Vaughn v. Cable East Point, Inc., 74390

• Decision Date: 04 December 1987
• Docket Number: No. 74390,74390
• Parties: VAUGHN v. CABLE EAST POINT, INC. et al
• Court: Georgia Court of Appeals

Page 639

363 S.E.2d 639

185 Ga.App. 203

VAUGHN v. CABLE EAST POINT, INC. et al.

No. 74390.

Court of Appeals of Georgia

Dec. 4, 1987.

Charles E. Muskett, East Point, for appellant.

Edward A. Kazmarek, Atlanta, for appellees.

CARLEY, Judge.

Appellant brought suit against appellee and others seeking damages for false arrest and false imprisonment. Pursuant to OCGA § 9-11-37(d), appellee moved for dismissal of the action with prejudice and the award of reasonable costs, including attorney's fees, caused by appellant's alleged failure to comply with discovery procedures. Prior to any ruling on appellee's motion, appellant voluntarily dismissed her complaint without prejudice. Subsequent to the voluntary dismissal, the trial court entered an award of $500 in attorney's fees in favor of appellee as reasonable expenses incurred as a result of appellant's failure to respond to discovery. Appellant filed this direct appeal from the trial court's order awarding attorney's fees.

An application for appeal is required in all actions for damages in which the judgment is $2,500 or less. OCGA § 5-6-35(a)(6). While it is true that the $500 was awarded in this case as a sanction, it is nevertheless a "judgment" in favor of appellee in an amount less than $2,500. "As we read the statute, it applies to all judgments for $2,500 or less that arise from an action for damages. Since the suit filed by [appellant] was an action for damages and since this judgment was entered in that action, we find inescapable the conclusion that OCGA § 5-6-35(a)(6) is applicable. It necessarily follows that [appellant's] failure to invoke the discretion of this court by an application pursuant to OCGA § 5-6-35 requires that this appeal be dismissed. [Cit.]" Gardner v. Villa Monte Homes, 173 Ga.App. 896, 328 S.E.2d 565 (1985).

Appeal dismissed.

BIRDSONG, C.J., DEEN and BANKE, P.J., and POPE and BENHAM, JJ., concur.

McMURRAY, P.J., and SOGNIER and BEASLEY, JJ., dissent.

BEASLEY, Judge, dissenting.

Although this is a direct appeal involving $500, OCGA § 5-6-35(a)(6) with its $2,500 jurisdictional requirement is not applicable because the $500 sum was a sanction under OCGA § 9-11-37 and thus did not fall within the category of damages contemplated by OCGA § 5-6-35(a)(6). The categories of cases which are statutorily deprived of direct appeal status should be strictly construed because the device limits the traditional right of a losing party to review of the trial court's decision given generally. OCGA § 5-6-33(a)(1) provides the general right: "Either party in any civil case ... may appeal from any ... judgment, decision, or decree...." OCGA § 5-6-35(a) carves out exceptions to the right. Thus, in accordance with the rules of statutory construction, OCGA § 1-3-1(a), the exception should not be extended beyond its terms by way of implication. Gibbons v. Md. Cas. Co., 114 Ga.App. 788, 795 fn. 1, 152 S.E.2d 815 (1966).

The award here was not a part of the damages sought in the action, nor a judgment imposed as the result of a factfinder's consideration of the action, as the action itself was voluntarily dismissed. Instead, it was a court-awarded penalty for abuse of the rules governing the pursuit of an action. It was of a different species than the damages contemplated and sought by plaintiff as redress for his cause of action. Given by order of the court, the penalty award made by the court in the exercise of its administrative function was of a different nature than the damages which ordinarily contemplated as being in the judgment. " 'A judgment is the final result of pleadings, evidence and law in the case. Blandford & Thornton v. McGehee, 67 Ga. 84, 88 (1881).' " City of Brunswick v. Todd, 255 Ga. 448, ...