448 S.E.2d 87 | Ga. Ct. App. | 1994
Appellee Wimp Mathis brought suit for damages and penalty against appellant First Financial Insurance Company to recover under the terms of a policy of insurance following the destruction of his mobile home and its contents by fire. Appellant’s motion for summary judgment was denied by the trial court, and appellant filed an application for interlocutory review with this court. Although appellant’s application was initially granted and an appeal filed pursuant to that grant, this court subsequently determined that the application was improvidently granted, vacated its order granting the application, and dismissed the appeal. The case proceeded to trial by jury resulting in a plaintiff’s verdict. Judgment was entered in favor of appellee and against appellant in the amount of $15,100 actual damages,
The record of trial reveals that no timely motion for new trial or for judgment n.o.v. has been filed. Further, the notice of appeal expressly provides that appellant “does not require preparation of the trial transcript.” Held:
Appellee, citing, inter alia, Trade City G. M. C. v. May, 154 Ga. App. 371 (268 SE2d 421); Melton v. Bow, 145 Ga. App. 272 (243 SE2d 590); Phillips v. Abel, 141 Ga. App. 291 (233 SE2d 384); and Patterson v. Castellaw, 119 Ga. App. 712 (168 SE2d 838), contends that the issue of the trial court’s denial of summary judgment is moot. For reasons hereinafter discussed we find in favor of appellee.
In Hill v. Willis, 224 Ga. 263, 266 (161 SE2d 281), it was held: “A motion for a summary judgment is somewhat analogous to a motion for a nonsuit, for if, after being overruled, even if done improperly, all the evidence shows that a verdict for the opposing party is authorized, the error is harmless. The purpose of permitting summary judgments is to dispose of unnecessary trials and not to upset a verdict authorized by the evidence merely because at a previous stage of the case a finding may not have been authorized in accordance with such verdict.” This general rule was restated in Dunlap v. Dunlap, 234 Ga. 304, 306 (3) (215 SE2d 674) as follows: “Where a motion for summary judgment is overruled on an issue and the case proceeds to trial and the evidence at the trial authorizes the verdict (judgment) on that issue, any error in overruling the motion for summary judgment is harmless.”
In this case, an examination of the parties’ proposed consolidated pretrial order in its totality, including the factual issues therein identified for determination by the jury, reveals that the substantially similar factual issues asserted in appellant’s brief were destined to be submitted for jury resolution. In any event, appellant has elected not to file any enumeration of error challenging the sufficiency of the evidence to support the jury verdict or asserting any specific claim of reversible error occurring during the course of trial. Accordingly, these issues have not been preserved for appeal, and no viable appellate challenge has been effected as to the verdict and resulting judgment in this case. See Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649). In the absence of a viable enumeration of error as to
Our review reveals that there exists no legal basis, on the state of the existing record, by which this court could conclude that the verdict was not supported by the evidence; accordingly, any error arising from the denial of summary judgment would be rendered harmless (Hill, supra) and also that the appellate issue of denial of the summary judgment motion was rendered moot. Talmadge v. Talmadge, 241 Ga. 609 (1) (247 SE2d 61). Accordingly, the appeal shall be dismissed as the question presented for appellate review has become moot. OCGA § 5-6-48 (b) (3); compare Seabolt v. Cincinnati Ins. Co., 199 Ga. App. 715 (405 SE2d 757).
Appeal dismissed.
