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LEE et al. v. BRITT.
S90G1392.
FLETCHER, Justice.
We granted certiorari in Lee v. Britt, 196 Ga. App. 152 (395 SE2d 347) (1990), to clarify our decision in Bales v. Shelton, 260 Ga. 335 (391 SE2d 394) (1990).
This is an appeal of a judgment that totaled $2,905.30 prior to the application of set-offs for no-fault PIP benefits received by the plaintiffs. The judgment totaled only $1,063.58 after the application of such set-offs. OCGA 5-6-35 (a) (6) requires discretionary appeal applications for "[a]ppeals in all actions for damages in which the judgment is $2,500.00 or less." In Barikos v. Vanderslice, 177 Ga. App. 884 (341 SE2d 513) (1986), the Court of Appeals held that discretionary appeal procedures must be followed when appealing a judgment in an action for damages where, pursuant to an agreement of the parties, the no-fault insurance benefits appellant/plaintiff received were set-off from a verdict of $5,800, thereby resulting in a judgment being entered for $800. In Barikos, the Court of Appeals relied upon City of Brunswick v. Todd, 255 Ga. 448 (339 SE2d 589) (1986), wherein this Court held that the final result of an action for damages determines whether the $2,500 threshold has been crossed and that OCGA 5-6-35 (a) (6) applies to monetary judgments ranging from one cent to $2,500.
In Bales v. Shelton, supra, a judgment of $1,500 was entered in favor of plaintiff Bales upon a jury verdict of $1,500. Pursuant to the trial judge's order, however, the judgment was reduced by the amount of no-fault insurance benefits received by Bales, which amount exceeded $1,500. The Court of Appeals dismissed the direct appeal holding that Bales should have filed an application for discretionary appeal. We granted certiorari in light of City of Brunswick and Barikos.
In Bales we overruled Barikos and held that set-offs to the judgment that arise from a collateral source should not be considered when deciding whether an application for appeal is necessary. However, we also held that the appellant in Bales was entitled to rely on the City of Brunswick/Barikos holding that a zero judgment may be appealed without following discretionary appeal procedures. For that reason, an appeal as of right was allowed to proceed in Bales, and the decision was given prospective effect only.
Although Bales allows the plaintiffs in this case to appeal their judgment as a matter of right, the Court of Appeals dismissed the appeal on the ground that Bales applies prospectively only. However, the prospective application of Bales applies only to those pending appeals in which the appellant had relied on the City of Brunswick/Barikos holding. It was not our intention in Bales to require the dismissal of an appeal of a judgment that exceeds $2,500, prior to setoffs from a collateral source, on the ground that, at the time the notice of appeal was filed, an appeal application was required under Barikos.
Simpson & Gray, Joseph B. Gray, Jr., for appellee.
Kunes & Kunes, G. Gerald Kunes, for appellants.
DECIDED JANUARY 31, 1991.
Thursday May 21 10:33 EDT


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