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Bostick v. CMM Props. Inc.

Res judicata did not bar the third-party complaint, because there was not sufficient identity of parties or their privies.

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In Bostick v. CMM Properties, 297 Ga. 55 772 SE2d 671 2015, the Georgia Supreme Court reversed Division 2 of our opinion in Bostick v. CMM Properties, 327 Ga. App. 137 755 SE2d 895 2014, in which we had affirmed the trial court’s grant of summary judgment to appellees CMM Properties, Inc., and others collectively the CMM parties on the ground of res judicata. In reversing, the Supreme Court found that there was not sufficient identity of the parties or their privies to permit application of res judicata. 297 Ga. at 55, 59. Accordingly, we vacate Division 2 of our prior opinion, adopt the Supreme Court’s judgment as our own, and hold that the trial court erred in granting summary judgment on the ground of res judicata.

However, the trial court also granted summary judgment to the CMM parties on the alternative ground that a liquidated damages clause which appellant James Bostick sought to enforce was an unenforceable penalty. We did not review that alternative ground in our prior opinion, but we now consider it and conclude that the trial court correctly found that the liquidated damages clause was an unenforceable penalty. Accordingly, we affirm the trial court’s grant of summary judgment on that basis. See Duke Galish, LLC v. Manton, 291 Ga. App. 827, 828 662 SE2d 880 2008 grant of summary judgment must be affirmed if right for any reason, whether stated or unstated.

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