Scott v. McLaughlin , 192 Ga. App. 230 ( 1989 )

192 Ga. App. 230 (1989) 384 S.E.2d 212

SCOTT
v.
McLAUGHLIN et al.

A89A1218.

Court of Appeals of Georgia.

Decided June 22, 1989. Rehearing Denied July 11, 1989.

Jim Lee Scott, pro se.

Michael E. McLaughlin, pro se.

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.