Board of Regents v. Canas

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

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.

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,¹Derek 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.²In the appealed 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 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.³In 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.).⁴A 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

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.⁶Under Georgia law, sovereign immunity is an immunity from suit 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).⁷Based 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.⁸Because 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.¹⁰Pretermitting whether Canas established 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 afterJanuary 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."¹¹It is undisputed that Canas did not discover his loss until April 2001, when he was diagnosed with AIDS.¹²Accordingly, 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 because he failed to comply strictly with the ante litem notice requirements of the Act.¹⁴Specifically, the Board contends 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 omissions which caused the loss,¹⁶ Canas's notice referenced the failure of Kaminer and others to take steps that would have led to an earlier detection of Canas's HIV infection/AIDS.The record shows that Canas did not have access to much of the information that supported his failure to warn claim until the Board responded to discovery requests after Canas filed his lawsuit.In requiring that notice be "to the extent of the claimant's knowledge and belief and as may be practicable under the circumstances,"¹⁷the Act's ante litem notice provisions "clearly contemplate the possibility that a claimant may have imperfect information regarding various facets of [his] claim at the time [his] notice is submitted."Cummings v. Ga. Dept. of Juvenile Justice,282 Ga. 822, 825, 653 S.E.2d 729(2007).The evidence in this case authorized the trial court to conclude that, to the extent of Canas's knowledge and belief at the time he gave his ante litem notice, his ante litem notice satisfied the requirements of OCGA § 50-21-26.¹⁸Accordingly, the trial court did not err in denying the Board's motion to dismiss based on the allegedly inadequate content of his ante litem notice.Cummings v. Ga. Dept. of Juvenile Justice,282 Ga. at 827, 653 S.E.2d 729;Savage v. E.R. Snell Contractor, Inc.,295 Ga.App. ___ (3)(b), 672 S.E.2d.

Judgment affirmed.

JOHNSON, P.J., and MIKELL, J., concur.

1.SeeCanas v. Al-Jabi,282 Ga.App. 764, 639 S.E.2d 494(2006), rev'd in part sub nom., Kaminer v. Canas,282 Ga. 830, 653 S.E.2d 691(2007).

2.Canas claims that the Board failed to discharge a duty to notify him that his transfusions with untested blood and blood products at the Medical College of Georgia Hospital in January 1985 might have exposed him to HIV and to advise him to be tested.SeeCanas v. Al-Jabi,282 Ga.App. at 765-770, 639 S.E.2d 494.

3.See alsoWaye v. Continental Special Risks,289 Ga.App. 82, 83, 656 S.E.2d 150(2007)("In every matter coming to this courtwe are required to examine the record to make certain we possess jurisdiction.")(citation, punctuation and footnote omitted).

4.SeeOCGA §§ 5-6-34(a);9-11-54(b); 9-11-56(h).

5.See, e.g., State v. Ware,282 Ga. 676, 676-677, 653 S.E.2d 21(2007)(dismissing direct appeal filed by State from order granting a convicted defendant's motion for a new trial);Waye v. Continental Special Risks,289 Ga.App. at 84, 656 S.E.2d 150(dismissing direct appeal from order dismissing one of multiple defendants);Wolf v. Richmond County Hosp. Auth.,169 Ga.App. 68, 69, 311 S.E.2d 507(1983)(dismissing direct appeal from denial of a motion to permit an amendment to a counterclaim and to remove the action from a municipal court to the superior court);Becker v. Bishop,151 Ga.App. 224, 259 S.E.2d 209(1979)(dismissing direct appeal from order setting aside a previously entered default judgment and granting defendant's motion for a new trial).

6.See alsoBritt v. State,282 Ga. 746, 748(1), 653...