author: Birdsong, Presiding Judge.

text:
    A90A2217, A91A0229.
    FABE v. FLOYD (two cases).
    (405 SE2d 265)
   Birdsong, Presiding Judge.

George Fabe, Insurance Commissioner of the State of Ohio and Liquidator of the American Druggists Insurance Company (“ADIC”), appeals a $450,000 judgment for Maurice L. Floyd on a Yost v. Torok abusive litigation claim. (As this action was filed prior to April 3, 1989, OCGA § 51-7-85 is not applicable.) Fabe contends the trial court erred by not giving full faith and credit to an Ohio statute and certain injunctions prohibiting counterclaims against Fabe as he attempted to recover sums owed ADIC; that the evidence did not authorize recovery on an abusive litigation claim; that the damages awarded were excessive; and that the trial court erred by refusing to permit his attorneys to divide their concluding argument.

The record shows ADIC issued performance bonds on behalf of Jones Electrical Company, Inc. (“Jones Electric”), and Floyd was an electrician who worked for Jones Electric. Although Floyd was also listed as the secretary of the corporation, the record shows Floyd performed no duties as secretary, received no pay for this position, owned no stock in the company and may not have known of this title. Further, Floyd never signed any documents on behalf of Jones Electric.

ADIC required that a general indemnity agreement (“the agreement”) be signed promising that ADIC would be indemnified for any sums paid on the bond. In this instance, three signatures appeared on the agreement: Mr. Jones’, Mrs. Jones’, and Floyd’s. The signatures of these people were purportedly notarized either by a Mrs. Pace or a Mrs. Jamieson.

Subsequently, ADIC apparently made payments on the bond, and after ADIC became insolvent, Fabe was to liquidate ADIC and recover any sums owed it. When Fabe attempted to recover on Jones Electric’s agreement, however, Mr. Jones and Mrs. Jones had been discharged in bankruptcy. Thus, in February 1987 Fabe demanded that Floyd reimburse ADIC for almost $186,000 plus attorney fees under the agreement.

Upon receipt of Fabe’s demand, Floyd retained counsel who replied stating Floyd knew nothing about the agreement, denying he signed the agreement, and advising that a Yost counterclaim would be filed if Fabe filed suit against Floyd. Later, Floyd also suggested that the Small Business Administration might be liable for the debt.

When efforts to collect from the SBA were unavailing, Fabe again demanded payment from Floyd. Floyd’s reply in July 1988 again denied that he had signed the agreement and provided a letter from a handwriting examiner stating that the signatures on the agreement were not Floyd’s.

After receiving this information in July 1988, Fabe contacted Mr. Jones about Floyd’s signature on the document, and Jones said that Floyd had not signed the agreement and the signature was probably that of another employee.

Thereafter, Fabe asked Floyd to provide the handwriting samples so its own expert could examine them, asked Floyd to prepare an affidavit telling all he knew about the matter, and asked Floyd to agree to waive the statute of limitation on these claims. In September 1988 Floyd agreed only to provide the affidavit, and in November 1988, Fabe filed suit against Floyd alleging that he had executed the agreement. By this, Fabe meant that Floyd had signed the agreement, or he had authorized another to sign the document, or that he had ratified another signing his name to the document.

Floyd denied liability and filed a Yost counterclaim against Fabe. Thereafter, Floyd moved for summary judgment on Fabe’s claim, supporting his motion with his affidavit denying that he had signed or authorized his signature on the document, with his expert’s opinion stating that he did not sign the agreement, and with the affidavits of Jones and Jamieson also stating that Floyd had not signed the agreement.

Although Fabe later reported to the trial court that his own expert had examined samples of Floyd’s handwriting and also concluded that Floyd did not sign the agreement, Fabe did not dismiss the case, but instead argued that Floyd’s motion should be denied because of Fabe’s theories of authorization or ratification. The trial court, however, granted Floyd’s motion for summary judgment on Fabe’s claims against him. As Fabe did not appeal this decision, this decision is final, and there is no question that the underlying proceedings were terminated in Floyd’s favor.

Subsequently, Floyd’s abusive litigation claim proceeded to trial. At trial Mrs. Jamieson, the notary, testified that Floyd did not sign the agreement, that Fabe did not contact her about the matter before the suit was filed, and that if Fabe had, she would have told him that she did not witness Floyd signing the agreement. Mr. Jones also testified that Floyd did not sign the document and that he had informed Fabe of this fact before suit was filed against Floyd. Jones further testified that he did not remember being asked to give Fabe an affidavit about this. Mrs. Jones also testified that Fabe had not contacted her about signatures on the agreement, and testified that if she had been contacted she would have informed Fabe that she also had not signed the agreement. Further, Mrs. Pace testified that she did not see Floyd sign the agreement.

Both the experts also testified that Floyd did not sign the agreement. More significantly, however, both testified that the signature was so obviously not Floyd’s that it appeared that no effort was made to copy Floyd’s signature. Moreover, they agreed that while it is preferable for an examiner to have original samples to consider, in this case, the dissimilarities in the signatures were so great that copies were sufficient.

Although some of Fabe’s attorneys and Fabe’s assistant, Mr. Mo-til, testified attempting to explain their actions, the jury awarded Floyd damages of $450,000, and judgment was entered in that amount. Fabe moved to set aside the verdict, for judgment n.o.v., or alternatively for a new trial, and after these motions were denied, Fabe filed a direct appeal.

The trial court awarded attorney fees and expenses of litigation under OCGA § 9-15-14 (a). Fabe’s application for discretionary appeal was granted, and Fabe also appealed that judgment. Additionally, Fabe has filed a motion to remand this appeal to the trial court for the limited purpose of the trial court’s consideration of a motion under OCGA § 9-11-60 (d) (2) to set aside the judgment because of fraud. Fabe contends that Floyd’s attorney misled his counsel by providing them with only one of two versions of Floyd’s handwriting examiner’s report. Held:

1. Our first consideration is our jurisdiction to consider all of the issues on appeal. Court of Appeals Rule 32 (d); Atlantic-Canadian Corp. v. Hammer, Siler &c. Assoc., 167 Ga. App. 257 (306 SE2d 22). The record shows that Fabe’s enumerations of error asserting that the trial court failed to give full faith and credit to the Ohio statute and the injunctions prohibiting counterclaims were the subject of Fabe’s motion to set aside the judgment under OCGA § 9-11-60 (d) which was denied in the trial court. Appeals from the denial of a motion to set aside the judgment under OCGA § 9-11-60 (d) are subject to the discretionary appeals procedure (OCGA § 5-6-36 (a) (8)) even when coupled with motions for a new trial or judgment n.o.v. OCGA § 5-6-35 (d). State Farm &c. Ins. Co. v. Yancey, 258 Ga. 802 (375 SE2d 39). Accordingly, we are without jurisdiction to consider Fabe’s first and second enumerations of error.

2. Fabe next argues that the trial court erred by denying his motions for a directed verdict or for judgment n.o.v. “In determining whether the trial court erred by denying appellants’ motions for a directed verdict and motion for judgment n.o.v., this court must review and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict (and judgment n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” (Citations and punctuation omitted.) Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268).

(a) Fabe alleges that the trial court erred by denying his motion for a directed verdict because his claim against Floyd was not completely void of justiciable issues of law or fact. He argues he had theories of recovery against Floyd supported by presumptions arising from the signature on the indemnification agreement (see OCGA §§ 11-3-307 (1) (b) and 14-2-151 (a)), and by his theories of ratification and authorization even if Floyd did not sign the agreement.

While a party in Fabe’s position is entitled ordinarily to rely on the notarized signature to sue on an agreement such as this, the evidence shows that Fabe knew months before he filed this action that Floyd denied both knowing anything about or having signed the agreement and also knew that Floyd’s denial was supported by Mr. Jones’ admission that Floyd did not sign the agreement, but that Mr. Jones had someone else sign the agreement, and by Floyd’s handwriting examiner’s opinion that Floyd did not sign the document. With this information, any presumption arising from the notarized signature was rebutted, and Floyd was not authorized to base his action solely upon any presumptions arising from the signature. Additionally, as the evidence showed noticeably there was no notary seal on the portion of the agreement purporting to acknowledge Floyd’s alleged signature, the notarization did not comply with OCGA § 45-17-6 (a) (1), and, accordingly, the notary’s signature standing alone would not give rise even to the rebuttable presumption Fabe claims.

Further, although Fabe asserted theories of recovery under ratification or authorization of the signature of the agreement, the record shows that Fabe never produced evidence to support these theories. Thus, the record shows that these were merely abstract theories with no supporting evidence, and we reject any arguments based upon these unsupported theories.

The evidence in this record clearly and plainly establishes that months prior to filing this action Fabe knew he had no evidence to support his theories of recovery against Floyd and a reasonable, low-cost inquiry would have shown there was no likelihood of developing such evidence. This was sufficient to show that Fabe asserted a claim against Floyd with respect to which there was such a complete absence of any justiciable issue of law or fact that it reasonably could not be believed that a court would accept the claim. Fabe’s position, however, was that either Floyd would prove to Fabe’s satisfaction that he was not liable or Fabe would file suit. This is further demonstrated by the testimony of Mr. Motil in which he read his letter authorizing that the suit be filed: “Because Mr. Floyd refuses to cooperate with us in authenticating the signature in question, I do not believe we have sufficient basis to abandon this claim. Therefore, in my opinion as Deputy Liquidator, I believe that an action against him would not be frivolous and I do hereby instruct you to file suit against him in an effort to collect the amount owed to ADIC.” No mention was made of any evidence supporting the claim; only that Floyd, who this record shows to be a mere victim of circumstances, would not cooperate with them. Accordingly, we are satisfied that the evidence supports the verdict. Yost v. Torok, 256 Ga. 92, 96 (344 SE2d 414).

(b) Fabe next contends that even if his claim was completely without justiciable issue of law or fact, the trial court erred by denying his motion for a directed verdict because Floyd produced no evidence that Fabe’s conduct was wilful or wanton and thus no damages were authorized. See Deutz-Allis Credit Corp. v. Phillips, 193 Ga. App. 79, 80 (387 SE2d 34); Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 796 (359 SE2d 920). Yost v. Torok, supra at 95, however, specifically authorizes the award of “special damages, other than attorney fees and expenses of litigation; damages for mental distress, where there is either wilfulness, or wanton and reckless disregard of consequences which is the equivalent of wilfulness (see Hamilton v. Powell, Goldstein, Frazer & Murphy, 252 Ga. 149 (311 SE2d 818) (1984)); or nominal damages pursuant to OCGA § 51-12-4.” Therefore, the issue here is whether Fabe’s actions in filing a lawsuit which was completely without a justiciable issue were wilful or the equivalent of wilfulness.

