Plaintiffs Bing sued Johnson & Harber Construction Company (Johnson & Harber) for creating surface water runoff damage to their property by defective construction of drains and drainage basins on an adjoining development. The Bings added Henry County as a defendant, alleging the county failed to correct the faulty drainage system after accepting “dedication” of it from Johnson & Harber. The trial court granted summary judgment to the county.
Johnson & Harber appealed the grant of summary judgment to Henry County. Plaintiffs Bing did not appeal. Instead, after Johnson & Harber filed its notice of appeal, plaintiffs settled their claims against Henry County and dismissed the county from their
1. In its motion to dismiss this appeal, Henry County says it is no longer a part of plaintiffs’ suit and that Johnson & Harber has no standing to appeal because Johnson & Harber did not file cross-
claims against the county. Johnson & Harber rejoins that plaintiffs’ dismissal of Henry County does not render moot Johnson & Harber’s appeal of the summary judgment in favor of the county, because plaintiffs’ dismissal was filed after Johnson & Harber filed its notice of appeal, because plaintiffs’ dismissal of the county does not affect the county’s status as
joint tortfeasor,
and because the issue of who will be responsible for maintenance of the drainage system in the future is not moot. See
Haley v. Bailey,
We agree that dismissal of this appeal is not demanded by plaintiffs’ dismissal of their suit against Henry County. Henry County was not dismissed by plaintiffs from their underlying suit until after notice of appeal had been filed by a party with standing to appeal the summary judgment. If an appellant or cross-appellant will benefit by reversal of a case, his appeal is not moot. See
Kubler v. Goerg,
Furthermore, our law “recognizes the continuing existence of the right of contribution against a joint tortfeasor who has been released. It recognizes the existence of the right of contribution where there is no judgment at all in the underlying suit, and even where there is no underlying suit filed. Thus, the right of contribution arises out of, but exists separately from, the rights present in the underlying suit.” (Footnote omitted.)
Marchman & Sons v. Nelson,
This accords with our recent decision in
Nat. Foundation Co. v. Post, Buckley
&c.,
Finally, and more to the point, there is an issue here whether the county and Johnson & Harber are joint tortfeasors. The substantive
issue in the case is whether the county accepted Johnson & Harber’s dedication of the sewage system. Inasmuch as we reverse the trial court’s grant of summary judgment to the county and the jury may hold that the county accepted dedication of the sewage system, the status of the defendants in that event would not be that of joint tortfeasors, but of independent actors each being liable for the acts committed by it before and after the county assumed responsibility by accepting the dedication. See
DeKalb County v.
Orwig,
2. The grant of summary judgment to Henry County was error. Johnson & Harber filed a plat in the county deed office on July 23, 1992, dedicating to the use of the public forever all streets, parks, watercourses, drains, easements, and public places thereon shown. On August 25, 1992, the county issued a letter “To whom it may concern,” requiring Johnson & Harber to establish a two-year maintenance bond on construction of all streets, curbs, gutters and storm drainage structures in this subdivision. This letter stated that after inspection, “Henry County will accept all future maintenance of Moseley Crossing Subdivision. [If the subdivision] does not pass county inspection . . . the County Department of Engineering & Roads . . . will make the necessary repairs to bring the subdivision up to county standards. Upon the completion of necessary repairs the county will accept all future maintenance of [the subdivision].”
The county’s requirement of the maintenance bond, particularly under the terms of this letter, indicates the county viewed these structures as its own. Cf.
Bryant v. Kern & Co.,
Judgment reversed.