Power v. Mobley ( 1984 )

Banke, Presiding Judge.

The appellant filed this appeal from the denial of his motion to set aside a default judgment which had been entered in favor of the appellee in an action to recover damages for fraud. This is the second appearance of the case before this court. The trial judge initially denied the motion to set aside based on the principle of laches. We reversed, in Power v. Mobley, 170 Ga. App. 167 (316 SE2d 580) (1984), but held therein that the court would have been authorized to deny the motion on its merits. On remand, the trial court did so. In the present appeal, the appellant asserts the same grounds for setting aside the judgment that we rejected in his previous appeal. Held:

Decided November 16, 1984. Anthony O. L. Powell, for appellant. Bryan M. Cavan, for appellee.

The appellant’s contentions having already been rejected by this court in the prior appeal, the judgment of the trial court is perforce affirmed. The appellee’s motion for assessment of a penalty against the appellant pursuant to OCGA § 5-6-6 for filing a frivolous appeal is granted. In accordance with the statute, the trial court is hereby directed to enter judgment in favor of the appellee for additional damages in the amount of 10 percent of the original judgment.

Judgment affirmed with direction.

Pope and Benham, JJ., concur.