In considering this issue we must note that the record shows that there is no question that Fabe knew the notarized signature was disputed, and Fabe did not contact the notary to ascertain what her testimony would be about this issue and Fabe presented no evidence or reason for not contacting the notary. Moreover, we also note that, other than Jones, who supported Floyd, Fabe did not contact any other purported witness or signatory of the indemnification agreement (who also supported Floyd at trial).

Additionally, the record shows that Fabe failed to seek another handwriting examiner’s opinion about the signature on the indemnification agreement before he filed this action. Although Fabe contends that this was because Floyd refused to provide handwriting samples, the record does not show that Fabe ever inquired whether the samples already in Fabe’s possession would provide a sufficient basis for examination. Indeed, the record also shows that while complaining that Floyd refused to provide original handwriting samples, the original of the agreement was kept in Fabe’s records in Ohio. Further, Fabe’s expert, who subsequently determined that the signature was not Fabe’s, admitted that copies of Floyd’s handwriting would have been sufficient for him to have rendered his opinion because the signatures were obviously not the same.

. The evidence shows that Fabe’s pretrial investigation resulting in his decision to file suit primarily consisted of two attorneys comparing the signature on the agreement with copies of Floyd’s signature and deciding that Floyd had signed the agreement, the discussion with Jones, and their efforts to force Floyd to prove to them that he did not execute the agreement. It is noteworthy that, except for the two attorneys’ review of the signature, no investigation produced any evidence that Floyd had executed the agreement, and in fact, every effort only produced more evidence that Floyd did not execute the agreement.

Moreover, we note that one of Fabe’s attorneys in effect testified that even knowing that their own expert said that Floyd had not signed the agreement, that Jamieson said she had signed the notarization in blank, and that Jones said that Floyd had not signed or known of the document, he had no regrets about filing the action.

Additionally, we note that even after his handwriting examiner supported Floyd, Fabe’s attorney represented to the trial court that “newly discovered evidence casts serious doubt upon [Floyd] and his witnesses and their contention that [Floyd] did not authorize another person to sign the general indemnity agreement on his behalf.” The record shows, however, that what counsel asserted were contradictions in the witnesses’ testimony concerned matters unrelated to whether Floyd had signed or authorized another to sign the agreement.

We can only conclude from the evidence that Fabe intentionally filed this action without evidence to support his claim, without regard for whether there was any evidence to support his claim, and without regard for properly investigating the claim. Instead, Fabe’s actions appear to have been limited to finding legal theories which conjecturally might authorize bringing the lawsuit. This is not a case in which the plaintiff learned after the action was filed that his proof failed. This was a case in which the proof failed before the action was filed. “[Rjeckless and wanton disregard of consequences may evince an intention to inflict injury.” Hamilton v. Powell, Goldstein, Frazer &c., supra at 150. The evidence in this case shows that the action was filed wilfully and without regard to the consequences of Floyd having to defend this meritless action. Further, Wheat v. First Union Nat. Bank, 196 Ga. App. 26 (395 SE2d 351) has no application here because the evidence shows that Fabe wilfully filed this action with full knowledge of the circumstances. Mere negligence played no part in this case.

Accordingly, the evidence fully supports the required finding that Fabe’s actions in filing this groundless case were wilful or its equivalent, by means of a wanton and reckless disregard of consequences, and thus did support the imposition of damages for mental distress. “There is the need to contain the corrupting effect of groundless claims. . . .” (Emphasis supplied.) Yost v. Torok, supra at 93.

(c) Fabe also argues that because Floyd refused to provide additional handwriting samples as Fabe requested and did not independently provide information about Jamieson, he was not authorized to maintain a Yost claim, and the trial court erred by denying Fabe’s motion for summary judgment, motion for directed verdict, and motion for judgment n.o.v. asserting that defense.

As the case proceeded to verdict and judgment on the merits, Fabe’s arguments concerning the denial of his motion for summary judgment are moot. Hardaway Constructors v. Browning, 176 Ga. App. 530 (336 SE2d 579).

Fabe’s argument seeks to place a burden on Floyd which does not exist in our law. A defendant is not required to prove to the plaintiff’s satisfaction that no claim exists. Further, this is not a case in which Floyd did not make a reasonable attempt to show Fabe there was no merit to his case. On the contrary, in addition to denying that he had signed the agreement, Floyd presented Fabe with the opinion of an expert stating that he did not sign the agreement. Additionally, before this request was made Fabe knew from Jones that Floyd did not sign the agreement. It is not Floyd’s fault that Fabe thereafter refused to contact the witnesses, especially the obvious witness Jamie-son, necessary to ascertain that he had no case against Floyd. Also, we note that Fabe did not merely ask Floyd to provide handwriting samples, but also asked for an affidavit detailing Floyd’s exact knowledge of this matter and asked for a waiver of the statute of limitation. Since Floyd refused to dismiss this action even after his own expert stated that the signature was not Floyd’s, there is no reason to believe that anything Floyd could have done would have dissuaded Fabe from pursuing this abusive litigation.

Therefore, ample evidence supports the verdict. Consequently, the trial court did not err by denying the motions that Fabe complains of in these enumerations of error. Southern Store &c. Co. v. Maddox, supra.

3. Fabe also enumerates as error the denial of his motion for new trial because the verdict was grossly excessive and unwarranted by the evidence, the verdict was so excessive as to violate the due process clause, and the verdict was so excessive as to constitute punitive damages which are forbidden in a Yost v. Torok claim.

It is well settled in this state that the proper standard for assessing damages in cases such as this is the enlightened conscious of the jury. “A verdict in one of that class of cases in which the amount of damages is left to the enlightened conscience of the jury is not to be declared by a reviewing court to be excessive, unless it is so large in amount as to justify the court in believing that it could not reasonably have resulted from any other cause than bias or gross mistake on the part of the jury. [This is usually] a matter of inference; and in that event the solution falls within the rule as to circumstantial evidence, there must be no reasonable hypothesis other than that the bias or mistake did exist. The presumption is that the jurors were impartial and understood their case. It is, therefore, a more reasonable hypothesis that their finding was based on the evidence considered impartially.” (Citation and punctuation omitted.) Realty Bond &c. Co. v. Harley, 19 Ga. App. 186, 189 (91 SE 254). “An excessive or inadequate verdict constitutes a mistake of fact rather than of law. It addresses itself to the discretion of the trial judge who saw the witnesses and heard the testimony. This court is a court for the correction of errors of law only, and this court’s jurisdiction is confined to the question of whether the trial court abused his discretion in overruling the motion for a new trial on this ground.” St. Paul Fire &c. Co. v. Dillingham, 112 Ga. App. 422, 425 (145 SE2d 624). With those principles before us, we examine Fabe’s specific arguments.

Fabe first asserts that Floyd’s evidence regarding his mental distress was not sufficient to support damages in the amount of $450,000. Fabe asserts that only Floyd’s testimony supports the verdict and that because Floyd did not call other witnesses to testify about his mental suffering, Floyd’s case was insufficient. Our law places the responsibility for assessing the evidence on the jury. The jury saw and heard Floyd testify. The jury could measure the sincerity of his testimony and the depth of his mental suffering. Floyd’s testimony about his mental suffering was not extensive, but it was unrebutted. He testified that “it’s just something that. . . gnaws at you all the time. It’s always at the back of your mind. . . . It’s just tough. . . . After a while I felt like that we were trying to do y’all’s work at my expense and I felt like we had proven that I was innocent.” The lawsuit “worried” him. Further, “on the inside there was always something gnawing at you and you really couldn’t enjoy anything . . . because it was always in the back of your mind. ... I tried every way possible I could to get this thing settled . . . and they just kept on and on and on and ... it was tough to sleep at night, tough to get out and enjoy life and do the things you ought to do.”

We cannot say as a matter of law that a small business man facing a lawsuit as Floyd did in which the plaintiff vigorously sought to collect a meritless claim for $186,000 is any small matter. Nor can we say as a matter of law that Floyd should not have suffered mentally because he should have known that he would prevail for even then he had worries about funding of the defense, paying attorney fees and all the other costs associated with being on the receiving end of this mer-itless and abusive lawsuit. Moreover, Floyd’s testimony is amply supported by the record. Fabé’s relentless prosecution in this case was undeterred by the absence of evidence; Fabe did keep “on and on and on” in spite of the total absence of evidence supporting his claim. Further, the testimony at trial from Fabe’s witnesses evinced a lack of genuine concern or remorse for Floyd’s mental suffering and a readiness to file suit again notwithstanding the trial court’s grant of summary judgment to Floyd and knowledge that the case could not be proven.

Further, we are not persuaded that Fabe’s counsel’s representations that she hoped Floyd would not be too inconvenienced meant anything. Those assurances fail to appreciate the significant emotional differences between being a hapless, innocent defendant rather than a non-party litigating attorney. We find no merit to these assertions.

Throughout this appeal Fabe has argued that Floyd should not be permitted to recover $450,000, or about $4,000 for each of the 109 days suit was pending against him. We note, however, that Floyd faced a claim for over $185,900 for 109 days or almost $1,700 per day. We also note that his recovery was less than three times the amount of Fabe’s suit, not counting the court costs, interests, and attorney fees which Fabe also sought to recover. Thus while his recovery was large, it did not grossly exceed the damage sought against him, especially when coupled with other potential costs.

Fabe also contends that the verdict must be overturned because it is in the nature of an award of punitive damages which are prohibited in a Yost v. Torok claim. In this argument he relies upon what Fabe claims to be improper argument by Floyd’s counsel. Review of the record shows, however, that Fabe never objected to the argument of which he now complains and made no motion to restrict the argument. Since there was no objection in the trial court, we cannot consider this issue. “When allegedly improper argument is made to the jury, opposing counsel must object at trial or otherwise invoke a ruling of the trial court. Failure so to object constitutes waiver. [Cits.]” Verde v. Granary Enterprises, 178 Ga. App. 773, 774 (345 SE2d 56). In this case, Fabe did nothing to cause the trial court to rule on this issue. A party cannot ignore what he deems as error, remain silent taking his chance on a favorable verdict, and then assert the error on appeal. Bolden v. Carroll, 239 Ga. 188 (236 SE2d 270). Additionally, review of the argument shows that it was based upon the evidence of Fabe’s conduct and conduct of Fabe’s attorneys at trial. See Miller v. Coleman, 213 Ga. 125, 130 (97 SE2d 313).

