Sacks v. McCrory

274 S.E.2d 158, 156 Ga. App. 174, 1980 Ga. App. LEXIS 2933

• Court: Court of Appeals of Georgia
• Decided: October 23, 1980
• Docket: 60531
• Status: Published

Opinion

Shulman, Judge.

This appeal is from the denial of appellant’s motion for summary judgment on appellees’ counterclaim for malicious abuse of process.

1. Pursuant to this court’s grant of his application for interlocutory review, appellant filed a notice of appeal. On the next day, appellees filed a voluntary dismissal of their counterclaim. Then, they moved to dismiss this appeal on the ground of mootness.

Code Ann. § 6-701 (a) 2 (B) provides that a notice of appeal in an interlocutory appeal acts as a supersedeas. Based on that statutory provision, this court held in Lawrence v. Whittle, 146 Ga. App. 686 (247 SE2d 212), that the appellee in an interlocutory appeal may not voluntarily dismiss the claim involved in the appeal after the notice of appeal is filed. Therefore, the attempted dismissal in this case was a nullity, the issues on appeal are not moot, and the motion to dismiss is denied.

2. In support of his motion for summary judgment, appellant filed an affidavit which pierced the allegations of appellees’ counterclaim and negated the elements of a claim for malicious abuse of process. For an explanation of those elements, see Medoc Corp. v. Keel, 152 Ga. App. 684 (1) (263 SE2d 543).

Submitted September 16, 1980 Decided October 23, 1980. Robert C. Sacks, for appellant. George B. Haley, for appellees.

Appellees did not attempt to counter appellant’s affidavit in any fashion. That being so, no questions of fact remained and appellant was entitled to a judgment as a matter of law. McCracken v. Gainesville Tribune, 146 Ga. App. 274 (4) (246 SE2d 360). The trial court erred in denying appellant’s motion for summary judgment.

Judgment reversed.

Quillian, P. J., and Carley, J., concur.