Teresa Toombs, of the Estate of Ozella Huling v. Hospital Authority of Columbus, Georgia

Court of Appeals
of the State of Georgia
ATLANTA,____________________
August 17, 2017
The Court of Appeals hereby passes the following order:
A18A0005. TERESA TOOMBS, EXECUTRIX OF THE ESTATE OF OZELLA
HULING v. HOSPITAL AUTHORITY OF COLUMBUS, GEORGIA et
al.
In this civil action, plaintiff Teresa Toombs, Executrix of the Estate of Ozella
Huling, filed this direct appeal, seeking review of the trial court’s order denying
Toombs’s “Motion for Reconsideration and for Rehearing Regarding Defendant’s
Motion for Summary Judgment.” We lack jurisdiction for two reasons.
First, the trial court’s order is not final. In the order that Toombs seeks to
appeal, the trial court did not grant summary judgment to any of the parties to this
case. Rather, the court merely (i) denied Toombs’s request for a “rehearing” on the
ground that no summary judgment hearing had yet been held; and (ii) granted one
defendant’s request for attorney fees under an unidentified statute.1 Consequently,
because this action remains pending below, Toombs was required to use the
interlocutory appeal procedures – including obtaining a certificate of immediate
review from the trial court – to appeal the order at issue here. See OCGA § 5-6-34
(b); Boyd v. State, 191 Ga. App. 435, 435 (383 SE2d 906) (1989). Toombs’s failure
to do so deprives us of jurisdiction over this appeal. See Bailey v. Bailey, 266 Ga.
832, 833 (471 SE2d 213) (1996).
Second, even if Toombs had a right of direct appeal here, this appeal is
untimely. A notice of appeal must be filed within 30 days of entry of the trial court
1
Although also styled as a motion for “reconsideration,” Toombs’s motion
identified no rulings as to which she sought reconsideration, and the trial court
therefore neither granted nor denied such relief.
order sought to be appealed. OCGA § 5-6-38 (a). The proper and timely filing of a
notice of appeal is an absolute requirement to confer jurisdiction on this Court.
Perlman v. Perlman, 318 Ga. App. 731, 739 (4) (734 SE2d 560) (2012). Toombs’s
May 19, 2017 notice of appeal is untimely, as it was filed 46 days after entry of the
trial court’s order on April 3, 2017.
For each of the above reasons, this appeal is hereby DISMISSED for lack of
jurisdiction.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
08/17/2017
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.