Segrest v. Intown True Value Hardware, Inc.

Banke, Presiding Judge,

concurring specially.

I agree that inasmuch as the trial court reaffirmed its grant of summary judgment to the appellee after the expiration of the 30-day period within which the appellants were required to serve and file a response to the motion, and inasmuch as the appellants still had not responded to the motion as of that time, the initial error committed by the trial court in ruling on the summary judgment motion prior to the expiration of the 30-day period was rendered harmless. I note, however, that the appellee states in its brief on appeal that “[t]he grant of summary judgment did not include the [appellant’s] counterclaim, which remains pending.” If that is the case, then the entry of final judgment in favor of the appellee was premature, and the appellee should not be permitted to enforce the judgment until such time as the merits of the counterclaim have been established. See Mock v. Canterbury Realty Co., 152 Ga. App. 872, 878-9 (264 SE2d 489) (1980). Accord Brunson v. C.B.A., Inc., 189 Ga. App. 621 (3) (376 SE2d 706) (1988).

I am authorized to state that Judge Beasley joins in this special concurrence.

*593Decided March 3, 1989. Everett D. Caldwell, for appellants. Claire Moynihan, Eugene Novy, for appellee.