Garrett v. Heisler
149 Ga. App. 240
Ga. Ct. App.
1979
Check Treatment

GARRETT et al. v. HEISLER et al.; and vice versa

56884, 56916

Court of Appeals of Georgia

Decided March 8, 1979

149 Ga. App. 240 | 253 SE2d 863

QUILLIAN, Presiding Judge.

ARGUED NOVEMBER 7, 1978

рeriod of time during which discovery of these appraisals could be had to that fairly approximating the data on which the creditors’ decisions would have been made.” .

2. That the court chose to place weight on evidence of sales of property to “major concerns” (i.e., established regional and national business enterprises) and on the bank‘s appraisal of the property will not divest the judgment of evidentiary support.

The order confirming the sale is supportеd by evidence that the sale brought at least the true market value of the property. . See generally .

3. The trial court‘s findings of fact and conclusions of law were sufficient. The findings of fact and conclusions of law are not inadequate merely because they failed to specifically note that appellee remained in possession of the property until the resale. . Compare .

Judgment affirmed. Quillian, P. J., and Birdsong, J., concur.

SUBMITTED OCTOBER 31, 1978 — DECIDED MARCH 8, 1979.

Webb, Fowler & Tanner, William G. Tanner, for appellants.

G. Hughel Harrison, John F. Doran, Jr., for appellee.

56884, 56916. GARRETT et al. v. HEISLER et al.; and vice versa.

QUILLIAN, Presiding Judge.

Plaintiff husband brought a personal injury action for damagеs resulting from an automobile collision. Plaintiff wife sought recovery for loss of consortium. Defendants contended that the plaintiff husband had executed a release in full settlement of all claims arising out of the accident. The trial judge granted defеndants’ motion for summary judgment as to the plaintiff husband but denied a motion regarding his wife. Plaintiff husband appeals from the grant in case 56884; while defendants appeal from the denial in case 56916. Held:

1. The plaintiff husband was issued and cashed a check in the amount of $560.71. On the face of the check it provided “In full settlement of Any and All Claims for Accident of 5/27/76.” On the back of the check was the following language: “Important — all payees must endorse this draft. Your endorsement of this draft constitutes a full release of all claims you have or may have against any and all parties regarding the claim referred to on the face hereof.”

While under certain circumstances a party may settle one claim without relinquishing another (see ), specific lаnguage to this effect must be utilized or it must be clear from an examination of the agreement that the parties intended to settle only as to property damage. . However, the language here employed can only be categorized as that of a general release, the effect of which is to settle both property damage and personal injuries sustained on the date and place in question. ; .

The proof offered on the motion showed no grounds for ‍‌​‌​‌‌​​‌​‌​​​​​‌​‌​‌​‌‌‌​​‌‌‌‌‌‌‌‌​‌​​‌‌​‌‌‌​‌​‍setting aside thе release on the basis of fraud. ; . Nevertheless we find that the grant of the motion for summary judgment was premature.

Here we have defendants relying on a release obtained by their insurance company. Code Ann. § 56-408.1 (Ga. L. 1963, p. 643) provides that the relationship of independent contractor arises between the insurer and insured where the insurance liability policy provides that the insurer has “the right to compromise or settle claims of third persons against the insured without the consent of the insured.” Under that Act a settlement is not binding on the insured unless he consents thereto in writing. If the insured does not consent then the settlement is “of no effect, null and void” unless the third party is informed in writing of the insured‘s lack of consent.

By affidavit an agent for the insurance company stated that he handled the settlement on the behalf of the defendants. There was no showing that he or the insurance company obtained the written consent of the defendants. Under the circumstances here Code Ann. § 56-408.1 would ordinarily be applicable and in such instance compliance with its provisions would have to be established. See . However, no proof was offered in this regard and the record is silent as to its applicability and if so whether there was compliance with its terms. If the insurance company did not obtain the written consent of its insured, it was obligatory that it notify the plaintiff of such lack of consent in order to effectuate a binding release. In the present posture, it can not be said that the defendant is entitled to prevail as а matter of law since there was no showing that Code Ann. § 56-408.1 was not here pertinent and the record is devoid of proof tending to show compliance with its provisions.

The burden was on the defendants, as movants for summary judgment, to establish the non-existence of any genuine issue of fact. . Summary judgment was not proper here.

2. (a) The cross appeal asserts it was error to deny the defendants’ motion for summary judgment as against the wife‘s suit for loss of consortium. This was predicated on the trial judge‘s grant of summary judgment for the husband. Since we are reversing thаt judgment it was not error to deny the defendants’ motion as to the wife.

