*1 Judgments Blackburn, JJ., concur. Johnson affirmed. July 12,

Decided appellant. Smith, E. Allen Richard A. Attorney, Malone, Askew, S. District William Assis- Attorney, tant District

A93A0713, et al. v. A93A0943.CARTER FULTON-DeKALB AUTHORITY;

COUNTY HOSPITAL and vice versa. Judge. Cooper, Appellants, the administratrix of the decedent’s estate and the

surviving alleging negligent brought against appellee, decedent, child of the an action transport following

treatment and of the decedent granted appel 1991, In an automobile accident. March lee’s motion for claims immunity. Appellants the trial court summary judgment grounds appellants’ on the against appellee were barred under the doctrine of timely appeal filed notice of from the trial (Case granting summary judgment appellee court’s order No. A93A0713). September appeal In moved to dismiss the appellants’ transmitting due to unreasonable the record on appeal, hearing argument, and after the trial court denied the motion. appellee appeals A93A0943, In Case No. the denial of its motion to appeal.1 dismiss the

Case No. A93A0943 1. Since a determination that the trial court should have dis- appellants’ appeal unnecessary missed pellants’ appeal would make it to address grant summary judgment appellee, propriety denying appellee’s first review the court’s order appellants’ appeal. appel- motion to dismiss The record reflects that appeal April July lants filed their notice of 1991. In a bill appellants, paid. August 5, 1991, was sent costs which was not On stay appeal, along filed a motion to extend time Although designated appeal cross-appeal, as a 5-6- we note that OCGA § (a) cross-appeal days appeal. allows a to be filed within 15 from the service of the notice of Since notice of was filed several months after notice of order, cross-appeal timely indepen- and from a different it cannot be deemed a but is a filed appeal. dent Ap- an affidavit of on behalf of the estate of decedent. pellants indigent contended that the estate of the decedent was Su- granted pending that a should be to await the outcome of a preme impact appeal. Court decision which could on the main On Au- 15, 1991, appellants gust filed affidavits of on behalf of the surviving undisputed administratrix and the child. It is that neither *2 August appellee 15 of indigency affidavits were served on appellee July that had no notice of the existence of the affidavits until September In appellee responded 1992. to motion to the and also a appellants’ appeal filed motion to dismiss on the ground appellants unreasonably inexcusably that had delayed in paying appeal. Appellants the costs of respond the did not appellee’s to motion until more than nine months later. At hearing a July 1992, in appellee appellants discovered that had filed affidavits indigency August of 1991. appellee argued that the affi- they davits were ineffective because had not been served on hearing arguments parties, After from both the trial court denied pellee’s motion to appellants dismiss. The trial court found that were indigent delay and that their in transmitting the record was un- inexcusable, reasonable and but ruled that could not be appellants dismissed indigency. because had filed affidavits of The trial although policy noted her order that in Fulton County prepared was that the record would not be and transmitted approved until the court the affidavit of and entered an or- allowing appellant proceed der to indigent, as an OCGA 5-6-48 § requires only that the affidavit of be filed to avoid dismis- sal. (c) provides

OCGA 5-6-48 may that “the trial court order the § appeal dismissed where there delay has been an unreasonable transmission of the record appellate to the and it is seen that delay was inexcusable and was caused to party failure of pay costs the trial an indigence.” court or (Empha- file affidavit of (a) (“Failure supplied.) sis See any also OCGA 5-6-48 party of to § perfect service of paper notice or other hereunder shall not work dismissal.”) Appellee argues appellants duty inquire had a into the fact that the record had not been transmitted and to take necessary whatever action to see that prepared record was agree transmitted. We appel- and the trial court that lants’ in following up on the transmission of the record was un- inexcusable, reasonable and but we are of language constrained OCGA 5-6-48 as well as the mandate of OCGA 5-6-30 that § appellate practice provisions liberally bring be construed “so as every about a decision on appealed.” Accordingly, the merits of case conclude that since indigency, filed affidavits of properly trial court denied motion to dismiss. No. A93A0713

