This is the second appearance of this case before this court in an action in which the appellee is seeking to recover, inter alia, commissions which appellee alleged he earned in 1987, pursuant to the terms of an employment agreement with appellant, E. H. Crump Company of Georgia, Inc. (“E. H. Crump”). During the first appearance of this case, this court upheld the trial court’s grant of partial summary judgment to appellee and its ruling that appellee was entitled to receive all unpaid commissions earned prior to August 4, 1987.
E. H. Crump Co. of Ga. v. Millar,
1. Appellants argue that the trial court erred in denying E. H. Crump’s motion for рartial summary judgment because under the terms of the employment agreement, appellee could not have earned any commissions in 1987 unless he had remained employed for the entire calendar year. The trial court, in denying appellants’ motion, rejected appellants’ argument finding that the contract provided otherwise and that the matter had already been decided against defendants.
We first note that ordinarily, a denial of a motion for partial summary judgment would be appealable only if an application for interlocutory review were granted aftеr the trial court certified the matter for immediate review. OCGA § 5-6-34 (b). However, under the holding of
Southeast Ceramics v. Klem,
We next consider whether the trial court’s order, upheld by this *599 court in Crump I, specifically resolved the issue of whether appellee earned commissions in 1987. Appellаnts argue that Crump I merely decided that appellee was entitled to compensation for his services for the period of time prior to August 4, 1987, the date that appellee allegedly breаched certain of the provisions of his employment agreement with E. H. Crump and did not decide whether appellee had, under the terms of the employment agreement, actually earned any commissions. We disagree.
The trial court’s order, reviewed by this court in
Crump I,
stated that “[Appellee] is entitled to those commissions earned during the periods where no breach of contract is alleged. . .. [Appellant] specifically alleges that the breach by [appellee] began August 4, 1987. [Appellee] is hereby granted summary judgment for all commissions earned before this date.” In
Crump I,
appellants specifically enumerated as error the ruling of the trial court interpreting the employment agreement to allow appellee to receive commissions earned prior to the date he allegedly breachеd the employment agreement. Although the opinion in
Crump I
makes no express reference to appellee’s entitlement to
commissions
for the period prior to August 4, 1987, this court had to necessarily interpret the terms of the employment agreement in order to reach the conclusion that appellee was entitled to receive compensation for the period of time preceding his alleged breach of employment. This conclusion is further bolstered by thе dissenting opinion (dissenting only to that portion of
Crump I
which upheld the trial court’s determination of the date that appellee’s alleged disloyalty first occurred), which carefully analyzed the terms of thе employment agreement and concluded that the employment agreement expressly allowed appellee to recover his commissions for the period of time prior to his brеach of the employment contract. See
Crump I
at 692. Therefore, the issue of whether appellee was entitled to commissions under the terms of the employment agreement for the pеriod prior to August 4, 1987, having once been before this court, has become the law of the case. OCGA § 9-11-60 (h). In denying appellants’ motion for partial summary judgment, the trial court correctly applied оur previous decision pursuant to OCGA § 9-11-60 (h).
Bruce v. Garges,
2. Appellants contend that even if the appellee had been entitled to a judgment on the issue of liability for commissions, the trial court erred in entering judgmеnt for appellee in the amount of $329,302.82 because there was no evidence in the record to support the dollar amount of the judgment. Relying on
Blue Ridge Ins. Co. v. Maddox,
OCGA § 9-11-56 (c) provides, in part, that summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .” “ ‘ “(T)he court is obliged to take account of the entire setting of the case on a Rule 56 motion. In addition to the pleadings, it will consider
all papers of record,
as well as any material prepared for the motion that meets the standard prescribed in Rule 56 (e).” (Cit.)’ [Cit.]”
Nelson v. Smothers,
3. Appellants further argue that the trial court erred in entering judgment for appellee in the amount of $329,302.82 because the affidavit of David Henritze (“Henritze”), submitted in support of appellants’ motion, created a genuine issue of material fact as to thе amount of money due appellee that should have been decided by a jury, and not as a matter of law.
“Evidence offered on motion for summary judgment is held to the same standards of admissibility as evidеnce at trial, and evidence
*601
inadmissible at trial is generally inadmissible on motion for summary judgment. [Cits.]”
Biggs v. McDougall,
*601
The remaining portions of the affidavit alleged that if appellee were held to be entitled to commissions under the employment agreement, appellee would only be entitled to commissions in the amount of $270,522.32, calculated in accordance with a commission summary set forth on an exhibit to the affidavit. To be admissible as business records, the summary must have been shown to be “made in the regular course of . . . business and that it was the regular course of such business to make the memorandum or record at the time of the act, transаction, occurrence, or event or within a reasonable time thereafter.” OCGA § 24-3-14 (b). See also
Growth Properties of Fla. &c. v. Wallace,
4. The appellee’s motion for the assessment of a penalty against the appellants pursuant to OCGA § 5-6-6 for filing a frivolous appeal is denied.
Judgment affirmed.