Lee v. Britt

Banke, Presiding Judge.

The appellants, Mr. and Mrs. Lee, sued the appellee to recover for personal injuries, property damage and loss of consortium sustained as the result of an automobile collision. A jury returned a verdict awarding Mr. Lee total damages in the amount of $2,023.94, while awarding Mrs. Lee $247 for her personal injuries and $500 for loss of consortium. After giving the appellee a credit for certain no-fault insurance benefits which had been paid to the appellants, the trial court entered judgment in favor of Mr. Lee in the amount of $563.58 and in favor of Mrs. Lee in the amount of $500. The appellants thereupon filed a motion for new trial, which was denied by the trial court on November 16, 1989. This appeal followed. Held:

Decided June 12, 1990 Rehearing denied June 28, 1990 — Cert, applied for. Kunes & Kunes, G. Gerald Kunes, for appellants. Simpson & Gray, Joseph B. Gray, Jr., for appellee.

Pursuant to OCGA § 5-6-35, an application for discretionary appeal is required to be filed in “[a]ppeals in all actions for damages in which the judgment is $2,500.00 or less.” OCGA § 5-6-35 (a) (6). In Barikos v. Vanderslice, 177 Ga. App. 884 (341 SE2d 513) (1986), this court held that the appellant was required to file such an application in order to appeal a judgment which totalled less than $2,500 after the application of a $5,000 set-off for no-fault benefits. Although the Georgia Supreme Court recently overruled Barikos in Bales v. Shelton, 260 Ga. 335 (_SE2d__) (1990), and held that no-fault set-offs may not be considered in determining whether the $2,500 threshold has been met, the Court specified that this holding would be applied prospectively only. It follows that the present case is controlled by Barikos, with the result that, assuming a direct appeal would have been authorized in the absence of the set-off for no-fault benefits, a direct appeal was not authorized from the judgment as entered.

Appeal dismissed.

Birdsong and Cooper, JJ., concur.