Case granting Appellants that the trial court erred sum contend immunity. mary sovereign judgment on its defense of The Hosp. County Auth. Fulton v. court relied on our decision of (“Litterilla (1) (404 796) (1991) 1”), Litterilla, 199 Ga. 345 hospital SE2d authority pursuant in Hospital we held that a established to the which to the defense of im Authorities Law is entitled munity except to the extent that there has been a waiver under the appli Our in Litterilla involved a retroactive Constitution. decision City Supreme Georgia’s holding in v. cation of the Court of Self 674) (1989) language Atlanta, 259 that the “sue entity’s enabling or sued” charter or statute does not consti be sovereign immunity against waiver suit.2 In v. tute a Litterilla 718) (1992) Hosp. County, Auth. Fulton 262 Ga. 34 (“Litterilla 2”), Supreme Georgia holding in Court of reversed our specific question but limited its decision to the raised on liability certiorari, which was whether the existence of a trust fund Authority’s sovereign immunity. resulted preme a waiver of the The Su liability liability held that in Court trust fund constituted protection sovereign immunity. surance Court and acted as a waiver of *3 expressly parts declined to review those of our which decision county hospital authority held that a is entitled to the defense of sov ereign immunity applied and that the rule of must be retroac Self tively. 35, n. 1. Id. at

Appellants argue reasoning 1, the in that of the dissent Litterilla applied retroactively, which concluded that persuasive pellants. should not be is more Self adopted disagree ap- and should in be this case. We analyzed question retroactivity 1, In Litterilla the of utilizing three-pronged in test set forth Flewellen v. Atlanta Cas. 673) (1983) (1) by ascertaining Co., 250 Ga. 709 SE2d (2) principle balancing law; whether established a new of Self (3) looking purpose prior law; merits at the and effect of the weighing inequities presented by application retroactive of the supra 1, new rule. See Litterilla establish a new rule at 348. We concluded that did Self by overruling existing precedent but did so subject conflicting area which had been the of numerous decisions years; application recent purpose that retroactive of the did would further Self protecting public treasury; equities and that the exception general Upon retroactivity. not demand an to the rule of Id. opportunity application Self, to review our we are convinced that reasoning majority of the is sound and that the rule announced summary immunity, judicial sovereign a brief For evolution of the doctrine of 1, Litterilla see at 345-347. given application. be retroactive should Self hospital authority Appellants argue also that the should not be immunity operation of an ambu- sovereign entitled to because governmental was function was a function lance service not a but authority proprietary a hospital engaged to further interest. The acts governmental distinction between functions and ministerial does (5 Cason, (2) County v. apply not to counties. Ware Ga. 78 SE2d 339) (1939); Fincher, (360 County App. 47, v. Early 184 Ga. 49-50 602) (1987). Accordingly, appellants’ argu- we find no merit to ment. argue any

4. Appellants sovereign immunity ap- also that which pellee enjoys has been waived because has a self-insurance program. arose, At the action time this cause of Const. Art. I, II, IX provided immunity Sec. Par. defense of any was liability protection waived claim for which insurance had provided only any liability pro- been but to the extent insurance Supreme vided. In Litterilla 2 the Court held that an Umbrella Lia- bility Policy purchased by the a hospital authority together with trust providing $2,000,000 fund up “liability self insurance of constituted protection” insurance within meaning of the Constitution. The officer, record contains the affidavit of chief executive who arose, states therein that appellants’ at the time cause of action hospital any not policy providing liability did have insurance medical coverage comprehensive general or liability coverage any or cov- other However, erage applicable which would be claims. pellants supplemental refer us to a brief filed which there plan is some mention of a consisting self-insurance of funds set account, aside a trust and argue that these assertions constitute an admission as to Dennington the existence of See v. insurance. Stores, Package (1982). Rockdale Appellee’s argument question court below raises about whether incomplete, insurance existed. the record is specifically the trial court question did address the of insur- ance in its order. Since trial court’s ruling prior was made to the Supreme Court’s decision we remand this to the case *4 trial parties court to allow perfect to the record on issue of coverage insurance which could constitute a im- waiver munity, after which trial court should order appropriate enter opinion consistent this and Judgment in Case No. A93A0943. Case No. A93A0713 affirmed McMurray, J.,

remanded with J., Beasley, direction. P. P. concurs. specially. concurs

Beasley, Presiding Judge, concurring specially.

