Hutchison v. National Services Industries, Inc.

• Decision Date: 13 June 1989
• Docket Number: Nos. A89A0319,A89A0320,s. A89A0319
• Citation: 191 Ga.App. 885,383 S.E.2d 212
• Parties: HUTCHISON et al. v. NATIONAL SERVICES INDUSTRIES, INC. et al. NATIONAL SERVICES INDUSTRIES, INC. et al. v. HUTCHISON et al.
• Court: Georgia Court of Appeals

Page 212

383 S.E.2d 212

191 Ga.App. 885

HUTCHISON et al. v. NATIONAL SERVICES INDUSTRIES, INC. et al.

NATIONAL SERVICES INDUSTRIES, INC. et al. v. HUTCHISON et al.

Nos. A89A0319, A89A0320.

Court of Appeals of Georgia.

June 13, 1989.

Bennett, Williams & Henry, Michael T. Bennett, for appellants.

McClain & Merritt, Albert J. Decusati, M. David Merritt, Drew, Eckl & Farnham, Steven D. Barnhart, Long, Weinberg, Ansley & Wheeler, James S. Strawinski, for appellees.

BANKE, Presiding Judge.

The appellants, Welber and Marylin Hutchison, filed the present action against Philip Banks, Steven Banks, and National Service Industries, Inc., d/b/a North Brothers Insulation (NSI), seeking to recover for personal injuries allegedly sustained by Mr. Hutchison in a collision involving a NSI vehicle being driven by Steven Banks. Steven Banks did not answer, and as to him the action is in default. NSI and Philip Banks did file an answer and also moved for summary judgment on various grounds. On February 12, 1988, the trial court granted a partial summary judgment to these defendants with respect to certain issues; and thereafter, in an order entered on February 23, 1988, the court granted partial summary judgment to NSI on an additional issue. The appellants filed a notice of appeal from the latter ruling on March 23, 1988, and on March 25, 1988 (which was more than 30 days following the entry of the second summary judgment order), the appellees filed a cross-appeal. The appellees have moved this court to dismiss those portions of the main appeal dealing with the order entered on February 12, 1988, on the ground that the appellants did not file a timely notice of appeal from that order. Held:

1. The appellees' contention that we are without jurisdiction to consider the appellants' first four enumerations of error, dealing with the February 12 order, is meritorious. Although not required to do so, a losing party has the right under OCGA § 9-11-56(h) to bring a direct appeal from an order granting summary judgment on any issue, even though other issues may remain for adjudication. See Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 243, 248 S.E.2d 641 (1978); Olympic Dev. Group v. American Druggists' Ins. Co., 175 Ga.App. 425(1), 333 S.E.2d 622 (1985). In the Olympic Dev. case, supra, this court held that where the appellants had failed to bring a timely appeal from a grant of partial summary judgment, they could not obtain appellate review of that ruling in an appeal from a subsequent grant of partial summary judgment, where the latter order did not constitute a final judgment in the case. We recognize that this holding creates an exception to the general rule that once a case is on appeal, all rulings theretofore made by the trial court are subject to review. See OCGA § 5-6-34(d); Southeast Ceramics v. Klem, 246 Ga. 294(1), 271 S.E.2d 199 (1980). Such an exception is, however, appropriate in that a grant of partial summary judgment, unlike most other non-final orders, is immediately appealable as a matter of right, with the result that a party who chooses not to bring a direct appeal from such an order may reasonably be deemed to have made an election to wait until a final judgment has been entered in the case to...