Opinion
A25D0001
08-12-2024
CHON HERRERA v. ELIZABETH BRAGG.
The Court of Appeals hereby passes the following order:
Elizabeth Bragg sued Chon Herrera to recover for injuries following a motor vehicle accident. When Bragg had trouble accomplishing personal service upon Herrera, she filed a motion to determine the sufficiency of service by publication and to exercise personal jurisdiction over Herrera. The trial court entered an order finding that Herrera was secreting himself to avoid service and that service by publication was sufficient. Bragg then filed a motion for attorney fees and costs under OCGA § 9-15-14 (b), arguing that Herrera had unnecessarily expanded the proceedings by evading service. The trial court granted the motion, and Herrera filed this application for discretionary review. Bragg has filed a motion to dismiss on the ground that Herrera was required to file an application for interlocutory review.
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), (b). But 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 OCGA § 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 S.E.2d 213) (1996) (a party seeking appellate review of 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 S.E.2d 129) (2016) (where attorney fee order is issued prior to final judgment, a party seeking appellate review must follow interlocutory appeal requirements). Thus, Herrera was required to follow the interlocutory appeal procedure to challenge the OCGA § 9-15-14 (b) fee award, and his failure to do so deprives this Court of jurisdiction over this application for discretionary review. See Bailey, 266 Ga. at 832-833; Eidson, 337 Ga.App. at 543-545. Bragg's motion to dismiss is hereby GRANTED, and this application is DISMISSED.