TSELIOS et al.
BARNES, P. J., MCMILLIAN and MERCIER, JJ.
Barnes, Presiding Judge.
Sarsour brought this suit on a promissory note against
Demetrios Tselios and George Tselios, seeking principal,
interest, and attorney fees. Sarsour moved for summary
judgment on his claim, and the trial court granted the
motion, resulting in this appeal by the
defendants. As explained below, although the
defendants failed to respond to Sarsour's motion, summary
judgment cannot be entered against the nonmoving party by
default, and Sarsour failed to make out a prima facie case
for recovery on the note. We therefore reverse the trial
court's grant of summary judgment to Sarsour.
appeal from the grant of summary judgment, we conduct a de
novo review and construe the evidence in the light most
favorable to the nonmoving party. Barnett v. Atlanta
Independent School System, 339 Ga.App. 533, 533-534 (792
S.E.2d 474) (2016). So viewed, the evidence showed that in
February 2016, Sarsour brought the present action against the
defendants, alleging that they had executed a promissory note
in his favor in the principal sum of $80, 000 and had
defaulted on the note. Sarsour sought recovery of principal,
interest, and attorney fees. His complaint was not verified.
The defendants answered that they were without sufficient
knowledge or information to form a belief as to the
allegations in the complaint and asserted several affirmative
moved for summary judgment on his promissory note claim. He
filed a brief in support of his motion, as well as a
statement of material facts and theory of recovery to which
the note and a demand letter were attached as exhibits.
Sarsour did not file any affidavits, depositions, admissions,
or answers to interrogatories in support of his motion.
promissory note attached as an exhibit to Sarsour's
statement of facts was dated March 6, 2015, and it provided
that the defendants were to repay the $80, 000 principal
balance within six months. The note stated that if the
defendants repaid the principal during that time period, no
interest would be owed. The "Definitions" section
of the note defined "Default" as "the failure
to cure any untimely payment within five business days of
[the defendants'] receipt of notice of either a missing
payment or a dishonored payment" and provided for a
"Default Rate" of interest. The note further
provided that "[a]ll notices and other communications
required . . . pursuant to this Note must be in
writing." In the event of default by the defendants, the
note specified that Sarsour had several available remedies,
including taking any action available to him "at law, in
equity or otherwise" and seeking "reasonable
attorneys' fees" for efforts taken to collect on the
demand letter attached as an exhibit to Sarsour's
statement of facts was addressed to the defendants from
Sarsour's attorney. The letter, dated January 11, 2016,
stated that the defendants had failed to repay the $80, 000
principal balance of the note within six months of the
execution of the note. The letter demanded that the
defendants cure their failure to repay the note by paying the
$80, 000 in principal plus $4, 800 in interest, and the
letter indicated that further interest as well as attorney
fees would be sought if the defendants failed to make the
the defendants failed to respond to Sarsour's motion for
summary judgment, the trial court granted the motion, finding
that the uncontroverted evidence showed that the defendants
had failed to repay the $80, 000 in principal owed on the
note. The trial court found that the defendants were liable
for the $80, 000 in principal, plus $15, 228 in interest
(which would continue to accrue at the rate of $39.45 per
day) and $14, 284 in attorney fees.
appeal, the defendants contend that the trial court erred in
granting summary judgment to Sarsour because he failed to
present sufficient competent evidence to make out a prima
facie case for recovery on the note. The defendants point out
that summary judgment cannot be entered by default, and they
emphasize that Sarsour did not present any affidavits or
other sworn testimony to support his contentions.
judgment is proper only if the pleadings and evidence
"show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law." OCGA § 9-11-56 (c). Where the party
moving for summary judgment is the plaintiff, he must make a
prima facie showing that no material issues of fact exist and
that he is entitled to judgment as a matter of law before the
burden shifts to the defendant to establish a possible
defense. See Sawnee Forest, LLC v. CRE Venture 2011-1,
LLC, 339 Ga.App. 339, 341 (2) (793 S.E.2d 542) (2016);
Smith v. Gordon, 266 Ga.App. 814, 814 (1) (598
S.E.2d 92) (2004).
there is no such thing as a default summary judgment, "
a defendant's failure to respond to a plaintiff's
motion for summary judgment does not automatically entitle
the plaintiff to judgment in his favor. Rapps v.
Cooke, 234 Ga.App. 131, 131 (1) (505 S.E.2d 566) (1998).
"A party opposing a summary judgment motion need not
respond and may instead rely on the movant's failure to
remove any fact questions." Sherman v. Thomas-Lane
American Legion Post 597, 330 Ga.App. 618, 621 (1) (768
S.E.2d 797) (2015). And while "[a] failure to respond to
a motion for summary judgment results in waiver of the right
to present evidence in opposition to the motion, . . . the
moving party must still show from the pleadings and the
evidence that summary judgment is appropriate."
Rapps, 234 Ga.App. at 131-132 (1). Accordingly,
irrespective of the defendants' failure to respond to
Sarsour's motion for summary judgment, we must evaluate
whether Sarsour met his burden of establishing a prima facie
case for recovery on the promissory note. See id. We conclude
that Sarsour failed to meet his burden.
a promissory note, on its face, shows that it is past due and
in default, the plaintiff establishes a prima facie
right to judgment, and the burden shifts to the [defendant]
to establish an affirmative defense." (Emphasis in
original.) ABI Investments, LLC v. FSG Bank, Nat.
Assn., 326 Ga.App. 367, 368-369 (756 S.E.2d 606) (2014).
See Roca Properties, LLC v. Dance Hotlanta, 327
Ga.App. 700, 706 (1) (761 S.E.2d 105) (2014). However, if the
plaintiff fails to point to any competent evidence reflecting
that the defendant defaulted on the note, the burden does not
shift to the defendant, and the grant of summary judgment in
favor of the plaintiff is inappropriate. ABI Investments,
LLC, 326 Ga.App. at 369.
previously discussed, in support of his motion for summary
judgment, Sarsour included, as exhibits to his motion, the
promissory note and the demand letter sent to the defendants
by his attorney. The note provided that a
"default" occurred upon "the failure to cure
any untimely payment within five business days of [the
defendants'] receipt of notice of either a missing
payment or a dishonored payment, " and that
"notice" had to be in writing. The demand letter
gave the defendants written notice of their failure to make
timely payment of the principal as required by the note.
however, Sarsour presented no competent evidence that the
defendants failed to cure their untimely payment within five
business days of receiving the required written notice, and
thus failed to show that the defendants were in default under
the specific terms of the note. In this regard, Sarsour
presented no affidavits or other sworn documents in support
of his summary judgment motion, instead relying on his prior
pleadings, his brief filed in support of his motion, and his
statement of facts and theory of recovery that was filed
pursuant to Uniform Superior Court Rule 6.5 ("Rule
6.5"). But, unsworn pleadings such as an
unverified complaint do not constitute evidence and thus
cannot be considered in addressing a motion for summary
judgment. See Wellstar Health System v. Painter, 288
Ga.App. 659, 662, n.5 (655 S.E.2d 251) (2007). Likewise,
"[a] brief in support of a motion for summary judgment
is not proper evidence upon which summary judgment can be
granted." (Citation and punctuation omitted.)
Crisler v. Farber, 258 Ga.App. 456, 458 (2) (574
S.E.2d 577) (2002). Furthermore, "the right to summary
judgment is not ...