4.Finally, Fabe contends that the trial court erred by not allowing his attorneys to divide his concluding argument. Pretermitting whether OCGA § 9-10-182 and Uniform Superior Court Rule 13.3 prohibit dividing concluding argument as Fabe wished, the transcript shows that when the trial court made the ruling it offered Fabe the opportunity to cite authority to the contrary, but Fabe refused the opportunity with a remark to the effect that he could just tell co-counsel what he intended to say. Under the circumstances, Fabe waived any objection as he acquiesced to the ruling. Ewing v. Johnston, 175 Ga. App. 760 (334 SE2d 703). Although a party need not except to an unfavorable ruling (see OCGA § 9-11-46 (a)), he cannot merely agree to the procedure directed by the trial court (Harmon v. State, 259 Ga. 444 (3) (383 SE2d 874)); neither can he engage in conduct or trial procedure which aids in fostering the ruling of which he now seeks to complain. Nodvin v. West, 196 Ga. App. 825, 829 (3) (e) (397 SE2d 567).

Case No. A91A0229

5. Fabe’s motion to consolidate these appeals is granted. Fabe also contends that the trial court erred by awarding Floyd attorney fees and expenses of litigation under OCGA § 9-15-14. The record shows that the trial court judgment in favor of Floyd was encompassed within the grounds for awarding these expenses under OCGA § 9-15-14 (a); as a result the award of attorney fees and expenses of litigation were mandatory. Haggard v. Board of Regents &c., 257 Ga. 524, 526 (360 SE2d 566). Therefore, the trial court did not err by awarding these expenses and attorney fees.

Case Nos. A90A2217 and A91A0229

6. Fabe’s motion for a limited remand is denied. We do not find that consideration of the issue raised in this motion is necessary to disposition of this appeal. Therefore, it is appropriate that the normal procedure for motions under OCGA § 9-11-60 (d) (2) be followed, including procedures for appellate review if necessary. OCGA § 5-6-35 (a) (8).

7. Floyd’s motion for imposition of sanctions against Fabe for filing the motion for remand is also denied.

8. Floyd’s motion to transfer this appeal to the Supreme Court is denied. All issues in this appeal are within the jurisdiction of this court.

Judgments affirmed.

Banke, P. J., and Cooper, J., concur.

On Motion for Rehearing.

1. Fabe’s motion for rehearing asserts we erred in holding his failure to follow the discretionary appeals procedure deprived this court of jurisdiction to consider the issues in Division 1 above. He argues these issues were preserved as the trial court denied his motions to the same effect earlier in the proceedings and because he did not invoke OCGA § 9-11-60 (d) in his post-trial motion.

While Fabe asserted these issues earlier in the proceedings, he also unquestionably asserted these points in his post-trial motion, which was entitled, “Motion to Set Aside and Vacate Verdict and Judgment, for Judgment Notwithstanding the Verdict, or in the Alternative, Motion for a New Trial.” Further, Fabe relied on the lack of subject matter jurisdiction, one of the grounds for a motion to set aside the judgment. OCGA § 9-11-60 (d) (1). Thus, neither Fabe’s misstating the record by asserting that his post-trial motion was only to reconsider earlier rulings, nor his failure to cite OCGA § 9-11-60 (d), is of any consequence. See Holloway v. Frey, 130 Ga. App. 224, 227 (202 SE2d 845). The motion denied was to set aside the judgment under OCGA § 9-11-60 (d), and the discretionary appeals procedure is applicable. See State Farm &c. Ins. Co. v. Yancey, 188 Ga. App. 8, 9 (371 SE2d 883). Further, “[a] careful reading of OCGA § 5-6-35 leads us to the inescapable conclusion that the legislature never intended the application process to be circumvented.” State Farm &c. Ins. Co. v. Yancey, 258 Ga. 802 (375 SE2d 39).

Moreover, compliance with the discretionary appeals procedure is jurisdictional. State of Ga. v. Baldwin, 187 Ga. App. 611, 612 (371 SE2d 135). Therefore, Fabe’s failure deprives this court of jurisdiction. Accordingly, dismissal of this portion of Fabe’s appeal is required. State Farm &c. Ins. Co. v. Yancey, supra.

While Fabe argues that he can assert these arguments at any time, he must do so in a court having appellate jurisdiction. His failure to comply with the discretionary appeals procedure deprives this court of jurisdiction just as if he failed to file a timely notice of appeal. OCGA § 5-6-48 (b) (1).

2. Fabe argues that he was entitled to rely on Floyd’s forged signature. The thrust of this argument is that Fabe could file suit knowingly relying on a forged signature. No presumption in our law authorizes such conduct. See OCGA § 24-1-1 (6).

Fabe cites OCGA § 14-2-151 (a), concerning corporate seals, as such a presumption. He does not cite, however, OCGA § 14-2-151 (b), which provides: “[A] third party without knowledge or reason to know to the contrary may rely on such document as being what it purports to be.” Since Fabe had knowledge to the contrary, he could not rely on any presumption under OCGA § 14-2-151 (a). In any event, this Code section concerns the corporation, and it would not entitle Fabe to a presumption that Floyd’s forged individual signature was valid. Thus, this authority and other precedent, authorizing an action against a corporation because of the corporate seal, are not persuasive in this action brought against Floyd individually.

Further, Fabe’s primary argument has been that he could rely on Floyd’s forged notarized signature to bring this action against Floyd individually. The copies of the agreement in the record, however, show that Floyd’s only notarized signature was his forged signature in the “firm acknowledgement,” and that there is no acknowledgement for Floyd’s forged signature as an individual indemnitor.

This “firm acknowledgement” differs significantly from the individual acknowledgement. .The “firm acknowledgement” in relevant part provides: “[Floyd] thereupon acknowledged to me that he executed the same as and for the act and deed of said firm” (Emphasis supplied.) The individual acknowledgements in the record do not contain the emphasized language.

As this action was against Floyd individually, the presumptions Fabe offers, even if valid, would not support filing this lawsuit against Floyd. Further, although asserting that he could bring this lawsuit relying on actions of Floyd’s attorney, Fabe provides no theory for how such conduct could prove that Floyd signed the document which Fabe knew was forged prior to filing suit. While Fabe cites Shiver & Barnett v. Firemen’s Ins. Co., 60 Ga. App. 57, 58 (2 SE2d 760), this case is not authority for the proposition he asserts. Shiver concerns the rebuttable presumption that arises from a party’s failure to produce evidence in his possession at trial, not the circumstances here. In any event, even a Shiver presumption does not arise if the party has no burden of producing evidence. Southern Express Co. v. B. R. Elec. Co., 126 Ga. 472, 477-478 (55 SE 254). Moreover, this argument is contrary to trial testimony from one of Fabe’s attorneys that they could only rely on the information they had and not what Floyd’s attorney said. We note that the information Fabe had that Jones had Floyd’s signature forged was the result of Fabe’s own investigation and was not information received from Floyd or Floyd’s attorney.

As there were no presumptions for Fabe to rely on, his arguments on when presumptions may be rebutted are meaningless.

3. Fabe argues that we “egregiously” overlooked the decision of our Supreme Court in Central of Ga. R. Co. v. Swindle, 260 Ga. 685 (398 SE2d 365), and accuses us of “abdicating [our] responsibility to consider the entire record when reviewing damage awards.”

Swindle, an action under the Federal Employers’ Liability Act (“FELA”), stated: “Damages recoverable in an FELA action are compensatory only.” 260 Ga. at 686. Therefore, the jury was limited in its considerations in reaching its verdict, and a different standard of review could be employed in measuring whether the verdict was excessive.

Here, while punitive damages were not authorized separately, the jury was authorized to award damages for Floyd’s mental distress (Yost v. Torok, supra at 95, n. 3), and the damages are awarded according to the enlightened conscience of impartial jurors, a much broader standard. See Westview Cemetery v. Blanchard, 234 Ga. 540, 544-546 (216 SE2d 776). Swindle is not precedent here.

Fabe also complains that we did not refer to certain testimony he believes favors his case. This argument disregards the basic rule that on appeal we must construe the evidence most strongly in support of the verdict. See J. C. Penney &c. Ins. Co. v. Woodard, 190 Ga. App. 727 (380 SE2d 282). Therefore, our failure to refer to evidence which might have supported Fabe’s case, if the jury had chosen to credit it, does not mean that we did not consider it. In the same manner, our failure to refer to Fabe’s attorney asking Floyd’s attorney on cross-examination in open court, “[D]id you go to law school?,” did not mean that we did not consider it, as we assume the jury also did in assessing the damages to be awarded. Moreover, the evidence suggests that Fabe’s real feelings were reflected in the testimony from his witnesses suggesting that a $185,000 loss could not be written off without someone being sued.

Fabe also complains that the amount Fabe was sued for should not be considered in measuring whether the damages awarded Floyd were excessive. This argument fails to consider rather basic human nature: One facing a lawsuit for one or 100 dollars reasonably could be expected to suffer less mental distress than one facing a suit for over $185,000. Further, Floyd’s testimony alone was sufficient to prove his mental suffering. See OCGA § 24-4-8.

4. Fabe’s other arguments on issues he waived are also not persuasive. He made no motion to restrict Floyd’s argument and made no objection to any part of the argument. Also, the record shows that when the trial judge offered Fabe’s attorney the opportunity to present additional argument on the divided argument issue, Fabe refused by stating, “I think I could just tell him [co-counsel] what I wanted to.” These issues were waived. In any event, it is not apparent that the trial court abused its discretion by refusing to permit the divided argument. Goforth v. Wigley, 178 Ga. App. 558, 561 (343 SE2d 788).

Decided March 12, 1991

Rehearing denied March 27, 1991

Andrew J. Hill, Jr., Dow, Lohnes & Albertson, Terrence B. Adamson, for appellant.

Cornwell, Church & Healy, James E. Cornwell, Jr., Cathey & Strain, Edward E. Strain III, for appellee.

Motion for rehearing denied.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A90A2238.
    A90A2239.
    INGRAM v. JIK REALTY COMPANY, INC. INGRAM v. J. I. KISLAK MORTGAGE SERVICE CORPORATION et al.
    (404 SE2d 802)
   Cooper, Judge.

In August 1983, Harold Robinson (“Robinson”) obtained a second mortgage on the subject property and executed a promissory note and deed to secure debt in favor of Atlantic Mortgage Company. (Atlantic subsequently changed its name to First American South, but will hereinafter be referred to as “Atlantic”). Because the terms of Robinson’s first mortgage did not permit a second mortgage on the property, in October 1984, Robert Westmoreland (“Westmoreland”), a corporate vice-president for Atlantic executed a quitclaim deed on the subject property which cancelled Atlantic’s deed to secure debt (the quitclaim deed is hereinafter referred to as the “Atlantic-Robinson quitclaim deed”). It is undisputed that the debt owed by Robinson was not paid at the time the deed to secure debt was cancelled, and that Robinson continued to make payments on the note. Despite the cancellation of the deed to secure debt, in June 1985, Atlantic sold the promissory note and deed to secure debt to E. F. Hutton Mortgage Company (“Hutton”). The mortgage purchased by Hutton from Atlantic was serviced by John Byrne (“Byrne”) of J. I. Kislak Mortgage Service Company (“Kislak”) and when the mortgage went into default in May 1988, it was assigned to JIK Realty Company (“JIK”) for the purpose of instituting a foreclosure proceeding against the subject property, which had been purchased by appellant from Robinson in December 1986.

