CourtListener 10680196

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320 Ga. 567
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S24A1094. COOK-ROSE et al. v. WAFFLE HOUSE, INC. et al.

PETERSON, Presiding Justice.

This appeal is about whether a trial court’s order could be

immediately appealed or only after securing a certificate of

immediate review from the trial court. After the plaintiffs in this

case voluntarily dismissed their first suit and then filed a renewal

action, the trial court awarded attorneys’ fees to the defendants in

the dismissed action. The plaintiffs appealed the attorneys’ fees

order by filing an application for discretionary review. The Court of

Appeals dismissed the application for failure to obtain a certificate

of immediate review from the trial court, reasoning that, because

the plaintiffs renewed their lawsuit, the case was still pending below

and the award order was not a final judgment under OCGA § 5-6-34

(a) (1). We granted certiorari.

We conclude that the renewed suit was a new case, not a

continuance of the dismissed case, and so the pendency of the
renewal action did not mean that the dismissed case was still

pending below. Because the operative language of OCGA § 5-6-34 (a)

(1) permits an immediate appeal when “the case is no longer pending

in the court below,” no certificate of immediate review was required

and the Court of Appeals erred in dismissing the application for

discretionary review. We therefore reverse and remand for

consideration of that application.

1. The underlying proceedings

The underlying facts are not in dispute. In October 2019,

several individuals (the “Plaintiffs”) filed a premises liability suit

against Waffle House, Inc., and WH Capital, LLC (the

“Defendants”). In April 2021, the Defendants filed a motion for

sanctions due to the Plaintiffs’ alleged failure to comply with the

trial court’s discovery order. In July 2021, while the motion for

sanctions was pending, the Plaintiffs dismissed their lawsuit

without prejudice. In September 2021, the Defendants filed an

OCGA § 9-15-14 motion for attorneys’ fees, arguing that the

Plaintiffs attempted to escape sanctions by dismissing their lawsuit.

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Thereafter, the Plaintiffs filed a renewal action under OCGA §

9-2-61 (a).1 In July 2022, the trial court awarded the Defendants

$101,082 in attorneys’ fees in the dismissed case. The Plaintiffs

sought to appeal the attorneys’ fees award by filing an application

for discretionary appeal. The Court of Appeals dismissed the

application, concluding that because the Plaintiffs had filed a

renewal action, the “action remains pending below” making the fee

award a non-final order, and thus the Plaintiffs were required to

obtain a certificate of immediate review. The Court of Appeals’s

analysis relied in part on Eidson v. Croutch, 337 Ga. App. 542 (788

SE2d 129) (2016).

1 That subsection provides:

When any case has been commenced in either a state or
federal court within the applicable statute of limitations and the
plaintiff discontinues or dismisses the same, it may be
recommenced in a court of this state or in a federal court either
within the original applicable period of limitations or within six
months after the discontinuance or dismissal, whichever is later,
subject to the requirement of payment of costs in the original
action as required by subsection (d) of Code Section 9-11-41;
provided, however, if the dismissal or discontinuance occurs after
the expiration of the applicable period of limitation, this privilege
of renewal shall be exercised only once.
The record does not reveal the status of the renewal action, but the Plaintiffs
asserted in their primary brief to this Court that it remains pending.
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2. Analysis

The Plaintiffs argue on appeal that the Court of Appeals erred

in dismissing their application because Eidson was wrongly decided

and should not be followed. The Plaintiffs also argue that, even if

Eidson was correctly decided, it does not apply to renewal actions.

We agree that the Court of Appeals erred in dismissing their

application and need not consider the propriety of Eidson as it does

not apply here.

A party seeking to appeal a trial court’s order to this Court or

the Court of Appeals must follow the procedures laid out in two Code

sections, OCGA § 5-6-34 and OCGA § 5-6-35. OCGA § 5-6-34 (a) lists

the trial court judgments and orders that may be appealed

immediately, while subsection (b) provides that for other orders a

party must follow the interlocutory appeal procedure to obtain trial

court permission to seek appellate review. We have said that even

where the judgment or order is subject to an immediate appeal

under OCGA § 5-6-34 (a), if the underlying subject matter is listed

in OCGA § 5-6-35 (a), a party must follow the discretionary

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application process. See Grogan v. City of Dawsonville, 305 Ga. 79,

82 (2) (823 SE2d 763) (2019). The order at issue here would be

subject to the interlocutory appeal procedure if it was not a final

order; but if it was a final order, then a discretionary application was

required because an award of fees under OCGA § 9-15-14 is listed

under OCGA § 5-6-35 (a) (10).