I fully it, 2 concur Divisions and 3 but in Division 1. As to refusing I to reverse the trial court’s decision not to concur dismiss appeal. discretion, Bank, It is a matter of Corbin v. First Nat. 697) (1979), App. and the did not com choosing permit appeal proceed. mit an error of law to to Nor legally appeal, if would she have erred she had dismissed the opinions appellant’s of both the court the stated and this delay “clearly” fact, was unreasonable and inexcusable. In she found it to be precisely type

so, further, and “that this is of case that recognized the dismissal statute was intended to reach.” that she practice requires approval indigency local of the affidavit of proceed prepare appeal the clerk before will the record for payment impliedly costs; transmit it without the she did not fault appellant obtaining approval. ap affidavit, for not such and the peal, just languished despite appellee’s motion to dismiss it almost nearly five months after the notice of had been filed and month after the affidavits were filed. Over ten months went before hearing appeal, there was a on motion to dismiss the appellants this was eleven months after had filed their affidavits of appeals. and motion to extend the time and to (c) provides may § OCGA 5-6-48 that “the trial court order the delay dismissed where there has been an unreasonable in the appellate court, transmission of the the pay record and it is seen that delay party was inexcusable and was caused the failure of a indigence. costs the trial court or file an affidavit of ...” Al- though initially requisite findings the court dismissal, made the appellant inquiring the court at the same time excused from into local practice assuring So, end, that the affidavits were effective. delay the court held that the was not inexcusable to the extent that accepted delay dismissal was warranted. The court the fact that by appellants’ was caused not but failure to file the affidavits of their failure to obtain the court’s sanction of them. in As Ham- Hammontree, montree v. (1988), explanation adequate. was appeal,

On I conclude discretion, that this was not an abuse of particularly delayed since it is who stand to lose from a appeal. They seeking money damages, are so is detrimental to prevents reaching goal, them because it their their with all the at- problems memory record-gath- loss, tendant of witness difficulties of ering, Appellee harmed, and the like. is not other than to have the nuisance anof unresolved case. join application do not § issue, of OCGA 5-6-30 to I. always appellants’ lagging

for such would the overshadow and emasculate requirements timeliness of OCGA 5-6-48. We are not “con- Instead, strained” to do so. we are the dictates constrained to enforce carefully § 5-6-48, of OCGA which is constructed to assure the *5 “speedy” by moving appeals along steady of cases at a closure pace doing reasonable with due consideration the work involved beyond makes allowances for forces so. appellant statute control flexibility gives exceptions. the trial to make But flexibility by requisite circumscribed the twin curbs of is reasona- ble time and excusable cause.

Delay appeals appeal by delay. in these two was exacerbated the clerk’s in each makes the not Her certificate uncommon statement: being Appeals “The due to a this record transmitted to the Court of is

heavy Appeals log in the back Section.” She was unable to requirements reflecting § 5-6-43, meet the time the court of OCGA a flaw in system by adequate itself which could be rectified resources appellate process technology and a or at least eliminates 876 which utilizes streamlined current duplication. App Shaw, See Rewis v. (432 617) (1993). . July 12,

Decided 1993. Brantley Barry Smolar, Roseman, Roseman, & L. Seifter, pellants. Bird, McCallum, Jr., Alston & Grant, Robert D. James C. Scott Taylor, McLaren, A. Bernard

A93A0776. THE JAMES v. STATE. Judge.

Pope, Chief selling Defendant was convicted of cocaine in violation of the Georgia pursuant Act, Controlled Substances to OCGA 16-13- (d), prison. appeals following sentenced to life in He the denial of his motion for new trial. Contrary error, defendant’s first enumeration of the trial

judge properly replacing exercised his discretion one of the selected jurors juror in this case with an alternate. The record shows that the presence jurors, informed the outside the of the other that she testimony had taken offense at the State, a witness for the who juror presence drug testified he had seen the in the while dealers working ing placed Upon juror undercover. The told the court she was be- offended company drug dealers and asked to be excused. questioning juror further stated that the witness had lied drug about her associations with dealers and that state- because this ment untruthful, the witness was she could not believe other testimony juror of the witness. The trial court clarified with the requesting longer she was to be excused because she could no be fair