Campbell v. Cirrus Educ., Inc.

• Decision Date: 19 June 2020
• Docket Number: A20A0191
• Parties: CAMPBELL et al. v. CIRRUS EDUCATION, INC., et al.
• Court: Georgia Court of Appeals

355 Ga.App. 637

845 S.E.2d 384

CAMPBELL et al.

v.CIRRUS EDUCATION, INC., et al.

A20A0191

Court of Appeals of Georgia.

June 19, 2020

Jason Harold Coffman, Atlanta, for Appellant.

Freeman Mathis & Gary, David Alan Cole, William Edward Collins Jr., Atlanta, for Appellee.

Miller, Presiding Judge.

This appeal involves a dispute between two teachers, Susan Campbell and Ginger Snow, and their former charter school employer, Cirrus Education, Inc.,¹ and its superintendent and chief executive officer, Ashanti Johnson. Campbell and Snow (collectively, ‘‘the appellants’’) appeal from the trial court's order granting Cirrus Education's and Johnson's (collectively, "Cirrus") motion to dismiss, arguing that (1) the trial court did not conduct the proper inquiry and assumed facts outside of the complaint in ruling on the motion to dismiss; (2) the trial court erred in its determination that Cirrus was entitled to sovereign immunity; (3) the trial court erred in its determination that Johnson was entitled to official immunity; and (4) the trial court erred in dismissing their whistleblower claim on the grounds that they failed to act with diligence in serving their complaint. We conclude that the trial court conducted the proper inquiry and did not assume facts outside of the complaint in ruling on the motion to dismiss, that Cirrus was entitled to sovereign immunity, that Johnson was entitled to official immunity, and that the appellants’ whistleblower claim was properly dismissed because they failed to act with diligence in serving their complaint. Accordingly, we affirm the trial court's order granting the motion to dismiss.

At the outset, we note that on appeal, this Court conducts a de novo review of a trial court's ruling on a motion to dismiss. In doing so, our role is to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff's favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts; however we need not adopt a party's legal conclusions based on these facts.

(Citations and punctuation omitted.) Dove v. Ty Cobb Healthcare Systems , 316 Ga. App. 7, 9, 729 S.E.2d 58 (2012).

So viewed, the record shows that from 2016 to 2017, the appellants were teachers at Cirrus Academy,² a state charter school which has a state-wide attendance zone and operates as a public school under a charter that was approved by the State Charter Schools Commission ("the Commission"). According to the allegations in the complaint, Campbell was hired to teach first grade students, while Snow was hired to teach special education. According to the appellants, Johnson told them that Cirrus had received $300,000 for special education services and materials. When Campbell requested certain supplies from Johnson on behalf of Snow and another teacher, however, Johnson told her that "it wasn't in the budget." Snow "observed" that a certain teacher at Cirrus did not have the requisite teaching certificates’ and when she voiced her concerns to Cirrus’ principal, the principal told her to "mind her allegiance."

The appellants alleged that in October 2016, they noticed that the full-time equivalent (‘‘FTE’’) count³ did not match the actual number of special education students who were enrolled at Cirrus and that several individual education programs ("IEP")⁴ were either expired or were about to expire. Snow expressed her concerns about the FTE discrepancies to Johnson and other Cirrus administrators, and she and Campbell were later sent threatening text messages. Campbell alleged that she also received a text message from an unknown number threatening her that there would be "consequences" if she attended any board meetings or "anything else" regarding the alleged discrepancies in Cirrus’ records. The appellants told Johnson and Cirrus’ principal that the special education laws were being broken, and Johnson allegedly told Campbell, "do not contact the State."

Plaintiff Campbell subsequently contacted the Georgia Department of Education ("DOE") and expressed her concerns that Cirrus was mishandling government funds appropriated for the school and that special education students were not receiving their requisite services, and she also told the DOE of other issues involving Cirrus. According to Campbell, after speaking with the DOE, Johnson and Cirrus’ principal "screamed" at Campbell for contacting the DOE. The appellants alleged that they were subjected to repeated instances of harassment and verbal abuse after contacting the DOE and were also denied retirement benefits. The appellants were later terminated from their employment at Cirrus after the DOE disclosed the results of its investigation into Cirrus and found that it had violated federal and state laws.

