FIRST DIVISION
BARNES, P. J.,
MARKLE and HODGES, JJ.
NOTICE: Motions for reconsideration must be
received no later than 4:30 pm on the 10th day after
the decision was issued to be deemed timely filed.
https://www.gaappeals.gov/rules
October 14, 2026
In the Court of Appeals of Georgia
A26A1352. MERAT et al. v. WELLSTAR NORTH FULTON
HOSPITAL et al.
MARKLE, Judge.
Johanne Merat, individually and on behalf of her minor son who suffered
injuries during delivery, filed this medical malpractice suit against Wellstar North
Fulton Hospital, Niles Women’s Healthcare,1 Dr. Urania Davis, Lynn Earman, Yoo
Jeong Yang, and Lashanda Adams. After the trial court dismissed the claims against
all defendants, Merat moved for reconsideration and filed a motion to extend the time
in which to file her notice of appeal. The trial court denied both motions, and Merat
filed a notice of appeal thereafter. For the reasons that follow, we dismiss the appeal.
1
Niles Women’s Healthcare was also known as Isis Obstetrics and Gynecology. Because Merat identified the defendant as Niles, we do so here.
We are obligated to consider our jurisdiction in any cases before us. See
Patterson v. State, 321 Ga. 487, 487 (915 SE2d 555) (2025); Roberson v. State, 378 Ga.
App. 882, 883(2) (927 SE2d 586) (2026). See also Duke v. State, 306 Ga. 171,
181(3)(b) (829 SE2d 348) (2019) (“Questions pertaining to an appellate court’s
jurisdiction cannot be sidestepped or pretermitted, as they go to the threshold
question of whether the appellate court has the authority to decide the merits of the
case.”). A notice of appeal must be filed within 30 days of the order being appealed,
and if the notice if untimely, we lack jurisdiction to consider the merits of the case.
First Merit Credit Servs. v. Fairway Aviation, 359 Ga. App. 829, 830(1) (860 SE2d 126)
(2021); OCGA § 5-6-38(a).
As alleged in the complaint, on June 28, 2023, Merat’s son suffered
complications during delivery that left him permanently injured. On June 25, 2025,
Merat filed her complaint against the defendants seeking to take advantage of the
grace period for filing an expert affidavit required under OCGA § 9-11-9.1(b).2
Attached to the complaint was an unsigned affidavit from counsel confirming he had
been retained recently and that the plaintiff was seeking an additional 45 days in which
2
The parties do not dispute that the two-year statute of limitations was about to expire. See OCGA § 9-3-71(a).
2
to file the affidavit. Later that same day, counsel filed another complaint, this one with
counsel’s signed affidavit attached, but no signed verification by the plaintiff.3 Five
days later, counsel submitted an amended complaint and a second amended complaint
with signed affidavits and signed verifications.4
All defendants filed special appearance answers and motions to dismiss.5 Merat
later agreed to voluntarily dismiss the claims against Yang and Adams without
prejudice.
Merat’s initial attempts to serve Dr. Davis were unsuccessful. The remaining
defendants submitted affidavits confirming they had not been served. Dr. Davis was
ultimately personally served on November 26, 2025.
3
It is unclear whether this complaint was filed, as the copy in the record does not contain any file stamp.
4
Merat did not submit the expert affidavit until August 7, and she later sought an extension of time in which to file an amended affidavit. The trial court denied the extension.
5
The trial court stayed discovery pending the resolution of these motions.
3
The morning of a scheduled hearing, Merat filed a voluntarily dismissal of all
defendants without prejudice. Counsel then failed to appear at the hearing, but later
sent a letter explaining that he was ill.
On December 3, 2025, the trial court ruled on the pending motions based on the
briefing and the record, dismissing Adams and Yang without prejudice; denying the
voluntary dismissal of all defendants because the motion was filed more than 60 days
after the defendants filed their answers; dismissing the claims against Wellstar; and
dismissing the claims against Niles, Davis, and Earman with prejudice for failure to
timely serve them.
Merat filed a timely motion for reconsideration, followed by an amended
motion, with respect to the dismissal of the claims against Niles and Davis. Merat also
confirmed that she did not oppose the dismissal of Wellstar, Earman, Yang, or Adams.
