Lanier Parkway Associates, LLC v. Hercules, Inc.

Court of Appeals of the State of Georgia

ATLANTA,____________________ May 17, 2022

The Court of Appeals hereby passes the following order:

A22D0358. LANIER PARKWAY ASSOCIATES, LLC et al. v. HERCULES, INC. et al.

Plaintiffs Lanier Parkway Associates, LLC and others filed an action against defendants Hercules, Inc. and Pinova (DE), Inc. In December 2021, Hercules filed a petition for an award of attorney fees and costs associated with the taking of an expert’s deposition. On February 14, 2022, the trial court entered an order directing plaintiffs pay $27,123.95 in attorney fees and costs. Subsequently, on March 22, 2022, plaintiffs voluntarily dismissed the case without prejudice. On April 21, 2022, plaintiffs filed this application for discretionary appeal seeking to appeal the February 14 attorney fee order. We, however, lack jurisdiction. To be timely, a discretionary application must be filed within 30 days of entry of the order to be appealed. OCGA § 5-6-35 (d); Hill v. State, 204 Ga. App. 582, 583 (420 SE2d 393) (1992). This statutory deadline is jurisdictional, and we cannot accept an application for appeal not made in compliance with OCGA § 5-6-35 (d). Boyle v. State, 190 Ga. App. 734, 734 (380 SE2d 57) (1989). The trial court’s order was entered on February 14, and plaintiffs filed this application on April 21, 66 days after entry of the trial court’s attorney fee order. To the extent that plaintiffs sought to appeal from the March 22 dismissal, we note that “[a] voluntary dismissal is not a decision or judgment that may be appealed by a plaintiff.” Waye v. Continental Special Risks, 289 Ga. App. 82, 84 (656 SE2d 150) (2007). Moreover, a voluntary dismissal cannot be used as a vehicle for obtaining appellate review of rulings entered by the trial court more than 30 days from the filing of an application for discretionary appeal. See id.

Under these circumstances, plaintiffs’ application is untimely and is hereby DISMISSED. Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 05/17/2022 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.