Vaughn v. Cable East Point, Inc. , 185 Ga. App. 203 ( 1987 )

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 SE2d 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 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 (339 SE2d 589) (1986).

Compare MTW Investment Co. v. Vanguard Properties Corp., 179 Ga. App. 403, 405 (346 SE2d 575) (1986), aff'd 256 Ga. 318 (349 SE2d 749) (1986). In that case the award, by the factfinder in the trial of the cause of action, was of damages sought as part of the cause of action and arising as part of that cause. They are by statute “a part of the damages,” OCGA § 13-6-11, and are awardable by the factfinder. Thus they were held to be “within the category of ‘damages’ as contemplated by OCGA § 5-6-35 (a) (6), requiring an application to appeal in all actions in which the judgment is $2,500 or less.” (Emphasis supplied.) MTW Investment Co., supra at 405.

It appears that the appeal is properly before us and should be dealt with on its merits.

I am authorized to state that Presiding Judge McMurray and Judge Sognier join in this dissent.

Decided December 4, 1987. Charles E. Muskett, for appellant. Edward A. Kazmarek, for appellees.