On January 2, 2026, realizing that the period in which to file a notice of appeal
was about to expire and the trial court had yet to rule on the motion for
reconsideration, Merat filed a “emergency application to extend time to file notice of
appeal.” See OCGA § 5-6-39. Merat requested a 30-day extension and, in the body
of that motion, she explained: “In the event the court is not inclined to grant the
4
extension of time to file a Notice of Appeal, out of an abundance of caution and in the
alternative, Plaintiffs ask that the Court accept the attached Notice of Appeal for filing
effective January 2, 2026. See Attached Exhibit 3, Proposed Notice of Appeal.” The first
exhibit to the motion contains an “e-filed” stamp, but the rest of the exhibits —
including the “proposed notice of appeal,” which appears as Exhibit 3 — do not show
any file stamps. On January 13, after the expiration of the period in which to file a
notice of appeal, the trial court denied both the request for an extension of time in
which to file the notice of appeal and the motion for reconsideration.
On January 16, 2026, Merat filed an “amended” notice of appeal. That same
day, the trial court’s clerk’s office sent Merat a letter to pay costs to prepare the file
for appeal, identifying the date of the notice of appeal as January 16. On February 13,
Merat filed a second amended notice of appeal. On appeal, Merat contends that the
trial court erred by (1) dismissing the complaint for failure to comply with the affidavit
requirements; (2) finding service was not perfected; (3) dismissing the action with
prejudice; and (4) denying the motion for reconsideration. The defendants have filed
a joint motion to dismiss the appeal on the ground that the notice of appeal was
untimely.
5
1. We begin with the defendants’ motion to dismiss the appeal. The defendants
contend that the motion for reconsideration did not toll the time in which to file the
notice of appeal, and submitting a proposed notice of appeal as an exhibit to another
filing is insufficient to enable this Court to exercise jurisdiction over the appeal. We
agree.
“The timely filing of a notice of appeal is an absolute requirement to confer
jurisdiction on this Court.” Price v. Dozier, 348 Ga. App. 283, 283 (821 SE2d 566)
(2018). A party seeking to appeal an adverse judgment must file their notice of appeal
“within 30 days after entry of the appealable decision or judgment complained of[.]”
OCGA § 5-6-38(a). The notice must be sufficient to apprise the trial court of the
intent to appeal, and it acts as supersedeas to deprive the trial court of “the power to
affect the judgment appealed.” Patterson, 321 Ga. at 488 (quotation marks omitted).
Importantly, although some post-judgment motions may toll the time in which to file
the notice of appeal, a motion for reconsideration does not. Ferguson v. Freeman, 282
Ga. 180, 181(1) (646 SE2d 65) (2007); Harned v. Piedmont Healthcare Found., 356 Ga.
App. 870, 872 (849 SE2d 726) (2020); OCGA § 5-6-38.
6
“The purpose of a notice of appeal (as its moniker suggests) is to provide
opposing parties and the court with notice of one’s intent to appeal. That is why the
notice afforded by a document determines the document’s sufficiency as a notice of
appeal.” Parrish v. United States, 605 U.S. 376, 385(II)(B) (145 SCt 1664, 222 LE2d
37) (2025) (citation modified)); Smith v. Barry, 502 U.S. 244, 248(II) (112 SCt 678,
116 LE2d 678) (1992) (“While a notice of appeal must specifically indicate the
litigant’s intent to seek appellate review, the purpose of this requirement is to ensure
that the filing provides sufficient notice to other parties and the courts. Thus, the
notice afforded by a document, not the litigant’s motivation in filing it, determines the
document’s sufficiency as a notice of appeal.” (citation modified)).
We have not addressed whether a “proposed” notice of appeal attached to
another motion satisfies the requirements for a notice of appeal. In Patterson, our
Supreme Court addressed a related question. There, the appellant filed an untimely
notice of appeal, as well as motions for reconsideration and for an extension of time
to file the notice of appeal. Patterson, 321 Ga. at 487. The Court held that the trial
court was divested of jurisdiction to rule on the motion for reconsideration because
the appellant had filed a notice of appeal and, even though the notice was untimely,
7
it still acted as supersedeas. Id. at 488. Notably, the appellant in Patterson argued that
the trial court retained jurisdiction because the notice of appeal was merely an exhibit
to the motion for reconsideration. Id. at 488-89. The Supreme Court rejected that
argument, explaining that the notice of appeal “was clearly labeled and filed as a
notice of appeal, and the motion for reconsideration did not reference the notice of
appeal as an exhibit.” Id. at 489.
