Brown v. Associates Financial Services Corp.

Sognier, Judge.

Associates Financial Services Corporation (Associates) filed a writ of possession on Clifford Brown’s automobile alleging that Brown was in default and that Associates had accelerated the entire balance of $1,790.25. Brown answered and counterclaimed denying the default and alleging that the contract violated the Industrial Loan Act by contracting for and charging unlawful amounts. Brown sought a statutory penalty of $2,308.28 for the violation against the delinquency claimed to be due. The trial court granted Associates’ motion for summary judgment, awarded it a writ of possession, and dismissed Brown’s counterclaim. Brown appeals from the judgment in favor of Associates and the dismissal of his counterclaim.

“ ‘ “It is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” [Cit.]’ [Cit.]” Atlantic-Canadian Corp. v. Hammer &c. Assoc., 167 Ga. App. 257 (1) (306 SE2d 22) (1983). The question of the Court of Appeals’ jurisdiction over this case arises from the interpretation to be given OCGA § 5-6-35 (a) (6) which provides that an application for discretionary review by this court must be made in “[a]ppeals in all actions for damages in which the judgment is $2,500.00 or less.”

We hold that OCGA § 5-6-35 (a) (6) requires that an application for discretionary review be filed when the amount placed in controversy by the claimant (plaintiff, counterclaimant or cross-claimant) is $2,500 or less. In so holding, we are mindful of the duty of the courts “ ‘to look diligently for the intention of the General Assembly keeping in view at all times the old law, the evil, and the remedy. [Cits.]’ [Cit.]” Intl. Indem. Co. v. Bakco Acceptance, 172 Ga. App. 28, 30 (1) *554(322 SE2d 78) (1984). The intention of the General Assembly, in enacting the original statute, Ga. L. 1979, p. 619 (formerly Code Ann. § 6-701.1; now OCGA § 5-6-35), was to alleviate the pressure of the massive caseload on the appellate courts by giving the appellate courts the discretion not to entertain appeals in certain judgments and orders from various administrative agencies and in domestic relations cases. C & S Nat. Bank v. Rayle, 246 Ga. 727, 729-730 (273 SE2d 139) (1980). OCGA § 5-6-35 was amended, effective July 1, 1984, in order to set forth additional classes of cases in which an application for appeal is required. Fontaine v. Stuhler, 172 Ga. App. 584 (323 SE2d 881) (1984). It is clear that the General Assembly in enacting section (a) (6) sought to further the purpose of the original statute and relieve the caseload pressure on the appellate courts by eliminating direct appeals to the appellate courts from cases where the amount of money involved was so relatively insubstantial that, unless an important issue of law was concerned, the appeal would constitute a drain on the limited time and resources of the appellate courts. Thus, to give effect to this purpose, the General Assembly determined that $2,500 is the amount against which the relative importance of a case would be measured.

However, not all judgments involve monetary sums against which the $2,500 “yardstick” in OCGA § 5-6-35 (a) (6) can be measured. The only construction which gives effect to the General Assembly’s intention of eliminating direct appeals in cases which involve $2,500 or less is our holding which construes section (a) (6) as measuring the $2,500 statutory sum against the amount placed in controversy by the party seeking damages.

The dissenting opinion asserts that OCGA § 5-6-35 (a) (6) is inapplicable where a claimant recovers “nothing,” i.e., the judgment is in favor of the defending party, and thus a direct appeal to this court is appropriate in a case such as the one sub judice where the appellant was unsuccessful on his counterclaim. The dissenting opinion is premised on the idea that a judgment in favor of a defending party is not a money judgment since it is rendered in “no” amount, and thus the General Assembly could not have intended for OCGA § 5-6-35 (a) (6) to apply because there is no sum against which the $2,500 yardstick could be measured. (However, the dissent does not address the situation where an unsuccessful claimant recovers “nothing” but nevertheless the judgment is rendered in a monetáry amount because costs, assessed against the claimant, are included in the judgment. See OCGA § 9-15-11.) The diametrically opposite argument was posed by some litigants who urged that OCGA § 5-6-35 (a) (6) be construed as requiring an application for discretionary review be filed in every case when the judgment was in favor of the defending party because the appeal is from a judgment for “$0.00” amount, which is a *555monetary amount always less than $2,500. Both of these constructions of OCGA § 5-6-35 (a) (6) are unacceptable.

“ ‘It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.’ [Cits.]” Barton v. Atkinson, 228 Ga. 733, 739 (187 SE2d 835) (1972). The dissent’s construction of OCGA § 5-6-35 (a) (6) would allow direct appeals where the judgment is in favor of the defending party but would mandate the application of the $2,500 yardstick where the judgment is in favor of the claimant. The practical result of this construction is that only defendants would have to concern themselves with the application of the $2,500 statutory sum. The litigants’ proposed construction, on the other hand, while applying the $2,500 yardstick in all judgments in favor of claimants, would require all claimants appealing from judgments in favor of defending parties to apply for discretionary review regardless of the amount placed in controversy by the claimant.

“[Wjhere a law is susceptible of more than one construction, it must be given that construction which is most equitable and just. [Cit.]” Ford Motor Co. v. Abercrombie, 207 Ga. 464, 468 (62 SE2d 209) (1950). There is no indication in the legislative history of OCGA § 5-6-35 (a) (6) that the General Assembly intended or proposed to discriminate in favor of any one class of litigant. Under our interpretation of OCGA § 5-6-35 (a) (6), no one class of litigant is discriminated against because it is irrelevant whether the appealing party is the defendant, plaintiff, cross-claimant or counterclaimant. Rather, the party need only look to the record in the case and where the record reveals that the amount in controversy is in excess of $2,500, no application for discretionary review need be filed. Our construction of OCGA § 5-6-35 (a) (6) thus effectuates the legislative intent and purpose of the General Assembly in enacting OCGA § 5-6-35 (a) (6) with the most equitable and just results.

Therefore, because the record in the case sub judice reveals that neither appellee’s claim of $1,790.25 nor appellant’s counterclaim for $2,308.28 involve amounts in controversy in excess of $2,500, appellant’s appeal is dismissed for failure to apply to this court for discretionary review pursuant to OCGA § 5-6-35 (a) (6).

Appeal dismissed.

Banke, C. J., Birdsong, P. J., and Carley, J., concur. McMurray, P. J., and Benham, J., concur in the judgment only. Deen, P. J., Pope, and Beasley, JJ., dissent.