Wallace sued Robert and Avan McCormick for breach of a general warranty of title on property purchased by Wallace from the McCormicks. Wallace sought recovery of costs of a lien assessed against the property which had been warranted as free from all liens. Wallace also sued his closing attorney, Kendrick-Holmes, for negligence, but that claim is not before this court on appeal.
The McCormicks filed a third-party complaint against Scott, who had conveyed the property to them by warranty deed, claiming that if the McCormicks were liable to Wallace, then Scott was liable to the McCormicks. Scott answered and moved for summary judgment in her favor. Wallace, although he had asserted no claim against the third-party defendant Scott, moved for summary judgment against Scott. The McCormicks also moved for summary judgment against Scott.
The trial court granted Scott’s motion for summary judgment and denied those filed by Wallace and the McCormicks. Wallace appeals the granting of Scott’s motion and the denial of his motion. The McCormicks did not appeal, but by brief submitted to this court contend that the tried court correctly granted Scott’s motion.
1. Wallace contends that the trial court erred in granting summary judgment in favor of Scott. However, we do not reach the merits of appellant’s contentions because Wallace lacks standing to bring this appeal.
Wallace asserted no claim against the third-party defendant Scott, although he could have done so. See Code Ann. § 8lA-114(a) and
Robertson v. Webster,
Absent a separate claim asserted by Wallace against Scott under the provisions of Code Ann. § 81 A-l 14(a), Scott can be directly liable only to the McCormicks, not to Wallace. Scott’s liability can be secondary only and attaches
only if
the McCormicks are liable to Wallace.
Stein v. Burgamy,
“It follows that [Wallace] is not ‘aggrieved’ by the grant of summary judgment to [Scott] on the third-party action, which established
only
[Scott’s] non-liability to [the McCormicks].”
Davidson v. State Farm Mut. Automobile Ins. Co.,
2. Having dismissed Wallace’s appeal from the granting of summary judgment to Scott (see Code Ann. § 81A-156(h)), all that remains is Wallace’s appeal of the denial of his motion for summary judgment against Scott. This must also be dismissed.
Pretermitting the fact that the third-party complaint against Scott was proper based upon Scott’s alleged secondary liability to the McCormicks for all or part of Wallace’s claim against them, the effect of Wallace’s motion for summary judgment against Scott was that of an impermissible attempt to substitute or tender the third-party defendant Scott in place of the original defendants, the McCormicks. See
Balkcom v. Mull,
Further, had Wallace’s motion for summary judgment been valid, we would still be required to dismiss his appeal because he failed to file an application for interlocutory appeal of a denial of summary judgment under Code Ann. § 6-701.
Heller v. Magaro,
Appeal dismissed.
