Court of Appeals
of the State of Georgia
ATLANTA,____________________
June 13, 2017
The Court of Appeals hereby passes the following order:
A17D0463. TANNER MEDICAL CENTER INC. d/b/a TANNER MEDICAL
CENTER - VILLA RICA et al. v. VEST NEWMAN, LLC d/b/a
NEWMAN BEHAVIORAL HOSPITAL et al.
In Tanner Medical Center, Inc. v. Vest Newman, LLC, 337 Ga. App. 884 (789
SE2d 258) (2016), we reversed the trial court decision ordering the Georgia
Department of Community of Health (“DCH”) to grant Vest Newman, LLC a
Certificate of Need. After the remittitur, DCH and other parties moved for attorney’s
fees under OCGA § 33-6-44.1 (c). The superior court denied the request, prompting
the filing of this application for discretionary review.
Under OCGA § 5-6-35 (a) (1), a discretionary application is required to appeal
“decisions of the superior courts reviewing decisions of . . . state and local
administrative agencies,” but this provision applies only where the superior court order
to be appealed actually reviews an agency decision. See City of Rincon v. Couch, 272
Ga. App. 411, 411-412 (612 SE2d 596) (2005). Although the underlying litigation arose
out of an administrative appeal, the order at issue in this appeal did not review the
agency’s decision; rather, it decided a post-judgment attorney fee request that was
made for the first time – and could only have been made – in the superior court. Thus,
OCGA § 5-6-35 (a) (1) does not apply here. OCGA § 5-6-35 (a) (10) requires the
filing of a discretionary application to appeal trial court rulings on requests for attorney
fees under OCGA § 9-15-14. However, this provision applies only to fee awards
granted or denied under OCGA § 9-15-14; it does not apply to fee awards granted or
denied under other statutes, such as OCGA § 31-6-44.1 (c). See Kraft v. Dalton, 249
Ga. App. 754, 755 n. 2 (549 SE2d 543) (2001) (no discretionary application required
to appeal fee award made under OCGA § 13-6-11).
Because no provision of OCGA § 5-6-35 (a) applies here, this application is
hereby GRANTED as required under OCGA § 5-6-35 (j). The applicants shall have
ten days from the date of this order to file a notice of appeal with the superior court,
if they have not already done so. See OCGA § 5-6-35 (g). It appears, however, that
the applicants have already filed a notice of appeal from the same trial court order
contested in this application although it is unclear from the record whether that notice
of appeal was filed in a timely manner. If the notice of appeal was timely, it is
unnecessary for the applicants to file a second notice of appeal. If it was not, the
applicants have ten days from the date of this order to file their notice of appeal. The
clerk of the superior court is directed to include a copy of this order in the record
transmitted to the Court of Appeals.
Court of Appeals of the State of Georgia
C l e r k ’ s O f f i c e ,
Atlanta,____________________
06/13/2017
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.