Johnson & Harber Const. Co. v. Bing, No. A95A2715

• Court: Georgia Court of Appeals
• Writing for the Court: BIRDSONG
• Citation: 469 S.E.2d 697,220 Ga.App. 179
• Parties: JOHNSON & HARBER CONSTRUCTION COMPANY v. BING et al.
• Decision Date: 12 February 1996
• Docket Number: No. A95A2715

Page 697

469 S.E.2d 697 220 Ga.App. 179 JOHNSON & HARBER CONSTRUCTION COMPANY
v.
BING et al. No. A95A2715. Court of Appeals of Georgia. Feb. 12, 1996.

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[220 Ga.App. 182] Webb, Carlock, Copeland, Semler & Stair, Wayne D. McGrew III, Daniel J. Huff, Fain, Major & Wiley, Christopher E. Penna, Atlanta, for appellant.

Decker & Hallman, Robert D. Feagin, Atlanta, Crumbley & Chafin, Wade M. Crumbley, McDonough, Barnhart, O'Quinn & Williams, Michael A. O'Quinn, Robert K. Haderlein, Atlanta, for appellees.

[220 Ga.App. 179] BIRDSONG, Presiding Judge.

Plaintiffs Bing sued Johnson & Harber Construction Company (Johnson & Harber) for creating surface water runoff damage to their property by defective construction of drains and drainage basins on an adjoining development. The Bings added Henry County as a defendant, alleging the county failed to correct the faulty drainage system after accepting "dedication" of it from Johnson & Harber. The trial court granted summary judgment to the county.

Johnson & Harber appealed the grant of summary judgment to Henry County. Plaintiffs Bing did not appeal. Instead, after Johnson & Harber filed its notice of appeal, plaintiffs settled their claims against Henry County and dismissed the county from their

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suit without prejudice. Henry County then moved to dismiss this appeal. Held:

1. In its motion to dismiss this appeal, Henry County says it is no longer a part of plaintiffs' suit and that Johnson & Harber has no standing to appeal because Johnson & Harber did not file cross-[220 Ga.App. 180] claims against the county. Johnson & Harber rejoins that plaintiffs' dismissal of Henry County does not render moot Johnson & Harber's appeal of the summary judgment in favor of the county, because plaintiffs' dismissal was filed after Johnson & Harber filed its notice of appeal, because plaintiffs' dismissal of the county does not affect the county's status as joint tortfeasor, and because the issue of who will be responsible for maintenance of the drainage system in the future is not moot. See Haley v. Bailey, 199 Ga. 486, 488, 34 S.E.2d 685.

We agree that dismissal of this appeal is not demanded by plaintiffs' dismissal of their suit against Henry County. Henry County was not dismissed by plaintiffs from their underlying suit until after notice of appeal had been filed by a party with standing to appeal the summary judgment. If an appellant or cross-appellant will benefit by reversal of a case, his appeal is not moot. See Kubler v. Goerg, 197 Ga.App. 667, 671, 399 S.E.2d 229. If the county and Johnson & Harber were joint tortfeasors, Johnson & Harber would have a right of contribution against the county as joint tortfeasor (OCGA § 51-12-32) even if the county had never been part of the original suit (State Line Metals v. Aluminum Co. of America, 216 Ga.App. 14, 16, 453 S.E.2d 474); this means the right of contribution exists even if Johnson & Harber had been sued alone and even if Johnson & Harber did not implead Henry County; and this means the right of contribution exists even though Johnson & Harber did not file cross-claims. This right of contribution gives Johnson & Harber, as a party to the suit, standing to appeal the summary judgment...