C.W. Matthews Contracting Co., Inc. v. Studard, A91A1272

• Decision Date: 30 September 1991
• Docket Number: No. A91A1272,A91A1272
• Citation: 201 Ga.App. 741,412 S.E.2d 539
• Parties: C.W. MATTHEWS CONTRACTING COMPANY, INC. v. STUDARD et al.
• Court: Georgia Court of Appeals

Page 539

412 S.E.2d 539

201 Ga.App. 741

C.W. MATTHEWS CONTRACTING COMPANY, INC. v. STUDARD et al.

No. A91A1272.

Court of Appeals of Georgia.

Sept. 30, 1991.

Reconsideration Denied Nov. 5, 1991.

Certiorari Denied Jan. 30, 1992.

Gerard & Mathews, William T. Gerard, Athens, for appellant.

Michael J. Bowers, Atty. Gen., George P. Shingler, Sr. Asst. Atty. Gen., C. LaTain Kell, Asst. Atty. Gen., Susan J. Levy, Staff Atty., Atlanta, Robert K. Finnell, Rome, for appellees.

COOPER, Judge.

This appeal originated from a suit by Martha Jane Studard ("Studard") and her husband against the Georgia Department of Transportation ("DOT") and its commissioner, Thomas Moreland ("Moreland"), various other employees of the DOT, and appellant. Studard was involved in a traffic accident with a hit-and-run driver on a stretch of Georgia highway that was being resurfaced by appellant pursuant to a contract with the DOT. In their complaint, the Studards alleged that certain of the defendants, including Moreland, "negligently and carelessly permitted, allowed, and/or placed inadequate and insufficient traffic controls and/or warnings" along the roadway where Studard's accident occurred and the defendants "knew or in the exercise of ordinary care should have known" that the roadway conditions would result in an accident. After much discovery, the trial court ruled on motions for summary judgment filed by all defendants, granting Moreland's motion and denying the motions of the other defendants. Appellant then filed a notice of appeal of the trial court's order, specifically appealing the grant of summary judgment to Moreland and the denial of summary judgment to appellant. Appellant did not obtain a certificate of immediate review from the trial court, nor did appellant follow the procedures for appeal set forth in OCGA § 5-6-34. Appellees have moved to dismiss the instant direct appeal on the grounds that appellant has no standing to appeal the grant of summary judgment to Moreland and consequently appellant has no right to appeal the denial of its own motion for summary judgment. For the reasons stated below, we agree with appellees and dismiss this appeal.

1. Appellees argue that the appeal should be dismissed because appellant failed to obtain a final judgment from the trial court pursuant to OCGA § 9-11-54(b). This argument fails because "[OCGA § 9-11-56(h) ], which permits direct appeal from any grant of summary judgment, is an exception to the finality rule expressed in [OCGA § 9-11-54(b) ]." Edwards v. Davis, 160 Ga.App. 122(1), 286 S.E.2d 301 (1981). " 'Even in the absence of "an express determination that there is no just reason for delay" ..., the order granting the ... summary judgment is nevertheless appealable. [Cits.]' [Cit.]" Advanced Contouring v. McMillan Div., etc., 179 Ga.App. 128(2), 345 S.E.2d 666 (1986).

2. Despite the order's appealability, we agree with appellees' contention that in the instant case, appellant has no standing to appeal the grant of summary judgment to its co-defendant, Moreland. Appellant relies on the holding in Merritt v. McCrary, 162 Ga.App. 825(1), 292 S.E.2d 920 (1982) that "the 1972 amendment to [OCGA § 51-12-32] eliminated the rule that a co-defendant in a tort action is without standing to appeal the grant of summary judgment to another co-defendant against whom he asserts a right of contribution." However, this court has limited this relaxation of the standing requirement to situations in which the co-defendants are being sued as joint tort-feasors. Shackelford v. Green, 180 Ga.App. 617, 618-619, 349 S.E.2d 781 (1986), aff'd, 257 Ga. 9, 356 S.E.2d 27 (1987). Only if the co-defendants are sued as joint tort-feasors does the grant of summary judgment as to one potentially affect the other's right of contribution. Therefore, it is only in this situation that the co-defendant is deemed a losing party and therefore has standing to appeal the grant of summary judgment to another co-defendant. Id. at 618, 349 S.E.2d 781. " 'Defendants are joint tort-feasors when their separate and distinct acts of negligence concur to proximately produce an injury. (Cits.)' [Cit.] ... 'Where the liability of the employer for the negligent acts of his employee rests only on the doctrine of respondeat superior, the employer becomes liable although he was not negligent because the employee's negligence was imputed to him as a matter of law, and thus the nonnegligent employer is not a "joint tortfeasor" in the sense in which the phrase is ordinarily used....' [Cit.] 'An action brought against defendants jointly on the theory that one, as principal, is liable for the tortious acts of...