The litigation which forms the basis of this appeal commenced in June 1988 when appellant filed a complaint against JIK, seeking a temporary and permanent injunction prohibiting the foreclosure. In support of his complaint, appellant attached the Atlantic-Robinson quitclaim deed. The temporary restraining order was granted, but at the hearing on the interlocutory injunction in September 1988, JIK filed an affidavit of forgery signed by Byrne pursuant to OCGA § 44-2-23, contending that the Atlantic-Robinson quitclaim deed was a forgery, and the trial court denied the injunction.

After conducting discovery, appellant moved for summary judgment on his request for a permanent injunction, attaching in support of his motion affidavits establishing that the signature on the Atlantic-Robinson quitclaim deed was that of Westmoreland, an officer of Atlantic. While that motion was pending, appellant filed an amendment to his complaint in January 1989 to include claims for abusive litigation, intentional infliction of emotional distress and bad faith. JIK did not oppose appellant’s motion for summary judgment on the permanent injunction issue and the motion was granted in April 1989. In June 1989, JIK filed a motion for summary judgment on appellant’s claim for abusive litigation, and in July 1989, prior to the court’s ruling in JIK’s motion, appellant added as party-defendants Hutton, Kislak and Byrne. On December 4, 1989, the trial court granted JIK’s motion for summary judgment. On December 28, 1989, JIK and the added defendants moved for summary judgment on appellant’s claim for intentional infliction of emotional distress, and the added defendants moved for summary judgment on appellant’s abusive litigation claim. On March 15, 1990, the trial court granted both motions.

In Case No. A90A2238, appellant appeals from the December 4, 1989, order granting summary judgment to JIK on appellant’s abusive litigation claim. In Case No. A90A2239, appellant appeals from the trial court’s March 15, 1990, order granting summary judgment to all the defendants on appellant’s claim for intentional infliction of emotional distress and to the added defendants on the abusive litigation claim.

1. We first consider whether summary judgment was properly granted to all of the defendants on appellant’s claim of intentional infliction of emotional distress. “On motion for summary judgment, the burden of showing the absence of any genuine issue of material fact rests upon movant, and the party opposing the motion is given the benefit of all reasonable doubts and favorable inferences that may be drawn from the proof offered. [Cit.]” Coleman v. Housing Auth. of Americus, 191 Ga. App. 166, 169 (1) (381 SE2d 303) (1989). “Georgia law recognizes the tort of intentional infliction of emotional distress. [Cits.] The burden which the plaintiff must meet in order to prevail in this cause of action is a stringent one, however. ‘In order to sustain a cause of action in this state for the tort of intentional infliction of emotional distress, a plaintiff must show that “defendant’s actions were so terrifying or insulting as naturally to humiliate, embarrass or frighten the plaintiff.” ’ [Cits.]” Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 229 (1) (335 SE2d 445) (1985). We recently held that an intentional wrongful foreclosure can be the basis for an action for intentional infliction of emotional distress. See Clark v. West, 196 Ga. App. 456, 458 (395 SE2d 884) (1990). However, even giving appellant the benefit of all reasonable doubts and inferences, we cannot conclude that the trial court erred in granting summary judgment to ap-pellees. The evidence viewed in a light most favorable to appellant shows that Hutton purchased the subject deed to secure debt during a bulk purchase of other similar instruments without checking the public records to determine whether the deed had been cancelled; that the debt to Atlantic was not paid by Robinson at the time that the deed was cancelled; that Robinson made several payments on the debt to Kislak even after the deed had been cancelled by Atlantic; that the Atlantic-Robinson quitclaim deed was not executed with the same formalities with which Byrne was familiar; and that while there is some evidence that Byrne may have known Westmoreland sometime prior to when the quitclaim deed was recorded, there is no evidence that Byrne recognized the signature on the quitclaim deed as being Westmoreland’s or anyone else’s from Atlantic. “ ‘The law will intervene only where the distress inflicted is so severe that no reasonable man could be expected to endure it. [Cit.] It is for the court to determine whether on the strength of the evidence severe emotional distress can be found. [Cit.]’ [Cit.]” Yarbray v. Southern Bell Tel. &c. Co., 197 Ga. App. 846, 851 (2) (399 SE2d 718) (1990). We find no error in the trial court’s determination that the evidence did not as a matter of law make out a case of intentional infliction of emotional distress.

2. We next consider whether the trial court erred in granting JIK’s motion for summary judgment on appellant’s claim for abusive litigation. Appellant’s claim for abusive litigation having been made before the effective date of OCGA § 51-7-80 et seq., we must analyze the claim under Yost v. Torok, 256 Ga. 92, 96 (13) (344 SE2d 414) (1986) which provides that “any party who shall bring or defend an action, or any part thereof, that lacks substantial justification, or is interposed for delay or harassment; or any party who unnecessarily expands the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures, shall be liable in tort to an opposing party who suffers damage thereby.”

We reject at the onset appellees’ argument that the denial of appellant’s interlocutory injunction precludes his claim for abusive litigation. In support of their argument, appellees cite Biosphere Indus. v. Oxford, 190 Ga. App. 613 (379 SE2d 555) (1989), where we held that rulings by the trial court in denying summary judgment and a directed verdict to the appellants in the underlying case “were equally sufficient to constitute ‘a binding determination’ that [appel-lees’] civil action against appellants did not lack substantial justification so as to render it frivolous, groundless or vexatious.” Id. at 614-615. However, “ ‘ [t] he purpose for granting interlocutory injunctions is to preserve the status quo, as well as balance the conveniences of the parties, pending a final adjudication of the case.’ [Cit.]” Benton v. Patel, 257 Ga. 669 (1) (362 SE2d 217) (1987). The trial court’s order denying appellant’s interlocutory injunction does not indicate that the merits of the underlying case were considered, therefore, we find no bar to appellant’s Yost claim. See Efstathiou v. Saunders, 189 Ga. App. 470 (3) (376 SE2d 413) (1988).

(a) Appellant first contends that the attempted wrongful foreclosure constituted abusive litigation in that it lacked substantial justification. A foreclosure under a power of sale contained in a security deed is not a judicial proceeding and involves neither the use nor abuse of process. See Sale City &c. v. Planters &c. Bank, 107 Ga. App. 463, 464-465 (130 SE2d 518) (1963). Although appellant may have a cause of action in tort for attempted wrongful foreclosure (see Sale City, supra), we conclude that since the torts of malicious use and abuse of process are the predecessors of Yost claims (see generally Yost v. Torok, supra), appellant cannot state a cause of action for abusive litigation based on the attempted foreclosure pursuant to the power of sale contained in the Atlantic-Robinson security deed.

(b) Appellant next contends that JIK’s filing of an affidavit of forgery on the day of the hearing on appellant’s application for interlocutory injunction lacked substantial justification and constituted abusive litigation. In the affidavit, Byrne, a former employee of Atlantic, stated that he had at all times relevent been employed by one of the servicing agents for the mortgage and that he had access to the servicing records of Atlantic. Byrne pointed out several of the irregularities which existed on the face of the Atlantic-Robinson quitclaim deed and further stated that he did not recognize the signature on the Atlantic-Robinson quitclaim deed as being that of any officer or employee of Atlantic; that to the best of his knowledge Atlantic did not have a corporate vice-president whose signature even remotely resembled the signature on the deed; that it appeared to be someone with the initials “R. W.”; that to the best of his knowledge Atlantic had no corporate vice-president with the initials “R. W.”; and that he believed the Atlantic-Robinson quitclaim deed to be a forgery. Appellant contends that summary judgment was inappropriate because the deposition of Westmoreland, submitted by appellant, raised a question of fact as to whether the statements in the affidavit of forgery were false. Westmoreland testified in his deposition that he believed that Byrne knew him while Westmoreland and Byrne were employed by Atlantic in 1984; that he could not specifically remember any direct contact with Byrne but is sure that he spoke on the telephone with Byrne about some matters; that after Westmoreland and Byrne left Atlantic, they had extensive business dealings with each other. We do not find that Westmoreland’s testimony is sufficient to raise a question of fact as to whether JIK’s filing of the affidavit of forgery lacked substantial justification. Specifically, the deposition testimony does not contradict Byrne’s statement in the affidavit that he did not recognize the signature on the deed. Ñor does Westmoreland’s testimony show that any of Byrne’s statements made “to the best of his knowledge” are false. In an affidavit based on the best of an affiant’s knowledge and belief, “ ‘[e]very (item set forth as a fact) in the (affidavit) may be false, and yet each one may be true to the best of the knowledge and belief of the affiant.’ [Cit.]” Morris-Bancroft Paper Co. v. Coleman, 188 Ga. App. 809, 810 (374 SE2d 544) (1988). Considering the illegibility of the signature on the deed, the number of irregularities appearing on the face of the deed, as well as the indications as evidenced by the payment conduct of Robinson that the loan was not cancelled, we find no evidence that the attack on the validity of the deed by the filing of the affidavit of forgery lacked substantial justification.

(c) Finally, appellant contends that JIK’s filing of false interrogatory answers constituted abusive litigation. The record reflects that JIK, in response to appellant’s second interrogatories, answered that it was unaware of any present or past employee of JIK or Kislak with any knowledge about Westmoreland. The interrogatory answers were originally filed in March 1989 and were verified by one of Kislak’s foreclosure managers. In September 1989, following the deposition of Westmoreland, the interrogatory answers were amended pursuant to OCGA § 9-11-26 (e) to provide appellant with the names and addresses of several individuals with knowledge about Westmoreland. Appellant has presented no evidence that the interrogatory answers were false when verified by JIK’s foreclosure manager. JIK promptly utilized the available procedure for amending its answers to interrogatories. Accordingly, we conclude that the trial court did not err in granting summary judgment to JIK on appellant’s claim of abusive litigation.

3. Lastly, we address appellant’s contention that the trial court erred in granting summary judgment to the added defendants on his abusive litigation claim. Appellant argues that the added defendants are vicariously liable for the acts of its agent JIK. Inasmuch as we have found no liability for abusive litigation on the part of JIK, appellant’s argument is without merit. See Division 2.

Judgments affirmed.

Banke, P. J., and Birdsong, P. J., concur.

