Southeast Ceramics, Inc. v. Klem

156 Ga. App. 636 (1980) 275 S.E.2d 713

SOUTHEAST CERAMICS, INC.
v.
KLEM.

58535.

Court of Appeals of Georgia.

Argued September 12, 1979. Decided December 2, 1980.

Neil L. Heimanson, for appellant.

Joseph H. King, Jr., for appellee.

SMITH, Judge.

In Southeast Ceramics, Inc. v. Klem, 154 Ga. App. 149 (267 SE2d 756) (1980), this court affirmed the grant of summary judgment in favor of appellee Klem on appellant's counterclaim for malicious use of process. However, we dismissed the appeal insofar as it related to the denial of appellant's motion for summary judgment on appellee's claim for breach of warranty. On certiorari, the Supreme Court affirmed this court's holding with respect to appellant's counterclaim, but reversed the partial dismissal of the appeal. See Southeast Ceramics, Inc. v. Klem, 246 Ga. 294 (271 SE2d 199) (1980). This latter holding encompassed two distinct rulings: 1) that the trial court's order denying the motion for summary judgment was properly before this court, notwithstanding its exclusion from the notice of appeal and 2) that "the denial of a motion for summary judgment can be appealed without application when it is tied to the appeal of an appealable order or judgment." Id. at 294-295. While the first ruling is noteworthy, the latter ruling is of perhaps greater import, as it provides a new rule of appellate review to those whose only previous alternative was to "tread warily in the murky waters." Garrett v. Heisler, 149 Ga. App. 240, 244 (253 SE2d 863) (1979). Since the Supreme Court has apparently abandoned its ruling in the recent case of Thomas v. McGee, 242 Ga. 441, 442 (1) (249 SE2d 242) (1978), Division 2 of Jack V. Heard Contractors v. A. L. Adams Const. Co., 155 Ga. App. 409, 410 (271 SE2d 222) (1980), which relied thereon, is hereby overruled.

The trial court did not err in denying appellant's motion for summary judgment as genuine issues of material fact remain for resolution by the trier of fact. CPA § 56 (c) (Code Ann. § 81A-156 (c)).

Judgment affirmed. Deen, C. J., Quillian, P. J., McMurray, P. J., Shulman, Banke, Birdsong, Carley and Sognier, JJ., concur.