Snipes v. Housing Auth. of DeKalb County , 250 Ga. App. 771 ( 2001 )

Eldridge, Judge.

Mr. and Mrs. Snipes, individually and on behalf of their daughter T. S., appeal from the trial court’s grant of summary judgment to the Housing Authority of DeKalb County; Spring Chase, Inc.; Southeast RS, Inc. d/b/a Trammell Crow Residential Services-Southeast; and Property Dynamics, Inc. in their suit for damages arising out of an assault on T. S. at Spring Chase Apartments. Some six depositions were taken in the case ánd were relied upon by all the parties in their briefs and arguments for the grant of summary judgment. The trial court in granting the motions for summary judgment did not consider the depositions, because some party or parties failed to file the depositions with the clerk or cannot now be found by the clerk, if filed. There is a dispute as to who made the request to file the depositions, where the original depositions are now, and whether the trial court relied upon the citation to the depositions in ruling on the motions. Thus, as a matter of fundamental fairness and justice, we vacate all the judgments and remand with directions that the trial court consider all the original depositions or replacement copies certified by the court reporter prior to ruling on the motions; the trial court is not to consider any other subsequently filed evidence after the date of grant of the summary judgment other than the six depositions or the replacement copies.

The defendants as well as the plaintiffs were under the belief that the six depositions were filed with the Clerk of the Superior Court of DeKalb County at the time that the trial court considered and ruled upon the motions for summary judgment, because citations were made to such depositions in trial briefs before the trial court by all the parties. Since all the parties before the trial court relied upon the depositions in their briefs in the trial court, then it must be inferred that the trial court relied upon such citation to such depositions made either by brief or oral argument as if the depositions were filed and opened in deciding such motions. The trial judge must be presumed to know the law and to have “faithfully and lawfully performed the duties devolving upon it by law.” Sullivan v. Brownlee, 174 Ga. App. 813, 814 (1) (331 SE2d 622) (1985). In this case, such involved the consideration of deposition evidence relied upon by movants by the trial court by brief but not filed of record as well as the respondents. Thus, this Court infers that the trial court considered such depositions in rendering its judgments, although not properly filed with the trial court clerk. See Green v. Sun Trust Banks, 197 Ga. App. 804, 805 (1) (399 SE2d 712) (1990). Defendants in making their motions for summary judgment treated the depositions as filed with the Clerk of DeKalb Superior Court, but no one today can find the originals. Therefore, since the trial lawyers and trial judge believed that the depositions were filed with the clerk, then we remand the case for the trial judge to in fact reconsider the motions with the filed copies of the depositions as if filed at the time that the motions were filed. See Miller Grading &c. v. Ga. Fed. Sav. &c. Assn., 247 Ga. 730, 734 (3) (279 SE2d 442) (1981). Thus, we vacate and remand with direction that such depositions be considered. See Whisenant v. Fulton Fed. Sav. &c. Assn., 194 Ga. App. 192 (390 SE2d 100) (1990); compare Dominiak v. Camden Tel. &c. Co., 205 Ga. App. 620, 623 (422 SE2d 887) (1992); Sheffield v. Darby, 244 Ga. App. 437 (1) (535 SE2d 776) (2000).

Judgments vacated and remanded with directions.

Johnson, P. J., Smith, P. J., Ruffin, Miller and Ellington, JJ, concur. Andrews, P. J, dissents.