Southeast Ceramics, Inc. v. Klem
| Decision Date | 09 September 1980 |
| Docket Number | No. 36315,36315 |
| Citation | 246 Ga. 294,271 S.E.2d 199 |
| Parties | SOUTHEAST CERAMICS, INC. v. KLEM. |
| Court | Georgia Supreme Court |
Neil L. Heimanson, Atlanta, for appellant.
Joseph H. King, Jr., Atlanta, for appellee.
Klem sued Southeast Ceramics, Inc. for breach of contract and Southeast responded with a counterclaim for malicious use of process. Each of the parties moved for summary judgment with Southeast seeking a holding of no liability on Klem's complaint and Klem seeking a holding of no liability on Southeast's counterclaim. Southeast's motion was denied and Klem's was granted. The net result was that Southeast was twice the loser and found itself with a suit pending against it and no counterclaim remaining against Klem.
Southeast took a direct appeal to the Court of Appeals pursuant to Code Ann. § 81A-156(h). The notice of appeal specifically referred to the grant of Klem's motion for summary judgment but made no reference to the denial of Southeast's motion for summary judgment. However, Southeast's enumerations of error did assign error to the denial of its motion.
Southeast also filed a separate application for interlocutory review of the denial of its motion. The Court of Appeals denied the application.
In addressing the direct appeal, the Court of Appeals affirmed the trial court's grant of summary judgment to Klem on Southeast's counterclaim and dismissed the portion of Southeast's appeal which dealt with the denial of its motion for summary judgment as to the main claim. Southeast Ceramics, Inc. v. Klem, 154 Ga.App. 149, 267 S.E.2d 756 (1980). This court granted certiorari.
We are considering whether the denial of the summary judgment was properly before the Court of Appeals and whether Southeast's counterclaim alleged damages cognizable in an action for malicious use of process.
1. A grant of a motion for summary judgment is subject to direct appeal while the denial of such a motion is not appealable unless certain conditions are met. Code Ann. § 81A-156(h). When a summary judgment is denied, it may be appealed after certification by the trial judge and the granting of an application by the appropriate appellate court. Code Ann. § 6-701(a)2. We do not conclude that this is the exclusive means of appealing the denial of a motion for summary judgment. In fact, we have held that the denial of a motion for summary judgment may be carried up as a cross appeal to the appeal by the opposite party of the granting of a motion for summary judgment. Executive Jet Sales, Inc. v. Jet America, Inc., 242 Ga. 307, 248 S.E.2d 676 (1978); Marathon U.S. Realties, Inc. v. Kalb, 244 Ga. 390, 260 S.E.2d 85 (1979).
The first question in this case is whether the denial of a motion for summary judgment can be appealed without application when it is tied to the appeal of an appealable order or judgment. We find that an affirmative answer to this question is the logical extension of the rule pronounced in Executive Jet Sales, Inc. v. Jet America, Inc., supra, and Marathon U.S. Realties, Inc. v. Kalb, supra. These cases struck a blow for the principle of judicial economy, and the rule should be extended to meet the circumstances existing in this case. We frown upon the practice of appellate review by installment and seek to encourage appellate determination of issues in a case in the fewest possible appellate procedures. Code Ann. § 6-701(b) provides that when an appeal is taken as authorized in Code Ann. § 6-701(a), all judgments, rulings or orders rendered in the case which are raised on appeal, and which may affect the proceedings below, shall be reviewed and determined by the appellate court, without regard to the appealability of such judgment, ruling or order standing alone. Although the appeal of a grant of a motion for summary judgment is not one of the appeals authorized by Code Ann. § 6-701(a), it is a judgment from which direct appeal can be taken. We hold that when a direct appeal is taken, any other judgments, rulings or orders rendered in the case and which may affect the proceedings below may be raised on appeal and reviewed and determined by the appellate court.
The next question to be considered is whether the denial of the motion for summary judgment was in fact raised on...
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Reese v. Georgia Power Co., 77815
...§ 5-6-34(c); OCGA § 9-11-56(h); Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 248 S.E.2d 641 (1978). See also Southeast Ceramics v. Klem, 246 Ga. 294(1), 271 S.E.2d 199 (1980). Therefore, we deny Georgia Power's motion to dismiss Reese's first enumeration of Next, Georgia Power moves to st......
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Watkins v. Watkins
...a final judgment, a complaining party may enumerate as error any other prior or contemporaneous rulings. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 295(1), 271 S.E.2d 199 (1980). However, a party is not entitled to enumerate as error any and all other subsequent rulings in the case. Cat......
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Mullen v. Nezhat
...On October 16, a "Supplement" to the notice of appeal was filed to include this order in the appeal, pursuant to Southeast Ceramics v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980). That case, however, deals only with orders entered prior to filing the notice of appeal, not subsequent thereto. S......
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Preston v. Georgia Power Co.
...issue was denied, he will have yet another opportunity to raise it on certiorari. Under the authority of Southeast Ceramics v. Klem, 246 Ga. 294(1), 271 S.E.2d 199 (1980), the Supreme Court had the power to review the constitutional issue raised in the Court's earlier interlocutory order wh......