Golston v. Garigan
| Decision Date | 13 March 1980 |
| Docket Number | 35516,Nos. 35515,s. 35515 |
| Citation | 245 Ga. 450,265 S.E.2d 590 |
| Parties | GOLSTON v. GARIGAN et al. GARIGAN et al. v. GOLSTON et al. |
| Court | Georgia Supreme Court |
Duffey & Sawhill, Harl C. Duffey, Jr., Rome, for appellant in No. 35515.
Chance, Maddox, Jones & Collins, Howard W. Jones, Calhoun, for Garigan et al.
Harl C. Duffey, Jr., Rome, for appellees in No. 35516. JORDAN, Justice.
Lawrence Garigan and his wife Mary Ruth Garigan and William Shropshire, appellees, brought suit against Earnest Golston, appellant, alleging that he was erecting a duplex in a subdivision in which they owned property and homes which was in violation of restrictive covenants contained in all deeds conveying property within the subdivision. The trial court permanently enjoined appellant from building the duplex as presently conceived and granted summary judgment against the appellees on two counts of their complaint seeking an injunction against the erection of any multi-family dwelling and damages for breach of promise. Appellant appeals the issuance of a permanent injunction against him, and appellees cross-appeal the grant of summary judgment against them.
1. The trial court held a hearing on the issue of a preliminary injunction in which it heard testimony of the witnesses and received evidence after which a preliminary injunction was granted. Thereafter, the trial court decided to consider the case as a motion for summary judgment (appellant had filed a motion to dismiss) and instructed the parties to file affidavits, answers to interrogatories, and depositions as they wished. The transcript of the preliminary injunction hearing was filed with the court. Some six months after the filing of the transcript, the trial court entered his findings of fact, conclusions of law and order.
Appellant first complains that a permanent injunction should not have been granted without a final hearing on the matter. The trial court's order begins by reciting that the case came on "regularly for hearing on the defendant's motion for Summary Judgment . . . " (Emphasis supplied).
However, appellees maintain that appellant consented to the case being before the trial court in final judgment posture, appellees pointing to an order of the trial court in the record which states that the parties "having requested that the Court consider the . . . case as being presented for a motion for Summary Judgment . . . " a hearing date was set.
The question of appellant's consent is immaterial to a resolution of this issue, however, because summary judgment can be granted to a non-moving party provided that the grant is proper in all other respects. Massey v. Consolidated Equities Corp., 120 Ga.App. 165, 168, 169 S.E.2d 672 (1969). Furthermore, since this case is one involving equity, appellant had no right to a jury trial. Burns & Ledbetter, Inc. v. Primark Marking Co., 244 Ga. 341, 343, 260 S.E.2d 58 (1979). Therefore, having the parties properly before him and having the pleadings, affidavits and transcript of the preliminary injunction hearing, the trial court could have found that no genuine issue of material fact remained and granted appellees the relief sought.
2. Appellant argues that appellees never alleged or proved that they had no adequate remedy at law. The failure to allege no adequate remedy at law in the complaint is not a fatal error under the rules of our Civil Practice Act (Code Ann. Title 81A). Oliver v. Irvin, 230 Ga. 248, 196 S.E.2d 429 (1973). Appellees presented evidence that the subdivision consisted entirely of single-family, brick homes with no less than one thousand square feet, and that appellant's duplex, well under construction, was a multi-family dwelling, not entirely brick, with approximately one thousand square feet of living space. Based on these facts the trial court could have found that appellees had successfully carried the burden of proving that they had no adequate remedy at law. This enumeration of...
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Generali-U.S. Branch v. Southeastern Sec. Ins. Co.
...grant summary judgment to the "non-moving party provided that the grant is proper in all other respects. [Cit.]" Golston v. Garigan, 245 Ga. 450, 451(1), 265 S.E.2d 590 (1980); see also Eiberger v. West, 247 Ga. 767, 770, 281 S.E.2d 148 (1981); Rasmussen v. Nodvin, 174 Ga.App. 203, 204(1), ......
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Eiberger v. West, s. 37086
...in all respects. Massey v. Consolidated Equities Corp., 120 Ga.App. 165, 168, 169 S.E.2d 672 (1969)." See also Golston v. Garigan, 245 Ga. 450, 451, 265 S.E.2d 590 (1980); Cruce v. Randall, 245 Ga. 669, 266 S.E.2d 486 The trial court, in effect, granted summary judgment to appellee as a non......
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Langford v. Royal Indem. Co.
...appellee as to this matter (OCGA § 9-11-12(b)), even if appellant did not move for summary judgment on this ground. Cf. Golston v. Garigan, 245 Ga. 450(1), 265 S.E.2d 590 (summary judgment can be granted to a non-moving party). We affirm the judgment, as we will not reverse the correct deci......
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Signet Bank/Virginia v. Tillis, A90A0668
...to a non-moving party provided that the grant is proper in all other respects. [Cit.]" (Emphasis supplied.) Golston v. Garigan, 245 Ga. 450, 451(1), 265 S.E.2d 590 (1980). " 'The judgment of a court of one State, when sued on, pleaded, or introduced in evidence in another State, is entitled......