Culwell v. Lomas & Nettleton Company
248 S.E.2d 641
Ga.
1978
Check Treatment

CULWELL v. LOMAS & NETTLETON COMPANY et al.

33741

Supreme Court of Georgia

September 27, 1978

242 Ga. 242

HALL, Justice.

for only fifteen percent of the expenditures of the home. Although testimony indicated that no one for financial reasons had been turned away from Annandale at Suwanee, the director also admitted that many families were probably discouraged by the $625 per month charge. Since the families of residents or government agencies on their behalf pay monthly for each resident, Annandale at Suwanee is not sufficiently “public” in nature.

.

Appellant has relied heavily upon the Court of Appeals decisions in

and
. We note that both these facilities were for care of the elderly and are now subject to a specific statutory exemption. Code Ann. § 92-201.8. Further, 85 percent of the residents of Peachtree Inn had incomes below the poverty line for persons of their age. Similarly, in the home provided by the Board for Care of the Jewish Aged, eleven of the 61 residents paid no part of the $450 per month charge, and about fifty percent of the residents paid less than $100 per month. These cases are thus distinguishable from that of Annandale at Suwanee.

Judgment affirmed. All the Justices concur.

SUBMITTED JUNE 30, 1978 --- DECIDED SEPTEMBER 27, 1978.

Hatcher, Meyerson & Irvin, Stanley P. Meyerson, for appellant.

James A. Henderson, for appellee.

HALL, Justice.

This court granted the application for writ of certiorari to review the decision and judgment of the Court of Appeals in

involving the dismissal of appeals filed against American Bankers Life Assurance Company of Florida and United American Life Insurance Company.

The Court of Appeals held that in a suit against multiple defendants, when one party obtains summary judgment against another party, the losing party must appeal within 30 days from that ruling under Code Ann. § 81A-156 (h) or lose his right to appellate review of the grant of summary judgment. This decision has the collateral effect of making the grant of summary judgment res judicata of the issue. We disagree and reverse.

The entry of a judgment as to one or more but fewer than all of the claims or parties is not a final judgment under Code Ann. § 6-701 (a) 1 and lacks res judicata effect unless the trial court makes an express direction for the entry of the final judgment and a determination that no just reason for delaying the finality of the judgment exists. Code Ann. § 81A-154 (b);

; 10 Wright & Miller, Federal Practice and Procedure: Civil, p. 90, § 2661 (1973). If the trial court does certify that the judgment is final and ripe for review under Code Ann. § 81A-154 (b), the time for appeal begins to run. No certification was made in this case.

But Code Ann. § 81A-156 (h) also 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 under Code Ann. §§ 6-701 (a) 1 or 81A-154 (b). The Court of Appeals decision makes this direct appeal from a grant of summary judgment mandatory or the right of appellate review is lost, and the summary judgment is res judicata of the issue. However, Code Ann. § 81A-156 (h) is an exception to the finality rule which is for the benefit of the losing party. The party against whom summary judgment was granted may appeal either after the grant of summary judgment or after the rendition of the final judgment. Therefore, when the losing party appeals after the rendition of the final judgment, the grant of summary judgment is still subject to appellate review.

is overruled.

The Court of Appeals erred in dismissing the appeals filed by appellant Culwell against American Bankers Life Assurance Company of Florida and United American Life Insurance Company.

Judgment reversed. All the Justices concur.

ARGUED SEPTEMBER 11, 1978 --- DECIDED SEPTEMBER 27, 1978.

William R. Parker, for appellant.

Nall & Miller, Robert B. Hocutt, Troutman, Sanders, Lockerman & Ashmore, John J. Dalton, Freeman & Hawkins, William Q. Bird, for appellees.

HILL, Justice, concurring.

I concur in the opinion and judgment of the court insofar as it applies to a motion for summary judgment granted to one or more but less than all defendants. Although the rule may be equally applicable where summary judgment is granted to one or more but less than all plaintiffs, we do not have that issue before us.