(b) We have not dismissed the cross appeal although there is authority for so doing. In this case there was a grant of summary judgment as to one of the parties, but no final judgment since the cause remained pending. The grant of a summary judgment, while appealable, lacks the requisite finality unless it disposes of the entire case in the lower court. , which in explaining pointed out: ”Marietta Yamaha, Inc. involved two separate appeals, the first from the grant of a partial summary judgment, аnd the ‍‌​‌​‌‌​​‌​‌​​​​​‌​‌​‌​‌‌‌​​‌‌‌‌‌‌‌‌​‌​​‌‌​‌‌‌​‌​‍second from the denial of a motion for summary judgment... The denial of summary judgment in Marietta Yamaha, Inc. fit into neither of these directly appealable categories contained in Code Ann. § 6-701 (a). The cause remained pending in the trial court, and the issue involved was not specifically set out as being directly appealable. Thus, the only method for direct appeal was by obtaining a certificate of immediate review. This procedure was not followed, and the cross appeal for the denial оf summary judgment was not allowed.” (Emphasis supplied.)

In conformity with that authority this court has held: “Denial of summary judgment is not reviewable by the appellate courts in the absence of a timely certificate of immediate review or the granting of an interlоcutory appeal by the appellate court unless there be a final judgment in the case and the cause is no longer pending in the lower court.” . Accord, ; .

Nevertheless, the Supreme Court has recently considered a case in which a motiоn to dismiss was granted as to one party and denied as to another. The Supreme Court in reversed this court‘s decision in which had dismissed the cross appeal complaining of the refusal to grant the party‘s motion to dismiss. The Supreme Court held that, construing Code Ann. §§ 6-701 (b) (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073); 6-802 (Ga. L. 1965, pp. 18, 20; as amended Ga. L. 1973, pp. 303, 304) and 6-803 (a) (Ga. L. 1965, pp. 18, 21; as amended Ga. L. 1968, pp. 1072, 1077) a party could cross appeal from a non-final judgment, even though the main appeal was from a judgment disposing of only one of the parties and the case remained pending in the court below.

The only distinction between , and , which is readily discernible is the language of the summary judgment provisions referring to “review by direct appeal” as to an order denying summary judgment.

Thus, predicated on the prior case law and the statute, there is a basis for treating the deniаl of a summary judgment as a law unto itself. However, absent any clarifying expression from the Supreme Court we are disinclined to unequivocally distinguish the Executive Jet Sales case. Instead we tread warily in the murky waters and follow the spirit of that case by considering the cross аppeal on its merits.

Judgment reversed in case 56884. All the Judges concur. Judgment affirmed in case 56916. Deen, C. J., Webb, P. J., Shulman, Banke, Birdsong and Underwood, JJ., concur. McMurray and Smith, JJ., dissent.

ARGUED NOVEMBER 7, 1978 — DECIDED MARCH 8, 1979.

Bussey & Thomas, Reuben T. Bussey, Jr., Antonio L. Thomas, for appellants.

King & Spalding, Byron Attridge, Nolan C. Leake, for appellees.

MCMURRAY, Judge, dissenting in part, concurring in part.

I concur fully in the reversal of the grant ‍‌​‌​‌‌​​‌​‌​​​​​‌​‌​‌​‌‌‌​​‌‌‌‌‌‌‌‌​‌​​‌‌​‌‌‌​‌​‍of summary judgment in Case No. 56884.

But this decision not only involves the grаnt of summary judgment in favor of the defendants (Case No. 56884) but a ruling against one of the two plaintiffs (Case No. 56916). The action of another plaintiff remains pending and there has been no express determination that there is no just reason for delay and exрress direction for entry of judgment pursuant to Code Ann. § 81A-154 (b) (Ga. L. 1966, pp. 609, 658; 1976, pp. 1047, 1049). The judgment is not final. Defendants cross appeal from the denial of their motion for summary judgment in the action against them by the remaining plaintiff (Case No. 56916).

Rather than applying the decision of the Supreme Court in , so as to dismiss the cross appeаl, the majority has applied the more recent decision of the Supreme Court in , so as to avoid dismissing the cross appeal and permit consideration of the merits of the cross appeal. Although I agree that these are murky watеrs, I find a greater distinction between , and , than recognized by the majority.

It almost goes without saying that this court is without authority to override the decisions of the Georgia Supreme Court. and cits. It is our duty to presume that in each and every case the Supreme Court has done its duty and recоnciled all of its holdings as its own duty demands. Indeed, decisions of the Supreme Court bind the Court of Appeals as precedents. Code Ann. § 2-3108 (Const. of 1976, Art. VI, Sec. II, Par. VIII).

