The Court of Appeals has overturned decades of precedent on the question of the standard for self-contradictory testimony in Pollard v. Great Dane, LLC, A24A0545, 2024 Ga. App. Lexis 236 (June 18, 2024). Under the rule initially stated in Prophecy Corp. v. Charles Rossignol, Inc. , 256 Ga. 27 (343 SE2d 680) (1986), “parties’ self-contradictory, vague or equivocal testimony is construed against them on summary judgment, absent a reasonable explanation. Pollard, 2024 Ga. App. Lexis at 5-6. Since the 1980s, the Courts have “fallen into the practice of incorrectly reciting” that the clearly erroneous standard, which is equivalent to the any evidence standard, was used to determine if an explanation under Prophecy was reasonable. Id. at 5-6. However, the COA has determined “that line of cases is wrong” because the “rule governing a party-witness’s self-contradictory testimony is an evidentiary rule” requiring an issue of law to be determined. Id. at *6. Therefore, this is a question of law to be reviewed de novo.
The Court continues that “[w]hen reviewing a trial court's evidentiary rulings, we apply the ‘clearly erroneous’ or any evidence standard to the trial court’s factual findings.” Id. quoting Morrell v. State, 313 Ga. 247, 251 (1) (869 SE2d 447) (2022). However, “the determination whether a party-witness has or has not offered a reasonable explanation for self-contradictory testimony is not a factual finding. Rather, our Supreme Court held in Prophecy that such a determination ‘is an issue of law for the trial judge.’” (Emphasis supplied.) Id. quoting Prophecy, 256 Ga. at 30 (2); Auto-Owners Ins. Co. v. Crawford, 240 Ga. App. 748, 750 (1) (525 SE2d 118) (1999). Therefore, the court determined the proper analysis is de novo for issues of law.
The Prophecy case noted that in the context of summary judgment proceedings, “the testimony of a party who offers himself as a witness in his own behalf at trial is to be construed most strongly against him when it is self-contradictory, vague or equivocal.” Id. at *9 quoting Prophecy, 256 Ga. at 28 (1). The Supreme Court further explained that “if a reasonable explanation is offered for the contradiction, the testimony 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.” Id., quoting Prophecy 256 Ga. At 30.
“[T]he Prophecy rule is aimed at discouraging a party’s temptation to commit perjury during a civil trial’s summary judgment phase[.]” Id. quoting Thompson v. Ezor, 272 Ga. 849, 852 (2) (536 SE2d 749) (2000). The rule is “intended to remove any incentive for witnesses responding to a motion for summary judgment to tailor their statement to meet the needs of the occasion without regard to the truth.” Id. at *9-10 quoting Rhodes v. ABC School Supply , 223 Ga. App. 134, 136 (1) (476 SE2d 773) (1996). However, “[t]he rule is not meant to punish a party who
makes a mistake by preventing her from presenting her case to a jury if there exists a genuine issue of material fact.” Id. at *10 citing Prophecy, 256 Ga. at 30.
Ultimately, the COA reversed the trial court’s granting of summary judgment stating that the contradictory testimony had a reasonable explanation where the declarant stated the prior statement was an error of a paralegal in a pleading that had since been amended. Id. at *11. In light of proper deposition testimony this was deemed to be reasonable and an issue for the jury to determine at trial, not a judge on summary judgment. Id.