Lee v. Venable, 50087

• Decision Date: 21 February 1975
• Docket Number: No. 50087,No. 2,50087,2
• Citation: 134 Ga.App. 92,213 S.E.2d 188
• Parties: Leonard LEE v. W. S. VENABLE
• Court: Georgia Court of Appeals

Page 188

213 S.E.2d 188

134 Ga.App. 92

Leonard LEE v. W. S. VENABLE.

No. 50087.

Court of Appeals of Georgia, Division No. 2.

Feb. 21, 1975.

Joseph E. Cheeley, Buford, for appellant.

Stark, Stark & Henderson, Homer M. Stark, Lawrenceville, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

'This is a very complicated matter that we are trying to get rid of' was the concluding comment of appellee's counsel at the time this matter was presented in the trial court. (T. 17). Confirmation of this remark is shown in the briefs submitted on this appeal as each of the three advocates argue that the legal issue presented is different from that submitted by the other two briefs. The writer confesses that upon first consideration of the record in this appeal it appeared to be a riddle wrapped in mystery and encased in enigma. Having threaded our way through the legal labyrinth and searched through the factual morass, we preface out decision with a condensed statement of the appeal record.

This suit began as an in rem action by the State Highway Department in connection with widening an existing highway. Condemnor deposited the amount estimated as being just and adequate compensation for a strip of vacant land designated as parcel 22 and obtained a judgment of condemnation vesting title thereto in the State Highway Department on September 18, 1970. Seven parties were named as condemnees. Appellant Lee was not among these but was permitted over the State Highway Department's objection to file his intervention claiming to possess a leasehold on which he alleged entitlement to a portion of the condemnation funds.

This intervention was granted after Venable as owner of the land had filed his notice of appeal to a jury because he was dissatisfied with the amount of the award on deposit. After Venable had completed a cross examination deposition of Lee he filed a motion for summary judgment in which he sought 'a summary judgment dismissing the intervention of Leonard Lee.' (R. 77). A counter affidavit was filed by Lee as well as an affidavit from the State Highway Department resident engineer in which he undertook to contradict a claim made by Lee for loss of business profits during construction. We do not deal with that claim, since our consideration, as was that of the judge below, is limited to the motion filed by Venable in which he sought 'a summary judgment dismissing the intervention of Leonard Lee.' (R. 77). The instant appeal by Lee is from the order in which the court ruled 'that Mr. Lee is not a proper party and that said intervention should be and the same is dismissed.' (R. 84). Held:

1. 'On a motion for summary judgment by the defendant, the complaint is to be construed liberally in favor of the complainant. The burden is upon the movant to show no genuine issue as to any material fact, and the opposing party is given the benefit of all favorable inferences that may be drawn from the evidence. (Cits.)' Candler General Hospital v. Purvis, 123 Ga.App. 334, 335(1), 181 S.E.2d 77, 78.

2. An examination of the evidence presented below discloses the existence of a genuine issue of material fact as to whether the...