Southern Mill Service, Inc. v. Town of Baldwin

Smith, Judge. Appellant brought an action in tort and in contract against appellee Town of Baldwin and John J. Harte Associates, Inc., alleging that the conduct of the defendants prevented it from performing the sewer construction contract it had entered into with appellee. Appellee moved for "partial summary judgment” on the tort claim, arguing that it was immune from suit in tort. The trial court granted the motion. Appellant asserts that the trial court erred in entering "partial summary judgment” in favor of appellee. We dismiss the appeal for lack of a final judgment. Although the contract between appellant and appellee was attached to the complaint as an exhibit, nothing outside the pleadings, such as affidavits, depositions, or admissions, was submitted to the trial court. The trial court’s order granting "partial summary judgment” to appellee must be considered what it is in substance, a partial judgment on the pleadings against appellant on its claim in tort. Travelers Ins. Co. v. Johnson, 118 Ga. App. 616, 617 (164 SE2d 926) (1968). While immediate review is available where partial summary judgment is entered against a party, under an exception to the finality rule (Sapp v. ABC Credit & Inv. Co., 243 Ga. 151, 153 (253 SE2d 82) (1979)), review of a partial judgment on the pleadings must await the rendition of a final judgment, in the absence! of a certificate of immediate review. First Nat. Bank v. Osborne, 233 Ga. 602 (212 SE2d 785) (1975); Clary v. Brown, 139 Ga. App. 799 (229 SE2d 680) (1976). The appeal in this case is premature and must be dismissed. Appeal dismissed. Quillian, P. J., and Birdsong, J., concur. Submitted July 9, 1979 Decided October 23, 1979. William F. Bryant, for appellant. James N. Butterworth, David A. Handley, Aubrey Coleman, Jr., for appellees.