Vaughn v. Cable East Point, Inc.

363 S.E.2d 639, 185 Ga. App. 203, 1987 Ga. App. LEXIS 2448

Opinions

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 SE2d 565) (1985).

Appeal dismissed.

Birdsong, C. J., Deen, P. J., Banke, P. J., Pope and Benham, JJ., concur. McMurray, P. J., Sognier and Beasley, JJ., dissent.