The question here is whether the order awarding fees was a

“final judgment,” which is defined as “where the case is no longer

pending in the court below[.]” OCGA § 5-6-34 (a) (1).

When we consider the meaning of a statute, we must
presume that the General Assembly meant what it said
and said what it meant. To that end, we must afford the
statutory text its plain and ordinary meaning, we must
view the statutory text in the context in which it appears,
and we must read the statutory text in its most natural
and reasonable way, as an ordinary speaker of the
English language would. If the statutory text is clear and
unambiguous, we attribute to the statute its plain
meaning[.]

Grange Mut. Cas. Co. v. Woodard, 300 Ga. 848, 852 (2) (a) (797 SE2d

814) (2017) (quoting Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a)

(751 SE2d 337) (2013)).

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The definition of “final judgment” is clear and unambiguous on

its face. It merely requires a court to determine whether “the case is

no longer pending in the court below.” It stands to reason that a case

that is dismissed is no longer pending below. The Court of Appeals

concluded wrongly here that the dismissed case was still pending

based on the pendency of the renewal action.2 Although the renewed

case and the dismissed case are connected in some ways, they are

not the same.

It is firmly established that a renewal action is an action de

novo. See, e.g., Robinson v. Boyd, 288 Ga. 53, 56 (2) (701 SE2d 165)

(2010); Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994).

This means that a renewal action is a new case and is not a

continuance of the original, dismissed action. See SunTrust Bank v.

Lilliston, 302 Ga. 840, 843 (809 SE2d 819) (2018) (“It is well settled

that the ‘recommenced’ case envisioned by [OCGA § 9-2-61 (a)] is an

2 In its order, the Court of Appeals referred to “action” when discussing

OCGA § 5-6-34 (a) (1), but the terms “case” and “action” are often used
interchangeably. See State v. SASS Group, LLC, 315 Ga. 893, 900 (2) (a) (885
SE2d 761) (2023) (“[The term] ‘action’ is ordinarily and more commonly used
to mean a case or lawsuit[.]”).
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action de novo, and is not a continuance of the original action.”

(citations and punctuation omitted)); Cox v. Strickland, 120 Ga. 104,

109 (47 SE 912) (1904) (noting that the predecessor to OCGA § 9-2-

61 did “not contemplate a revival or continuance of the original suit

. . . but that, the first having been discontinued, dismissed, or

nonsuited, a new and distinct suit may be brought”); see also Carr

v. Yim, 369 Ga. App. 389, 395 (893 SE2d 801) (2023) (“[A] renewal

action is a new action[.]”); Archie v. Scott, 190 Ga. App. 145, 146 (2)

(378 SE2d 182) (1989) (“It is clear . . . that an action renewed

pursuant to OCGA § 9-2-61 (a) is an action de novo, not a

continuance of the original action.” (citation and punctuation

omitted)). The Defendants make several arguments, but none of

them grapple with this longstanding precedent that a renewal

action is not a continuance of the dismissed case.

The Defendants first suggest that because OCGA § 9-15-14 (e)

provides that a motion for attorneys’ fees can be filed up to 45 days

after the “final disposition of the action” — a phrase that has been

interpreted synonymously with the phrase “final judgment” under

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OCGA § 5-6-34 (a) (1)3 — the case remained pending below once the

Defendants filed such a motion following the Plaintiffs’ voluntary

dismissal. But even if that is true, this argument offers no reason

why the resolution of that motion is not itself a final judgment for

purposes of OCGA § 5-6-34 (a) (1).

The Defendants next argue that the Court of Appeals’s decision

here is consistent with Meister v. Brock, 268 Ga. App. 849 (602 SE2d

867) (2004). But that case does not apply. In Meister, the Court of

Appeals considered whether the plaintiff’s OCGA § 9-15-14 motion

(filed in response to the defendants’ OCGA § 9-15-14 motion) was

filed within 45 days of a “final disposition” when more than 45 days

had elapsed since the plaintiff’s voluntary dismissal.4 268 Ga. App.

at 849 (1). The Court of Appeals’s conclusion that the plaintiff’s

OCGA § 9-15-14 motion was timely in that case is not determinative

3 See, e.g., Fairburn Banking Co. v. Gafford, 263 Ga. 792, 793 (439 SE2d

482) (1994); Kim v. Han, 339 Ga. App. 886, 888 (1) (795 SE2d 191) (2016).
4 The Court of Appeals’s opinion does not expressly say that the plaintiff’s

motion was filed more than 45 days after the voluntary dismissal, but the
defendant’s motion was filed 44 days after dismissal and the plaintiff’s motion
was filed in response. Meister, 268 Ga. App. at 849.

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of whether the fee award here is a final judgment under OCGA § 5-

6-34 (a) (1). Indeed, as the Court of Appeals observed, a voluntary

dismissal is not a final judgment under OCGA § 5-6-34 (a) (1),

because that Code section applies only to “judgments and rulings” of

certain courts and a voluntary dismissal is not such a judgment or

order. 268 Ga. App. at 850 (1). In contrast, the fee award here is such

a ruling, and the dismissed case otherwise meets the definition

under OCGA § 5-6-34 (a) (1).5

Finally, the Defendants argue that Eidson, relied on by the

Court of Appeals here, was correctly decided. But Eidson does not

apply. There, a plaintiff filed suit in Gwinnett County asserting

5 Because we conclude that Meister is inapplicable, we need not decide

whether all of its reasoning was correct. For instance, the Court of Appeals
said a “voluntary dismissal” is not “final” because the action could be renewed,
but the question of finality in that case was whether the plaintiff’s motion was
filed “within 45 days after final disposition of the action” under OCGA § 9-15-
14 (e). 268 Ga. App. at 850 (1). And despite suggesting that a court order is a
necessary element of a final judgment under OCGA § 5-6-34 (a) (1), and thus a
final disposition under OCGA § 9-15-14 (e), the Court of Appeals then described
situations in which a voluntary dismissal would be a “final disposition” that
required no court order at all. See 268 Ga. App. at 850 (1) (describing a second
dismissal or the lapse of six months from date of the first dismissal as
constituting a “final disposition”); see also Black’s Law Dictionary 572 (10th
ed. 2014) (defining “disposition” as, among other things, “[a] final settlement
or determination,” as in “the court’s disposition of the case”).
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claims arising from a motor vehicle collision. Eidson, 337 Ga. App.

at 542. In two orders entered on the same day, the trial court

awarded OCGA § 9-15-14 fees to the plaintiff and granted the

plaintiff’s motion to transfer venue to another county. Id. The

defendant filed an application for discretionary review of the fee

award, and the Court of Appeals dismissed the appeal because the

order was interlocutory in nature. The Court of Appeals’s conclusion

rested solely on the fact that it was “undisputed that the negligence

action remain[ed] pending below” at the time the discretionary

application was filed and the transfer order did not act as a final

judgment. Id. at 543-544. That point alone renders Eidson

inapplicable here, and nothing more can be gleaned from Eidson,

because it did not address any of the issues of statutory

interpretation involved here. See Cook v. State, 313 Ga. 471, 478 (2)

(a) (870 SE2d 758) (2022) (“Decisions of this Court and of the Court

of Appeals do not stand for points that were neither raised by the

parties nor actually decided in the resulting opinion, and questions

which merely lurk in the record, neither brought to the attention of

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the court nor ruled upon, are not to be considered as having been so

decided as to constitute precedents.” (citation and punctuation

omitted)).

To sum up, the fact that the Plaintiffs could and did renew their

action did not mean the dismissed case was “pending,” because the

renewal case was a new case and not a continuance of the dismissed

case. The trial court’s order disposing of the motion for attorneys’

fees rendered the first case no longer pending in that court.

Accordingly, that order was a final judgment under OCGA § 5-6-34

(a) (1). We reverse the Court of Appeals’s dismissal of the

discretionary application and remand for consideration of that

application.

Judgment reversed and case remanded. All the Justices concur.

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Decided December 20, 2024.

Discretionary appeal. Gwinnett State Court. Before Judge

Dove.

Reynolds Law Group, Thomas E. Reynolds; Kastorf Law, Kurt

G. Kastorf; Bird Law Group, Alexandria E. Seay; Pattni Law Group,

Rishi D. Pattni, for appellants.

Moore Ingram Johnson & Steele, Robert D. Ingram, Ryan M.

Ingram, David P. Conley; Maximilian P. Perwich, for appellees.

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.

In the Supreme Court of Georgia

Decided: December 20, 2024