Ellington v. Tolar Construction Co. , 142 Ga. App. 218 ( 1977 )

Deen, Presiding Judge.

1. The appellant does not attack the substantive merits of the summary judgment granted to the appellee; he does however attack the procedure by which that motion was brought and acted upon by the trial judge. We are cited to Summer-Minter & Associates v. Giordano, 231 Ga. 601 (203 SE2d 173) for the proposition that having once made a motion for summary judgment and lost, the appellee is precluded from again making such a motion after an appellate court affirms the denial. ".. .[S]ummary judgment is a decision upon the merits of the case, and once a final ruling is made on a motion for summary judgment all issues respecting the motion have been adjudicated. The plaintiff here was obligated to assert, in resisting defendants’ motion for summary judgment, every theory of recovery available in the case before this court determined that summary judgment should have been granted. The ruling by this court in the prior appeal was binding in all subsequent proceedings in this case in the trial court. Code Ann. §§ 81A-160 (h) and 6-1804.” Ansley v. Atlanta Suburbia Estates, 231 Ga. 640, 641 (203 SE2d 861).

Both Summer-Minter and Ansley are cases wherein the final appellate disposition of the motions for summary judgment was to reverse the trial court’s denial thereof and to hold in effect that the moving party was entitled to judgment as a matter of law; it is at that point, an appellate decision that the motion for summary judgment should have been granted, that there is a final judgment on the merits and thereafter the losing party may not "go behind” that judgment and amend his pleadings and again make motion for summary judgment. "A party against whom summary judgment has been granted is in the same position, as if he suffered a verdict against him.” Summer-Minter, 231 Ga. 601, 604 supra. (Emphasis supplied.)

In this appeal we do not have the same procedural situation found in the cases cited to us by the appellant. Here the final appellate disposition of the prior motion for summary judgment was to affirm the trial court’s denial thereof. When the Supreme Court held in Ellington v. Tolar Construction Co. that defendant Tolar was not entitled to summary judgment there was a finding that under the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits” then in the record there remained "genuine issues as to material facts” and that Tolar was not under the evidence then presented "entitled to a judgment as a matter of law.” Code Ann. § 81A-156 (c). Thus after the Supreme Court’s decision the case returned to the trial court in the exact status it held before appellate review, i.e., pending trial for determination of issues of fact; the only "final judgment” when an appellate court affirms the denial of summary judgment is that under the evidence of the record at that point there can be no judgment for the moving party as a matter of law. This situation is quite different from Summer-Minter and Ansley wherein the final appellate disposition was to grant to the moving party a judgment in his favor and to render in effect a verdict against the adverse party. Granting a summary judgment is a decision on the merits and ends the case; amendments and subsequent motions for summary judgment made after this decision on the merits are too late. Denial of a motion for summary judgment decides nothing except that under the evidence before the court at that time there can be rendered no judgment as a matter of law.

Were we to accept Ellington’s argument that the affirmance on appeal of the denial of Tolar’s original motion for summary judgment was in effect the granting of a motion for summary judgment in his behalf, the CPA would be turned on its ear. Under Code Ann. § 81A-115 (a) pleadings may be amended under specified circumstances and under prescribed procedures; this mandate was followed here. Under Code Ann. § 81A-156 a party against whom a claim is asserted may move at any time for summary judgment and it shall be granted if under the expanded record, including the pleadings, the moving party is entitled to a judgment as a matter of law. Under the federal rules which are analogous to our own CPA the previous denial of summary judgment does not preclude a subsequent granting thereof on the basis of an expanded record. Brownfield v. Landon, 307 F2d 389, cert. den., 83 SC 291. We now consider the issue well-settled in Georgia. See generally, Keller Building Products v. Young, 137 Ga. App. 682, 684 (1a) (224 SE2d 815) and cits.

2. The appellant’s objections to the appellee’s affidavits and evidence before the trial judge in his consideration of the motion are without merit. Code Ann. §§ 81A-115 (c), 81A-156 (e), 81A-143 (c), 38-112.

3. The grant of summary judgment was proper. Wardell v. Richmond Screw &c. Co., 133 Ga. App. 378 (210 SE2d 854).

Judgment affirmed.

Webb and Marshall, JJ., concur.