granted certiorari to answer the following question: "Does the rule found in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986) have the same ultimate effect when applied to a movant for summary judgment as it has upon a respondent?" Gentile v. Miller, Stevenson & Steinichen, Inc., 182 Ga. App. 690 (356 SE2d 666) (1987). We answer that question in the affirmative and reverse because of the misapplication of our holding in Prophecy.
In Prophecy, we examined the applicability of the "contradictory testimony rule," the rule that a party's self-conflicting testimony is to be construed against him, to testimony presented in response to a motion for summary judgment. We held that where a reasonable explanation of the contradiction is offered, the inconsistency will not be construed against the party-witness. "The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge." Prophecy, at 30 (2). Where a party's explanation for a contradiction is determined to be unreasonable, the trial court must eliminate the favorable portions of the contradictory testimony and then take all testimony on motion for summary judgment " 'as it then stands, and construe it in favor of the party opposing the motion in determining whether a summary judgment should be granted.' [Cit.]" Id. at 28 (1). In Prophecy, the respondent offered a reasonable explanation for its contradictory testimony, the favorable portion of its contradictory statements was, thus, not eliminated, and a fact issue remained precluding the grant of summary judgment.
John W. Winborne III, Donald E. Loveless, for appellee.
James B. Gordon, for appellant.
DECIDED NOVEMBER 5, 1987 -- RECONSIDERATION DENIED NOVEMBER 18, 1987.
Thursday May 21 14:41 EDT


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