SMITH v. ALLEN

EBERHARDT, Presiding Judge.

In a former appeal of this case, Allen v. Smith Medford, Inc., 129 Ga. App. 538 ( 199 S.E.2d 876), this court reversed the order of the trial court denying plaintiff's motion for summary judgment as to the principal amount sought. Defendants applied for certiorari to the Supreme Court, which was denied; and before the remittitur was received by the trial court, defendant Medford filed an additional affidavit on behalf of defendants in opposition to plaintiff's motion for summary judgment. Thereafter a hearing was held and the trial court, after considering the supplementary affidavit, our prior decision, and the former record, granted plaintiff's motion for summary judgment as to the principal amount. Defendants appeal, contending that defendant Medford's additional affidavit creates an issue of fact for jury resolution. Held:

1. Defendants state in their brief: "The case of Giordano v. Stubbs, 129 Ga. App. 283 (1973) is almost procedurally on all fours with the present case and stands for the proposition that the reversal on appeal of the denial of a summary judgment is not res adjudicata or estoppel by judgment and the appellee has the right to materially add to the evidence in opposition to the motion for summary judgment provided he does so before the trial court enters judgment on the remittitur. The defendants (appellees in the first appeal) have done precisely that in accordance with the ruling in the Giordano case."

Giordano has been reversed by the Supreme Court ( Summer-Minter Associates v. Giordano, 231 Ga. 601 ( 203 S.E.2d 173)), and in accordance with the ruling made there and in Ansley v. Atlanta Suburbia Estates, Ltd., 231 Ga. 640 ( 203 S.E.2d 861) the judgment of the court below, giving effect to our prior judgment, is affirmed.

2. Since Summer-Minter and Ansley, supra, had not appeared in the advance sheets at the time of the bringing of the present appeal, the motion to award damages for a frivolous appeal is denied.

Judgment affirmed. Pannell, J., concurs. Evans, J., concurs specially.

EVANS, Judge, concurring specially.

My view is directly opposite that expressed here by the majority opinion, which view I expounded in the case of Giordano v. Stubbs, 129 Ga. App. 283, supra. But the Supreme Court, on the 28th day of January, 1974, reversed the Giordano case, and as we are bound by the decisions of that court, no matter how greatly we may disagree with them, I now concur with the majority in the case sub judice.