Decided March 12, 1991

Rehearing denied March 27, 1991

Herald J. A. Alexander, for appellant.

Long, Aldridge & Norman, David J. Maslia, J. Allen Maines, for appellees.


text:
    A90A2353.
    HARRIS et al. v. SLOAN.
    (405 SE2d 68)
   Cooper, Judge.

Appellants appeal the trial court’s order granting appellee’s motion for summary judgment.

Appellants, the tenants under written lease agreements in a duplex owned by appellee, lost their personal property when the duplex was destroyed by fire. None of the appellants had insurance coverage for their property. Appellee purchased the house in November 1988, at which time an FHA inspection was performed on the house, and appellee made the purchase subject to the existing leases of appellants. After the purchase, appellee, from time to time, exercised a limited right of access to the house which was granted in the leases for purposes of inspection and maintenance. Also, in February 1989, ap-pellee was making repairs to the exterior of the house and in the process, removed some asbestos shingles from the east and west sides of the house exterior. Before the shingles could be replaced, the fire occurred in mid-February 1989. The east side of the duplex, which was occupied by two of the appellants, was heated by a convection floor furnace which was probably installed in the 1950s. It is undisputed that the fire originated from this furnace on the east side of the house. It is also undisputed that appellee was never notified by any of the tenants or any public or private inspector of any problems or defects in or with the furnace. There was no allegation made that the furnace failed to comply with applicable building codes and appellee made no changes or repairs to the furnace prior to the fire. Appellee submitted the affidavit of an expert who stated that it was his opinion that the fire was caused by a cushion or pillow that was left on top of the floor furnace grate, eventually igniting and spreading to the floor. Appellants submitted another expert’s affidavit in which the expert opined that the fire did not begin from the ignition of combustible materials left on the grate, but that the type of furnace involved was “inherently dangerous” because the flow of air around the furnace causes a drying of the wood joists around the furnace. The expert determined that the use of the furnace caused the wood framing the furnace to ignite and begin the fire. This expert further stated that the removal of the asbestos shingles from the exterior of the house caused the furnace to run longer than normal to heat the house and this continuous use resulted in the fire pursuant to the process just described. The trial court determined that since there was no question that appellee had not received notice of any defect with the furnace, then summary judgment for appellee should be granted, notwithstanding the experts’ disagreement as to the conditions contributing to the cause of the fire. We agree and affirm.

1. In their first two enumerations of error, appellants assert that material issues of fact exist as to whether appellee was negligent in making repairs to the premises and whether appellee breached an implied warranty of habitability. OCGA § 44-7-13 states that a landlord must keep the premises in repair, and OCGA § 44-7-14 provides “[h]aving fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.” Although it is undisputed that the fire originated with the furnace and that appellee had no notice or knowledge of any problem or defect with the furnace, appellants contend that appellee was negligent in removing the asbestos shingles from the exterior of the house because the furnace was thereby caused to run for more extended periods of time. Appellants admit that they also had no knowledge of any defect in the furnace. “ ‘The responsibility of a landlord in a case of the present character for failure to repair a latent defect in the premises ... is not absolute, but (is) predicable only on his knowledge of the defect and the consequent necessity for repairs.’ [Cit.]” Davis v. Smith, 169 Ga. App. 635, 636 (314 SE2d 471) (1984). In the recent case of Hall v. Thompson, 193 Ga. App. 574 (1) (388 SE2d 381) (1989), we stated that although ordinarily questions of negligence do not lend themselves to summary adjudication, “nevertheless the classic rules of negligence still apply in this state. These rules impose liability only where the landlord has actual or constructive superior knowledge. ... To say otherwise would be to . . . impose absolute liability upon landlords for all defective conditions which could have been repaired before the injury.” Appel-lee had no notice of any problem with the furnace, nor did he fail to exercise reasonable care to discern any defect. Although appellee did not personally inspect the furnace prior to purchasing the house, an FHA inspection was performed. In any event, “ ‘[ordinary care in the fulfillment of the landlord’s duty to keep the premises in repair does not, however, embrace an affirmative duty to make such an inspection of the premises as will disclose the existence of any and all latent defects which may actually exist therein.’ [Cit.]” Davis, supra at 636. We also determine that appellee cannot be considered to be on notice of an increased risk of a furnace malfunction because of his removal of the exterior shingles. Although the shingles had not been replaced, appellee, having no actual knowledge of any furnace problem, cannot be charged with notice that the removal of the shingles may have created a hazard with the furnace. Even appellants’ expert stated that the furnace itself was the problem, and that the shingle removal exacerbated the inherent problem in the furnace. There being no evidence from which the jury could find that appellee had any notice of a defective furnace, summary judgment was appropriate. See Johnson v. Fowler Electric Co., 157 Ga. App. 319 (1) (277 SE2d 312) (1981); Dempsey v. Smith, 108 Ga. App. 88, 89 (132 SE2d 233) (1963).

As support for their claim of a breach of warranty, appellants cite the case of Thompson v. Crownover, 259 Ga. 126 (377 SE2d 660) (1989). Thompson is not applicable to the instant case because the landlord in Thompson had clear notice of the hazardous condition which was so extreme that the public housing inspector had informed the landlord that the property was “ ‘unsafe for human occupancy and constitute (d a) hazard to (the) health and safety of (the) occupants.’ ” Thompson, supra at 126-127. There is no such allegation by the appellants herein; in fact, the appellants stated that they had no problems with the furnace, the utilities or the appliances in the house. The appellants have made no case for a breach of implied warranty of habitability.

2. Appellants contend, in their third enumeration of error, that a material issue of fact exists as to the landlord’s duty to inspect and repair the premises. Appellants argue that since appellee exercised his limited right to enter the property, he retained possession of the property and would be liable for a failure to exercise ordinary and reasonable care to discover any defect. First, as we stated in Division 1, we do not believe that appellee failed to exercise reasonable care to discern any defect with the furnace. Second, we have previously held that retention of “the right to enter the leased premises ... for landlord-related purposes does not evidence such dominion and control of the premises so as to vitiate appellee’s limited liability under [OCGA § 44-7-14]. . . .” Godwin v. Olshan, 161 Ga. App. 35, 36 (2) (288 SE2d 850) (1982).

3. In view of our decision that summary judgment was appropriate due to the lack of notice to appellee, it is unnecessary to reach appellants’ fourth enumeration based upon the validity of the exculpatory clauses in the lease.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.

Decided March 5, 1991

Rehearing denied March 27, 1991

Daniel K. McCall, Charles L. Weltner, Jr., for appellants.

Greer, Klosik & Daugherty, Frank J. Klosik, Jr., H. Clifton Cobb, for appellee.


author: Carley, Judge.

text:
    A90A2363.
    BRAZIL v. GOVERNMENT EMPLOYEES INSURANCE COMPANY.
    (404 SE2d 807)
   Carley, Judge.

Appellant-plaintiff brought suit, seeking to recover no-fault benefits under a policy that had been issued to him by appellee-defendant. Appellee answered and, after discovery, cross-motions for summary judgment were filed. The trial court denied appellant’s motion and granted summary judgment in favor of appellee. It is from that order that appellant brings this appeal.

1. Appellant was injured in September of 1985 and, under the terms of his policy, he was obligated to give appellee notice “[a]s soon as possible. . . .” However, no notice whatsoever was given to appellee until November of 1988. Appellant does not contend that, notwithstanding this 38-month delay, he satisfied his obligation to give notice to appellee “[a]s soon as possible. ...” The only contention is that appellee waived its right to rely upon the 38-month delay as a defense to appellant’s action for no-fault benefits.

There is evidence that, after it finally received notice from appellant, appellee did not immediately and definitively deny coverage on the basis of the 38-month delay but, instead, acknowledged receipt of his untimely notice, furnished him with claim forms and undertook an investigation before it ultimately denied coverage on that basis. However, pursuant to OCGA § 33-24-40, such evidence of a delay in asserting the defense pending a full and complete investigation of appellant’s claim would not be material to the issue of appellee’s waiver of its defensive reliance upon the 38-month delay. See generally Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 698 (2) (172 SE2d 159) (1969). What would be material to the waiver issue is evidence that, after it finally received notice from appellant, appellee otherwise expressly or impliedly took a position indicative of its intent not to enforce satisfaction of the timely notice requirement. See State Farm &c. Ins. Co. v. Wright, 137 Ga. App. 819 (224 SE2d 796) (1976) (express understanding that pre-existing policy violations would be waived in consideration of opening default); Browder v. Aetna Life Ins. Co., 126 Ga. App. 140 (190 SE2d 110) (1972) (insurer’s original denial of liability based upon untimely notification expressly retracted and insured informed that his untimely notification “would not have much bearing on this case” and that he would be allowed to pursue his claim, followed by a pre-trial denial of liability on the merits of the claim that the insured filed); Assurance Co. of America v. Bell, 108 Ga. App. 766 (134 SE2d 540) (1963) (original implied acceptance of liability by insurer despite lack of written notification, followed by a pre-trial denial of liability for lack of coverage rather than lack of written notification). There is no such evidence that, after it finally received notice from appellant, appellee expressly or impliedly took a position accepting or rejecting coverage which was inconsistent with its eventual invocation of the untimely notice defense.

Appellant’s reliance upon cases which predate enactment of OCGA § 33-24-40 is misplaced because those cases have been superseded by that statute. Under the controlling provisions of OCGA § 33-24-40, a waiver cannot be based upon appellant’s own unilateral assumption or expectation that the 38-month delay would not be enforced against him simply because appellee did not undertake immediately and definitively to deny coverage on that specific basis, but subjected his claim to the normal administrative formal process before doing so. Government Employees Ins. Co. v. Gates, 134 Ga. App. 795, 797 (216 SE2d 619) (1975).

2. Even without disclaiming liability and giving notice of its reservation of rights, any insurer who merely proceeds to investigate a claim with knowledge of facts which might otherwise constitute a defense to coverage is not estopped from thereafter setting up the defense. OCGA § 33-24-40 (3). Compare Richmond v. Ga. Farm Bureau &c. Ins. Co., 140 Ga. App. 215 (231 SE2d 245) (1976) (holding that a liability carrier that undertakes a defense of its insured with knowledge of a defense to coverage and without a reservation of rights is estopped from thereafter denying coverage on that basis). Accordingly, appellant’s contention that appellee is estopped to deny coverage because it proceeded to investigate his claim without a reservation of rights is without merit.

3. Appellant’s unexcused 38-month delay in giving notice to ap-pellee was unreasonable as a matter of law. Protective Ins. Co. v. Johnson, 256 Ga. 713 (1) (352 SE2d 760) (1987). Under the evidence of record, no genuine issue of material fact remains as to appellee’s estoppel to rely upon or waiver of that unreasonable delay as a defense to appellant’s claim for no-fault benefits. It follows that the trial court correctly denied appellant’s motion for summary judgment and correctly granted summary judgment in favor of appellee.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

Decided March 13, 1991

Rehearing denied March 27, 1991

Kenneth C. Pollock, for appellant.

