Harris v. WILWAT PROPERTIES, INC.

201 Ga. App. 161 (1991)

410 S.E.2d 372

HARRIS v. WILWAT PROPERTIES, INC.

A91A0927.

Court of Appeals of Georgia.

Decided September 10, 1991.

Marcella Harris, pro se.

Peterson, Young, Self & Asselin, Joseph M. Ward, Daniel J. Carroll, for appellee.

SOGNIER, Chief Judge.

Wilwat Properties, Inc. brought a dispossessory action against Marcella Harris. Although Harris filed an answer, she failed to appear at trial, and a default judgment was entered against her. Wilwat was awarded $828.58 in past rent and costs, and a writ of possession was issued. Because Harris asserts issues other than the amount of rent due, OCGA § 5-6-35 (a) (3) does not apply to the case sub judice and her direct appeal is proper. Compare Nixon v. A. F. M., Inc., 176 Ga. App. 546 (336 SE2d 382) (1985) with Ranger v. First Family Mtg. Corp., 176 Ga. App. 715 (337 SE2d 388) (1985).

1. In her first enumeration appellant contends the trial court erred by entering the default judgment because she was not timely notified of the trial date. However, the record affirmatively establishes that notice of the trial date was handed to appellant by court personnel when she filed her answer. Accordingly, this enumeration is without merit.

2. Appellant alleges in her second enumeration that the trial court's failure to rule on her motion for a continuance was error. While appellant insists in her brief that the trial court received her motion prior to trial, a careful review of the record by this court and the trial court clerk's office fails to indicate that such a motion was ever filed. There is no ruling on this matter which we can properly consider. See generally Westwind Corp. v. Washington &c. Assoc., *162 195 Ga. App. 411 (1) (393 SE2d 479) (1990).

3. Appellee has filed a motion to assess damages for a frivolous appeal pursuant to OCGA § 5-6-6. As appellant's arguments are wholly devoid of support from the record, "`we must conclude that the appeal to this court was for the purpose of delay only. ...' [Cit.]" Dickens v. First Capital Income Properties, 187 Ga. App. 607, 608 (3) (371 SE2d 130) (1988). The trial court is directed to enter judgment in favor of appellee for damages in the amount of ten percent of the judgment, as authorized by OCGA § 5-6-6.

Judgment affirmed with direction. McMurray, P. J., and Andrews, J., concur.