Stowers v. Guthrie

Court of Appeals of Georgia

Stowers v. Guthrie

395 S.E.2d 371, 196 Ga. App. 86, 1990 Ga. App. LEXIS 774

CourtCourt of Appeals of Georgia

DecidedJune 21, 1990

DocketA90A0680

StatusPublished

Cited by6 cases

This text of 395 S.E.2d 371 (Stowers v. Guthrie) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stowers v. Guthrie, 395 S.E.2d 371, 196 Ga. App. 86, 1990 Ga. App. LEXIS 774 (Ga. Ct. App. 1990).

Pincite

Opinion

Carley, Chief Judge.

A simplified statement of the relevant facts is as follows: Appellee filed suit against appellant, seeking damages allegedly resulting from a vehicular collision. Appellant answered, but did not file a counterclaim. Instead, appellant filed a separate action against appellee, seeking damages allegedly resulting from the same vehicular collision. Thereafter, appellant moved pursuant to OCGA § 9-11-13 (f) for leave to file an omitted counterclaim in the first action while appellee moved pursuant to OCGA § 9-2-44 for summary judgment in the second action. The trial court granted appellee’s motion for summary judgment and appellant appeals.

The pendency of appellee’s original suit against appellant was no basis for granting summary judgment against appellant in his subsequent suit against appellee. Rather than granting summary judgment in appellee’s favor, the trial court should have dismissed appellant’s subsequently filed complaint without prejudice and ruled on the mer[87]*87its of appellant’s motion for leave to file an omitted counterclaim in appellee’s originally filed action. Harbin Lumber Co. v. Fowler, 137 Ga. App. 90, 92 (2) (222 SE2d 878) (1975). See also Trust Co. Bank of Northwest Ga. v. Shaw, 182 Ga. App. 165, 167 (3) (355 SE2d 99) (1987). Accordingly, the trial court’s order is reversed with direction that appellant’s complaint be dismissed without prejudice and that appellant’s motion for leave to file an omitted counterclaim in appellee’s action be considered on its merits.

Decided June 21, 1990. Willie J. Woodruff, Jr., for appellant. Blasingame, Burch, Garrard & Bryant, Gary B. Blasingame, Susan S. Wells, William S. Cowsert, Thomas F. Allgood, Jr., Cornwell, Church & Healy, Timothy P. Healy, for appellee.

Judgment reversed and case remanded with direction.

McMurray, P. J., and Sognier, J., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Carley, Chief Judge.

A simplified statement of the relevant facts is as follows: Appellee filed suit against appellant, seeking damages allegedly resulting from a vehicular collision. Appellant answered, but did not file a counterclaim. Instead, appellant filed a separate action against appellee, seeking damages allegedly resulting from the same vehicular collision. Thereafter, appellant moved pursuant to OCGA § 9-11-13 (f) for leave to file an omitted counterclaim in the first action while appellee moved pursuant to OCGA § 9-2-44 for summary judgment in the second action. The trial court granted appellee’s motion for summary judgment and appellant appeals.

The pendency of appellee’s original suit against appellant was no basis for granting summary judgment against appellant in his subsequent suit against appellee. Rather than granting summary judgment in appellee’s favor, the trial court should have dismissed appellant’s subsequently filed complaint without prejudice and ruled on the mer[87]*87its of appellant’s motion for leave to file an omitted counterclaim in appellee’s originally filed action. Harbin Lumber Co. v. Fowler, 137 Ga. App. 90, 92 (2) (222 SE2d 878) (1975). See also Trust Co. Bank of Northwest Ga. v. Shaw, 182 Ga. App. 165, 167 (3) (355 SE2d 99) (1987). Accordingly, the trial court’s order is reversed with direction that appellant’s complaint be dismissed without prejudice and that appellant’s motion for leave to file an omitted counterclaim in appellee’s action be considered on its merits.

Decided June 21, 1990. Willie J. Woodruff, Jr., for appellant. Blasingame, Burch, Garrard & Bryant, Gary B. Blasingame, Susan S. Wells, William S. Cowsert, Thomas F. Allgood, Jr., Cornwell, Church & Healy, Timothy P. Healy, for appellee.

Judgment reversed and case remanded with direction.

McMurray, P. J., and Sognier, J., concur.

Cite This Page — Counsel Stack

Bluebook (online)

395 S.E.2d 371, 196 Ga. App. 86, 1990 Ga. App. LEXIS 774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stowers-v-guthrie-gactapp-1990.

Opinion

Related

Cite This Page — Counsel Stack