The appellants subsequently filed suit against Cirrus under seal⁵ pursuant to the Georgia Taxpayer Protection Against False Claims Act ("TPAFCA") on February 16, 2018. The appellants later amended their complaint on May 1, 2018, asserting claims under the Whistleblower Act, Georgia's RICO statutes, intentional torts, disparagement, slander, and libel, and requests for punitive damages, litigation costs, and attorney fees. The appellants served the first amended complaint on May 25, 2018. The appellants later filed a second amended complaint on July 23, 2018. Cirrus answered and simultaneously filed a motion to dismiss. Following a hearing, the trial court granted Cirrus’ motion to dismiss. In granting the motion, the trial court found that Cirrus was entitled to sovereign immunity, that Johnson was entitled to official immunity, and that the appellants’ claims under the Whistleblower Act were barred because they were not diligent in serving their complaint. This appeal followed.

1. First, the appellants argue that the trial court erred in granting the motion to dismiss because the trial court did not allow the parties to conduct discovery and the trial court considered evidence outside of the complaint in ruling on the motion to dismiss. This enumeration of error lacks merit.

(a) As to the appellants’ contention regarding the trial court's failure to allow the parties to conduct discovery,

[i]f a party files a motion to dismiss before or at the time of filing an answer and pursuant to the provisions of this Code section, discovery shall be stayed for 90 days after the filing of such motion or until the ruling of the court on such motion, whichever is sooner. The court shall decide the motion to dismiss within the 90 days provided in this paragraph.

OCGA § 9-11-12 (j) (1).

Here, the record shows that after the appellants filed their first and second amended complaints, Cirrus filed its answers and filed a motion to dismiss both complaints on June 22, 2018, and on August 28, 2018. More importantly, Cirrus filed a motion to extend the stay of discovery until a ruling on the motion to dismiss, to which the appellants did not object. Accordingly, we reject the appellants’ argument that the trial court erred by granting the motion to dismiss when discovery had not yet commenced. See Paul and Suzie Schutt Irrevocable Family Trust v. NAC Holding , 283 Ga. App. 834, 837 (2), 642 S.E.2d 872 (2007) (holding that the trial court did not abuse its discretion in ruling on the motion to dismiss without affording the appellant the opportunity to conduct discovery where the appellant stipulated to a stay of discovery).

(b) The appellants further argue that the trial court assumed facts outside of the complaint when ruling on the motion to dismiss. This argument lacks merit.

It is true that

[a]lthough a trial court has the option to consider evidence attached to a motion to dismiss and brief in support thereof, when it does so it converts the motion to dismiss into a motion for summary judgment, governed by OCGA § 9-11-56. In accordance with this procedure, the trial court has the burden of informing a plaintiff that it will be considering exhibits attached to the defendant's motion to dismiss and that the plaintiff would have no less than 30 days within which to submit his or her own evidence in response to the motion for summary judgment.

(Citations, punctuation and footnotes omitted.) Islam v. Wells Fargo Bank , 327 Ga. App. 197, 200-201 (1), 757 S.E.2d 663 (2014).

Here, however, the appellants have not shown that the trial court considered matters outside of the complaint and the answer when ruling on the motion to dismiss. Indeed, the appellants have not identified any portion of the trial court's order which purports to show that it relied on matters outside of the complaint and answer in ruling on the motion. Instead, the appellants rely on facts asserted in Cirrus’ motion to dismiss and argue that, "[w]hile the trial court avoided citing any of these materials in its order, it plainly assumed facts that were outside of [the appellants’] complaint and should be reversed." In light of the appellants’ complete failure to identify any portion of the trial court's order that reveals that the trial court assumed facts outside of the complaint and answer, this claim of error is wholly meritless and provides no basis for reversal of the trial court's order.

2. Next, the appellants argue that the trial court erred by ruling that Cirrus was entitled to sovereign immunity. We conclude that the trial court properly determined that Cirrus was entitled to sovereign immunity.

"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." (Citation and punctuation omitted.) Douglas v. Dept. of Juvenile Justice , 349 Ga. App. 10, 10-11, 825 S.E.2d 395 (2019).

Sovereign immunity applies to state instrumentalities. Kyle v. Georgia Lottery Corp. , 290 Ga. 87, 88 (1), 718 S.E.2d...