OCGA § 9-11-56(c). See Buchanan v. City of Clayton, 180 Ga. App. 740, 741 ( 350 S.E.2d 320) (1986) (reversing grant of summary judgment based on evidence not properly before trial court). But we cannot agree, at this juncture, that defendants were entitled to summary judgment on the fraud claim.
See OCGA § 9-11-56 (c); 29 AmJur2d 55, Evidence, § 15; 31 CJS 832, Evidence, § 11. "Because the court below based its conclusions on evidence not properly before the court," the judgment must be reversed. Buchanan v. City of Clayton, 180 Ga. App. 740, 741 ( 350 S.E.2d 320) (1986). For the foregoing reasons, there was no absence of material fact so as to warrant the grant of summary judgment.
Furthermore, the magistrate judge correctly noted that issues of negligence and negligent misrepresentation in particular require highly fact-specific inquiry and therefore summary judgment is often inappropriate. See Marcus Bros. Textiles, Inc. v. Price Waterhouse, LLP, 350 S.E.2d 320, 324 (N.C. 1999). Having reviewed the motion, the M R, the objections and response and all other pertinent items in the record, the court concludes that the recommendation of the magistrate judge is, in all respects, in accordance with the law and should be approved.