Court of Appeals of the State of Georgia ATLANTA,____________________ September 06, 2022 The Court of Appeals hereby passes the following order: A23D0022. JEANINE COOK-ROSE et al. v. WAFFLE HOUSE, INC. et al.

In October 2019, the plaintiffs filed an action against Waffle House, Inc. following the murder of Theodore Jones during an armed robbery at a Waffle House.

The parties then engaged in contentious discovery. In July 2021, the plaintiffs voluntarily dismissed the action without prejudice. In September 2021, Waffle House filed a motion for attorney fees and expenses pursuant to OCGA § 9-15-14. In November 2021, the plaintiffs filed a renewal action, which is currently pending in the trial court. On July 5, 2022, the trial court awarded Waffle House $101,082 in attorney fees and expenses. The plaintiffs then filed this application for discretionary appeal seeking to appeal the OCGA § 9-15-14 award. We, however, lack jurisdiction.

Generally, an application for discretionary appeal is required for appellate review of an award of attorney fees or litigation expenses under OCGA § 9-15-14.

See OCGA § 5-6-35 (a) (10). However, where, as here, the action remains pending below and the order is a non-final order that does not resolve all issues in the action, a party is required to follow the interlocutory appeal procedure set forth in § 5-6-34 (b) – including obtaining a certificate of immediate review – to challenge a fee award.

See generally Bailey v. Bailey, 266 Ga. 832, 832-833 (471 SE2d 213) (1996) (a party seeking appellate review from an interlocutory order that also implicates the discretionary application statute must comply with the interlocutory application statute); see also Eidson v. Croutch, 337 Ga. App. 542, 543-545 (788 SE2d 129) (2016) (where attorney fees order is issued prior to final judgment, a party seeking appellate review must follow interlocutory appeal requirements). Thus, the plaintiffs in this case were required to follow the interlocutory appeal procedure to challenge the OCGA § 9-15-14 attorney fee award.

The plaintiffs’ failure to comply with the interlocutory appeal requirements of OCGA § 5-6-34 (b) deprives this Court of jurisdiction over the appeal. Accordingly, this discretionary application is DISMISSED.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 09/06/2022 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.