Castleberry's Food Co. v. Smith

• Decision Date: 06 October 1992
• Docket Number: No. A92A1486,A92A1486
• Citation: 205 Ga.App. 859,424 S.E.2d 33
• Parties: , Prod.Liab.Rep. (CCH) P 13,475 CASTLEBERRY'S FOOD COMPANY et al. v. SMITH.
• Court: Georgia Court of Appeals

Page 33

424 S.E.2d 33

205 Ga.App. 859, Prod.Liab.Rep. (CCH) P 13,475

CASTLEBERRY'S FOOD COMPANY et al. v. SMITH.

No. A92A1486.

Court of Appeals of Georgia.

Oct. 6, 1992.

Reconsideration Denied Oct. 20, 1992.

Alembik, Fine & Callner, Mark E. Bergeson, Atlanta, for appellants.

Stephen R. Patton, Douglas L. Breault, Gary L. Johnson, Columbus, for appellee.

JOHNSON, Judge.

Richard Smith brought this action against Castleberry's Food Company and Martin Food Services, Inc. alleging that his consumption of two cans of lasagna produced by Castleberry's and purchased from a vending machine supplied by Martin caused him to become ill. Approximately 30 minutes after eating the lasagna and drinking a soft drink, Smith was transported to a local hospital where he exhibited symptoms including nausea, weakness, and cramping. He was treated with oxygen and quickly improved. Smith remained in the hospital for two days, during which he was treated for pre-existing diabetes. Following the trial of the case, the trial court entered judgment in accordance with the jury's verdict of general damages in the amount of $10,000, plus post-judgment interest and costs. Castleberry's and Martin filed a motion for j.n.o.v. which the trial court denied. A timely notice of appeal was filed. Smith filed a motion to dismiss the notice of appeal asserting that the requirements of OCGA § 5-6-35(a)(6) had not been followed. Specifically, he argued that the judgment was not subject to direct appeal in that it was in an amount of less than $10,000 and the procedures for discretionary appeal had not been followed. The trial court granted the motion to dismiss the appeal.

Castleberry's and Martin then filed both a notice of direct appeal and an application for discretionary review of the trial court's dismissal of the earlier notice of appeal. The application for discretionary review was correctly denied, and this case is presently before us on direct appeal for consideration of the trial court's dismissal of the notice of appeal and for review of the trial court's denial of Castleberry's and Martin's motions for a directed verdict and for j.n.o.v. Smith filed a motion to dismiss this appeal.

The dismissal of an appeal by the trial court is subject to direct appeal. "If a trial court commits an error of law by abusing its discretion in ruling on a motion to dismiss an appeal ... an appeal should be filed from the order of the trial court by the losing party as provided by law." Gilman Paper Co. v. James, 235 Ga. 348, 349, 219 S.E.2d 447 (1975). Accordingly, Smith's motion to dismiss this appeal is denied.

1. Following entry of judgment, Castleberry's and Martin filed a timely notice of direct appeal. Smith filed a motion to dismiss the appeal in the trial court asserting that the judgment in favor of Smith was in an amount which would subject it to discretionary appeal procedures. The trial court granted the motion and dismissed the direct appeal. Castleberry's and Martin assert that this was error. We agree.

Those circumstances under which a trial court may properly dismiss an appeal are strictly limited. OCGA § 5-6-48(c) statutorily authorizes a trial court to dismiss an appeal only in those instances where the appellant caused an unreasonable, inexcusable delay in the filing of the transcript or where an unreasonable, inexcusable delay in the transmission of the record to the appellate court was caused by the failure of a party to pay costs or secure an affidavit of indigency. The trial court's authority was expanded when, in Jones v. Singleton, 253 Ga. 41, 316 S.E.2d 154 (1984), the Georgia Supreme Court upheld a trial court's dismissal of appellant's notice of appeal because no final judgment in the case had been entered and the trial court had not certified the case for interlocutory review, i.e., in those instances in which a case is not ripe for appeal. This court applied the holding in the Jones case and expanded it in Attwell v. Lane Co., 182 Ga.App. 813, 357 S.E.2d 142 (1987). There, we held: "the trial court is empowered to dismiss an appeal '(w)here the questions presented have become moot.' OCGA § 5-6-48(b)(3)." Id. at 814(1), 357 S.E.2d 142. Both of these dismissals arose under the ambit of OCGA § 5-6-48.

We are not willing to construe legislation so broadly as to divest ourselves of the responsibility for delineating the scope of appellate jurisdiction pursuant to OCGA § 5-6-35, and to place that responsibility on overburdened trial courts. We hold that the trial court was without authority to dismiss the appeal on jurisdictional grounds. See Davis v. Davis, 222 Ga. 369, 149 S.E.2d 802 (1966).

Even if the trial court had the authority to consider the merits of Smith's motion to dismiss, the conclusion that an appeal of a judgment in the amount of $10,000, plus postjudgment interest, plus costs falls within the discretionary appeal procedures was clearly erroneous. OCGA § 5-6-35(a)(6) provides that discretionary appeal procedures must be followed in those cases in which "[t]he judgment is $10,000.00 or less." (Emphasis supplied.) In this case, the verdict was in the amount of $10,000; the judgment, however, was in the principal amount of $10,000, plus costs (in this case in the amount of $86.50) plus interest. Two cases have approached, but not reached this issue. See Batchelor v. ISFA Corp., 191 Ga.App. 238, 382 S.E.2d 434 (1989) and Alexander v. Steining, 197 Ga.App. 328, 398 S.E.2d 390 (1990). In Batchelor, this court considered principal as well as interest in making its determination that the amount of the judgment was insufficient to sustain a direct appeal. In Alexander, while addressing jurisdictional limitations, this court held that "[a] judgment must be construed in its entirety, rather than merely placing undue emphasis on any particular word therein." Id. at 328(1), 398 S.E.2d 390. We believe that these cases provide sufficient clarity, but to put the matter finally to rest, we hold that for establishing jurisdiction pursuant to OCGA § 5-6-35(a)(6), a judgment is comprised of principal, plus costs, plus interest at the legal rate accrued from the date of the filing of the judgment until the date of the filing of the notice of appeal.

2. Castleberry's and Martin also contend that the trial court erred in denying its motions for a directed verdict and for j.n.o.v. as the evidence was insufficient to authorize the verdict and judgment in...