Haas, Bridges & Kane, Alvin L. Bridges, Jr., Stephen R. Kane, for appellee.


author: Sognier, Chief Judge. Carley, Judge,

text:
    A90A1553.
    A90A1814.
    HOSPITAL AUTHORITY OF FULTON COUNTY et al. v. LITTERILLA. HOSPITAL AUTHORITY OF FULTON COUNTY et al. v. HYDE et al.
    (404 SE2d 796)
   Sognier, Chief Judge.

This consolidated appeal raises the question whether the Hospital Authority of Fulton County d/b/a Northside Hospital (the “Authority”) is entitled to the defense of governmental immunity in medical malpractice actions, and if so, whether that immunity is waived to the extent of a liability trust fund. In Case No. A90A1553, Angela Litterilla, by next friend Mary Litterilla, brought suit against the Authority and others in Fulton County State Court, asserting a claim arising from the allegedly negligent acts of the defendants during her birth. Carl and Ann Hyde brought a claim in Fulton Superior Court against the Authority and a physician in Case No. A90A1814 for alleged negligence in the performance of a surgical procedure on Mr. Hyde. Both courts denied the Authority’s motions for summary judgment on the immunity issue. We authorized interlocutory appeals from both orders and have consolidated the cases for review.

1. The extent to which hospital authorities are entitled to the defense of governmental immunity is an unsettled issue because of several appellate rulings on various aspects of the immunity issue. Accordingly, we must review the applicable legal principles. The Georgia Constitution authorizes counties to provide, inter alia, “[p]ublic health facilities and services, including hospitals.” Ga. Const. of 1983, Art. IX, Sec. II, Par. III (a) (3). The procedure for the exercise of this power is set forth in the Hospital Authorities Law, Ga. L. 1964, p. 499 (now codified at OCGA § 31-7-71 et seq.), which has the express legislative purpose of “provid [ing] a mechanism for the operation and maintenance of needed health care facilities in . . . counties.” OCGA § 31-7-76 (a). Counties are authorized to establish hospital authorities, which are “deemed to exercise public and essential governmental functions,” OCGA § 31-7-75, and which may operate only nonprofit facilities funded in part by tax revenues. OCGA §§ 31-7-77; 31-7-84. The Authority was established and continues to operate under this statutory scheme.

In Hall v. Hospital Auth. of Floyd County, 93 Ga. App. 319, 320 (91 SE2d 530) (1956), the court concluded that because the preservation of public health was a duty of the State as a sovereign power, the delegation of that obligation to counties meant that activities of counties in discharging this duty constituted “ ‘the exercise of a purely governmental function.’ ” When this delegation of duty is made, the court held, “the corporation maintaining and operating a hospital under such delegated authority, not for profit, is in the exercise of a governmental function and not subject to suit in a tort action,” id. at 321, and thus hospital authorities were entitled to the defense of sovereign immunity. This ruling was soon superseded. In Knowles v. Housing Auth. of Columbus, 212 Ga. 729 (95 SE2d 659) (1956), the Supreme Court held that a provision in an enabling statute authorizing an entity “to sue and be sued” caused a waiver of the judicially created doctrine of sovereign immunity. Shortly thereafter, this court acknowledged that identical language in the predecessor to the Hospital Authorities Law (see Ga. Code Ann. Ch. 99-15) compelled the conclusion that the immunity of hospital authorities likewise was waived. Hospital Auth. of Hall County v. Shubert, 96 Ga. App. 222, 224-225 (1) (99 SE2d 708) (1957). This conclusion was reaffirmed after enactment of the current version of the Hospital Authorities Law. Medical Center Hospital Auth. v. Andrews, 250 Ga. 424 (1) (297 SE2d 28) (1982).

During this period of judicial evolution of the doctrine of sovereign immunity, the doctrine attained constitutional status. Ga. Const. of 1976, Art. VI, Sec. V, Par. I (former Ga. Code Ann. § 2-3401) (superseded by Ga. Const. of 1983, Art. I, Sec. II, Par. IX). In addition, one year ago the Supreme Court reversed its interpretation of the legislative “sue and be sued” language, and ruled “that in any instances in which an entity is given the power ‘to sue and be sued’ that language means only that the entity has the status and capacity to enter our courts, and does not signify a waiver of sovereign immunity against suit. Any cases that hold to the contrary are hereby overruled.” (Emphasis supplied.) Self v. City of Atlanta, 259 Ga. 78, 80 (1) (377 SE2d 674) (1989). This unequivocal ruling means that Knowles, Shubert, and Andrews are no longer controlling, and since the “sovereign immunity rule [as it existed] prior to 1973 has now been made a part of our Constitution,” Miree v. United States, 242 Ga. 126, 133 (1) (249 SE2d 573) (1978), the application of the immunity doctrine to hospital authorities must be determined by reference to the constitutional provision.

Although the 1983 Georgia Constitution extends sovereign immunity to the State and its “departments and agencies” (Art. I, Sec. II, Par. IX), that language has been held to apply to counties and their instrumentalities as well. Toombs County v. O’Neal, 254 Ga. 390 (330 SE2d 95) (1985); see Ward v. Bulloch County, 258 Ga. 92 (365 SE2d 440) (1988). Thus, if the Authority is an agency or instrumentality of Fulton County and is operated primarily for the benefit of the public rather than for the generation of revenue for the county, it is entitled to assert the defense of governmental immunity available to the county (to the extent that defense has not been waived). See Johnson v. City of Atlanta, 171 Ga. App. 296, 297 (1) (319 SE2d 506) (1984).

In addition to this court’s analysis of a hospital authority’s function and status in Hall, supra, the Supreme Court has considered, in contexts other than the immunity issue, the nature of hospital authorities. In Cox Enterprises v. Carroll &c. Hosp. Auth., 247 Ga. 39 (273 SE2d 841) (1981), the court determined that a hospital authority organized under the Hospital Authorities Law could not bring a libel action against a newspaper because the authority was a governmental entity and thus subject to the prohibition on libel actions by governments. “Factors tending to establish the Authority’s governmental nature include that it is a creature of statute; that it is defined as a ‘public body corporate and politic’ . . .; that its Board is appointed by the governing body of the relevant political subdivision or subdivisions; that it is tax exempt; that it is deemed to exercise public and essential governmental functions; that it may exercise the power of eminent domain; that i[t] receives tax revenues; and that the governing bodies of the relevant political subdivisions have a role in determining the disposition of its property upon dissolution.” (Emphasis omitted.) Id. at 44. See Fulton-DeKalb Hosp. Auth. v. Gaither, 241 Ga. 572 (247 SE2d 89) (1978) (hospital authorities are state and county instrumentalities and were not subject to the former definition of “employer” in the Workers’ Compensation Act); accord James v. Richmond County Health Dept., 168 Ga. App. 416 (309 SE2d 411) (1983) (sovereign immunity of counties extends to county health departments because they are engaged in governmental functions and act as agents of State).

Given this judicial history, and considering the enabling language under which the Authority was created and operates, we conclude that hospital authorities established pursuant to the Hospital Authorities Law are entitled to the defense of governmental immunity except to the extent there has been a waiver under the constitutional provision.

We note that Self, supra, was decided after the instant actions were filed. As a general rule, court rulings that substantially alter existing law apply retroactively, but our courts have recognized that rulings in civil cases may be applied prospectively. General Motors Corp. v. Rasmussen, 255 Ga. 544, 545-546 (2) (340 SE2d 586) (1986). In Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 712-715 (3) (300 SE2d 673) (1983), the Supreme Court determined that in analyzing the question of retroactivity the three-pronged test set forth in Chevron Oil Co. v. Huson, 404 U. S. 97 (92 SC 349, 30 LE2d 296) (1971) should be applied. Accordingly, we must (1) ascertain whether Self established a new principle of law either by overruling past precedent or by deciding an issue of first impression whose result was not clearly foreshadowed; (2) balance the merits by looking to the prior history of the rule in question, its purpose and effect, and whether retroactive application would further or retard its operation; and (3) weigh the inequity imposed by retroactive application to ascertain whether the decision could produce substantial inequitable results if applied retroactively. James B. Beam &c. v. State of Ga., 259 Ga. 363, 364 (2) (382 SE2d 95) (1989).

Applying the first prong, as we have discussed in this Division, Self did overrule existing precedent. However, as the Supreme Court acknowledged in Self, the issue of waiver of sovereign immunity by “sue and be sued” statutory language has been the subject of numerous conflicting decisions in recent years. Consequently, we cannot say that the first prong of the Chevron test compels a prospective application of the rule established in Self. As to the second prong of the test, the purpose of sovereign immunity is to protect the public treasury. See Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 301 (1) (357 SE2d 569) (1987). The effect of the Supreme Court’s opinion in Self was to further this goal by establishing that a waiver of this constitutional doctrine may be effected only with express statutory language. Accordingly, retroactive application would further the purpose of the sovereign immunity doctrine.

With regard to the third prong of the Chevron test, retroactive application does not result in an “ex post facto” deprivation of vested rights as contended by the dissent. First, we note that “ex post facto” terminology has no application to civil cases, and the only question is whether the decision should be applied retroactively or prospectively. Abu-Khdeir v. T. J. Maxx, Inc., 191 Ga. App. 523-524 (382 SE2d 216) (1989). Second, given that the status of sovereign immunity law in general and the “sue and be sued” analysis in particular has been in a state of flux in recent years (see the recognition of this uncertainty in Self, supra at 79-80 (1)), we cannot agree that any litigant could be considered to have had a vested right to pursue a tort claim against a government defendant. Indeed, this court has held any opportunity afforded by the State to bring suit against it is a privilege, not a vested right, because the State may not be subject to suit without its consent and that consent may be withdrawn at any time. Goolsby v. Regents of Univ. System, 141 Ga. App. 605, 606-608 (1) (234 SE2d 165) (1977). “The consent of a state to be sued, being voluntary, may be withdrawn or modified by the state whenever it sees fit, even though pending suits may be thereby defeated. . . .” (Punctuation omitted.) Id. at 608 (1). Third, the result of the prospective application of Self is analogous to the situation the Supreme Court addressed in James B. Beam, supra. In that case, the court rejected retroactive application of a decision holding a state revenue statute unconstitutional because of the burden that would be placed on the taxpayers. In the case at bar, prospective application of Self would leave the public treasury exposed to claims against which the voters of Georgia have indicated governmental entities are entitled to the constitutional protection of sovereign immunity. The dissent’s contention that the liability trust fund established by the Authority would avoid this result is inconsistent with the Supreme Court’s decision in Logue v. Wright, 260 Ga. 206 (392 SE2d 235) (1990). As we discuss in Division 2 (a) infra, given the ruling in Logue, the Authority is not authorized to establish a self-insurance fund. It would be disingenuous to hold that a liability fund the Authority was not authorized to create nonetheless could provide coverage for liability claims so as to eliminate the need for the protection of governmental immunity. Accordingly, we find the equities do not demand an exception to the general rule of retroactive application of court decisions, and thus we will apply Self retroactively.

