Court of Appeals of the State of Georgia ATLANTA,__________________ September 21, 2012 The Court of Appeals hereby passes the following order: A13D0038. ANNA MARIE DILLARD v. LORI BENNETT.

Lori Bennett sued Omni Builders Risk, Inc. and James Dillard for breach of contract and fraudulent inducement.1 After Bennett voluntarily dismissed the fraudulent inducement claim, Dillard filed a motion for OCGA § 9-15-14 attorney fees. On August 2, 2012, the trial court entered an order denying the claim for attorney fees. The same day, the trial court entered final judgment. Bennett filed a direct appeal from the final order, and Dillard has filed this application for discretionary appeal from the trial court’s denial of OCGA § 9-15-14 attorney fees.2 Although an application for discretionary appeal is ordinarily required to appeal a trial court’s ruling on OCGA § 9-15-14 attorney fees, no such application is needed when a direct appeal is pending in the underlying judgment. See Haggard v. Board of Regents of University System of Georgia, 257 Ga. 524, 526 (4) (a) (360 SE2d 566) (1987). Thus, because a direct appeal is pending in the underlying case, no application is required.

This Court will grant an otherwise timely discretionary application pursuant to OCGA § 5-6-35 (j) if the order is subject to direct appeal and the applicant has not timely filed a notice of appeal. As it does not appear that Dillard has filed a notice

James Dillard died, and Anna Marie Dillard, the executrix of his estate, was substituted as a party.

Bennett’s direct appeal has not yet been docketed in this Court, but Dillard has included a date-stamped copy of the notice of appeal showing that a timely notice of appeal has been filed. of appeal, this application is hereby GRANTED. Dillard shall have ten days from the date of this order to file a notice of appeal with the trial court. The trial court is instructed to include a copy of this order in the record transmitted to this Court.

Court of Appeals of the State of Georgia 09/21/2012 Clerk’s Office, Atlanta,__________________ I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk.