Opinion
A89A1218.
DECIDED JUNE 22, 1989. REHEARING DENIED JULY 11, 1989.
Action on attorney fees. Fulton Probate Court. Before Judge Levenson.
Jim Lee Scott, pro se. Michael E. McLaughlin, pro se.
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 S.E.2d 91) (1987). (Compare Haggard v. Bd. of Regents of the Univ. System, 257 Ga. 524, 526-527 (4) (a) ( 360 S.E.2d 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 S.E.2d 656) (1987).
Appeal dismissed. Banke, P. J., and Pope, J., concur.