Lemke v. SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY

182 Ga. App. 700 (1987)

356 S.E.2d 739

LEMKE v. SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY.

73711.

Court of Appeals of Georgia.

Decided April 22, 1987.

Franklin D. Rozier, Jr., Richard D. Phillips, for appellant.

Terry A. Dillard, Bryant H. Bower, Jr., for appellee.

BENHAM, Judge.

Appellant brought an action against appellee seeking specific performance of certain provisions of an insurance policy, as well as damages stemming from appellee's alleged breach of the insurance contract. This appeal followed the trial court's grant of summary judgment to appellee.

Our initial inquiry must be whether we have jurisdiction to consider this matter. An action seeking specific performance seeks equitable relief (see 20/20 Vision Center v. Hudgens, 256 Ga. 123, 131 (345 SE2d 330) (1986); Morgan v. Mitchell, 209 Ga. 348 (2) (72 SE2d 310) (1952)), and an appeal from a judgment rendered pursuant to a request for equitable relief is within the jurisdiction of the Supreme Court. 1983 Ga. Const., Art. VI, Sec. VI, Par. III (2). See Iannicelli v. Iannicelli, 169 Ga. App. 155 (2) (311 SE2d 850) (1983).

Appellee urges jurisdiction in this court on the ground that, should appellant succeed on appeal, money damages could be ascertained to adequately compensate appellant, thereby giving him an adequate remedy at law. However, "[d]amages in lieu of specific performance cannot be recovered unless the plaintiff can prove his right to the latter remedy. [Cit.]" Johnson v. Bourchier, 245 Ga. 124 (2) (263 SE2d 157) (1980). See also Golden v. Frazier, 244 Ga. 685 (3) (261 SE2d 703) (1979). It is for the Supreme Court to determine whether any of appellant's enumerations of error are meritorious.

Case transferred to Supreme Court. Banke, P. J., and Carley, J., concur.