Wright v. Barnett Mortgage Co. ( 1997 )

Smith, Judge,

concurring specially.

I agree with the majority that the trial court correctly granted summary judgment to Barnett Mortgage Company.

I respectfully disagree, however, with the majority’s conclusion that sanctions are not warranted. This case is controlled adversely to Wright by Zeller v. Home Federal Savings &c., 220 Ga. App. 843 (471 SE2d 1) (1996). As noted by Barnett Mortgage, the similarity between the two cases is “uncanny.” Despite the applicability of Zeller, Wright attempts to show error by citing inapt statutes and by raising arguments not raised below, while ignoring Zeller. Although Barnett Mortgage relied on Zeller in its motion for summary judgment, Wright did not address that case or attempt to distinguish it in response to the motion. Likewise, Barnett Mortgage relies on Zeller here, and again Wright has ignored the remarkable resemblance between the two cases. If Wright were unaware below that Zeller controls her contentions, she certainly should have recognized the importance of that case on appeal, when Barnett Mortgage raised it again. Her refusal to address Zeller despite at least two opportunities to do so is testament to her knowledge of its importance and reveals clearly the frivolous nature of her arguments.

Decided April 4, 1997. Before Judge Wyatt Cummings Moore. Roy Miller, for appellant. McCalla, Raymer, Padrick, Cobh, Nichols & Clark, John G. Aldridge, Jr., Daniel D. Phelan, for appellee.

Because the law is indisputably clear on the issues raised by Wright, Suchnick v. Southern Gen. Ins. Co., 196 Ga. App. 687, 688 (396 SE2d 609) (1990), and because there was no reasonable basis on which she could have anticipated reversal, Powell v. Bank South, 202 Ga. App. 852, 854 (2) (415 SE2d 543) (1992), I would assess a frivolous appeal penalty against Wright in the amount of $1,000. Court of Appeals Rule 15 (b).