In contrast, here, Merat filed the notice of appeal as an exhibit to a motion for
an extension of time to file a notice of appeal. In the motion for an extension, Merat
advised the trial court that the motion for reconsideration remained pending and that
she was seeking an extension “to allow the Court to reconsider the Dismissal Order
prior to filing a Notice of Appeal,” and that the notice of appeal was “in the
alternative.” (emphasis added). But Merat’s attempt to “cover all the bases” by filing
the proposed notice of appeal as an exhibit “in the alternative” failed to provide the
necessary notice. Parrish, 605 U.S. at 385(II)(B); Smith, 502 U.S. at 248(II). The
proposed notice of appeal was one of three exhibits submitted and did not alert the
trial court or the parties to a pending appeal given that the clerk’s office waited until
Merat filed a separate notice a few weeks later to advise her of the costs to appeal.
8
In contending that she filed a timely notice of appeal, Merat essentially argues
that the proposed notice of appeal was a self-executing document that took effect
when filed, and the request that the court accept it was “mere surplusage.”6 She
cannot have it both ways. Either the notice of appeal was operative when it was
attached as an exhibit to another motion, divesting the trial court of jurisdiction to rule
on the motion for reconsideration, or she intended it to become “self-executing” as
soon as the court denied her motion for an extension. As the document makes clear,
Merat sought a ruling on her motion for reconsideration and, as the trial court did not
issue a ruling on either the motion for reconsideration or the motion for an extension
of time until after the deadline for filing a timely notice of appeal, any notice of appeal
ripening at that point was untimely. See OCGA § 5-6-38(a). Compare Patterson, 321
Ga. at 488-89.
It is true that
[t]he motion for reconsideration presents something of a harsh reality.
Sometimes a party is faced with a clearly erroneous decision by a capable
trial judge who would surely correct the error if given the opportunity.
A party facing that situation must make a difficult decision: either to take
6
“Approval by the court is not required as a condition to filing the notice.” OCGA § 5-6-37.
9
an appeal—with its considerable attendant costs and delay—or give up
the right to appeal and hope that the trial judge corrects the earlier
decision. ... Failure to recognize this dilemma can lead to disaster.
Christopher J. McFadden, Charles R. Shepard, Charles M. Cork, David A. Webster,
Kelly J. Weathers, Ga. Appellate Practice § 11:1 & n.16 (2025). See also OCGA § 5-6-39(a)(1) (appellant may request one extension of time in which to file a notice of
appeal). Merat chose to file a motion for reconsideration and await a ruling. The
unfortunate result is that her notice of appeal is thus untimely. On the unique facts of
this case, we conclude that the “proposed” notice of appeal attached as an exhibit to
another filing was insufficient to satisfy the required timely filing of a notice of appeal.
Compare Patterson, 321 Ga. at 489; Cain v. State, 275 Ga. 784, 785-86 (573 SE2d 46)
(2002) (adopting federal court’s view that as long as motion for out of time appeal is
the “functional equivalent” of a notice of appeal, it will be treated as such). And,
because there was no timely filed notice of appeal, Merat’s amended notice of appeal,
filed after the denial of her motions for reconsideration and for extension of time, did
not relate back to the “proposed” notice of appeal. Cf. Harned, 356 Ga. App. at 872,
n.3 (untimely amended notice of appeal did not relate back to timely notice of appeal
that had been withdrawn).
10
We recognize that the Appellate Practice Act is to be liberally construed to
enable courts to reach the merits of appeals, and “we look to substance over
nomenclature.” Cain, 275 Ga. at 786. But the filing of a timely notice of appeal is
essential to confer jurisdiction. First Merit Credit Servs., 359 Ga. App. at 830(1);
OCGA §§ 5-6-30; 5-6-48(b)(1). Even liberally construing the motion and looking at
its substance, the motion for an extension of time was not the “functional equivalent”
of a notice of appeal. Cain, 275 Ga. at 786. Because Merat failed to file a timely notice
of appeal from the trial court’s December 5 order, her appeal must be dismissed. First
Merit Credit Servs., 359 Ga. App. at 830(1).
2. Having concluded that the notice of appeal was untimely to appeal the
December 5 order, we turn to Merat’s claim that the trial court abused its discretion
by denying the motion for reconsideration.
It is well settled that “the denial of a motion for reconsideration of a final
judgment is not itself a judgment subject to direct appeal.” Ferguson, 282 Ga. at
181(1); Nesmith v. Branch, 378 Ga. App. 267, 268(1), n.4 (925 SE2d 349) (2026). See
generally OCGA § 5-6-35.
11
Accordingly, we lack jurisdiction to consider this claim of error, and we must
dismiss this appeal.
Appeal dismissed. Barnes, P. J., and Hodges, J., concur.
12