The opinion
McMurray, Presiding Judge,
concurring specially.
My review of the transcript of this bench trial convinces me that defendant-appellants’ three enumerations of error ultimately are without merit. Accordingly, I concur in Division 2 and in the judgment of affirmance. However, in my view, an unsuccessful appeal is not automatically an improper one, and so I do not participate in any imposition of additional damages as a statutory penalty for frivolous appeal.
*688 Decided June 4, 1997.
Before Judge Fuller.
Fred V. Westberry, for appellants.
Glenville Haldi, for appellee.
“The constitution and laws of this State are liberal in guaranteeing to every suitor the right of appealing to the highest courts, in vindication of all his legal rights. . . . [Certainly], the law does not intend that its liberality shall be abused, and has, therefore, explicitly provided [in OCGA § 5-6-6], that if it appears that a case has been brought to this court for delay only, damages in the sum of ten per cent, on the amount of the judgment in the court below may be awarded. Fearful that any stringent enforcement by [this Court] of this section of the code might have the effect of deterring honest suitors from contesting to the end unjust demands plausibly asserted against them, we [ought to remain] always hesitant to penalize a[n] [appellant] by the award of damages; still we must remember that a frivolous appeal is a grave injustice, not only to the opposite party to the case but to the State itself; for every case brought to this court entails an expense upon the State [far] greater than the sum it receives [($80) as] the maximum costs collectible. So, therefore, when a motion for [additional] damages is filed, we will carefully examine the record and will pass upon the motion in the light of the entire history of the case as there presented. If after reviewing the whole matter we believe that the [appellant] is presenting a bona fide contest over a colorable matter, though his view of the law may not in fact be well founded, or that he is seeking a ruling upon an open or doubtful question, damages will be refused. But when the record discloses that [appellant] has no just case, that no new question of law is involved, and the record is full of those things which every judge and every lawyer recognizes as indicia of an attempt to fight merely for time, justice demands that we overcome any personal hesitancy we may have, and that we add an award of damages to the judgment of affirmance.” Moore & Jester v. Smith Machine Co., 4 Ga. App. 151, 153 (5) ( 60 SE 1035 ). In the case sub judice, I cannot conclude the legal issues raised in this appeal are interposed solely for purposes of delay.