AAA Van Servs., Inc. v. Willis

354 S.E.2d 631, 182 Ga. App. 46, 1987 Ga. App. LEXIS 1631

• Court: Court of Appeals of Georgia
• Decided: February 12, 1987
• Docket: 73932
• Status: Published

Opinion

McMurray, Presiding Judge.

This is the second appeal by the defendant in this case. In AAA Van Svcs. v. Willis, 180 Ga. App. 18 (348 SE2d 475), we affirmed the judgment for damages which had been rendered in favor of plaintiff and against defendant. Defendant’s motion for rehearing in this court was denied.

Thereafter, defendant filed an extraordinary motion for new trial in the trial court. In the extraordinary motion, defendant raised contentions which it asserted previously in the motion for rehearing. The extraordinary motion for new trial was denied by the trial court and this appeal followed. Held:

1. We are without jurisdiction over this direct appeal since defendant did not file an application for a discretionary appeal pursuant to OCGA § 5-6-35 (a) (7). Accordingly, the appeal must be dismissed. Ibietatorremendia v. State, 174 Ga. App. 786 (332 SE2d 20).

2. Upon consideration of plaintiff’s motion to award damages for frivolous appeal we are of the opinion that the appeal was taken solely for delay. Accordingly, damages are awarded pursuant to OCGA § 5-6-6 and the clerk of this court is directed to enter ten percent damages upon the remittitur. Bradbury v. Mead Corp., 174 Ga. App. 601, 602 (2) (330 SE2d 801).

Decided February 12, 1987 Rehearing denied March 5, 1987 Thomas J. McBrayer, for appellant. Sidney R. Barrett, Jr., for appellee.

Appeal dismissed with damages.

Sognier and Beasley, JJ., concur.