---
title: COOK-ROSE v. WAFFLE HOUSE INC.
collection: opinions
id: S24A1094
cite_as: COOK-ROSE v. WAFFLE HOUSE INC., 320 Ga. 567 (2024)
canonical_url: https://georgiacommons.org/opinions/S24A1094
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text_url: https://georgiacommons.org/opinions/S24A1094/text
source_url: https://www.courtlistener.com/opinion/10680196/cook-rose-v-waffle-house-inc/
date: 2024-12-20
status: published
corpus_version: opinions-2026-09-14
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docket: S24A1094
citation: 320 Ga. 567
court: Supreme Court of Georgia
case_type: civil
authoring_justice: Peterson
disposition: Reversed and remanded
vote: All the Justices concur
word_count: 2337
date_filed_source: courtlistener
citations:
  - 910 S.E.2d 562
record_source: courtlistener
legal_areas:
  - civil procedure
  - appellate procedure
upstream_id: "10680196"
summaries_model: claude-sonnet-5
---

# COOK-ROSE v. WAFFLE HOUSE INC.

Supreme Court of Georgia, docket S24A1094, filed 2024-12-20, 320 Ga. 567.

## Opinion

320 Ga. 567 FINAL COPY 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.

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.

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 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)).

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[.]”).

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 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.

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”).

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 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.

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.

## Summaries written by Georgia Commons

The following was written by claude-sonnet-5 from the opinion above and is not part of the court's opinion. Quote the opinion, not the summary.

The Supreme Court of Georgia ruled that a lawsuit's plaintiffs could immediately appeal an attorneys' fees award without first getting a trial court's permission, because refiling their case as a new lawsuit did not keep the old, dismissed case pending.

### Plain-language summary

A group of plaintiffs sued Waffle House and a related company over a premises liability claim, then voluntarily dropped the lawsuit while a sanctions motion was pending against them. Waffle House then asked the trial court for attorneys' fees, arguing the plaintiffs dismissed the case to dodge sanctions. Meanwhile, the plaintiffs refiled their claims as a new 'renewal action,' something Georgia law allows within six months of a dismissal. The trial court later awarded Waffle House over $101,000 in fees in the original, dismissed case.
The plaintiffs tried to appeal that fee award directly, but the Court of Appeals of Georgia dismissed their appeal, reasoning that because a renewal case was still going, the original case was technically still pending, so the plaintiffs needed special trial court permission to appeal. The Supreme Court of Georgia disagreed, holding that a renewal action is a brand-new lawsuit, not a continuation of the dismissed one, so the dismissed case was truly over and the fee order could be appealed right away.

### Holding, as summarized

A renewal action under Georgia's renewal statute is a new, separate lawsuit rather than a continuation of the dismissed case, so the dismissed case is 'no longer pending' once it is dismissed, making a later order in that case (like an attorneys' fees award) an immediately appealable final judgment.

### Disposition

Reversed and remanded. All the Justices concur.

### Why it matters

The ruling clarifies for Georgia litigants and lawyers that once a case is voluntarily dismissed and refiled as a renewal action, orders left over in the old case, like fee awards, can be appealed immediately without the extra step and delay of seeking trial court permission.

> The summarized reasoning, checked quotes, suggested questions, and the CourtListener opinion records (2,088 characters) are at https://georgiacommons.org/opinions/S24A1094.md?full=1