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
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’
2
fees, arguing that the Plaintiffs attempted to escape sanctions by
dismissing their lawsuit.
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
1 That subparagraph 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.
3
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).
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
4
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
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 § 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[.]
5
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)).
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 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
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 (II) (a) (885
SE2d 761) (2023) (“[The term] ‘action’ is ordinarily and more commonly used
to mean a case or lawsuit[.]”).
6
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
action de novo, and is not a continuance of the original action.”
(citations and punctuation omitted)); Cox v. Strickland, 120 Ga. 104,
109 (5, 6) (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)
7
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
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’ § 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
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
8
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 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 § 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 § 5-6-34 (a)
(1).5
defendant’s motion was filed on the 44th day after dismissal and the plaintiff’s
motion was filed in response. Meister, 268 Ga. App. at 849.
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 § 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”).
9
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
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
10
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
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.
11