Fabe v. Floyd

• Decision Date: 12 March 1991
• Docket Number: A91A0229,Nos. A90A2217,s. A90A2217
• Citation: 199 Ga.App. 322,405 S.E.2d 265
• Parties: FABE v. FLOYD (Two Cases).
• Court: Georgia Court of Appeals

Page 265

405 S.E.2d 265

199 Ga.App. 322

FABE v. FLOYD (Two Cases).

Nos. A90A2217, A91A0229.

Court of Appeals of Georgia.

March 12, 1991.

Rehearing Denied March 27, 1991.

Certiorari Denied May 15, 1991.

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

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

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 limitations 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. Motil, 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, etc., Assoc., 167 Ga.App. 257, 306 S.E.2d 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 § 5-6-35(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 S.E.2d 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, etc., Co. v. Maddox, 195 Ga.App. 2, 3, 392 S.E.2d 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 that 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...