Board of Regents v. Canas, No. A09A0411.

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: Ellington
• Citation: 672 S.E.2d 471,295 Ga. App. 505
• Parties: BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. CANAS et al.
• Docket Number: No. A09A0411.
• Decision Date: 12 January 2009

672 S.E.2d 471 295 Ga. App. 505 BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA
v.
CANAS et al. No. A09A0411. Court of Appeals of Georgia. January 12, 2009.

[672 S.E.2d 472]

Thurbert E. Baker, Attorney General, Jennifer L. Dalton, Assistant Attorney General, for appellant.

Ballard, Still & Ayres, William L. Ballard, Smith, Moore & Leatherwood, J. Robert Persons, Atlanta, Hull, Towill, Norman, Barrett & Salley, James S.V. Weston, Augusta, for appellee.

ELLINGTON, Judge.

After an earlier interlocutory appeal,¹ Derek Canas's action against the Board of Regents of the University System of Georgia d/b/a Medical College of Georgia Hospitals and Clinics ("the Board") and MCG Health, Inc. ("MCGHI") remains pending in the Superior Court of Glynn County. This appeal concerns the trial court's order denying the Board's motion to dismiss Canas's administrative failure to warn claim.² In the appealed

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order, the trial court determined that the Board is not immune from suit on the basis of sovereign immunity. The Board appeals, contending that Canas's claim must [295 Ga. App. 506] be dismissed, either because his claim accrued before January 1, 1991 (such that the Georgia Tort Claims Act does not apply), and he failed to show that the Board waived sovereign immunity by purchasing liability insurance, or, alternatively, because he failed to satisfy the ante litem notice requirements of the Act. As explained below, we affirm.

1. As Canas has moved to dismiss this interlocutory appeal based on the Board's failure to comply with the interlocutory appeal procedures set forth in OCGA § 5-6-34(b), our first consideration is whether we have jurisdiction over this appeal.³ In its notice of appeal and its response to Canas's motion to dismiss this appeal, the Board contends that this is an authorized appeal from a "collateral order."

"A necessary prerequisite for [a direct] appeal ... is that the judgment or order appealed from be final or otherwise appealable." (Footnote omitted.) Appellate Handbook for Georgia Lawyers, § 5-1, p. 100 (2007-2008 ed.).⁴ A judgment is directly appealable as a final judgment "where the case is no longer pending in the court below, except as provided in Code Section 5-6-35 [(concerning cases requiring an application for appeal)]." OCGA § 5-6-34(a)(1). A trial court's order is a final judgment within the meaning of OCGA § 5-6-34(a)(1) "where it leaves no issues remaining to be resolved, constitutes the court's final ruling on the merits of the action, and leaves the parties with no further recourse in the trial court." (Citation and punctuation omitted.) Miller v. Miller, 282 Ga. 164, 165, 646 S.E.2d 469 (2007) (Carley, J., dissenting). In this case, the order appealed from, which denied the Board's motion to dismiss Canas's administrative failure to warn claim, is not a final judgment. Nor is such an order made directly appealable by statute. Generally, where an appellant fails to comply with the interlocutory appeal procedures set forth in OCGA § 5-6-34(b) and an interlocutory ruling is not otherwise appealable, this Court lacks jurisdiction over a direct appeal filed from an interlocutory ruling and must dismiss it. ⁵[295 Ga. App. 507]

A small class of decisions, however, are excepted from the final-judgment rule by the collateral order doctrine. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-469, 98 S.Ct. 2454, 57 L.E.2d 351 (1978). For the collateral order doctrine to apply, "the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." (Citations and footnote omitted.) Id.⁶ Under Georgia law, sovereign immunity is an immunity from suit,

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rather than a mere defense to liability, and is effectively lost if a case is erroneously permitted to go to trial. Griesel v. Hamlin, 963 F.2d 338, 340(IV)(A) (11th Cir.1992).⁷ Based on these authorities, we conclude that an order that denies a motion to dismiss, based on a conclusive determination that the State (or a state officer or employee) is not immune from suit on the basis of sovereign immunity, meets these criteria.⁸ Because the interlocutory order at issue meets the criteria of the collateral order doctrine, we have jurisdiction over the Board's direct appeal. Britt v. State, 282 Ga. 746, 749(1), 653 S.E.2d 713 (2007); In re Paul, 270 Ga. 680, 683, 513 S.E.2d 219 (1999); Scroggins v. Edmondson, 250 Ga. 430, 432(1)(c), 297 S.E.2d 469 (1982).

2. The Board contends that, if Canas's failure to warn claim arose before January 1, 1991, he must show that the Board waived its sovereign immunity under the law as it existed before the adoption of the Georgia Tort Claims Act, OCGA § 50-21-20 et seq.,⁹ and that he failed to do so.¹⁰ Pretermitting whether Canas established [295 Ga. App. 508] that the Board waived its sovereign immunity under that body of law, the Board's argument fails because Canas's failure to warn claim accrued after January 1, 1991. OCGA § 50-21-27(a) expressly provides that, under the Act, "[a] tort claim or cause of action shall be deemed to have accrued on the date the loss was or should have been discovered."¹¹ It is undisputed that Canas did not discover his loss until April 2001, when he was diagnosed with AIDS.¹² Accordingly, Canas must show that the Board waived its sovereign immunity under the Act, not under the preexisting law.

3. The Board contends that, if (as we have concluded in Division 2, supra) Canas's failure to warn claim accrued after January 1, 1991, such that the Georgia Tort Claims Act applies,¹³ his claim must be dismissed

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because he failed to comply strictly with the ante litem notice requirements of the Act.¹⁴ Specifically, the Board contends [295 Ga. App. 509] that Canas's ante litem notice failed to mention the failure to warn claim, failed to state the time or place of the occurrence that gave rise to the loss, and failed to state the acts or omissions that caused the loss. "We review de novo a trial court's ruling on a motion to dismiss based on sovereign immunity grounds, which is a matter of law. Factual findings are sustained if there is evidence supporting them, and the burden of proof is on the party seeking the waiver of immunity." (Punctuation and footnote omitted.) Savage v. E.R. Snell Contractor, Inc., 295 Ga.App. ___(3), 672 S.E.2d 1 (2008).

The record shows that, within 12 months of the date Canas discovered his loss, he provided notice to the Risk Management Division of the Department of Administrative Services and to the Board that he intended to seek recovery of "all damages properly recoverable under Georgia law flowing from the negligence of" the Board, MCGHI, Dr. Sharon Kaminer, and possibly other healthcare providers who acted as Board employees or agents. In terms of the time and place of the transaction or occurrence out of which the loss arose,¹⁵ Canas's notice referenced the continuous period of his treatment at the Board's hospitals and clinics through February 2001. In terms of the acts or...