Shackelford v. Green

• Decision Date: 30 September 1986
• Docket Number: No. 72842,72842
• Citation: 349 S.E.2d 781,180 Ga.App. 617
• Parties: SHACKELFORD v. GREEN et al.
• Court: Georgia Court of Appeals

Page 781

349 S.E.2d 781

180 Ga.App. 617

SHACKELFORD v. GREEN et al.

No. 72842.

Court of Appeals of Georgia.

Sept. 30, 1986.

Rehearing Denied Oct. 21, 1986.

E. Wycliffe Orr, Bonnie Oliver, Gainesville, for appellant.

John B. Degonia, Covington, James T. McDonald, Jr., Joseph Munger, Atlanta, for appellees.

CARLEY, Judge.

Appellee Green and appellant Shackelford were named as co-defendants in a negligence action wherein the plaintiff sought damages for personal injury. According to the allegations of the complaint, the proximate cause of the injury was the negligence of appellant "[w]hile acting as [appellee's] agent...." Both appellee and appellant filed answers and both subsequently filed separate motions for summary judgment. As to appellee, the trial court granted summary judgment, holding there existed no legal relationship between the co-defendants such that appellee would be vicariously liable for appellant's alleged negligence. As to appellant, the trial court denied summary judgment, holding there to be genuine issues of material fact with regard to her negligence.

Although the trial court's certification for the immediate review of its order was secured by appellant, she did not apply to this court for an interlocutory appeal from the denial of the motion for summary judgment. Instead, she filed the instant direct appeal from the trial court's order. In so doing, appellant has apparently proceeded on the theory that the grant of appellee's motion for summary judgment would be directly appealable pursuant to OCGA § 9-11-56(h) and the denial of her own motion for summary judgment could then be raised as an ancillary issue in the context of such a direct appeal. See generally Southeast Ceramics v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980). However, the grant of a motion for summary judgment in a multi-party case will not, standing alone, necessarily authorize the initiation of a direct appeal therefrom by any party to the underlying case. An appeal must be filed by one who has standing to pursue it. OCGA § 9-11-56(h) " 'gives a losing party the right to a direct appeal from an order granting summary judgment on any issue or as to any party even though the judgment is not final.... [Cit.]' [Cit.]" (Emphasis supplied.) Bozard v. J.A. Jones Constr. Co., 148 Ga.App. 425, 426, 251 S.E.2d 362 (1978). Obviously, the plaintiff in the instant underlying tort action is a losing party as to the grant of appellee's motion. However, unless appellant is also a losing party as to that order, she has no standing to file a direct appeal therefrom. Absent a viable ancillary direct appeal, this court would then lack jurisdiction to consider the denial of appellant's own motion for summary judgment. Compare Southeast Ceramics v. Klem, supra.

Status as a losing party has been statutorily conferred upon a co-defendant who is being sued in the capacity of a joint tort-feasor and who wishes to appeal the grant of summary judgment in favor of one or more of his other co-defendants. This status results from the provisions of OCGA § 51-12-32 as regards the right of contribution as between joint tort-feasors, which right exists independently of the joint and several liability owed to the plaintiff. "[T]he [effect of the] 1972 amendment to [OCGA § 51-12-32 was to eliminate] 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." Merritt v. McCrary, 162 Ga.App. 825, 827, 292 S.E.2d 920 (1982). Appellant and appellee are not, however, being sued in the capacity of joint tort-feasors. "Defendants are joint tort-feasors when their separate and distinct acts of negligence concur to proximately produce an injury. [Cits.]" Travelers Indem. Co. v. Liberty Loan Corp., 140 Ga.App. 458, 461(3), 231 S.E.2d 399 (1976). Appellee is alleged to be appellant's principal and, on that basis, plaintiff sought to have appellee adjudicated to be vicariously liable for appellant's alleged act of negligence. "[W]here 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...." Travelers Indem. Co. v. Liberty Loan Corp., supra at 461(3), 231 S.E.2d 399. "An action brought against defendants jointly on the...