Bullock v

Sand, 260 Ga. App. 874, 581 S.E.2d 333 (2003). Exception to finality rule. — O.C.G.A. § 9-11-56(h) is an exception to the finality rule which is for the benefit of the losing party, and when the losing party appeals after the rendition of the final judgment, the grant of summary judgment is still subject to appellate review. Although a trial court properly dismissed a mechanic’s negligence claim, the mechanic’s fraud claim, the mechanic’s reduction in force claim, and certain of the mechanic’s wage claims as time barred, since each paycheck which failed to pay all wages due was a new violation, the trial court erred in dismissing the balance of the mechanic’s wage claims. Willis v. City of Atlanta, 265 Ga. App. 640, 595 S.E.2d 339 (2004). Section controlling in determining appealability. — Ga. L. 1967, p. 226, § 25 (see now O.C.G.A. § 9-11-56), being the last expression of legislative intent, controls over former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34) as to the appealability or reviewability of a motion for summary judgment. Young v. Reese, 118 Ga. App. 114, 162 S.E.2d 831 (1968). Right to direct appeal under O.C.G.A. § 9-11-56(h) is for the losing party’s benefit and is in addition to the party’s right to appeal after the resolution of the entire case. Gresham Park Community Org. v. Howell, 652 F.2d 1227 (5th Cir. 1981). De novo review. — Appellate court’s review of an appeal from summary judgment is de novo. Mohamud v. Wachovia Corp., 260 Ga. App. 612, 580 S.E.2d 259 (2003). Partial summary judgment. — Subsection (h) of O.C.G.A. § 9-11-56 includes an order for partial summary judgment. Crolley v. Haygood Contracting, Inc., 207 Ga. App. 434, 429 S.E.2d 93 (1993). Subsection (h) inapplicable to motions to set aside and vacate judgments. — Subsection (h) of Ga. L. 1967, p. 226, § 25 (see now O.C.G.A. § 9-11-56) is not applicable to motions to set aside and vacate judgments authorized by Ga. L. 1967, p. 226, §§ 26, 27 and 30 (see now O.C.G.A. § 9-11-60(d)). Farr v. Farr, 120 9-11-56 Ga. App 762, 172 S.E.2d 158 (1969). Voluntary dismissal not appealable judgment. — Plaintiff ’s own voluntary dismissal with prejudice of counts of the plaintiff ’s complaint did not constitute a final, appealable judgment for purposes of appellate review of rulings on the partial grant of summary judgment entered by the trial court more than 30 days from the filing of the notice of appeal. Studdard v. Satcher, Chick, Kapfer, Inc., 217 Ga. App. 1, 456 S.E.2d 71 (1995). In an action on a credit card contract brought by a creditor, the debtor’s voluntary dismissal of an appeal from an order granting the creditor summary judgment before the case was ever docketed served to dismiss the debtor’s direct appeal, even though the trial court did not enter a formal dismissal order; thus, the appellate court lacked jurisdiction to hear the issue, and a payment of appeal costs became moot. Ghee v. Target Nat’l Bank, 282 Ga. App. 28, 637 S.E.2d 742 (2006), cert. denied, 2007 Ga. LEXIS 62 (Ga. 2007), 552 U.S. 859, 128 S. Ct. 141, 169 L.Ed.2d 97 (2007). Question before appellate court. — In reviewing the grant of a motion for summary judgment, the question before the appellate court is whether allegations of the pleadings have been pierced so that no genuine issue of material fact remains. Duke Enters., Inc. v. Espy, 140 Ga. App. 527, 231 S.E.2d 522 (1976). On review of summary judgment, the first essential question for determination by the appellate court is whether a genuine issue of material fact exists which should be decided by a jury; if no jury issue is found to exist, the next query is whether the moving party is entitled to judgment as a matter of law after each party has an opportunity to make out their case. Hayes v. Brown, 108 Ga. App. 360, 133 S.E.2d 102 (1963) (decided under former Ga. L. 1959, p. 234, § 1 et seq.). Entire record reviewed on appeal. — Appellate court does not err in examining all the material of record to determine if there remain any issues for trial. City of Rome v. Turk, 235 Ga. 223, 219 S.E.2d 97 (1975). On consideration of summary judgments, the appellate court must look at 925 Appealability and Finality (Cont’d) 1. In General (Cont’d) the entire record. Lawson v. Duke Oil Co., 155 Ga. App. 363, 270 S.E.2d 898 (1980). Trial court did not err in concluding that the record upon which the summary judgment was based would be necessary for appellate review as the obligation of both the trial court and the appellate court is to consider the entire record when such a motion is ruled on. Sumner v. First Union Nat’l Bank, 200 Ga. App. 729, 409 S.E.2d 212, cert. denied, 200 Ga. App. 897, 409 S.E.2d 212 (1991). Pleadings considered on appeal. — On review of grant of summary judgment, reviewing court’s consideration of the pleadings, as amended, is required, whether specifically argued or not. Alexander v. Boston Old Colony Ins. Co., 127 Ga. App. 783, 195 S.E.2d 277 (1972). Additional evidence may not be admitted on appeal. — Appellate courts will only review evidence presented to the trial court before the court’s ruling on the motion, and additional evidence will not be admitted on appeal. Meade v. Heimanson, 239 Ga. 177, 236 S.E.2d 357 (1977); Stephens v. Tate, 147 Ga. App. 366, 249 S.E.2d 92 (1978). Prior objection by nonmoving party not required. — Issue in an appeal from the grant of summary judgment is whether the movant met the burden established by subsection (c) of O.C.G.A. § 9-11-56 and, in addressing that issue on appeal, the nonmoving party is entitled to advance all arguments without regard to whether the arguments were raised by way of objections below. Dental One Assocs. v. JKR Realty Assocs., 269 Ga. 616, 501 S.E.2d 497 (1998). Objection to errors not prerequisite to review. — It is not a prerequisite for the review of enumerated errors that the plaintiff object to or make an issue of these errors at trial below, when the alleged errors are asserted as reasons why the trial court should not have granted the motion for summary judgment. Southern Protective Prods. Co. v. Leasing Int’l, Inc., 134 Ga. App. 945, 216 S.E.2d 725 (1975); Binswanger Glass Co. v. Beers Constr. Co., 141 Ga. App. 715, 234 S.E.2d 363 9-11-56 (1977); Griffin v. Wittfeld, 143 Ga. App. 485, 238 S.E.2d 589 (1977). Absent particularized enumerations of error only denial of motion as to whole case determined. — When the appellant fails to enumerate any error on the trial court’s omission to make an order specifying whether certain facts appear without substantial