Opinion
77725.
DECIDED FEBRUARY 27, 1989.
Action on note. Fulton Superior Court. Before Judge Daniel.
King, Morris, Talansky Witcher, Joseph H. King, Jr., for appellant.
Leslie J. Bryan, June D. Green, Richard D. Ellenberg, for appellees.
Citizens Trust Bank's complaint against appellant alleged that she executed a note in favor of the Housing Authority of the City of Atlanta, secured by a deed to secure debt; that the note and deed were assigned to the bank; that appellant rescinded the note for violations of the Truth in Lending Act; that the bank acceded to the rescission by executing a quitclaim deed to appellant with regard to the property securing the note and then demanding repayment of the money received by appellant; and that appellant, having never intended to return the money, failed to do so. Appellant answered and counterclaimed and asserted a third-party claim against four individuals she alleged were involved in the home improvements for which the money was borrowed. The third-party claims were based on allegations of breach of contract, negligence, racketeering, breach of fiduciary duty, and fraud. In response to the bank's motion to strike the third-party complaint, the trial court dismissed the third-party complaint without prejudice.
1. Appellant's contention that the bank lacks standing to seek dismissal of the third-party action is controlled adversely to her by OCGA § 9-11-14 (a): "Any party may move to strike the third-party claim. . . ."
2. The only discernible relation between the main action and the third-party action is that the third-party defendants are alleged to have wrongfully deprived appellant of the funds the bank is seeking in its suit. There are no allegations in the third-party claim, however, that the third-party defendants are secondarily liable for appellant's debt to the bank. "[O]ur impleader provision does not allow a defendant `to bring in a third party for the purpose of enforcing a liability against the latter different from that on which the plaintiff is proceeding in an action at law.' [Cit.] Impleader is `not a device for bringing into an action any controversy which may happen to have some relationship with it. A defendant cannot assert an entirely separate claim against the third-party even though it arises out of the same general set of facts as the main claim. There must be an attempt to pass on to the third-party all or part of the liability asserted against the defendant (but not to tender the third party as a substitute defendant).' [Cits.] The instant third-party complaint alleges separate and independent causes of action for . . . damages to [appellant] resulting from [the third-party defendants'] alleged fraud, breach of contract, . . . negligence [, and other wrongdoing.] Such liability on the part of [the third-party defendants] is not dependent upon the outcome of the main claim against [appellant on the debt]. If otherwise viable, any such claims possessed by [appellant] against [the third-party defendants] will exist regardless of the outcome of the main action. Accordingly, the trial court was correct in dismissing the third-party complaint." Knapp v. Lolley, 177 Ga. App. 786, 787 ( 341 S.E.2d 306) (1986).
Judgment affirmed. McMurray, P. J., and Pope, J., concur.