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Appellate Court Sanctions Under OCGA 5-6-6

by merlin on April 5th, 2013
  • Sumo

Having realized that it has been an extraordinarily long time since the last post on this site (due to some furious drafting, the fruits of which will, hopefully, be shared after the work has been completed and filed with the relevant Courts), an issue that was researched should be shared with the public.

Specifically, the particular Code section that is presented today is what is commonly believed to only be a section for allegedly “frivolous appeals”.  However, the Code section itself does not actually use that language, and instead describes the penalty as being one to be assessed by the Court when it appears the case “was taken up for delay only”.  There is a particular standard at work here, and the language of the Code section in question and the cases that discuss it present some argument in favor of the idea that it is more than merely a one-sided tool for use by the Appellee to punish an Appellant who seeks to overturn a wrongful judgment.

The Code section is 5-6-6 of the Official Code of Georgia, and it reads as follows:

When in the opinion of the court the case was taken up for delay only, 10 percent damages may be awarded by the appellate court upon any judgment for a sum certain which has been affirmed. The award shall be entered in the remittitur.

Notice that the decision to impose the fine rests on the judgment of the Court itself.  The issue of one-sidedness of course means that an Appellant needs to affirmatively show that they did not take the case up for delay only, but it also appears to present the possibility that the case was “taken up” by a party to the underlying judgment in question for delay only.  Sometimes, the facts might merit such a position for the Appellant, and not just for the Appellee.  The test is whether the ‘appellant knew or should have known that, under a careful reading of the facts and the relevant law, his appeal was ill-founded.’  The argument that should be affirmatively made by the Appellant is shown by the following case, Williams v. Kaminsky, a 1987 Court of Appeals decision at 183 Ga.App. 283:

 [183 Ga.App. 284] Claude E. Hambrick, Atlanta, for appellant.

        Patricia E. Ratner, Robert W. Beynart, Atlanta, for appellee.

        [183 Ga.App. 283] POPE, Judge.

        1. Williams appeals the order and judgment of the lower court in a garnishment action. Because appellant has failed to obtain an order of the court permitting the filing of an appeal, the appeal must be dismissed. OCGA § 5-6-35(a)(4); Mason v. Osburn Hardware, etc., Co., 174 Ga.App. 865331 S.E.2d 888 (1985).

        2. We grant appellee Kaminsky’s motion to impose damages against Williams pursuant to OCGA § 5-6-6 for pursuing a frivolous appeal. The record shows as follows: In 1984 appellee Kaminsky obtained a judgment in the amount of $63,167.15 in a contract action against C & W Land Development Corporation. Appellant Williams was a shareholder in said corporation who, prior to the filing of the contract action, executed an agreement “to indemnify and hold harmless the Corporation for … any judgment that might be obtained by Kaminsky against the Corporation….” Before going out of business in 1985, the corporation paid just over $25,000 on the judgment debt. In an effort to collect the remainder of the judgment, Kaminsky filed this garnishment proceeding against Williams as garnishee. The trial court found that the indemnity agreement created a debt owed by Williams to the corporation and awarded Kaminsky garnishment in the amount of $51,747.33, representing the amount of the judgment plus accrued interest after giving credit for the payment made against the judgment by the corporation.

        Quoting from Parker v. Puckett, 129 Ga.App. 265, 267199 S.E.2d 343 (1973), Williams argues that ” ‘ “[i]ndemnity” means “reimbursement….” ‘ ” Williams claims the corporation has paid nothing on the judgment and therefore has sustained no loss for Williams to indemnify. The record shows the corporation paid more than $25,000 on the judgment before it went out of business. Therefore, not only is this appeal frivolous, it is based upon a purposeful misrepresentation of the facts. It is ludicrous to argue that a judgment debtor must first pay a judgment before it

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can collect “reimbursement” from its indemnitor.

        “Upon careful examination of the record, we have concluded that there was no arguable merit to the appeal and that ‘appellant knew or should have known that, under a careful reading of the facts and the relevant law, his appeal was ill-founded.’ Ray v. Standard Fire Ins. Co., 168 Ga.App. 116, 118 (308 SE2d 221) (1983).”Holcomb v. Commercial Credit Svcs., 180 Ga.App. 451, 452349 S.E.2d 523 (1986). In light of the fact that Williams’ liability under the indemnity agreement was clear and unambiguous, considered in conjunction with Williams’ misrepresentation of the facts appearing in the record, “[i]t does not appear that there was any valid reason for the appellant to [183 Ga.App. 284] anticipate reversal of the [trial] court’s judgment, and, consequently, we must conclude that the appeal to this court was for the purpose of delay only. Accordingly, the appellee’s request for award of damages in the amount of 10 percent of judgment is granted.” Hanover Ins. Co. v. Scruggs Co., 162 Ga.App. 640, 641292 S.E.2d 493 (1982). The clerk of this court is directed to enter upon the remittitur ten percent damages against Williams and in favor of Kaminsky.

        Appeal dismissed with damages.

        BIRDSONG, C.J., and DEEN, P.J., concur.

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