controversy, the appellate court can determine only whether the court below erred in denying the summary judgment motion as to the whole case. Ireland v. Matthews, 120 Ga. App. 510, 171 S.E.2d 387 (1969). When the motion for summary judgment sets out that there is no genuine issue as to any material fact and thus seeks judgment as to the whole case, and enumeration of error likewise is with regard to summary judgment in toto and makes no mention of any partial recovery, the appellate court can determine only whether the trial court erred in denying the motion as to the whole case. Borden, Inc. v. Barker, 124 Ga. App. 291, 183 S.E.2d 597 (1971). Credibility not considered on appeal. — On motions for summary judgment, the appellate court cannot consider the credibility of witnesses or their affidavits, and a jury must resolve the question and the conflicts in the evidence which it produces. Miller v. Douglas, 235 Ga. 222, 219 S.E.2d 144 (1975). Appellate court on review of summary judgment is not concerned with the credibility of affidavits, but only with whether the affidavits show the existence of a genuine issue of fact. Ussery v. Koch, 115 Ga. App. 463, 154 S.E.2d 879 (1967). Reversal of order overruling summary judgment motion. — When the trial court overrules a motion for summary judgment, the appellate court will not reverse, unless from the entire record construed against the movant it appears that there is an absence of any genuine issue as to all material facts and that the movant is entitled to judgment as a matter of law. Black v. Hamilton, 133 Ga. App. 881, 212 S.E.2d 449 (1975). When no ruling invoked, no question for review. — There was no error in the trial court’s failure to allow the plaintiff ’s expert’s affidavit to be supplemented 926 when the plaintiff never made a motion to supplement the affidavit, because when no ruling is invoked in the trial court ordinarily there is no question for review in appellate courts. Crawford v. Phillips, 173 Ga. App. 517, 326 S.E.2d 593 (1985). Motion for new trial is not proper vehicle to obtain reexamination of the legal conclusions solely involved in a grant of summary judgment. Sands v. Lamar Properties, Inc., 159 Ga. App. 718, 285 S.E.2d 24 (1981). When trial court has considered depositions, appellate court will not say that the trial court did not do so. Porter Coatings v. Stein Steel & Supply Co., 157 Ga. App. 260, 277 S.E.2d 272, aff ’d, 247 Ga. 631, 278 S.E.2d 377 (1981). Order granting plaintiff ’s motion for partial summary judgment on the issue of the defendant’s liability on an insurance policy was interlocutory, not res judicata as to the issues resolved therein, and subject to revision by the trial court at any time prior to final judgment, as by admitting evidence in support of a defense to liability which in substance vacated or set aside the court’s previous order. Glover v. J.C. Penney Cas. Ins. Co., 181 Ga. App. 753, 353 S.E.2d 587 (1987). Res judicata defense based on prior summary judgment in malpractice case. — When a prior summary judgment for an attorney in a legal malpractice action was based on a recognition that, regardless of the applicability of any pleading requirements imposed by the subsequently enacted provisions of O.C.G.A. § 9-11-9.1, the client’s failure to have complied with the evidentiary requirements of O.C.G.A. § 9-11-56 nevertheless mandated the grant of summary judgment on the merits, the attorney’s res judicata defense in a subsequent action was viable and the trial court erred in failing to grant the attorney’s motion for summary judgment based upon that viable defense. Robinson v. Starr, 197 Ga. App. 440, 398 S.E.2d 714 (1990). Evidence sufficient to demand judgment for defendant. See Peppers v. Veres, 168 Ga. App. 367, 309 S.E.2d 388 (1983). In an action by a physician for termination of the physician’s hospital 9-11-56 privileges, grant of the physician’s motion seeking a determination that the defendants breached the hospital bylaws, which did not include a ruling that the physician was entitled to recover on the physician’s claim, was not a grant of summary judgment subject to direct appeal. Saint Francis Hosp. v. Patton, 228 Ga. App. 544, 492 S.E.2d 303 (1997). Appeal dismissed absent evidence that exception to finality rule applied. — Because the trial court’s order was best viewed as an order dismissing the plaintiffs’ complaint for failure to comply with the requirements of O.C.G.A. § 9-11-17, and summary judgment could not properly be granted to a defendant on the basis of a real-party-in-interest objection, absent any evidence that an exception to the final judgment rule applied, the appeal from the trial court’s order had to be dismissed. First Christ Holiness Church, Inc. v. Owens Temple First Christ Holiness Church, Inc., 282 Ga. 883, 655 S.E.2d 605 (2008). Appeal dismissed as untimely filed. — Motion to dismiss an appeal on grounds that the appealing party failed to timely appeal an order granting summary judgment pursuant to O.C.G.A. § 5-6-38(a) was granted; moreover, the appeal was not taken from the final judgment entered in the case. Patterson v. Bristol Timber Co., 286 Ga. App. 423, 649 S.E.2d 795 (2007). Malicious prosecution claim by priest. — Trial court did not err in granting summary judgment to a property owner on the priest’s malicious prosecution claim as probable cause existed to prosecute the priest since a police officer saw the priest violate a restraining order by committing a criminal trespass and by threatening another person; probable cause also existed because the two restraining order violations arose out of the same incident and were reasonably related even though the criminal charge for aggravated stalking arising out of the threat’s made to the property owner’s employee was later merged into another offense. Holmes v. Achor Ctr., Inc., 260 Ga. App. 882, 581 S.E.2d 390 (2003). Subcontractor’s action. — Trial court properly granted summary judgment to a 927 Appealability and Finality (Cont’d) 1. In General (Cont’d) property owner after the subcontractor sued the property owner so that the subcontractor could perfect its materialman’s lien against the property owner’s property as the subcontractor’s method of providing notice of the lien to the property owner did not comply with applicable statutory law, O.C.G.A. § 44-14-361.1(a)(2), since that statute expressly allowed the lien notice to be provided to the property owner by registered mail, certified mail, or statutory overnight delivery, and not through the facsimile transmission