Although the majority in effect finds , to be implicitly overruled by the decision in , I feel that in view of the short time separating the date of the two decisions, the fact that both were authored by the samе Justice, and the presumption that the Supreme Court has reconciled all of its holdings, it is incorrect to hypothesize that , has been overlooked or overruled by implication. Therefore, I feel it is the duty of this court to attempt to determine the distinction which presumably separates these two cases.

The decision of the Supreme Court in , is reached by construing three statutory provisions. The language of two of these statutes, Code Ann. §§ 6-802 (Ga. L. 1973, pp. 303, 304) and 6-803 (a) (Ga. L. 1966, pp. 493, 496) is broad and arguably applicable to the facts of . But the remaining statute, Code Ann. § 6-701 (b) (Ga. L. 1965, p. 18) is appliсable only “[w]here an appeal is taken under any provision of paragraph (a) above.” Appeals taken under the provisions of Code Ann. § 6-701 (a) (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073; 1975, pp. 757, 758), include only those where ‍‌​‌​‌‌​​‌​‌​​​​​‌​‌​‌​‌‌‌​​‌‌‌‌‌‌‌‌​‌​​‌‌​‌‌‌​‌​‍the judgment is final or in which the interlocutory appeals procedure has been followed.

The appeal in this case and in , was not authorized by Code Ann. § 6-701 (a), supra, but by Code Ann. § 81A-156 (h) (Ga. L. 1966, pp. 609, 660; 1967, pp. 226, 238; 1975, pp. 757, 759), which authorizes a review by appeal of an order granting summary judgment on any issue or as to any party. In contrast the judgment granting the motion to dismiss Gates Learjet in , was entered as a final judgment (upon an express determination by the trial court that there was no just reason for delay and upon an express direction for the entry of judgment) pursuant to Code Ann. § 81A-154 (b), supra. See . The appeal in , was therefore unlike the appeal in this case, but an appeаl from a final judgment within the scope of Code Ann. § 6-701 (a), supra.

Because I feel that this case is controlled by the decision of the Supreme Court in , I respectfully dissent. I would dismiss the cross appeal.

SMITH, Judge, dissenting in part.

I concur in the majority‘s reversal of the trial court‘s judgment in case No. 56884. However, as to case No. 56916, which is a “cross-аppeal” from the denial of a motion for summary judgment, with the cause still pending in the trial court, the following holding mandates dismissal: “There is no provision for review of the denial of the summary judgment in Code Ann. §§ 81A-156(h) or 6-701(a) 2(A), except by direct appeal with a certificate of the trial judge and an application for review to the appropriate appellate court ... Since the cross appeal in this case was from the denial of a motion for summary judgment and the procedures for aрpeal provided for in Code Ann. §§ 6-701 and 81A-156 were not complied with, the appeal is not properly before this court and must be dismissed.” . Also determinative is a later discussion of Marietta Yamaha: ”Code Ann. § 81A-156(h)... provides that ‘an order denying summary judgment shall be subject to review by direct appeal in accordance with the prоvisions of section 6-701(a) (2).’ Looking to that Code section we find that where an order, decision or judgment is ‘not otherwise subject to direct appeal,’ a timely certificate for immediate review must be obtained. To be ‘otherwise subject to dirеct appeal,’ an order, decision or judgment must be final such that the cause is no longer pending in the court below under Code Ann. § 6-701(a) 1, or involving an issue specified as directly appealable under Code Ann. § 6-701(a) 3. The denial of summary judgment in Marietta Yamaha, Inc. fit into neither of these directly appealable categories contained in Code Ann. § 6-701(a). The cause remained pending in the trial court, and the issue involved was not specifically set out as being directly appealable. Thus, the only method for direct appeal was by obtaining a certificаte of immediate review. This procedure was not followed, and the cross appeal for the denial of summary judgment was not allowed.” .

, upon which the majority relies, is inapplicable, as it involved a cross appeal from the denial of a motion to dismiss and not an attempt to cross appeal from the denial of a motion for summary judgment. In case No. 56916 defendants ‍‌​‌​‌‌​​‌​‌​​​​​‌​‌​‌​‌‌‌​​‌‌‌‌‌‌‌‌​‌​​‌‌​‌‌‌​‌​‍neglected to follow interlocutory review procedure, and that case not involving an issue stipulated to be appealable directly under Ga. L. 1965, p. 18, as amended by Ga. L. 1968, pp. 1072, 1078 and Ga. L. 1975, pp. 757, 758 (Code Ann. § 6-701 (a) (3)), I would dismiss the appeal.