Scott v. McLaughlin

Court of Appeals of Georgia

Scott v. McLaughlin

384 S.E.2d 212, 192 Ga. App. 230, 1989 Ga. App. LEXIS 986

CourtCourt of Appeals of Georgia

DecidedJune 22, 1989

DocketA89A1218

StatusPublished

Cited by4 cases

This text of 384 S.E.2d 212 (Scott v. McLaughlin) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Scott v. McLaughlin, 384 S.E.2d 212, 192 Ga. App. 230, 1989 Ga. App. LEXIS 986 (Ga. Ct. App. 1989).

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Opinion

Sognier, Judge.

Jim Lee Scott filed this direct appeal from the order of the Fulton County Probate Court awarding attorney fees to Michael McLaughlin and others in a case arising from an untimely caveat filed by Scott to the probate of the will of Nellie Gilbert Sprayberry, to whose estate Scott’s fiancee’s minor daughter was a possible heir.

1. As appellant acknowledges in his brief, OCGA § 5-6-35 (a) (10) provides that “[a]ppeals from awards of attorney’s fees or expenses of litigation under Code Section 9-15-14” must be taken by application for leave to appeal. Because appellant failed to follow the correct procedure, this court is without jurisdiction to consider the appeal and it is accordingly dismissed. Martin v. Outz, 257 Ga. 211 (357 SE2d 91) (1987). (Compare Haggard v. Bd. of Regents of the Univ. System, 257 Ga. 524, 526-527 (4) (a) (360 SE2d 566) (1987), where the award of attorney fees was appealed as part of the underlying judgment.)

2. Appellees have filed a motion for the imposition of a 10 percent penalty for frivolous appeal pursuant to OCGA § 5-6-6. We are constrained to deny the motion, however, as the statute authorizes the penalty only when the judgment is affirmed, not when the appeal is dismissed. Radford v. IPD Printing & Distrib., 184 Ga. App. 64 (2) (360 SE2d 656) (1987).

Appeal dismissed.

Banke, P. J., and Pope, J., concur. *231 Decided June 22, 1989 Rehearing denied July 11, 1989 Jim Lee Scott, pro se. Michael E. McLaughlin, pro se.

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Sognier, Judge.

Jim Lee Scott filed this direct appeal from the order of the Fulton County Probate Court awarding attorney fees to Michael McLaughlin and others in a case arising from an untimely caveat filed by Scott to the probate of the will of Nellie Gilbert Sprayberry, to whose estate Scott’s fiancee’s minor daughter was a possible heir.

1. As appellant acknowledges in his brief, OCGA § 5-6-35 (a) (10) provides that “[a]ppeals from awards of attorney’s fees or expenses of litigation under Code Section 9-15-14” must be taken by application for leave to appeal. Because appellant failed to follow the correct procedure, this court is without jurisdiction to consider the appeal and it is accordingly dismissed. Martin v. Outz, 257 Ga. 211 (357 SE2d 91) (1987). (Compare Haggard v. Bd. of Regents of the Univ. System, 257 Ga. 524, 526-527 (4) (a) (360 SE2d 566) (1987), where the award of attorney fees was appealed as part of the underlying judgment.)

2. Appellees have filed a motion for the imposition of a 10 percent penalty for frivolous appeal pursuant to OCGA § 5-6-6. We are constrained to deny the motion, however, as the statute authorizes the penalty only when the judgment is affirmed, not when the appeal is dismissed. Radford v. IPD Printing & Distrib., 184 Ga. App. 64 (2) (360 SE2d 656) (1987).

Appeal dismissed.

Banke, P. J., and Pope, J., concur. *231 Decided June 22, 1989 Rehearing denied July 11, 1989 Jim Lee Scott, pro se. Michael E. McLaughlin, pro se.

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384 S.E.2d 212, 192 Ga. App. 230, 1989 Ga. App. LEXIS 986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-mclaughlin-gactapp-1989.

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