that the subcontractor used, especially since the facsimile transmission was not the equivalent method of providing notice as those methods set forth in the statute. Phillips, Inc. v. Historic Props. of Am., 260 Ga. App. 886, 581 S.E.2d 389 (2003). Employment contract. — Trial court properly granted partial summary judgment pursuant to O.C.G.A. § 9-11-56 to an employer on an employee’s action alleging breach of an employment contract, holding that the employee could only recover wages payable up to the time of trial; O.C.G.A. § 10-6-37 provided that in all employment contracts for a definite duration, an employee could sue for the value of the services rendered, or could wait until the expiration of the year and sue for and recover the employee’s entire wages, and in this action the employee elected to affirm the contract and bring an immediate suit for damages based upon the company’s alleged breach thereof, and under this option, the employee only had the right to prove, and to recover for, all damages which may have accrued up to the date of the trial. Harvey v. J. H. Harvey Co., 276 Ga. 762, 582 S.E.2d 88 (2003). Tortious interference with inheritance. — Trial court properly granted summary judgment pursuant to O.C.G.A. § 9-11-56 to the defendants in the plaintiffs’ action alleging tortious interference with an inheritance and other claims arising out of transfers of land to defendants as the parties’ mother was still alive, and therefore the plaintiffs had no standing to bring such an action, and because the 9-11-56 plaintiffs’ claims were barred by collateral estoppel; the trial court erred in denying the defendants’ summary judgment motion as to claims raised by a guardian because no claims were actually raised by the guardian. Copelan v. Copelan, 261 Ga. App. 726, 583 S.E.2d 562 (2003). Summary judgment appropriate as county did not waive immunity. — Trial court properly entered summary judgment for a county as to two injured parties’ tort claims as the county’s self-insurance plan for certain claims did not constitute a waiver of the county’s sovereign immunity because the county did not purchase a motor vehicle liability insurance policy — a requirement under O.C.G.A. § 33-24-51(b); there is no statute which provides that by establishing a self-insurance plan, a county waives sovereign immunity. Smith v. Chatham County, 264 Ga. App. 566, 591 S.E.2d 388 (2003). 2. Grant of Summary Judgment Legislative intent. — Clear and last expression of legislative intent with respect to appeals from grants of summary judgments, as expressed in Ga. L. 1966, p. 609, § 56 (see now O.C.G.A. § 9-11-56(h)), was to except summary judgments from general appealability provisions of former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34) and to allow appeal when summary judgment was granted on any issue or as to any party, even though the case is still pending within the purview of former Code 1933, § 6-701. McLeod v. Westmoreland, 117 Ga. App. 659, 161 S.E.2d 335 (1968). Subsection (h) as exception to rule requiring final judgment for appeal. — Grant of summary judgment is an exception to rule requiring final judgment in order to appeal. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969). Although generally an appeal is premature when a case remains pending, subsection (h) of this section makes the grant of summary judgment an exception to the rule requiring a final judgment in order to appeal. Overstreet v. Doctors Hosp., 142 Ga. App. 895, 237 S.E.2d 213 (1977). Subsection (h) of this section states an 928 exception to the finality rule which is for the benefit of the losing party. Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 248 S.E.2d 641 (1978); Bozard v. J.A. Jones Constr. Co., 148 Ga. App. 425, 251 S.E.2d 362 (1978). Subsection (h) of this section gives the losing party the right to direct appeal from an order granting summary judgment on any issue, even if judgment is not final, as when the order disposes of fewer than all claims; this is also true when an appeal is from the grant of partial summary judgment. Sapp v. ABC Credit & Inv. Co., 243 Ga. 151, 253 S.E.2d 82 (1979). Under subsection (h) of this section, grant of summary judgment is excepted from rule requiring final judgment as to all parties and claims before an appeal may be taken. Capital Bank v. Levy, 151 Ga. App. 819, 261 S.E.2d 722 (1979). Subsection (h) of O.C.G.A. § 9-11-56, which permits direct appeal from any grant of summary judgment, is an exception to the finality rule expressed in O.C.G.A. § 9-11-54. Edwards v. Davis, 160 Ga. App. 122, 286 S.E.2d 301 (1981). Grant of partial summary judgment is an appealable order. Cohen v. Garland, 119 Ga. App. 333, 167 S.E.2d 599 (1969); Thomas v. McGee, 242 Ga. 441, 249 S.E.2d 242 (1978); Tri-County Feed & Seed, Inc. v. Savannah Valley Prod. Credit Ass’n, 158 Ga. App. 815, 282 S.E.2d 344 (1981). Dismissal of an owner’s appeal of a summary judgment on a breach of contract and fraud complaint was improper since the complaint was amended to include a negligence count hours before a summary judgment on the fraud and breach of contract claims was filed, and therefore entered pursuant to O.C.G.A. § 9-11-58(b) (although the summary judgment order had been signed the previous day); the negligence claim was pending at the time that the summary judgment was entered, and although the summary judgment was subject to a direct appeal by the owner, the owner was not required to file an appeal at that time under O.C.G.A. § 9-11-56(h). Liberty v. Storage Trust Props., L.P., 267 Ga. App. 905, 600 S.E.2d 841 (2004). Grant of the plaintiff ’s motion for partial summary judgment to the effect that a 9-11-56 contract with the defendant was valid was not a final judgment and left the action pending below, but was directly appealable nevertheless under O.C.G.A. § 9-11-56(h) without a certificate of immediate review under O.C.G.A. § 5-6-34(b). Jack V. Heard Contractors, Inc. v. Adams Constr. Co., 155 Ga. App. 409, 271 S.E.2d 222, overruled on other grounds, Southeast Ceramics, Inc. v. Klem, 156 Ga. App. 636, 275 S.E.2d 723 (1980). Time for appeal. — Appeal of partial summary judgment for the plaintiff must be filed within 30 days and is not extended by a motion for reconsideration. Becker v. Fairman, 167 Ga. App. 708, 307 S.E.2d 520 (1983); Jones v. Walker, 209 Ga. App. 532, 433 S.E.2d 726 (1993). While a plaintiff can appeal directly an order granting summary judgment as to the main action, when the plaintiff fails to do so within 30 days, thereafter it can only appeal that order after final judgment. Gulf Oil Co. v. Mantegna, 167 Ga. App. 844, 307 S.E.2d 732 (1983). Grant of summary judgment on one count of three-count petition is directly appealable, though remaining counts are still pending in trial court. Ferguson v. United Ins. Co. of Am., 163 Ga. App. 282, 293 S.E.2d 736 (1982). Summary judgment on any issue or as to any party may be appealed. Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 168 S.E.2d 827 (1969). Submission of specific issue on appeal permitted. — Subsection (h) of this section permits submission of a specific issue to the appellate court. Bush v. City of Albany, 125 Ga. App. 558, 188 S.E.2d 245 (1972). Summary judgment for one of parties defendant appealable. — Order granting summary judgment in behalf of one of the parties defendant was appealable under subsection (h) of Ga. L. 1967, p. 226, § 25 (see now O.C.G.A. § 9-11-56) and under former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34), even though the case was still pending. George v. Lee, 118 Ga. App. 302, 163 S.E.2d 262 (1968). Summary judgment only final when entire case disposed of. — Grant of motion for summary judgment is appealable, but such grant constitutes final judg- 929 Appealability and Finality (Cont’d) 2. Grant of Summary Judgment (Cont’d) ment only if it disposes of the entire case and the case is no longer pending in the court below. Insurance Co. of N. Am. v. Fowler, 148 Ga. App. 509, 251 S.E.2d 594 (1978). Direct appeal even though judgment is not final. — Subsection (h) of Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56) gives the losing party the right to a direct appeal from an order granting summary judgment on any issue or as to any party, even if the judgment was not final under former Code 1933, § 6-701 or Ga. L. 1976, p. 1047, § 2 (see now O.C.G.A. §§ 5-6-34(a)(1) or 9-11-54(b)). Bozard v. J.A. Jones Constr. Co., 148 Ga. App. 425, 251 S.E.2d 362 (1978); Southern Guar. Ins. Co. v. Jeffares, 190 Ga. App. 449, 379 S.E.2d 167, overruled on other grounds, Strozier v. Simmons U.S.A. Corp., 192 Ga. App. 601, 385 S.E.2d 677 (1989). Right to review lost by failure to appeal. — After the trial court certified that summary judgment in favor of three of four defendants was final and ripe for review, the plaintiff lost the plaintiff ’s right to obtain appellate review by failing to file a timely notice of appeal, even though the plaintiff had filed a motion for reconsideration. Jarallah v. Aetna Cas. & Sur. Co., 199 Ga. App. 592, 405 S.E.2d 510 (1991). Subsection (d) covers adjudication of less than all issues. — Rule embodied in subsection (d) of this section is designed to cover situations where the court makes partial adjudication of some but not all issues presented as, for example, when there is more than one claim for relief and the movant is entitled to favorable judgment on some of the claims, but on others there are disputed issues of fact necessitating trial. Finney v. Pan-Am. Fire & Cas. Co., 123 Ga. App. 250, 180 S.E.2d 253 (1971). Interlocutory order establishing facts not in controversy permitted. — This section provides that when a party applies for summary judgment on the entire case or on one claim when several 9-11-56 claims for recovery are pleaded or on a counterclaim or cross-claim, and the trial judge finds that summary judgment as to the entire case, claim, counterclaim, or cross-claim is not appropriate, the judge is authorized to enter an interlocutory order establishing for trial those facts which are without substantial controversy. Robinson v. Franwylie, Inc., 145 Ga. App. 507, 244 S.E.2d 73 (1978). Power of judge to reassess interlocutory order. — As with a pretrial order entered under Ga. L. 1968, p. 1104, § 5 (see now O.C.G.A. § 9-11-16), a trial judge retains full power to reassess an interlocutory order entered under subsection (d) of Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56) and to make one complete adjudication on all aspects of the case when the proper time arrives. Robinson v. Franwylie, Inc., 145 Ga. App. 507, 244 S.E.2d 73 (1978). Temporary adjudication of lack of issues. — Under subsection (d) of this section, trial judge may adjudicate temporarily the lack of issues until a final judgment in the case. Mays v. Citizens & S. Nat’l Bank, 132 Ga. App. 602, 208 S.E.2d 614 (1974), overruled on other grounds, Mock v. Canterbury Realty Co., 152 Ga. App. 872, 264 S.E.2d 489 (1980). Adjudication on less than all claims or parties remains interlocutory absent court’s determination. — In a case involving multiple claims or parties, when the trial court fully adjudicates one or more but fewer than all claims or rights and liabilities of fewer than all parties, the court can make an adjudication under subsection (d) of Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56) final by making express determination and direction called for by Ga. L. 1976, p. 1047, § 2 (see now O.C.G.A. § 9-11-54(b)); however, failing to do that, the adjudication remains interlocutory. Robinson v. Franwylie, Inc., 145 Ga. App. 507, 244 S.E.2d 73 (1978). Adjudication of nondispositive issues not authorized. — Subsection (d) of this section does not authorize initiation of motions of which the sole object is to adjudicate issues of fact which are not dispositive of any claim or part thereof. Robinson v. Franwylie, Inc., 145 Ga. App. 930 507, 244 S.E.2d 73 (1978); Planet Ins. Co. v. Ferrell, 228 Ga. App. 264, 491 S.E.2d 471 (1997). Losing party who commits procedural default is foreclosed from resubmitting matter for review. — If a losing party suffers dismissal of the party’s O.C.G.A. § 9-11-56(h) appeal for failure to fulfill procedural requirements, the losing party should, in return for that party’s privilege of direct appeal, suffer the same sanction of res judicata which attaches to a final judgment from which a procedurally defective appeal is taken; therefore, a losing party on summary judgment who puts the machinery of immediate appellate review under O.C.G.A. § 9-11-56(h) into motion, yet commits a procedural default fatal to the losing party’s appeal, is foreclosed from thereafter resubmitting the matter for review on appeal of the final judgment. Eckerd Corp. v. Alterman Real Estate, Ltd., 266 Ga. App. 860, 598 S.E.2d 510 (2004). Opposing party may appeal after grant of summary judgment or final judgment. — Party against whom summary judgment is granted may appeal either after grant of summary judgment or after rendition of final judgment, and when the party appeals after rendition of final judgment, the grant of summary judgment is still subject to appellate review. Culwell v. Lomas & Nettleton Co., 242 Ga. 242, 248 S.E.2d 641 (1978); Bozard v. J.A. Jones Constr. Co., 148 Ga. App. 425, 251 S.E.2d 362 (1978). Defendant’s motion to dismiss a party is normally appealable only as an interlocutory appeal, but as a grant of a motion for summary judgment it is directly appealable under subsection (h) of O.C.G.A. § 9-11-56. McMullan v. Georgia Girl Fashions, Inc., 180 Ga. App. 228, 348 S.E.2d 748 (1986). Only if co-defendants are sued as joint tort-feasors does the grant of summary judgment as to one potentially affect the other’s rights of contribution. Therefore, it is only in this situation that the co-defendant would be deemed a losing party and have standing to appeal the grant of summary judgment to another co-defendant. C.W. Matthews Contracting Co. v. Studard, 201 Ga. App. 741, 412 S.E.2d 539 (1991). 