2. The constitutional provision currently in effect provides that sovereign immunity is waived for actions ex contractu brought for breach of a written contract, and is waived to the extent the legislature so provides by statute. Ga. Const. of 1983, Art. I, Sec. II, Par. IX. Sovereign immunity also is waived for liability actions “for any claim ... for which liability insurance protection for such claims has been provided but only to the extent of any liability insurance provided.” Id. There being no legislative waiver of the Authority’s immunity, the only applicable waiver clauses are those concerning actions for breach of written contracts and claims for which liability insurance has been provided.

(a) Liability insurance waiver: The Authority has established a trust agreement, effective August 1, 1978, to provide “a self-funding program, on an actuarially sound basis, designed to enable Northside Hospital to ‘self-insure’ the first [$3,000,000.00] of malpractice and comprehensive general patient liability losses incurred [by the hospital] each year,” with a limit of $2,000,000 per claim. It is undisputed that the Authority pays no premium for this coverage, that no commercial liability carrier or policy is involved, and that no portion of the risk is distributed to or assumed by any other party. The Authority contends the trial court erred by denying its motions for summary judgment made on the ground that this reserve fund did not constitute the provision of insurance within the meaning of the constitutional waiver provision.

We agree with the Authority that this issue is controlled by the Supreme Court’s ruling in Logue, supra, which was decided after entry of the lower court orders at issue in these appeals. In Logue, the court reasoned that because the statute authorizing state self-insurance funds expressly excluded counties (OCGA § 45-9-1 (c)), and because the parallel provision authorizing counties to purchase liability insurance did not expressly authorize the establishment ■ of county self-insurance funds (OCGA § 45-9-20), counties are not authorized to set up self-insurance funds, and the liability reserve fund at issue did not constitute a self-insurance plan so as to waive the county’s governmental immunity. Since we determined in Division 1 that the Authority is a county entity or instrumentality, we are constrained to conclude that under Logue the Authority is not authorized to establish a self-insurance fund, and thus the liability trust maintained by the Authority is not a self-insurance fund and its existence does not constitute a waiver of the Authority’s governmental immunity. Compare Brockman v. Burnette, 184 Ga. App. 66 (360 SE2d 655) (1987) (city’s purchase of commercial general liability policy resulted in a waiver of governmental immunity).

(b) Ex contractu waiver. Appellee Litterilla advances the argument that her complaint should be construed as a claim for breach of the contract her parents made with the hospital, and accordingly the Authority’s immunity is waived. Her claim, however, arose on June 23, 1980, prior to the effective date of the 1983 constitution, which does not apply retroactively. Wilmoth v. Henry County, 251 Ga. 643, 644 (2) (309 SE2d 126) (1983). Since the 1976 constitution makes no provision for waiver of immunity in ex contractu actions (Art. VI, Sec. V, Par. I, former Ga. Code Ann. § 2-3401), this argument is without merit. See C. F. I. Constr. Co. v. Bd. of Regents &c., 145 Ga. App. 471, 472-474 (2, 3) (243 SE2d 700) (1978).

Appellee Hyde has not advanced this argument, but we will address it because, as the respondent on motion for summary judgment, appellee must be given the benefit of all favorable inferences and reasonable doubts that may arise from the evidence. Ga. Farm &c. Ins. Co. v. Allstate Ins. Co., 190 Ga. App. 593, 594 (379 SE2d 619) (1989). To the extent that the physician-patient relationship gives rise to an implied contract, see St. Joseph’s Hosp. v. Mattair, 239 Ga. 674 (2) (238 SE2d 366) (1977), appellee Hyde does not allege the existence or breach of a written contract for provision of services by the hospital or the Authority, which is the constitutional prerequisite for waiver of immunity, and our review of the record does not disclose the existence of such an agreement.

Having found that the Authority is entitled to the defense of governmental immunity, and having further ruled that the Authority’s immunity has not been waived, we hold the trial court erred by deny-

ing the Authority’s motions for summary judgment.

Judgments reversed.

McMurray, P. J, Banke, P. J., Birdsong, P. J., Beasley, Cooper and Andrews, JJ., concur. Carley and Pope, JJ., dissent.

Carley, Judge,

dissenting.

In my opinion, appellant-defendant has no viable sovereign immunity defense in the instant cases and its motions were, therefore, correctly denied. Accordingly, I must respectfully dissent.

In seeking to recover against appellant, appellee-plaintiffs rely on Medical Center Hosp. Auth. v. Andrews, 250 Ga. 424 (1) (297 SE2d 28) (1982). In that case, the Supreme Court clearly and unequivocally held that the “sue and be sued” language of OCGA § 31-7-75 (1) constitutes an express legislative waiver of a county hospital authority’s sovereign immunity. In support of its motions for summary judgment appellant relies upon Self v. City of Atlanta, 259 Ga. 78 (377 SE2d 674) (1989). In that case, the Supreme Court specifically overruled Medical Center Hosp. Auth. v. Andrews, supra, and a number of its other decisions and held that the “sue and be sued” language should no longer be construed as an express legislative waiver of sovereign immunity. However, appellees’ claims against appellant arose prior to the Supreme Court’s decision in Self v. City of Atlanta, supra. Accordingly, the instant cases would be controlled by the clear and unequivocal holding in Medical Center Hosp. Auth. v. Andrews, supra, unless the decision in Self v. City of Atlanta, supra, is to be given retroactive application. “The issue of non-retroactivity is presented in a case where the principle of law relied upon[, such as the principle of non-wavier of sovereign immunity that is relied upon by appellant in the instant cases,] is one which was established as a new principle of law in a prior decision. [Cit.] A court announces a new principle of law when it . . . overrules clear past precedent such as was done in [Self v. City of Atlanta, supra]. . . .” Federated Mut. Ins. Co. v. DeKalb County, 255 Ga. 522, 523 (341 SE2d 3) (1986), aff’g 176 Ga. App. 70 (335 SE2d 873) (1985). Thus, the majority’s holding is premised entirely upon the retroactive applicability of Self v. City of Atlanta, supra, and, in my opinion, that premise is incorrect.

As noted, Medical Center Hosp. Auth. v. Andrews, supra, was clear and unequivocal precedent for the legal proposition that appel-lees’ claims are not barred because the “sue and be sued” language of OCGA § 31-7-75 (1) does constitute an express legislative waiver of appellant’s sovereign immunity. Obviously, this clear and unequivocal precedent was relied upon by the legislature. After that decision, the General Assembly never acted to repeal or to modify OCGA § 31-7-75 (1) so as to evince a legislative intent that county hospital authorities were not deemed to have waived sovereign immunity. Compare Na tional Distrib. Co. v. Dept. of Transp., 248 Ga. 451 (283 SE2d 470) (1981). Likewise, appellant obviously relied upon Medical Center Hosp. Auth. v. Andrews, supra, and the other decisions overruled in Self v. City of Atlanta, supra, because it established a self-insurance fund which would be legally superfluous if its sovereign immunity had not been waived. To give Self v. City of Atlanta, supra, retroactive effect under these circumstances would be inequitable to appellees. It would sanction an ex post facto proscription on appellees’ right to pursue their vested claims against appellant. Likewise, to give Self v. City of Atlanta, supra, retroactive effect under these circumstances would result in an unwarranted windfall to appellant. It would sanction appellant’s ex post facto release from potential liability to patients with vested claims and the expenditure of its self-insurance fund for purposes other than the benefit of those for whom it was created.

Decided March 8, 1991

Rehearing denied March 28, 1991

Powell, Goldstein, Frazer & Murphy, James D. Meadows, Randall L. Hughes, Adrienne E. Marting, Love & Willingham, Daryll Love, Hezekiah Sistrunk, for appellants (case no. A90A1553).

Davis, Gregory & Christy, Hardy Gregory, Jr., William Q. Bird, for appellee.

Powell, Goldstein, Frazer & Murphy, James D. Meadows, Randall L. Hughes, Adrienne E. Marting, Sullivan, Hall, Booth & Smith, Rush S. Smith, Jr., for appellants (case no. A90A1814).

England, Weaver & Kytle, J. Melvin England, James W. Kytle, for appellees.

For these reasons, it is my opinion that Self v. City of Atlanta, supra, should be applied prospectively only and that the instant cases are controlled by the clear and unequivocal holding in Medical Center Hosp. Auth. v. Andrews, supra. See Federated Mut. Ins. Co. v. DeKalb County, supra; Financeamerica Corp. v. Drake, 154 Ga. App. 811, 817-820 (270 SE2d 449) (1980). It follows that appellant has no viable sovereign immunity defense because of the express legislative waiver of that defense, and that I must respectfully dissent to the majority’s reversal of the denial of appellant’s motions for summary judgment.

I am authorized to state that Judge Pope joins in this dissent.


author: Beasley, Judge. Pope, Judge,

text:
    A90A1608.
    McJUNKIN v. THE STATE.
    (405 SE2d 110)
   Beasley, Judge.

Defendant was convicted of possession with intent to distribute a controlled substance, OCGA § 16-13-30 (b), and driving under the influence of alcohol, OCGA § 40-6-391. His two enumerations of error complain of the ineffectiveness of his trial counsel.

On appeal defendant is represented by new counsel who filed his notice of appeal 19 days after entry of judgment against him, but did not file a motion for new trial. For this reason, the question of whether his trial counsel was ineffective was not presented to the trial court. Where such error was not asserted in the trial court but was raised for the first time on appeal, there is no issue for an appellate court to review. Scott v. State, 193 Ga. App. 577, 580 (4) (388 SE2d 416) (1989); White v. State, 192 Ga. App. 703 (386 SE2d 56) (1989); Huff v. State, 191 Ga. App. 476, 477 (2) (382 SE2d 183) (1989); Gardiner v. State, 252 Ga. 422, 423 (2) (314 SE2d 202) (1984); Simpson v. State, 250 Ga. 365, 367 (2) (297 SE2d 288) (1982). See Bell v. State, 259 Ga. 272 (381 SE2d 514) (1989); Thompson v. State, 257 Ga. 386, 387 (2) (359 SE2d 664) (1987); Smith v. State, 192 Ga. App. 246, 247 (2) (384 SE2d 451) (1989). Cf. Weems v. State, 196 Ga. App. 429 (3) (395 SE2d 863) (1990); Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991).

