Lumbermen's Underwriting Alliance v. Atlantic Wood Industries, Inc.

427 S.E.2d 861, 207 Ga. App. 392, 93 Fulton County D. Rep. 686, 1993 Ga. App. LEXIS 104

Opinion

Carley, Presiding Judge.

Appellant-defendant moved for summary judgment on its res judicata defense. The trial court denied the motion and appellant appeals directly.

The grant of a motion for summary judgment is directly appealable, but the denial of a motion for summary judgment must be appealed in accordance with the interlocutory appeal provisions of OCGA § 5-6-34 (b). OCGA § 9-11-56 (h). Summary judgment is to be granted only if “there is no genuine issue as to any material fact and ... a judgment as a matter of law [is appropriate].” OCGA § 9-11-56 (c). The trial court’s order denying appellant’s motion for summary judgment in the instant case did not specify that, “as a matter of law,” res judicata would not constitute a viable defense. Compare City of Atlanta v. Chambers, 205 Ga. App. 834, 835 (1) (424 SE2d 19) (1992). Instead, the trial court certified its order for immediate review and appellant’s application for interlocutory appeal was denied by this court. Compare City of Atlanta v. Chambers, supra at 835 (1). Accordingly, the order from which appellant seeks to appeal directly purports to be entirely interlocutory and can not, therefore, be construed as, in effect, the grant of summary judgment in favor of appellee-plaintiff as to that defense. Compare City of Atlanta v. Chambers, supra at 835 (1). It follows that we have no jurisdiction over appellant’s direct appeal and the same is hereby dismissed.

Decided February 18, 1993. Harman, Owen, Saunders & Sweeney, C. Dale Harman, Perry A. Phillips, for appellant. Hunter, Maclean, Exley & Dunn, Arnold C. Young, Oliver, Maner & Gray, Patrick T. O’Connor, for appellee. Appeal dismissed. Johnson and Blackburn, JJ., concur.