9-11-56 Pending claims. — Party may appeal grant of summary judgment after rendition of final judgment in the case, and the summary judgment is not res judicata as to any other claims which had remained pending. Ramseur v. American Mgt. Ass’n, 155 Ga. App. 340, 270 S.E.2d 880 (1980). Order as to ex delicto claims not final if ex contractu claim pending. — Order granting the defendant’s motion to strike certain ex delicto allegations and the prayers of the plaintiff ’s complaint was not final when the appellant’s ex contractu claim was still pending and, accordingly, the order was not directly appealable. Whatley v. Blue Cross of Ga./ Columbus, Inc., 165 Ga. App. 340, 301 S.E.2d 60 (1983). Grant of motion for summary judgment in Civil Court of Bibb County can be appealed directly to the Court of Appeals. Middle Ga. Bank v. Continental Real Estate & Assocs., 168 Ga. App. 611, 309 S.E.2d 893 (1983). Grant of summary judgment held erroneous. — Trial court erred in granting the appellee’s motion for summary judgment and in failing to grant the appellant’s motion for summary judgment. Georgia Farm Bureau Mut. Ins. Co. v. DeKalb County, 167 Ga. App. 577, 306 S.E.2d 924 (1983). On de novo review of a decision granting summary judgment to a consulting firm in an action against the firm by a hotel franchisee alleging negligence and negligent misrepresentation, it was error to grant summary judgment to the firm when the franchisee submitted an affidavit from an expert that demonstrated familiarity with the standard of care required of the consulting firm in performing an impact study and that concluded the firm breached that duty. The questions surrounding the expert’s factual accuracies and conclusions were issues for trial, not summary judgment. Marquis Towers, Inc. v. Highland Group, 265 Ga. App. 343, 593 S.E.2d 903 (2004). Summary judgment on partial issues held proper. — Summary judgment was properly entered on fraud claim as such claim was time-barred; but, when fact issues remained as to a foreclosure allegedly resulting from a non-existent 931 Appealability and Finality (Cont’d) 2. Grant of Summary Judgment (Cont’d) debt, slandering the title to the underlying property, summary judgment was reversed as to these claims. Boaz v. Latson, 260 Ga. App. 752, 580 S.E.2d 572 (2003). Judgment final only when entire case disposed of. — Because a partial taking condemnation order did not consist of a viable grant of partial summary judgment, and was not otherwise a final appealable judgment within the meaning of O.C.G.A. § 5-6-34(a), but the parties could have appealed by complying with the relevant interlocutory appeal requirements but did not do so, the appeals court lacked jurisdiction to consider either the appeal or the cross-appeal; moreover, the superior court’s rulings on the admissibility of certain evidence constituted no judgment on the merits of any part of the appealing party’s claim for just and adequate compensation. Forest City Gun Club v. Chatham County, 280 Ga. App. 219, 633 S.E.2d 623 (2006). Court of appeals had appellate jurisdiction to review the grant of summary judgment in favor of a bank on the bank’s conversion claim against a real estate firm because the grant of summary judgment was directly appealable under O.C.G.A. § 9-11-56(h), and the firm’s cross-appeal of that grant of summary judgment could stand on its own merits; because the court of appeals had jurisdiction to review the grant of summary judgment in favor of the bank on the bank’s conversion claim, the court also had jurisdiction pursuant to O.C.G.A. § 5-6-34(d) to review the denial of the firm’s motion for summary judgment on that same issue. Trey Inman & Assocs., P.C. v. Bank of Am., N.A., 306 Ga. App. 451, 702 S.E.2d 711 (2010). 3. Denial of Summary Judgment Editor’s notes. — As originally enacted by Ga. L 1966, p. 609, § 56, subsection (h) of this section provided that an order denying summary judgment was not appealable. The subsequent amendment by Ga. L. 1967, p. 226, § 25, stated that denial of summary judgment was not subject to review by direct appeal or other- 9-11-56 wise unless the trial judge certified within ten days that such order should be subject to review, in which case it would be subject to review by direct appeal. The 1975 amendment by Ga. L. 1975, p. 757, § 3 made an order denying summary judgment subject to review by direct appeal in accordance with § 5-6-34(b) The latter section provides for review of an order, decision, or judgment not otherwise subject to direct appeal if the trial judge certifies that such order, etc., is of such importance that immediate review should be had, and if the appellate court, on application, permits an appeal to be taken. Hence, decisions dealing with appealability of denial of summary judgment should be consulted with care, with particular attention to the dates on which such decisions were rendered. Denial of motion not final judgment. — Denial of motion for summary judgment is not a final judgment. Giordano v. Stubbs, 129 Ga. App. 283, 199 S.E.2d 322 (1973), rev’d on other grounds, Summer-Minter & Assocs. v. Giordano, 231 Ga. 601, 203 S.E.2d 173 (1974). Denial not appealable unless certain conditions are met. — Grant of motion for summary judgment is subject to direct appeal, but denial of such motion is not appealable unless certain conditions are met. