BENJAMIN LICONA v. JAY RIEMENSCHNEIDER ( 2022 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 19, 2022
The Court of Appeals hereby passes the following order:
A23A0045. BENJAMIN LICONA et al. v. JAY RIEMENSCHNEIDER at al.
Benjamin Licona and Christina Evelyn Tomasino-Licona (“the Liconas”) sued
Jay and Terri Riemenschneider in superior court, asserting claims for declaratory
judgment, unjust enrichment, injunction, and attorney fees under OCGA § 13-6-11.
The Liconas alleged that the Riemenschneiders had wrongfully initiated eviction
proceedings against them in violation of their lease agreement. The Riemenschneiders
filed an answer and counterclaim for attorney fees under OCGA § 13-6-11. Following
a hearing, the superior court entered judgment and a writ of possession in favor of the
Riemenschneiders, but expressly reserved ruling on the issue of attorney fees “for
further disposition by the Court.” The Liconas appeal, but we lack jurisdiction.
Under OCGA § 5-6-34 (a) (1), appeals may generally be taken from “[a]ll final
judgments, that is to say, where the case is no longer pending in the court below[.]”
When the case remains pending, the losing party is required to comply with the
interlocutory appeal procedures of OCGA § 5-6-34 (b), including obtaining a
certificate of immediate review. Islamkhan v. Khan, 299 Ga. 548, 551 (2) (787 SE2d
731) (2016). “[I]f the judgment reserves the issue of attorney fees under OCGA § 13-
6-11, then one cannot claim that ‘the case is no longer pending in the court below’ as
required by OCGA § 5-6-34 (a) (1).” Sotter v. Stephens, 291 Ga. 79, 84 (727 SE2d
484) (2012). See also Edokpolor v. Grady Memorial Hosp. Corp., 302 Ga. 733,
734-735 (808 SE2d 653) (2017) (“[A] case remains pending in the trial court where
that court has explicitly reserved issues related to costs and attorney fees for future
judgment.”).
Thus, because the trial court’s order reserved the issue of attorney fees, the
order was not a final judgment, and the Linconas were required to comply with the
interlocutory appeal procedures to obtain appellate review at this juncture. See id.;
Islamkhan, 299 Ga. at 550 (1); Stump v. Young, 307 Ga. App. 583, 584 (705 SE2d
684) (2011). Their failure to do so deprives us of jurisdiction over this appeal, which
is hereby DISMISSED.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/19/2022
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.