395 S.E.2d 371 | Ga. Ct. App. | 1990
A simplified statement of the relevant facts is as follows: Appellee filed suit against appellant, seeking damages allegedly resulting from a vehicular collision. Appellant answered, but did not file a counterclaim. Instead, appellant filed a separate action against appellee, seeking damages allegedly resulting from the same vehicular collision. Thereafter, appellant moved pursuant to OCGA § 9-11-13 (f) for leave to file an omitted counterclaim in the first action while appellee moved pursuant to OCGA § 9-2-44 for summary judgment in the second action. The trial court granted appellee’s motion for summary judgment and appellant appeals.
The pendency of appellee’s original suit against appellant was no basis for granting summary judgment against appellant in his subsequent suit against appellee. Rather than granting summary judgment in appellee’s favor, the trial court should have dismissed appellant’s subsequently filed complaint without prejudice and ruled on the mer
Judgment reversed and case remanded with direction.