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980). Procedure in § 5-6-34(b) held requisite to appeal. — Order denying summary judgment must be appealed in accordance with former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(b)). First Nat’l Bank v. Ferrell, 239 Ga. 8, 235 S.E.2d 507 (1977). Denial of a motion for summary judgment is not subject to review by direct appeal, except on the grant of permission to appeal as set out in former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(b)). Johnston-Willis Hosp. v. Cain, 142 Ga. App. 305, 236 S.E.2d 374 (1977). Appealability of denial of motion governed by subsection (h) and § 5-6-34(b). — Denial of motion for summary judgment was not reviewable other than by procedures set forth in former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(b)) and subsection (h) of Ga. L. 932 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56). Vaughn & Co. v. Saul, 143 Ga. App. 74, 237 S.E.2d 622 (1977). Observance of interlocutory review procedures required. — No appeal lies from denial of a motion for summary judgment, standing alone, unless an interlocutory review procedure is observed. U.S.I.F. Atlanta Corp. v. Paul, 138 Ga. App. 625, 227 S.E.2d 90 (1976). Appeal of other issues when appealing summary judgment. — When direct appeal of the grant of summary judgment is taken, any other judgments, rulings, or orders rendered in the case and which may affect the proceedings below may be raised on appeal including the denial of a motion for summary judgment. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980). Cross appeal of denial of motion. — Denial of motion for summary judgment may be carried up as a cross appeal to appeal by the opposite party of a grant of a motion for summary judgment. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980). But see, Campbell v. Carroll, 121 Ga. App. 497, 174 S.E.2d 375 (1970). Availability of direct appeal irrelevant to interlocutory appeal decision. — As the losing party on cross-motions for summary judgment, the defendant was entitled to proceed under O.C.G.A. § 5-6-34(b) to seek an interlocutory appeal from the denial of its motion or, in the alternative, to file a direct appeal from the grant of the plaintiff ’s motion pursuant to subsection (h) of O.C.G.A. § 9-11-56. Because the defendant elected to invoke the interlocutory appeal procedure, the mere availability of the alternative of the direct appeal procedure would not be a factor in determining whether to grant an interlocutory appeal. Southeastern Sec. Ins. Co. v. Empire Banking Co., 268 Ga. 450, 490 S.E.2d 372 (1997). Denial of summary judgment moot after trial of case. — Verdict and judgment appealed from after trial renders moot the order on a prior motion for summary judgment not certified and appealed as required by subsection (h) of this section. Old Equity Life Ins. Co. v. Barnard, 120 Ga. App. 596, 171 S.E.2d 636 (1969). 9-11-56 Order denying motion for summary judgment becomes moot when court reviews evidence upon trial of the case. Patterson v. Castellaw, 119 Ga. App. 712, 168 S.E.2d 838 (1969). After verdict and judgment, it is too late to review judgment denying summary judgment. Pascoe Steel Corp. v. Turner County Bd. of Educ., 142 Ga. App. 88, 235 S.E.2d 554, rev’d on other grounds in part, vacated on other grounds in part, 240 Ga. 88, 239 S.E.2d 517 (1977); Gosnell v. Waldrip, 158 Ga. App. 685, 282 S.E.2d 168 (1981). After verdict and judgment have been entered, the Court of Appeals cannot review a judgment denying a motion for summary judgment because that issue became moot when the court heard evidence at trial. Preferred Risk Mut. Ins. Co. v. Thomas, 153 Ga. App. 154, 264 S.E.2d 662 (1980). After verdict and judgment, it is too late to review a decision denying a summary judgment motion for that judgment becomes moot when the court reviews the evidence upon the trial of the case. Hardaway Constructors, Inc. v. Browning, 176 Ga. App. 530, 336 S.E.2d 579 (1985), cert. denied, 475 U.S. 1095, 106 S. Ct. 1491, 89 L. Ed. 2d 893 (1986). After verdict and judgment, it was too late to review a judgment denying summary judgment for that judgment became moot when the court reviewed the evidence upon the trial of the case. Argentum Int’l, LLC v. Woods, 280 Ga. App. 440, 634 S.E.2d 195 (2006). Husband’s complaint of the trial court’s denial of the corporation’s motion for summary judgment under O.C.G.A. § 9-11-56 was moot as the trial court later granted the corporation’s motion for a directed verdict under O.C.G.A. § 9-11-50. Moore v. Moore, 281 Ga. 81, 635 S.E.2d 107 (2006). Effect on trial on merits. — Appellate court declined to review the trial court’s denial of a defendant’s motion for summary judgment because a trial on the merits was conducted. Tensar Earth Techs., Inc. v. City of Atlanta, 267 Ga. App. 45, 598 S.E.2d 815 (2004). Extent of review following trial. — When a motion for judgment is overruled 933 Appealability and Finality (Cont’d) 3. Denial of Summary Judgment (Cont’d) and the case is tried, appellate courts will review the sufficiency of the evidence to support the verdict, as well as enumerations of alleged trial errors, but will not also review the denial of the motion for summary judgment. Drillers Serv., Inc. v. Moody, 242 Ga. 123, 249 S.E.2d 607 (1978); Simmons v. Edge, 155 Ga. App. 6, 270 S.E.2d 457 (1980). When a motion for summary judgment is overruled and the case is tried, the appellate court will review evidence in support of the judgment as well as other enumerations of error, but because ordinarily the same issues are involved, the court will not review denial of the motion for summary judgment. Rothstein v. Mirvis & Fox, Inc., 155 Ga. App. 79, 270 S.E.2d 301 (1980). Because the issue of the purported illegality of the parties’ contract was not presented to the jury, the court would review the trial court’s denial of the motion for summary judgment on this ground; the court would not, however, consider the defendants’ argument on summary judgment that damages were not proven since the jury considered damages in the subsequent trial. Smith v. Saulsbury, 286 Ga. App. 322, 649 S.E.2d 344 (2007). Error in denial harmless after trial. — When a motion for summary judgment is overruled and the case proceeds to trial and evidence introduced at trial authorizes a verdict on this same issue, any possible error in overruling the motion for summary judgment is harmless. Clark v. Piedmont Hosp., 117 Ga. App. 875, 162 S.E.2d 468 (1968). Losing party who initiates appellate review, yet commits procedural default fatal to appeal, is foreclosed from thereafter resubmitting the matter for review on appeal of the final judgment. Mitchell v. Oliver, 254 Ga. 112, 327 S.E.2d 216 (1985). Party that sought and was granted an interlocutory appeal from the denial of the party’s motion for summary judgment but failed to timely file the party’s notice of 9-11-56 appeal in compliance with O.C.G.A. § 5-6-34(b) committed a procedural default fatal to its appeal and was foreclosed from resubmitting the matter for appellate review. It was improper for the trial court to vacate the court’s original order denying summary judgment to provide the party with the opportunity to resubmit the party’s application for interlocutory appeal. International Indem. Co. v. Robinson, 231 Ga. App. 236, 498 S.E.2d 795 (1998). 