Butler v. Bolton Road Partners , 222 Ga. App. 791 ( 1996 )

McMurray, Presiding Judge,

dissenting.

The trial court reconsidered its previous denial of defendant Bolton Road’s motion for summary judgment, concluding that plaintiff Butler’s evidence regarding the clerk’s assurance that she could pay past due costs in installments is inadmissible hearsay. I believe this premise is flawed. It is also my view that this flawed reasoning can and should be corrected by this Court within the error as enumerated, namely, the existence of genuine issues of material fact precluding judgment. “Some courts live by correcting the errors of others and adhering to their own.” Ellison v. Ga. R. Co., 87 Ga. 691, 695 (1) (13 SE 809). Butler’s statement regarding what the clerk told her explains conduct and is therefore admissible and probative as original evidence under OCGA § 24-3-2. See Riviera Finance v. McBride, 221 Ga. App. 321, 322 (471 SE2d 233). “ ‘(I)t is apparent that the trial court’s ruling in the case sub judice rests upon an erroneous legal theory. The trial court’s reliance upon an erroneous legal theory requires reversal. (Cits.)’ Wood v. Dan P. Holl & Co., 169 Ga. App. 839, 841 (2) (315 SE2d 51) (1984).” All Phase Elec. Supply Co. v. Foster & Cooper, Inc., 193 Ga. App. 232, 233 (2) (387 SE2d 429). As my. colleagues in the majority would nevertheless affirm this unwarranted grant of summary judgment, I respectfully dissent.