Hipple v. Brick, s. A91A1837

Decision Date27 January 1992
Docket NumberNos. A91A1837,A91A1838,s. A91A1837
Citation202 Ga.App. 571,415 S.E.2d 182
PartiesHIPPLE, et al. v. BRICK, et al. BRICK, et al. v. HIPPLE, et al.
CourtGeorgia Court of Appeals

Shapiro, Fussell, Wedge & Smotherman, Robert B. Wedge, and Adrienne L. Anderson, Atlanta, for appellants.

Hugh M. Dorsey, III, Atlanta, for appellees.

BEASLEY, Judge.

Accountant Brick and his professional corporation brought a legal malpractice action against attorney Hipple and his professional corporation, for failure to protect their right of appeal in a suit they lost.

Brick retained Hipple to represent Brick's corporation in a suit against Whalen and Hixon; they counterclaimed against Brick individually. Brick moved for summary judgment on the counterclaim, but it was denied. The case went to trial, and Brick as defendant-in-counterclaim moved for a directed verdict, which was denied.

The jury initially returned a verdict on the counterclaim awarding Whalen and Hixon $39,000 punitive damages but no compensatory damages. Brick moved for a mistrial, which the court did not rule on. He also sought to have the verdict disregarded and judgment entered in his favor. The trial court refused to accept the verdict and instructed the jury that there could not be an award of punitive damages without compensatory damages. The court instructed the jury to deliberate further, which deliberations resulted in a verdict in favor of Whalen for $20,000 compensatory damages and $6,000 punitive damages, and in favor of Hixon for $10,000 compensatory damages and $3,000 punitive damages.

Brick moved for judgment notwithstanding the verdict on the above grounds, or in the alternative for a new trial on six grounds including the same but adding another, i.e., the failure to give a requested charge. The court denied these motions. Despite the provisions of OCGA § 15-6-21(b) and (c), this was not done until approximately one year and one month after they were filed, and attorney Hipple did not receive notice of the entry of the order. He learned of it in a telephone call from opposing counsel 35 days after the motions had been denied, after expiration of the 30-day period for filing of a notice of appeal. See OCGA § 5-6-38. Hipple took no action to resurrect the case, such as filing a motion to set aside the judgment in order to gain a new 30-day period, under OCGA § 9-11-60(d). See Cambron v. Canal Ins. Co., 246 Ga. 147, 148(1), 269 S.E.2d 426 (1980); Atlantic-Canadian Corp. v. Hammer, Siler, George & Assoc., 167 Ga.App. 257(1), 306 S.E.2d 22 (1983). Brick, however, did not advance the lack of such a motion as a basis for his claim of negligence.

Client Brick's malpractice claim is predicated on attorney Hipple's alleged negligence in failing to monitor the status of the case and timely to inform Brick of the order so that an appeal could have been taken. Defendants Hipple moved for summary judgment on the grounds that Hipple was not negligent and that any inaction on his part did not damage Brick, since as a matter of law an appeal would not have been successful. Plaintiff Brick sought partial summary judgment on the issue of liability, contending that Hipple's inaction was negligence per se. Both motions were denied.

In Case No. A91A1837, defendants Hipple appeal the denial of their motion for summary judgment. In Case No. A91A1838, plaintiff Brick appeals the denial of his motion for partial summary judgment.

Case No. A91A1837

1. Hipple first enumerates that the court erred in failing to rule that the issue of whether the underlying judgment would have been reversed on appeal is an issue of law to be determined by the court.

Of course, the principle espoused by appellants is correct. The question of whether an appeal would have been successful "is a question of law, exclusively within the province of judges." Fine & Block v. Evans, 201 Ga.App. 294, 295(1), 411 S.E.2d 73 (1991). The order appealed from simply denies the motions without explanation, so we cannot ascertain the basis for the denial or whether the court made the ruling complained of. We assume that the court did not make an erroneous ruling. See Torok v. Mize, 164 Ga.App. 357, 358(1), 296 S.E.2d 738 (1982).

2. Next Hipple contends that the court erred in failing to conclude that the judgment against his clients would have been affirmed on appeal.

The only enumeration of error which would have been pursued on Brick's appeal, Hipple argues, was the matter of how the court dealt with the jury's original verdict.

It is true, as Hipple recites, that when a jury returns a verdict for punitive but not compensatory damages, the trial court is not required to declare a mistrial. Instead, the court may instruct the jurors concerning the necessity of finding actual or compensatory damages before punitive damages can be awarded, and then order them to deliberate further. Colonial Stores v. Fishel, 160 Ga.App. 739, 742(2), 288 S.E.2d 21 (1981); Ballard v. Turner, 147 Ga.App. 584, 585(3), 249 S.E.2d 637 (1978); accord Biggers v. Biggers, 250 Ga. 248, 250(2), 297 S.E.2d 257 (1982); Parrish Bakeries of Ga. v. Wiseman Baking Co., 104 Ga.App. 573, 575, 122 S.E.2d 260 (1961). That was done in Brick's case, so the judgment of the trial court based on the jury's ultimate verdict would have been correct in this regard.

However, the record fails to show that this was the only matter which would have been pursued on appeal. As stated above, there were other grounds advanced in the motion j.n.o.v. or in the alternative for a new trial, such as the sufficiency of the evidence to support the verdict. Neither the trial court nor we have the transcript of the underlying trial, so no legal judgment can be made on this point. The same emptiness applies to the rejected jury instruction. Its wording, as well as its context, is missing from the record.

Defendant Hipple, as movant for summary judgment, would have to submit undisputed evidence that these other grounds, which were raised and ruled on by the trial court in his client's lawsuit, were meritless as a matter of law. We, no more than can the trial court in this case, "address the merits of the hypothetical appeal," as this Court was equipped to do in Fine &...

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4 cases
  • ALTA ANESTHESIA ASSOC. v. BOUHAN, WILLIAMS
    • United States
    • Georgia Court of Appeals
    • June 28, 2004
    ...the attorneys, Alta's appeal would have been successful. White v. Rolley, 225 Ga.App. 467, 484 S.E.2d 83 (1997); Hipple v. Brick, 202 Ga.App. 571, 574(3), 415 S.E.2d 182 (1992). Whether an appeal would have been successful "is a question of law, exclusively within the province of judges." F......
  • Hipple v. Simpson Paper Co., No. A98A1416
    • United States
    • Georgia Court of Appeals
    • September 11, 1998
    ...so that they may take whatever actions may be necessary to protect the interests of their clients.' [Cit.]" Hipple v. Brick, 202 Ga.App. 571, 573(3), 415 S.E.2d 182 (1992). Likewise, it is the responsibility of the attorney filing a notice of appeal to keep himself apprised of the status of......
  • Dow Chemical Co. v. OGLETREE, DEAKINS
    • United States
    • Georgia Court of Appeals
    • March 16, 1999
    ...have been successful is a question of law, exclusively within the province of judges." (Punctuation omitted.) Hipple v. Brick, 202 Ga.App. 571, 572(1), 415 S.E.2d 182 (1992); see also Fine & Block v. Evans, 201 Ga.App. 294, 295(1), 411 S.E.2d 73 (1991); Jaraysi, supra. "A matter of law is n......
  • Baxley Veneer & Clete Co. v. Maddox, s. A90A1525
    • United States
    • Georgia Court of Appeals
    • January 27, 1992
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