4. Certificate and Application for Review Editor’s notes. — As originally enacted by Ga. L 1966, p. 609, § 56, subsection (h) of this section provided that an order denying summary judgment was not appealable. The subsequent amendment by Ga. L. 1967, p. 226, § 25, stated that denial of summary judgment was not subject to review by direct appeal or otherwise unless the trial judge certified within ten days that such order should be subject to review, in which case it would be subject to review by direct appeal. The 1975 amendment by Ga. L. 1975, p. 757, § 3 made an order denying summary judgment subject to review by direct appeal in accordance with § 5-6-34(b). The latter section provides for review of an order, decision, or judgment not otherwise subject to direct appeal if the trial judge certifies that such order, etc., is of such importance that immediate review should be had, and if the appellate court, on application, permits an appeal to be taken. Hence, decisions dealing with appealability of denial of summary judgment should be consulted with care, with particular attention to the dates on which such decisions were rendered. Certificate from trial judge required. — When there is no certificate of a trial judge allowing an appeal of the refusal to grant a motion for summary judgment, the appellate court is without authority to review such ruling. Peachtree on Peachtree Inn, Inc. v. Camp, 120 Ga. App. 403, 170 S.E.2d 709 (1969); Central Bd. on Care of Jewish Aged, Inc. v. Henson, 120 Ga. App. 627, 171 S.E.2d 747 (1969). Absent proper certificate, denial of sum- 934 mary judgment is not subject to review. Campbell v. Carroll, 121 Ga. App. 497, 174 S.E.2d 375 (1970); Carroll v. Campbell, 226 Ga. 700, 177 S.E.2d 83 (1970). Order deriving summary judgment shall be subject to review by obtaining certificate of immediate review. Hiller v. Culbreth, 139 Ga. App. 351, 228 S.E.2d 374 (1976). Appeal by certificate is the only method whereby denial of a motion for summary judgment may be reviewed. First Nat’l Bank v. Ferrell, 239 Ga. 8, 235 S.E.2d 507 (1977). When grant of summary judgment is appealed, it is impermissible for denial to be appealed simultaneously without certificate of immediate review. Jones v. Neighbor Newspapers, Inc., 142 Ga. App. 365, 236 S.E.2d 23 (1977). (But see Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980)). Certificate and application required. — There was no provision for review of denial of summary judgment in subsection (h) of Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56) or former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34(b)), except by direct appeal with a certificate of the trial judge and an application for review to the appropriate appellate court. Marietta Yamaha, Inc. v. Thomas, 237 Ga. 840, 229 S.E.2d 753 (1976), overruled on other grounds, Marathon U.S. Realties, Inc. v. Kalb, 244 Ga. 390, 260 S.E.2d 88 (1979); American Mut. Fire Ins. Co. v. Llewellyn, 142 Ga. App. 824, 237 S.E.2d 227 (1977). Judgment denying summary judgment is reviewable only by certificate of immediate review and application for review by the appellate court. Thomas v. McGee, 242 Ga. 441, 249 S.E.2d 242 (1978). When grant of the plaintiff ’s motion for partial summary judgment was not raised via cross appeal, but was appealable only under subsection (h) of Ga. L. 1975, p. 757, § 3 (see now O.C.G.A. § 9-11-56), and not under former Code 1933, § 6-701 (see now O.C.G.A. § 5-6-34), denial of the defendant’s motion for summary judgment could not be considered without a certificate for immediate review and application to the appellate court for permission to appeal. Jack V. Heard Contractors, Inc. v. 9-11-56 Adams Constr. Co., 155 Ga. App. 409, 271 S.E.2d 222 (1980). But see Thomas v. McGee, 242 Ga. 441, 249 S.E.2d 242 (1978); Southeast Ceramics, Inc. v. Klem, 156 Ga. App. 636, 275 S.E.2d 723 (1980). When grant of partial summary judgment was appealed with denial of summary judgment, judgment granting partial summary judgment was appealable, but judgment denying summary judgment was reviewable only by certificate of immediate review. Jack V. Heard Contractors, Inc. v. Adams Constr. Co., 155 Ga. App. 409, 271 S.E.2d 222 (1980). But see Thomas v. McGee, 242 Ga. 441, 249 S.E.2d 242 (1978); Southeast Ceramics, Inc. v. Klem, 156 Ga. App. 636, 275 S.E.2d 723 (1980). Denial of summary judgment is not reviewable by the appellate courts in the absence of a timely certificate of immediate review and the granting of an interlocutory appeal by the appellate court unless there be a final judgment in the case and the cause is no longer pending in the lower court. Weldon v. Southeastern Fid. Ins. Co., 157 Ga. App. 698, 278 S.E.2d 500 (1981). Denial of a motion for summary judgment cannot be considered without a certificate for immediate review and an application to the court for permission to appeal. National Equip. Sales, Serv. & Supplies, Inc. v. Hamrick Mfg. & Servs., Inc., 186 Ga. App. 400, 367 S.E.2d 287 (1988). Certification and grant of application not exclusive means of appeal. — When summary judgment is denied, it may be appealed after certification by the trial judge and the granting of an application by the appropriate appellate court, but this is not the exclusive means of appealing the denial of a motion for summary judgment. