When Jo Ya An discovered that her home had been damaged extensively by termites, she sued Active Pest Control South, Inc. for professional negligence and breach of contract. A couple of years earlier, Active had agreed to monitor and treat the home for termites and to repair any damages that termites thereafter caused to the home. An does not dispute that the home sustained some termite damage before Active entered into this contract, and An also does not dispute that Active is not responsible for repairing damages that termites caused to the home before the date of the contract. So, everyone agrees that, if An is to prevail on her claims against Active, she must prove that the home sustained additional termite damage after the date of the contract and the extent of this additional damage. See Orkin Exterminating Co. v. Durden , 189 Ga. App. 479, 481-482 1 376 SE2d 376 1988. Active moved below for summary judgment, claiming that An cannot prove these things. In the course of discovery, An identified experts that would, she said, offer proof of these things in the form of opinion testimony, but Active said that the opinions of these experts are unreliable, and it moved to exclude their opinions under OCGA § 24-9-67.1. The court below heard all of these motions, but it granted the motion for summary judgment without ruling on the motions to exclude the opinions of the experts.
An appeals from the entry of summary judgment, and Active cross-appeals from an earlier order of the court below that struck two notices of nonparty fault that Active had filed under OCGA § 51-12-33, although Active concedes that, if it is entitled to summary judgment, the issues presented in its cross-appeal are moot.1 On the appeal from the award of summary judgment, we conclude that, if the opinions of her experts are admissible, An may be able to prove that the home sustained additional termite damage after the date of the contract and the extent of that additional damage. Whether the opinions of the experts are admissible, however, is something that must be determined in the first instance by the court below, exercising its discretion under OCGA § 24-9-67.1. Accordingly, we vacate the award of summary judgment and remand for the court below to decide whether the opinions of the experts are admissible and then to reconsider the motion for summary judgment. Because it remains to be seen whether Active is entitled to summary judgment, it is unnecessary at this time for us to decide the issues presented in the cross-appeal, and we dismiss the cross-appeal without prejudice to Active raising those issues again in a later appeal.
