Serco Company v. Choice Bumper, Inc.

199 Ga. App. 846 (1991) 406 S.E.2d 276

SERCO COMPANY
v.
CHOICE BUMPER, INC.

A91A0655.

Court of Appeals of Georgia.

Decided June 3, 1991.

Kidd & Vaughan, Gwenn D. Holland, Jill I. Seligman, for appellant.

Mackay, Cordes, Daniel, King & Hudson, T. Emory Daniel, Jr., David L. G. King, Jr., for appellee.

SOGNIER, Chief Judge.

The Serco Company brought suit against T. C. B. Distributing, Inc., The Choice Bumper, Inc., and Jerry E. Jurden on an account, and subsequently moved for summary judgment against all defendants. The trial court granted the motion as to T. C. B. Distributing and Jurden but denied it as to The Choice Bumper. In Case No. A91A0654, Jurden appealed from the grant of summary judgment to Serco. Serco filed a cross-appeal from the denial of its motion for summary judgment against The Choice Bumper, which we denominated as Case No. A91A0655. Jurden subsequently withdrew his appeal in Case No. A91A0654, leaving only Serco's cross-appeal pending before this court.

Although under OCGA § 5-6-48 (e), a cross-appeal may survive the dismissal of the main appeal, "this is true only where the cross-appeal can stand on its own merit." Jones Roofing & Constr. Co. v. Roberts, 179 Ga. App. 169, 170 (345 SE2d 683) (1986). In Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199) (1980), the Supreme Court held that the denial of a motion for summary judgment, although not a final order and thus not directly appealable under OCGA § 5-6-34 (a), may be appealed without application for interlocutory review when it is enumerated as part of an appeal from a directly appealable order or judgment. When an appeal from the denial of a summary judgment motion is filed as a cross-appeal, appellate jurisdiction over the cross-appeal necessarily arises from the court's jurisdiction over the main appeal from the directly appealable order, and thus the cross-appeal "`must derive its life from the main appeal.' [Cit.]" Jones Roofing, supra. In the case at bar, since the main appeal from the directly appealable order was withdrawn in its entirety, and Serco filed no application under OCGA § 5-6-34 (a) for interlocutory review of the denial of its summary judgment motion, we have no independent jurisdiction for the cross-appeal, see Hutchison v. Nat. Svcs. Indus., 191 Ga. App. 885, 886 (3) (383 SE2d 212) (1989), and accordingly it must be dismissed. Id.; see Jones Roofing, supra.

Appeal dismissed. McMurray, P. J., and Andrews, J., concur.