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980). Certification not matter of right. — Certification for review is not automatic or a matter of right, but is a matter of discretion with the trial judge. Barber v. Baker, 118 Ga. App. 513, 164 S.E.2d 349 (1968). Authority of judge as to issuance of certificate. — Trial judge is invested 935 Appealability and Finality (Cont’d) 4. Certificate and Application for Review (Cont’d) with absolute authority in issuance of certificate of appealability of denial of motion for summary judgment under subsection (h) of this section. Lewis v. Williford, 235 Ga. 558, 221 S.E.2d 14 (1975). Certification should be made use of only sparingly, in close cases, when real doubt exists as to the merits of the motion. C & A Land Co. v. Wilson Constr. Corp., 117 Ga. App. 744, 161 S.E.2d 922 (1968); Barber v. Baker, 118 Ga. App. 513, 164 S.E.2d 349 (1968). Routine certification not contemplated. — Routine certification by trial courts of appealability of orders denying motions for summary judgment might well annul legislative intent as to subsection (h) of this section, the purpose of which was to do away with unnecessary delay and to assist the flow of cases toward trial on the merits. C & A Land Co. v. Wilson Constr. Corp., 117 Ga. App. 744, 161 S.E.2d 922 (1968); Flanagan v. Malsby, 119 Ga. App. 474, 167 S.E.2d 739 (1969). No review of facts without certificate. — Absent certificate for direct appeal on denial of a motion for summary judgment, the appellate court cannot review factual contentions. Redfern Meats, Inc. v. Hertz Corp., 134 Ga. App. 381, 215 S.E.2d 10 (1975). No direct appeal without certificate. — Order denying summary judgment is not subject to review by direct appeal or otherwise in absence of certificate for review by the trial judge within ten days of the order. John L. Hutcheson Mem. Tri-County Hosp. v. Oliver, 120 Ga. App. 547, 171 S.E.2d 649 (1969); City of Jesup v. Spivey, 133 Ga. App. 403, 210 S.E.2d 859 (1974); Egerton v. Jolly, 133 Ga. App. 805, 212 S.E.2d 462 (1975). Denial of summary judgment is not subject to review by direct appeal or otherwise, unless the lower court certifies it for direct appeal. Home Indem. Co. v. Godley, 122 Ga. App. 356, 177 S.E.2d 105 (1970); Bush v. City of Albany, 125 Ga. App. 558, 188 S.E.2d 245 (1972); Starkey v. Metro- 9-11-56 politan Hotels, Inc., 129 Ga. App. 643, 200 S.E.2d 482 (1973). Attempting review without certificate following final judgment. — When there is no certificate of immediate review as to denial of summary judgment, and the case is appealed after final judgment, enumeration of error on denial of summary judgment will not be considered. Rustin Oldsmobile, Inc. v. Kendrick, 123 Ga. App. 679, 182 S.E.2d 178 (1971). Appellate court cannot consider merits of denial of a motion for summary judgment without a certificate of immediate review, even though there is a final judgment which forms the basis for an appeal. Royal Atlanta Dev. Corp. v. M.D. Hodges Enters., Inc., 141 Ga. App. 838, 234 S.E.2d 676 (1977). (But see Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980)). Certificate from trial judge unnecessary. — Summary judgment granted in favor of one of several defendants is a final and appealable judgment under subsection (h), and it is unnecessary to obtain a certificate from the trial judge that it should be reviewed. LuAllen v. Home Mission Bd. of S. Baptist Convention, 125 Ga. App. 456, 188 S.E.2d 138 (1972). Denial tied to appealable order or judgment may be appealed without application. — Denial of a motion for summary judgment can be appealed without application when it is tied to an appeal of an appealable order or judgment. Southeast Ceramics, Inc. v. Klem, 246 Ga. 294, 271 S.E.2d 199 (1980). Review of denial of summary judgment is permitted without necessity of making application for interlocutory appeal when there is a final judgment which is the basis of the appeal as for instance when both the plaintiff and the defendant moved respectively for summary judgments with the court granting the motion of the defendant and denying that of the plaintiff. U.S.I.F. Atlanta Corp. v. Paul, 138 Ga. App. 625, 227 S.E.2d 90 (1976). Refusal to grant certificate not reviewable. — There is no right to a certificate of review to the overruling of a motion for summary judgment; whether or not such certificate is granted rests 936 solely with the trial judge, and the judge’s refusal is not reviewable by the appellate court. Newsrack Supply, Inc. v. Heinle, 127 Ga. App. 843, 195 S.E.2d 193 (1973). Failure to apply for and obtain order granting appellate review. — When the defendant obtained a certificate for immediate review from the trial judge within ten days of the denial of the defendant’s motion for summary judgment in accordance with O.C.G.A. § 9-11-56, but failed to apply to and obtain an order from this court granting an appeal, the defendant’s appeal is premature. Hargraves v. Turner, 160 Ga. App. 807, 287 S.E.2d 664 (1982). Although the repair company did not obtain a certificate of immediate review from the trial court’s order denying a renewed motion for summary judgment under O.C.G.A. § 9-11-56, the appellate court had jurisdiction to address an order denying the renewed motion for summary judgment under O.C.G.A. § 5-6-34(d); the appellate court had jurisdiction to address the trial court’s order denying the company’s motion for reconsideration under O.C.G.A. § 5-6-34(b) since the company had obtained a timely certificate of immediate review from the trial court’s order denying the court’s motion for reconsideration. Gulfstream Aero. Servs. Corp. v. United States Aviation Underwriters, Inc., 280 Ga. App. 747, 635 S.E.2d 38 (2006). 5. Standing Appeal by plaintiff to grant of summary judgment to third-party defen- 9-11-56 dant. — Since the plaintiff asserted no claim against a third-party defendant, the plaintiff was not aggrieved by the grant of summary judgment to the third-party defendant on the third-party action, which established only the third party’s nonliability to the defendant and, thus, the plaintiff lacked standing to appeal an order granting such judgment. Wallace v. Scott, 164 Ga. App. 129, 296 S.E.2d 423 (1982). Multi-party cases. — Grant of a motion for summary judgment in a multi-party case will not, standing alone, necessarily authorize the initiation of a direct appeal therefrom by any party to the underlying case. An appeal must be filed by one who has standing to pursue the appeal. Shackelford v. Green, 180 Ga. App. 617, 349 S.E.2d 781 (1986), aff ’d, 257 Ga. 9, 356 S.E.2d 27 (1987). Standing to appeal not present for order against another party. — Guarantor and the guarantor’s principal had no standing, under O.C.G.A. § 9-11-56(h), to file a direct appeal of a trial court’s grant of summary judgment to a contractor against a property owner because the guarantor and the guarantor’s principal were not losing parties to the trial court’s order against the owner on the contractor’s breach of contract claim and because the guarantor and the guarantor’s principal were not sued as joint tortfeasors of the owner. Adams v. D-Money Enters., 312 Ga. App. 537, 718 S.E.2d 870 (2011).