When a motion for summary judgment is submitted and supported by evidence, an adverse party may not rest upon the allegations of its pleadings. To avoid summary judgment, an adverse party must set forth specific facts and evidence to show the genuine issues which must still be resolved at trial. O.C.G.A. §9-11-56(e); Jordan v. Atlanta Replex Corp., 228 Ga.App. 670, 492 S.E.2d 536 (1997); Evans v. City of Atlanta, 199 Ga.App. 878, 406 S.E.2d 530 (1991); Alghita v. Universal Investment & Manufacturing Co., 167 Ga.App. 562, 307 S.E.2d 99 (1983); Curtis v. J.L. Todd Auction Co., 159 Ga.App. 863, 285 S.E.2d 596 (1981). V. ARGUMENT AND CITATION OF AUTHORITY A. THERE WAS NO PROBABLE CAUSE FOR THE INITIAL SEARCH AND SEIZURE OF THE FUNDS Physical evidence acquired by an unlawful search and seizure must be excluded at trial unless “intervening events break the causal connection” between the search and the statement. Evidence obtained as a direct result of an illegal search is tainted and inadmissible as “fruit of the poisonous tree.”

3 Case 1:14-cv-01878-RWS Document 86-1 Filed 11/02/16 Page 3 of 8 execution of the change form at issue never conflicted with Article 12, Section 8, of the Trust, did not confer upon him powers specifically withheld by the Trust document, and did not represent an attempt on his part to act beyond his capacity as one, but only one, of two Co-Trustees. Because O.C.G.A. § 9-11-56 is substantially identical to Fed. R. Civ. P. 56, Holland v. Sanfax Corp., 106 Ga. App. 1, 4(1) (1962), and has been construed in light of federal appellate authority, Moore v. Atlanta Transit Sys., 105 Ga. App. 70, 72(1) (1961), it is noteworthy in the summary judgment context that the rule in Georgia is that the testimony of a party who offers herself as a witness in her own behalf at trial is to be construed most strongly against her when it is self- contradictory, vague, or equivocal. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28(1) (1986).

The use of the Page3 Case 5:14-cv-00069-LJA Document 38 Filed 01/23/15 Page 3 of 16 term "shall" in the Code section governing affidavits in support of motions for summary judgment indicates that it is mandatory that the contents of the affidavit be admissible under the rules of evidence. See e.g., Citv of Atlanta v. Lane, 276 Ga. 339, 340 (2003) (term "shall" indicates mandatory nature of statute); Triguero v. ABNAMRO Bank NV, 273 Ga. App. 92, 95 (2005) ("Affidavits in opposition to motions for summary judgment must conform to O.C.G.A. § 9-11-56(e) as to the rules of evidence.").