Judgment affirmed.

Andrews, J., concurs. Pope, J., concurs specially.

Pope, Judge,

concurring specially.

I write separately to caution the defense bar: In order to preserve for appellate review a claim concerning ineffective assistance of trial counsel, the claim must be raised in the trial court at the earliest opportunity or “earliest practicable moment.” To date this principle has been applied to reach the following results: If appellate counsel is appointed after the filing of a notice of appeal or after the denial of a motion for new trial by the trial court, the appellate courts will remand the case to the trial court for an evidentiary hearing if the claim of ineffective assistance of counsel is later raised for the first time on appeal. See, e.g., Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115) (1989); Hutton v. State, 192 Ga. App. 239 (384 SE2d 446) (1989), and Weems v. State, 196 Ga. App. 429 (3) (395 SE2d 863) (1990). On the other hand, if appellate counsel is appointed prior to the filing of the notice of appeal and no motion for new trial has been filed or the trial court has yet to rule on a motion for new trial, appellate counsel, in order to avoid waiver, must assert the ineffectiveness issue in the trial court, either by filing a motion for new trial or by amending an already filed but not yet ruled upon motion for new trial. See, e.g., Thompson v. State, 257 Ga. 386 (2) (359 SE2d 664) (1987); Simpson v. State, 250 Ga. 365, 367 (2) (297 SE2d 288) (1982); Ross v. State, 195 Ga. App. 624, 626 (3) (394 SE2d 418) (1990); Scott v. State, 193 Ga. App. 577, 580 (4) (388 SE2d 416) (1989); Huff v. State, 191 Ga. App. 476, 477 (2) (382 SE2d 183) (1989). Likewise, if permission to file an out-of-time appeal has been granted, appellate counsel must raise the ineffectiveness issue by motion for new trial in the trial court prior to the filing of the notice of appeal. Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991); see also Bell v. State, 259 Ga. 272 (581 SE2d 514) (1989).

Decided March 15, 1991

Rehearing denied March 28, 1991

Summer & Summer, Daniel A. Summer, for appellant.

C. Andrew Fuller, District Attorney, William M. Brownell, Jr., Assistant District Attorney, for appellee.

The appellate courts’ attempts to solve this dilemma are less than satisfactory. Both courses, remand and refusal to remand, have drawbacks. Perhaps the best procedure would be to have the trial court determine the effectiveness of counsel as a matter of course following every criminal trial in this State. Such a procedure has many obvious benefits, and hopefully would allow appellate review and resolution at the “earliest practicable moment.”


author: Pope, Judge. Beasley, Judge,

text:
    A90A2142.
    KINNEY v. THE STATE.
    (405 SE2d 98)
   Pope, Judge.

Defendant John Kinney was convicted of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b), and possession of less than one ounce of marijuana, OCGA § 16-13-2 (2). He appeals following the denial of his motion for new trial.

1. Defendant contends that even though there was evidence he possessed cocaine, it was insufficient to justify his conviction for possession with intent to distribute.

On the contrary, the direct testimony of co-defendants along with evidence of the circumstances of the drug use, the substantial quantity of the contraband, and the substantial amount of cash on defendant, some of which bore cocaine residue, was sufficient to enable any rational trier of fact to find defendant guilty beyond a reasonable doubt of possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Allen v. State, 191 Ga. App. 623, 624 (2) (382 SE2d 690) (1989); Doe v. State, 189 Ga. App. 793, 795 (377 SE2d 546) (1989); Holbrook v. State, 177 Ga. App. 318, 321 (2) (339 SE2d 346) (1985).

2. Defendant also contends he was denied effective assistance of counsel.

Defendant was sentenced on February 23, 1990. Four days later, trial counsel filed a motion for new trial based on the general grounds. On June 8, trial counsel filed a motion for a hearing date. Following the hearing, the court denied the motion for new trial on July 17, at which time trial counsel still represented defendant. New appellate counsel filed a notice of appeal on August 2 and raises for the first time the issue of ineffectiveness of trial counsel. Under these circumstances, where appellate counsel was appointed after the denial of the motion for new trial and the issue of ineffective assistance of trial counsel is raised for the first time on appeal, the case must be remanded to the trial court for an evidentiary hearing on the ineffectiveness issue. Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115) (1989); In re G. G. L., 199 Ga. App. 357 (_SE2d_) (1991); Weems v. State, 196 Ga. App. 429 (3) (395 SE2d 863) (1990); see also McJunkin v. State, 199 Ga. App. 353 (_SE2d_) (1991) (Pope, J., concurring specially).

Judgment affirmed and case remanded with direction.

Sognier, C. J., McMurray, P. J., Banke, P. J., Birdsong, P. J., Carley, Cooper and Andrews, JJ., concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

Although I concur in Division 1, I respectfully dissent with respect to Division 2 and remand of this case to the trial court.

Appellant contends that he was denied his rights under the State and Federal constitutions to effective assistance of counsel in that the public defender failed to seek suppression of the State’s evidence. However, the issue is foreclosed in this appeal.

The precise date that new appellate counsel entered the case is unclear. Assuming that he entered the case on August 2, the date he filed the notice of appeal, there still remained approximately two weeks before the end of the time to file a timely notice of appeal. Counsel could have raised by extraordinary motion for new trial the claim of ineffective assistance of counsel. OCGA § 5-5-41 (b). There was ample opportunity to do so and thereby to air the issue before the trial court. See the dissenting opinion in Weems v. State, 196 Ga. App. 429, 431-433 (395 SE2d 863) (1990). This would have been “the earliest practicable moment,” which is the measuring time adopted by the Georgia Supreme Court in Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986).

Decided March 15, 1991.

Ernest B. Gilbert, for appellant.

Glenn Thomas, Jr., District Attorney, C. Keith Higgins, Assistant District Attorney, for appellee.

“Where such error was not asserted in the trial court but was raised for the first time on appeal, there is no issue for an appellate court to review. [Cits.]” McJunkin v. State 199 Ga. App. 353 (_SE2d_) (1991).

Application of the rule of waiver in this case conforms with the Supreme Court’s recent decision in Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991). In Ponder, the Court enforced “the policy of initial review in the trial court” and, without calling it by name, pointed to the availability of the extraordinary motion for new trial procedure as a post-conviction remedy for raising the claim of ineffective assistance of counsel. Ponder, supra at 840. See OCGA §§ 5-6-39 (b); 5-5-41 (b). It must have meant an extraordinary motion under OCGA § 5-5-41, because by statute the time for filing a motion for new trial could not be extended. OCGA § 5-6-39 (b). The court’s grant of an out-of-time appeal could not effect a reprieve or resurrect the 30-day period allowed by law.

Since the Supreme Court in essence recognized the availability of an extraordinary motion for new trial as a procedural device for raising a claim of ineffective assistance of counsel when new counsel obtains an out-of-time appeal, the same opportunity must lie when new counsel enters the case after the motion for new trial pursued by trial counsel has been denied and before appeal is taken. OCGA § 5-5-41 affords that opportunity.

Moreover, OCGA § 5-6-39 (a) & (c) allows an additional 30-day period for appeal if the time from the denial of the original motion for new trial (or from the judgment if no such motion is made) is insufficient for the extraordinary motion. If it is decided within the extended time, it may be appealed as part of the direct appeal. If it is decided after the extended time, and the direct appeal proceeds without it, it can be appealed under OCGA § 5-6-35 (a) (7). The appellate court can, in its discretion, consolidate the appeals when there are two.

The point is, the opportunity exists in Georgia’s procedural law currently.

       An extraordinary motion also may be made after the appeal period has run. OCGA § 5-5-41 (a) & (b). An application for appeal would provide appellate review. OCGA § 5-6-35 (a) (7).


text:
    A90A1546.
    In the Interest of G. G. L., a child.
    (405 SE2d 100)
   Pope, Judge.

G. G. L., a minor, was adjudicated delinquent for the offense of motor vehicle theft. The juvenile court ordered restrictive custody and G. G. L. brings this appeal.

1. G. G. L. argues the juvenile court should have declared a mistrial as a result of improper argument made by the prosecutor in her closing argument to the juvenile court in which she referred to prior offenses committed by G. G. L. The juvenile court responded, on its own motion, pointing out to the prosecutor the impropriety of her remark and telling her that had it been made in front of a jury, the court would have had to declare a mistrial. In a case tried to the court alone, the same strictness regarding the admission of evidence need not be observed. The judge is presumed to be able to separate the admissible from the inadmissible. Ward v. State, 26 Ga. App. 61 (105 SE 373) (1920). The record shows the juvenile court was aware of its duty to decide the case based solely upon the evidence relating to the offense for which G. G. L. was being tried and that the judge said he would so decide the case. No error occurred.

2. G. G. L. argues the juvenile court judge should have recused himself on his own motion because he was aware of G. G. L.’s previous record. We do not agree. As we noted in Division 1, supra, the juvenile court judge affirmatively stated that he would decide the case based solely upon the evidence presented at the hearing.

3. G. G. L. argues that he received ineffective assistance of counsel at trial. The record shows that trial counsel was different from counsel on appeal. Trial counsel filed the motion for new trial and the issue of ineffective assistance of counsel was not raised in the trial court. In an order dated November 28, 1989, the trial court: (1) in Paragraph 1 denied the motion for new trial filed by trial counsel; (2) in Paragraph 2, the court granted trial counsel’s request to withdraw; (3) in Paragraph 3, the court appointed present counsel, and (4) in Paragraph 4, the court directed trial counsel to inform immediately present counsel of his appointment. Present counsel filed notice of appeal on December 27, 1989. Thus, the issue of ineffective assistance of counsel is raised for the first time on appeal.

This situation is controlled by our decision in Weems v. State, 196 Ga. App. 429 (3) (395 SE2d 863) (1990). We must remand the case to the trial court for an evidentiary hearing on the issues raised regarding ineffective assistance of counsel.

Judgment affirmed and case remanded with direction.

Sognier, C. J., McMurray, P. J., Banke, P. J., Birdsong, P. J., Carley and Cooper, JJ., concur. Andrews, J., concurs in judgment only. Beasley, J., dissents.

Decided March 15, 1991.

Kunz & Lewis, Robert A. Kunz, for appellant.

Frank C. Winn, District Attorney, Lois W. Gerstenberger, Assistant District Attorney, for appellee.

Beasley, Judge,

dissenting.

I respectfully dissent based on the reasoning in the dissent in Kinney v. State, 199 Ga. App. 354 (_ SE2d _) (1991).