Opinion
74437.
DECIDED SEPTEMBER 10, 1987.
Action on account. Fulton State Court. Before Judge Cummings.
John L. Taylor, Jr., John L. Schaub, for appellants.
J. Guy Sharpe, Jr., for appellee.
Appellee brought this action against appellants seeking recovery of the principal amount due on account plus interest and attorney fees. Appellants answered, denying any indebtedness to appellee, and counterclaimed for damages for breach of contract and warranties. Appellee subsequently amended its complaint to add a prayer for damages for abusive litigation pursuant to Yost v. Torok, 256 Ga. 92 ( 344 S.E.2d 414) (1986). This appeal arises from the trial court's order granting appellee's motion for partial summary judgment as to the principal amount due on account ($1,344.67) plus interest ($322.72) and costs ($84.50). The trial court's order also (1) granted appellee's motion to strike appellants' answer and counterclaim (apparently for failure to enter into discovery pursuant to OCGA § 9-11-37 (d)), (2) granted appellee's motion for attorney fees ($750 payable directly to counsel for appellee) for appellants' failure to enter into discovery (also pursuant to OCGA § 9-11-37 (d)), (3) granted appellee's motion to compel discovery, (4) denied appellants' motion to strike portions of appellee's amended complaint, and (5) granted appellee's motion for a protective order.
Appellee has moved to dismiss this appeal based upon appellants' failure to make application for discretionary appeal, the judgment herein being less than $2,500. See OCGA § 5-6-35 (a) (6). Although the grant of a motion for summary judgment is in general directly appealable, where the amount of the judgment is $2,500 or less, an application for discretionary appeal is required. Jarrett v. Ford Motor Credit Co., 178 Ga. App. 600 ( 344 S.E.2d 440) (1986). Accordingly, the entry of partial summary judgment in favor of appellee provides no basis for a direct appeal in this case.
Likewise, the dismissal of appellants' counterclaim provides no basis for a direct appeal. The ruling is not on the merits and thus is not tantamount to the grant of summary judgment so as to be directly appealable. Denney v. Shield Ins. Co., 183 Ga. App. 280 ( 358 S.E.2d 628) (1987); see also Honester v. Tinsley, 183 Ga. App. 146 (1) ( 358 S.E.2d 295) (1987), holding that where the appellee has obtained a judgment of $2,500 or less but, in addition, has prevailed on the merits of a counterclaim filed by appellant, OCGA § 5-6-35 (a) (6) is inapplicable and appellant may appeal directly. Rather, the ruling dismissing the counterclaim in the case at bar is interlocutory (appellee's abusive litigation claim remains pending) and is not reviewable on appeal absent an express determination and direction of finality pursuant to OCGA § 9-11-54 (b) or compliance with the interlocutory appeal provisions of OCGA § 5-6-34 (b). Middleton v. State Farm Life Ins. Co., 143 Ga. App. 176 ( 237 S.E.2d 684) (1977); see, e.g., Whatley v. Blue Cross of Ga./Columbus, 165 Ga. App. 340 ( 301 S.E.2d 60) (1983); Lockman v. Catawba Ins. Co., 162 Ga. App. 244 ( 291 S.E.2d 99) (1982).
The remaining rulings in the trial court's order clearly deal with discovery matters and, thus, are also interlocutory and provide no basis for a direct appeal. See, e.g., American Express Co. v. Yondorf, 169 Ga. App. 498 ( 313 S.E.2d 756) (1984); General Recording Corp. v. Chadwick, 136 Ga. App. 213 ( 220 S.E.2d 697) (1975); Wells v. Johnson, 118 Ga. App. 168 ( 162 S.E.2d 837) (1968). Cf. Seaboard C. L. R. v. Mobil Chem. Co., 172 Ga. App. 543 (1) ( 323 S.E.2d 849) (1984), holding that in the interest of judicial economy interlocutory rulings may be reviewed along with the grant of a motion for summary judgment.
It follows from the foregoing that the record provides no basis for a direct appeal in this case. Accordingly, appellee's motion to dismiss is meritorious and we are compelled to grant it. Appellee's motion for damages for frivolous appeal pursuant to OCGA § 5-6-6 is denied.
Appeal dismissed. Birdsong, C. J., and Deen, P. J., concur.